The decision of the Supreme Court is clear and leaves no room for interpretations: based on the record before the Board and the findings of fact of the Supreme Court, Category 4 copies constitute fair dealing for an allowable purpose and as such, are non-compensable. The FTE rate must be reduced accordingly.
While Access Copyright now claims that the Supreme Court decision “has no impact on the requirement that royalties continue to be paid on the hundreds of millions of pages of student texts that are copied for use in K-12 classrooms every year”, the reality is that royalties or permissions are already obtained for 88% of copies without Access Copyright. As for the remaining small percentage of copies, the Court’s analysis of fair dealing applies to all copies, not just those at issue and the need for an Access Copyright licence is clearly in doubt. In fact, as Barry Sookman argued before the court in seeking leave to intervene on behalf of publishers: “the precedent established in this case will extend to activities well beyond the K-12 educational setting.” I discuss the Court’s fair dealing analysis here and the implications for Access Copyright here.