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copies by russell davies https://flic.kr/p/4zSZQ4 (CC BY-NC 2.0)

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Fairness Confirmed Again: Federal Court of Appeal Upholds Copyright Board’s Fair Dealing Ruling

The Federal Court of Appeal has issued its ruling in the judicial review of the Copyright Board’s ruling involving copying in Canadian K-12 schools. The decision is the latest in a growing number of decisions that have all adopted the same, flexible approach to fair dealing. Access Copyright has spent years (and millions of dollars) losing challenges on what was readily apparent from the Supreme Court of Canada’s 2012 copyright pentalogy: the value of the Access Copyright licence is very limited in light of authorized copying and fair dealing.

The Copyright Board of Canada decision on the application of fair dealing to educational copying, granted a tariff of $2.46 per student for 2010-2012 and $2.41 for 2013-2015. That rate is not only far lower than Access Copyright had demanded, but is nearly half of what was previously certified for the period from 2005-2009 (which was set at $4.81). The Board minced no words in explaining the reduction:

The main reason for that decrease is the fact that as a result of the decision of the Supreme Court in Alberta v. Access Copyright, 2012 SCC 37, copies made for student instruction, assignments or class work, that were not included in the fair-dealing analysis in the preceding decision, were now included. This resulted in the Board’s finding that a significant proportion of copying by elementary and secondary schools was fair under the fair-dealing provisions of the Copyright Act. These copies therefore do not generate remuneration.

In fact, a close look at the Copyright Board’s analysis revealed that it found that 97.2% of copying from books, 98.1% of newspapers, and 98.5% from periodicals qualified as fair under a fair dealing analysis. In other words, virtually all copying of books, newspapers, and periodicals in the large sample reviewed by the Board was covered by fair dealing and did not require a licence from Access Copyright. Moreover, the Board found that copying 1 to 2 pages from a book is insubstantial and does not even require a fair dealing analysis. A full discussion of the decision can be found here.

The Federal Court of Appeal ruling considers whether the Board erred with its fair dealing analysis. Interestingly, the court hints that the Board could have considered – and potentially found fair dealing – based on the existence of fair dealing guidelines. The Board did not do so, but the court states:

Although both parties were clearly disappointed by the fact that the Board did not offer any detailed comments on their evidence relating to those Guidelines, Access did not challenge this finding, which was based on its assessment of the weight of the evidence. This was a wise decision, for indeed, the Board’s conclusion was clearly open to it on the evidentiary record.

A finding of fairness with the fair dealing guidelines would have ended the issue. Instead, the court (and the Board) undertook a deeper fair dealing analysis. The court rejected Access Copyright’s challenge to the Board’s fair dealing approach, stating:

It may well be that the Board’s methodology is not perfect, but again, given the particular circumstances of this case, I have not been persuaded that its overall determination that a large portion of the exposures were fair (again this was much less than the numbers proposed by the Consortium using a similar statistical approach) was unreasonable because of the method it chose to weigh the evidence in forming its overall impression of the fair dealing factors.

The court also rejected – again – Access Copyright’s claim that the amount of copying should involve an examination of the aggregate amount of copying. Access Copyright has consistently claimed that the total amount of copying, rather than the copying for an individual user, should be considered. This argument has been repeatedly rejected:

Access argues that the Board ought to have followed the Supreme Court’s teachings in CCH and Alberta and ought to have considered evidence of the aggregate volume of the total pages copied – this is not the teaching of these cases.

In fact, the court suggests that the even the total copying of 90 pages per student was fair:

In explaining why looking at the aggregate volume of copies was not helpful to its assessment of whether the copies were widely distributed, the Board reasonably applied the Supreme Court’s teachings in CCH and Alberta. I find no reviewable error on the part of the Board in this respect. In fact, this finding is reasonable even if one were to consider that the overall number of copies represents approximately 90 pages per student per year. I agree with the Consortium that this figure does not support the view that this factor could only tend to a conclusion that the dealing was not fair.

The unanimous court decision, which rejected several other Access Copyright arguments (it won only one the impact of some coding errors in its repertoire), should not come as a surprise. Access Copyright has lost on its interpretation of fair dealing at virtually every legal level including the Copyright Board, the Federal Court of Appeal, and the Supreme Court of Canada.

The copyright collective will no doubt seek to reform fair dealing in the 2017 review process, but even an ill-advised removal of “education” as a fair dealing purpose would not undo decisions that are based on Supreme Court rulings and the desire to strike a fair balance in copyright. Moreover, there is considerable evidence that the challenges faced by the educational publishing are not about copyright. Pearson PLC, the world’s largest education company, recently warned of an unprecedented decline in the North American education publishing market. This primarily reflects U.S. developments and highlights how Canada is not an outlier in educational publishing.

Meanwhile, the growth of free online textbooks continues (nearly all of UBC’s math textbooks are now freely available online) and the rising costs of journal subscriptions are leading to cancellations and greater emphasis on open access. I have written more extensively on Canadian university spending on licences here and on the decline of educational publishing in Canada here.

Where does that leave the issue? The scope of fair dealing is a settled issue with Canadian courts now consistently applying it as a user’s right in the manner articulated by the Supreme Court of Canada. Within the educational sector, the reality is that the overwhelming majority of copies within K-12 schools are compensated and virtually all of the remaining copies are covered by fair dealing. Simply put, there is little value in the present Access Copyright licence which now pays a little more than a couple of dollars per student. Within post-secondary institutions, database licences, open access materials, transactional licences, and fair dealing have similarly eliminated the need for the current Access Copyright licence. In light of these developments, Access Copyright recently indicated that perhaps it too recognizes the need to adapt to the changing marketplace and legal realities. Last week, it posted a request for interviews with professors and students, stating:

We could use your help. Our innovation team is aiming to re-invent Access Copyright’s offerings for universities and colleges and needs help finding students and professors willing to sit for 1-hour research interviews on the topic of content use and technology. 

With the law on fair dealing well settled in Canada, the need for Access Copyright to re-invent itself is long overdue.

4 Comments

  1. Access Copyright needs to re-invent itself, but I don’t think that will happen fairly without a split.

    What is happening in the educational marketplace for non-fiction, journals and other such material is entirely different than the fiction works.

    With one set of works, open access and other peer production will inevitably replace traditional funding models. Whether or not the text is printed on paper, there will not be royalty fees and thus there will be no collective society.

    Fictional works are entirely different, come from individuals (or small groups when you add good editors), where royalty-based business models will continue to exist. Where there are royalties, the convenience of a collective society will remain.

    There was a call for a Creators Access Copyright at one point. While it was proposed by some of the more extremists in the copyright debate and thus wouldn’t offer what these markets want (and thus wouldn’t be any more successful), the concept is sound. There needs to be a collective for non-fiction works used in the educational environment that is kept very separate (in both structure and lobbying) from those fighting against peer production and other progress.

    If they remain together, then the non-fiction/journal companies will continue to pick-picket fiction authors. While the collective fees have been going down, that is not due to a decrease in the use of fiction works and yet these are the folks getting most hit. The vast majority of money going into Access Copyright should be flowing to the authors of these fiction works, and yet the bulk is still invalidly sent to largely foreign non-fiction educational publishers.

  2. Pingback: Canada: arrêt de la Cour d’appel fédérale sur l’exception d’utilisation équitable – Droit anglo-américain des propriétés intellectuelles

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