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Why the End of Access Copyright K-12 Licensing for Is Not The End of Payment for Educational Copying

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Thursday August 16, 2012
The reaction to last month's Supreme Court of Canada copyright decisions with Access Copyright continues to play out with its supporters seeking to downplay the likely impact. I've already written several posts on the decision, including one explaining why the decision eviscerates Access Copyright's business model. The short version of that post is that the Court rejected each Access Copyright key fair dealing arguments, in the process greatly expanding fair dealing in the education context such that the Access Copyright licence - which typically only covers 10 percent of a work - will rarely add value beyond what is permitted under fair dealing.

In light of the decisions and recent copyright law reforms, K-12 schools are likely to conclude that they do not need an Access Copyright licence. While the collective and its supporters will react by claiming that this will greatly harm Canadian publishers and authors, the reality is that schools have permission to reproduce the overwhelming majority of materials without Access Copyright or fair dealing.

Access Copyright has argued that the case only focused on 7% of copies, but the truth is that it involved an even smaller amount. The 7% figure stems from the copies for which Access Copyright seeks payment. In fact, the Access Copyright sponsored study that lies at the heart of the K-12 case found that schools already had permission to reproduce 88% of all books, periodicals, and newspapers without even conducting a copyright analysis or turning to the Access Copyright licence.

That study, conducted by Circum Network Inc., tracked the photocopying practices at hundreds of schools across the country with full logging of all copying over two-week periods. The study found a huge amount of photocopying - the Canada-wide estimate was 14 billion copies - but the overwhelming majority have nothing to do with Access Copyright. In fact, once personal copies, unpublished copies, administrative documents, and self-produced documents were accounted for, the number of copies dropped to 4.5 billion. Most of those 4.5 billion copies were taken from books, but there was permission to reproduce nearly 4 billion of the copies without Access Copyright.

This is worth repeating - according to Access Copyright's own sponsored study, there was permission to reproduce 88% of all books, periodicals, and newspapers without even conducting a copyright analysis or turning to the Access Copyright licence. This is not a free for all - the schools obtained permission (typically through direct licences or permission from the publishers from whom they purchased hundreds of millions in books) to cover 88% of their book, periodical, and newspaper copying. Access Copyright is simply irrelevant for the overwhelming majority of copying even before anyone conducts a fair dealing analysis. Moreover, given that there is permission for 88% of copying, claims that Canadian publishing is at risk or that the fair dealing copying creates significant economic harm are simply false (a unanimous court found no evidence of economic harm).

The study then accounted for public domain works, fair dealing (more about this below), the Access Copyright repertoire, and other exceptions, to arrive at an estimate of 263 million copies that could be subject to an Access Copyright licence. This amounts to just 5.8 percent of the copying of books, periodicals, and newspapers.

The Copyright Board examined the study, heard from witnesses on both sides, and ultimately categorized the copying into five baskets. While the Supreme Court has ruled its findings with respect to fair dealing were unreasonable, it is worth recounting what the Board did. First, it excluded Category 1 (Access Copyright agreed these copies were fair dealing), Category 2 (research or private study even if logged as criticism or review), and Category 3 (fair dealing purpose) copies from the tariff. Second, it ruled that Category 4 copies (made by a teacher with instruction to read) were not fair dealing and thus subject to the tariff. These are the 16 million copies that are at issue in the case and which the Supreme Court strongly suggested are fair dealing.

The fifth category represents the remaining copies - about 230 million copies - that were not even discussed by the Copyright Board. The reason is that both sides agreed to a methodology that excluded millions of copies from consideration as fair dealing. The report defined fair dealing as follows:

Fair dealing for the purpose of research or private study. Two rules apply:
(1) where only one copy was made of the copyright material, this 
exception is triggered if
  • the copy was made for the person making the copy, or
  • for another staff member or another person, at their request, 
or
  • for a student, at the student's request and without instructions 
to read the material; and
  • the copy was made for no other purpose than research or private study;
(2) where more than one copy was made of the copyright material, this exception is triggered if
  • the copy was made for another staff member or another person, at their request, or
  • for students, at their request and without instructions to read the material;
  • and the copy was made for no other purpose than research or private study.
These rules were implemented with logging stickers that specifically asked copiers to identify whether instruction was a purpose of the copying or whether the copying was done at the initiation of the teacher or student. Yet anyone who has read the Supreme Court of Canada decisions will know that this massively understates the scope of fair dealing. The Supreme Court has ruled that it is incorrect to limit fair dealing to copies only made at the request of a student and it has ruled that instruction can be included with research and private study.

