The Copyright Board of Canada has issued a series of questions to Access Copyright in the tariff proceedings involving Canadian post-secondary institutions. Once Canada universities and colleges quit the proceedings, the Board was left to play a more aggressive role in questioning Access Copyright’s claims. Its questions focus on several important issues (discussed further below), but perhaps most noteworthy is its preliminary conclusion on what constitutes insubstantial or de minimis copying.
In establishing the scope of copyright rights, the law refers to “the sole right to produce or reproduce the work or any substantial part thereof.” Since the rights only arise once the full work or a substantial part of it are used, anything less than that – ie. an insubstantial part – is not subject to the rights identified in the Copyright Act. While some rights holders have argued that the standard for a substantial is very low (the National Post recently argued in a case that “even the reproduction of a small number of words in a newspaper article can be an impermissible reproduction”), the Copyright Board says that its preliminary view is that “copying of a few pages or a small percentage from a book that is not a collection of short works, such as poems, is not substantial.” With respect to the tariff application, the Board says this excludes more than 2.5% of coursepack copying.
More importantly, if a few pages or a small percentage is unsubstantial, fair dealing will unquestionably constitute a much larger amount of copying. By definition, fair dealing involves copying of a substantial part of the work that is not subject to compensation nor require further permission from the rights holder. As discussed at length, determining whether the copying in question meets the fair dealing standard is subject to a two-part test established by the Supreme Court of Canada. Moreover, the Court has ruled that fair dealing is a user’s right that “must not be interpreted restrictively.” Since a few pages or a small percentage is insubstantial, fair dealing that is consistent with the Supreme Court of Canada’s emphasis on user rights must involve a significantly larger percentage of the work. This suggests that the Canadian education approach of a single chapter or ten percent of a work is consistent with the law and might be too low (the consensus Israeli fair dealing guidelines that involved both education groups and publishers uses a 20% standard).
Beyond the de minimus copying issue, the Board poses several other important issues to Access Copyright. For example, it asks for the collective to provide a legal justification for including linking in its tariff, particularly in light of the Supreme Court of Canada decision of Crookes v. Newton (I discuss that here). It also seeks analysis of the university fair dealing guidelines and asks Access Copyright to describe its view of the impact of adding education to the fair dealing provision as part of Bill C-11 and of the Supreme Court of Canada fair dealing cases. The Board also asks Access Copyright to explain:
the basis for asserting that all copying carried out under the educational institutions’ policies is compensable and subject to the tariff to be certified by the Board. Is it Access’ position that there is no fair dealing at all in educational institutions?
The Board has posed some important questions and staked out a notable position on de minimus copying. Access Copyright’s responses are due by March 18, 2014.