Access Copyright Urges Copyright Board to Ignore Supreme Court Ruling on Fair Dealing

Access Copyright has filed its response to the Copyright Board of Canada’s series of questions about fair dealing and education in the tariff proceedings involving Canadian post-secondary institutions. I have several posts planned about the 40 page response, which continues the copyright collective’s longstanding battle against fair dealing. This one focuses on Access Copyright’s astonishing effort to urge the Copyright Board to reject the Supreme Court of Canada’s clear ruling on the relevance of licensing within the context of fair dealing.

Access Copyright has frequently argued that the availability of a licence should trump fair dealing. For example, in the 2001 copyright consultation it stated:

As a rule, where collective licensing is in place there should be no exception or limitation to a right for which the holder has a legitimate interest. As defined in the Act, anytime that a licence to reproduce a work is available from a collective society within a reasonable time, for a reasonable price and with reasonable effort, it is commercially available.

Access Copyright reiterated its position in its 2003 intervention in the Law Society of Upper Canada v. CCH Canadian case.  It argued:

Copibec and Access Copyright submit that the obtaining of photocopy licences, when they are offered by collective societies that are authorized by copyright owners to grant licences on their behalf, is an established and readily available alternative to the dealing. Where collective societies have created a workable market for institutional users to obtain licences for the right to reproduce works protected by copyright, courts should acknowledge that the reproduction of such works, absent a licence, will generally affect the potential market for those works, and take this factor into account in any analysis of whether a dealing is “fair.”

The Supreme Court of Canada proceeded to directly respond to the Access Copyright argument in its CCH decision. The unanimous court ruled:

The availability of a licence is not relevant to deciding whether a dealing has been fair. As discussed, fair dealing is an integral part of the scheme of copyright law in Canada. Any act falling within the fair dealing exception will not infringe copyright. If a copyright owner were allowed to license people to use its work and then point to a person’s decision not to obtain a licence as proof that his or her dealings were not fair, this would extend the scope of the owner’s monopoly over the use of his or her work in a manner that would not be consistent with the Copyright Act’s balance between owner’s rights and user’s interests.

That is about as clear cut as you can get: Access Copyright directly raised an argument and the Court unanimously rejected it. So what does Access Copyright do in its brief to the Copyright Board? Go right back to the same argument that the Supreme Court rejected:

In the digital age, the availability of a licence – whether from the rightsholder directly or from the collective that represents the rightsholder – has to be a consideration as to whether there is an alternative to the dealing. (The commercialization of works in a digital environment is done through the issuance of licences as opposed to the sale of physical copies of works.) In this case, a licence is clearly available from Access Copyright: the works in issue are all in Access Copyright’s repertoire. Further, the evidence filed by Access Copyright establishes that licences for the exact excerpt of the works that have been copied are available for purchase from the publishers. Given these alternatives, the copying purportedly permitted by the Policies is unfair.

Unfortunately, this example is only one of many misleading or inaccurate claims in the Access Copyright brief.  More on its effort to deceive the board on the timing of the Supreme Court of Canada’s fair dealing decisions and the government’s expansion of fair dealing in Bill C-11 in a post tomorrow.


  1. pat donovan says:

    pound the table
    argue the facts; argue the law; slander the judge;

    scream and then replace the police.

    sooo… are we at the tantrum stage now?

    s-4 allow secret tribunals to judge cases yet?

    or are the police just getting deluged with
    spurious claims?

  2. David Collier-Brown says:

    Even a very evenhanded judge should be feeling annoyed
    They’re wasting his time advancing positions that conflict with existing jurisprudence, but without arguing that the existing position is wrong.

    Even a polite Canadian judge might wish to ask “is that your best evidence?”.

    Perhaps followed by a limit on pages submitted, and costs against for the proportion of the court’s and opponent’s time they’ve wasted in what a logician might well term a “null argument”.

  3. So American!
    This is such an American tactic: keep flailing the same defunct horse…it extends to every facet of American law it seems (cue the abortion debate for a good example – they haven’t stopped that one for 41 years!).

    When you don’t agree, simply argue that the highest Court in the land got it wrong. Make your voice loud, adduce no new facts or thoughts, but yell a lot louder. Then try to convince the government to treat a civil action like a criminal one (as they also do in the US with copyright).

    They have no respect for the SCC and its rulings and should be completely and utterly ignored.

    Hopefully the Canadian Government will pay attention to the Court and (continue to) act accordingly.

  4. On the facts discussed by Access Copyright, though, there are significant differences from what the SCC was addressing. So this isn’t simply revisiting the same issues.