Those are the copies that are ultimately at issue since they represent 93% of the tariff costs. The Copyright Board decision states that the educational institutions argued that "virtually all copies made in schools of documents in Access Copyright's repertoire constitute fair dealing." The Board never fully grappled with this position and it is unclear whether it is prepared to do so now. Regardless, the schools have permission without Access Copyright for 88% of their book, periodical and newspaper copying leaving Access Copyright to lay claim to just 5.8%. The schools argue that this tiny portion of copying qualifies as fair dealing and given the Supreme Court's analysis of the six factors, there is no doubt that position has been strengthened and the schools should be developing their copying practices with that in mind.

Access Copyright and its supporters may be threatening more lawsuits, but having been soundly defeated twice at the Supreme Court over the past ten years, seen publishers and collectives face millions in legal fees for a failed fair use lawsuit in the U.S., and seen the government expand educational copying within Bill C-11, schools have little reason for concern. They already have permission to copy 88% of materials with another 6% excluded due to public domain or the limited Access Copyright repertoire. Claiming that the last 6% is fair dealing is consistent with the law and does not pose a significant threat to Canadian publishers and authors, who have granted permission for the vast majority of copying that takes place in schools.
Comments (10)add comment

James Plotkin said:

The Dissent
I'm really torn over this decision. On the one hand, I agree with the majority on the substantive question of fair dealing. I believe that the Copyright Board reached the wrong decision and that the Category 4 copies should be considered fair dealing.

That said, I think the dissenting Judges got it right as far as standard of review is concerned. While I think it was wrong, I'm just not convinced that the Board's decision was unreasonable. It pains me to say this...But I think AC should have won on the administrative question alone.

Here is my analysis of the decision including the dissenting opinion:

http://jamesplotkin.blogspot.ca/2012/08/scc-copyright-pentalogy-4-of-5-alberta.html
August 16, 2012

Jim said:

@James
Not just on standard on review. The majority decision was such poor quality in its use of argument and language, as if they were making it up as they went along. The dissenting judges also made some strong points, especially around statutory interpretation. And given that Bill C-11 creates a number of rights that can only be administered by collectives, I suspect that this discussion hasn't run its course.
August 16, 2012

James Plotkin said:

@Jim
I agree that the fair dealing analysis in SOCAN v. Bell was better conducted and more exhaustive. The majority here didn't even really consider all the factors.

I agree with the majority on one salient point, however. I think that the analysis should be conducted form the perspective of the user (student). In CCH the Court is clear that it's the lawyer's purpose, not the library's purpose, that should be the focal point of reference.

Justice Rothstein emphasised too much on the instruction element of it. I also agree with Justice Abella's point that K-12 students don't conduct "private study" in the way university students and researchers do. I suppose the counter argument to this would be that maybe fair dealing for the purpose of research or private study should exclude K-12 type learning.

But then the Board found that the copies WERE for the allowable purposes of research and private study. If that's true, then the purpose should be tailored to make sense in the context in which it is being applied (in which case the majority decided correctly).

Just my two cents...
August 16, 2012

Jim said:

@James
Then arguably this is a political decision, because if as is suggested no K-12 copying falls outside fair dealing, and therefore there is no need for AC licensing, the extensive Copyright Act provisions touching on licensing make no sense.
August 16, 2012

James Plotkin said:

@Jim
I think the Court walked a thin line between the judicial and the political. If you're in the Rothstein camp, then the majority's interpretation of the words "private study" are tantamount to a political decision and, as you rightly pointed out, the dissenting Judges had a clearer explanation as to statutory interpretation.

The majority took a more teleological approach to the interpretation of "private study". I can get behind it and would argue it as follows:

We want to give as large and liberal a meaning as possible to the fair dealing purposes. In the current context we have two options: 1) either we decide that private study simply doesn't take place in the K-12 setting in which case this isn't fair dealing for any allowable purpose; or 2) We apply a definition of private study that is sufficiently broad to capture K-12 activities.

It would seem that opting for 1) isn't really commensurate with the large and liberal prescription of CCH. So...2) it is. Again, I'm not saying this is the only way to go about it and as Rothstein said, despite the large and liberal principle, court's shouldn't interpret a statute to say something it simply doesn't say.

Still, this is all moot under the assumption that this wasn't a reviewable error to begin with...
August 17, 2012

Kim said:

@Jim
AC licensing is not the only licensing out there. Organizations (including K-12 organizations) routinely pay for content through licensing agreements directly with content providers. Presumably licensing provisions in the Act would apply in those circumstances, not just for AC licenses? Perhaps I'm misunderstanding your comment.
August 17, 2012

Jim said:

@Kim
It's not that you're msunderstanding. But the legislation sets out several things that only a collective licensing agency can do.
August 18, 2012

Kim said:

@Jim
Jim, can you tell me which provisions you are talking about that set out these things that only a collective licensing agency can do? I took a quick look at the Act, but it wasn't obvious to me which sections you are referencing. Thanks.
August 20, 2012

Kim said:

@Jim
Never mind. I found the right sections.
August 20, 2012

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