Last week, the Federal Court of Appeal issued its much-anticipated ruling in the K-12 case, which specifically addressed fair dealing in the context of education. The ruling was a major win for Access Copyright, as the court dismissed objections from education groups on a Copyright Board of Canada ruling and paved the way for millions in compensation from school boards.
The case is notable since it demonstrates how critics of greater fair dealing flexiblity have greatly exaggerated claims of potential harm. For example, former PWAC Executive Director John Degen wrote this week that “the introduction of an overly broad exception to copyright for educational use would all but eliminate fair compensation for this established use.” Access Copyright reacted to the court victory by stating it was “bittersweet” given the C-32 changes. While there is no doubt that extending fair dealing to education (the law currently covers many educational activities under research, private study, criticism, and review) will bring more potential copying within the scope of fair dealing, this case reinforces the fact that fair dealing is a fair for all, not a free for all and that fears that the extension of categories will wipe out all revenues bear little relation to reality.
The court held that Canadian fair dealing analysis involves a two-part test. First, does the use (or dealing) qualify for one of the fair dealing exceptions (the Supreme Court of Canada has called these user rights). Second, if it does qualify, is the use itself fair. In this particular case, the court affirmed that the copying in question qualified under the first part of the test (ie. for research or private study), but that it did not meet the six-part test for fairness and thus was not fair dealing. In other words, claims that a new category would eliminate compensation is plainly wrong since the copying in question already qualified under a category of fair dealing.
It is critical to note that extension of fair dealing to education, parody and satire in Bill C-32 only affects the first part of the test. In other words, while the bill will extend the categories of what qualifies as fair dealing, it does not change the need for the use itself to be fair. The Supreme Court of Canada has identified six non-exhaustive factors to assist a Courtâ€˜s fairness inquiry: (1) the purpose of the dealing; (2) the character of the dealing; (3) the amount of the dealing; (4) alternatives to the dealing; (5) the nature of the work; and (6) the effect of the dealing on the work.
Whether the use of the work qualifies as fair dealing depends upon both meeting both parts of the test. In fact, the court notes:
I am also aware that Bill C-32, An Act to amend the Copyright Act, 3rd Session, 40th Parliament, 59 Elizabeth II, 2010, section 21 would amend section 29 to state that “Fair dealing for the purpose of research, private study, education, parody or satire does not infringe copyright”. However, this amendment serves only to create additional allowable purposes; it does not affect the fairness analysis. As the parties agree that the dealing in this case was for an allowable purpose, the proposed amendments to the Act do not affect the outcome of this case and no more will be said about Bill C-32.
The case represents a big win for the copyright collectives, but it also demonstrates that their concerns about C-32’s fair dealing reforms are overstated. The bill will open the door to other potential uses being treated as fair dealing, but the requirements for fairness remain unchanged.