The implications of last week’s Supreme Court of Canada copyright decisions seem readily apparent to just about everybody – other than Access Copyright. There have been numerous posts analyzing the decisions (here, here, here, and here), all of which recognize the expansion of fair dealing (my posts on fair dealing as fair use and on technological neutrality). Yet in a release posted hours after losing at Canada’s highest court, the copyright collective implausibly claimed that the decision “will have a limited impact on the importance of the Access Copyright licence to the education community” and that it “leaves copyright licensing in the education sector alive and well.” To support the claim, Executive Director Maureen Cavan argued that the specific case only covered about seven percent of the copying done in K-12 schools. The Access Copyright claims were echoed in a release from The Writers’ Union of Canada.

The reaction was reminiscent of the last time Access Copyright lost big at the Supreme Court. Immediately after the CCH decision was issued in 2004, Access Copyright’s release stated that “this ruling does not change the fact that most copying of copyright protected works does not fall under fair dealing. The Supreme Court stated definitively that copyright does exist in original works, and that is why organizations must sign an Access Copyright licence or risk breaking the law.”

The strategy of claiming that little has changed may have worked with some institutions after CCH, but it is very unlikely to do so this time. It is true that the specific case involved a small percentage of overall K-12 school copying, but the court’s fair dealing analysis applies to all copying, not just the copies at issue. In this specific case, the court ruled the Copyright Board’s analysis of the fair dealing six factor test was unreasonable, an unmistakable signal to reverse its ruling. More broadly, the decision eviscerates the current Access Copyright business model that is heavily reliant on educational revenues. The decision does not create a free-for-all – schools will continue to spend hundreds of millions of dollars every year on books, database licences, and transactional licences – but the need for an additional Access Copyright licence for schools at all levels is now unquestionably in doubt.

Just how badly did Access Copyright fare at the Supreme Court?

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