In my first post on the Access Copyright suit against Staples/The Business Depot, I noted that I had not seen the statement of claim and therefore could not comment fully on the case. I have now seen the claim and remain puzzled that Access Copyright is bringing this lawsuit. From a legal perspective, it looks like an almost sure loser – the Supreme Court of Canada ruled on many of these same issues only three years ago and sided strongly against the publishers (who in this case are effectively represented by Access Copyright).
Access Copyright claims that there is both direct and authorized copyright infringement and that it needs both injunctive relief (it would like to shut down Staples/The Business Depot photocopying business) and punitive damages to account for the fact that "the actions of Business Depot have been high-handed, reckless and in blatant disregard of the copyright interests of Access Copyright." So how, according to Access Copyright, has Staples/The Business Depot infringed copyright?
The direct infringement claims include that Business Depot makes full coursepacks available for sale, that it retains "master copies" for copying, that it will reproduce substantial portions of works, and that it "posts signs or notices and orally informs members of the public that copyright works may be reproduced using Business Depot's photocopying equipment." This last claim is rather ridiculous since the Supreme Court is clear that Staples/The Business Depot is entitled to presume that such copying will be lawful (on the issue of self-service copiers, the court stated "a person does not authorize infringement by authorizing the mere use of equipment that could be used to infringe copyright. Courts should presume that a person who authorizes an activity does so only so far as it is in accordance with the law"). As for the remaining claims, even reproducing substantial portions of works may be fair dealing under the right circumstances.
The authorization claims stand on even shakier ground. Access Copyright claims that Staples/The Business Depot has:
- adopted a policy of authorizing its customers to use self-serve photocopiers to make infringing reproductions of the works
- located certain of its stores in close proximity to colleges and universities in Canada
- directed members of the public to use self-serve photocopiers even though it knows or should know that the reproductions will be infringing
- had employees direct customers to self-serve photocopiers where they believe making the copies themselves would be infringing
- trained employees to direct customers to use self-serve photocopiers to make infringing reproductions
- posted signs or notices in close proximity to its self-serve photocopiers that encourage or acknowledge the ability of the public to make infringing reproductions
- taken no steps to ensure that the reproductions are being made for non-infringing uses
- not supervised the reproduction on its self-serve photocopiers
There are a couple of additional claims, but this is exceptionally weak. Indeed, some of the claims cut against Access Copyright. For example, close proximity to schools obviously is not a copyright-infringing activity, but it does increase the likelihood that the copying will qualify as fair dealing since it is more likely to be for research or private study purposes. Moreover, posting notices and not supervising the photocopying is completely consistent with the Supreme Court of Canada's CCH decision.
Last year, Access Copyright blew thousands of dollars (much of which comes from Canadian educational institutions) on its ill-advised Captain Copyright campaign. Now it seems determined to spend even more on legal fees in what must be viewed as a longshot lawsuit. In this case, Access Copyright will need some very damaging evidence, because the law is pretty clearly not on their side.
Does this include material when a person makes a photo-copy or just the material dropped of for photocopy?
What happens to a student who photocopies a couple of pages from his text book?
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An office-supplies store, which does a very large chunk of its business as a schools-supply store, locating near colleges and universities? The gall of Staples/Business Depot! How dare they, HOW DARE THEY, follow that cardinal rule of retailing, location, location, location.
Timing of Suit and the Impending Copyrig
Could the timing of this suit’s announcement–or it’s dramatic pending failure–coincide somehow with the release of the new “Canadian Copyright Bill” of which we have heard so much?
These evil copyright infringing people must be brought down to their knees!….
Because the act of being located near one of the largest consumer groups for photocopying is plain out to breaking copyright!…
Seriously who the hell came up with the justifications for this suit. I’d be pissed if there were no local photocopying location near the university I went to as there is so much legitimate photocopying you need to do throughout the year.
And the part where it mentions full course packs available for sale.. Um, I don’t know about staples or other universities, but when I was still in university, our professors had legitimate arrangements with local photocopying places to provide course packs (which were still pricey for a bound photocopy due to the copyright fees whatever they were called again). I don’t see how staples would be any different unless they could prove that there were no legal arrangements.
There is a limit as to the number of pages that an instructor can include in a photocopied course pack from any single source before the publisher has to be paid. From my experience in Canada, course instructors have always adhered to these limits just as the local printshops that create course packs for students have. Any academic would tell you, dishonesty, even with page counts in course packs, has no place in any post-secondary institution.
However, increasingly libraries are being asked by professors to scan portions of texts for students and place them on eLearning sites such as WebCT or BlackBoard for students to download as PDFs. I’m currently a student in Australia, and that is frequently done here. The ease of distribution and ability to make it easily accesible to many may be an issue, but as long as copyright rules are adhereed to, that should still be considered fair use.
Dean A, you have the same cynical thought I have had: the more copyright cases that Excess, CRIAA, etc., lose, the bigger “case” they can build for how “weak” the Canadian Copyright Act supposedly is.
please post link to the statement of claim.
Once again greed rears it’s ugly head. I can understand wholesale copying of books and/or manuals would be frowned upon.
But a somebody copying a couple of pages for personal use(and lets face it, if someone is going to pirate a book, they aren’t going to go Staples).
When I used to work for Radio Shack (many years ago) I could have manuals of computer books photocopied cheaper (at Staples) then buying it from the corporate “Parts dept” (which would overcharge me for a photocopied book anyways)
But I was rebuffed due to copyright rules, I had to have a “letter” from the publisher stating I could copy the book.
So I fail to understand the issue?
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There might be a larger issue here that some might be overlooking. We are getting to the very bottom of copyright laws and trying to define every detail when in practice that is something that just can’t be done. If you purchase a book or any media for that matter, then you should have the right to copy “it” as you wish for non-commercial and non-distribution, plain and simple.
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