Access Copyright issued a release on a 2016 Copyright Board decision on March 31st that might have been mistaken for an April Fool’s joke had it been issued a day later. Channeling White House spokesperson Sean Spicer’s penchant for implausible spin, the copyright collective commented on the board decision involving copying in K-12 schools by arguing the decision confirmed that “fair dealing does not encompass all of the copying in education.” Leaving aside the fact that no one has said that it does (hence paid access remains by far the most important method of access), the Access Copyright decision will come as a surprise to anyone who read its response to the decision when it was first released, when it called it a “deeply problematic decision for creators and publishers.”
Access Copyright filed a judicial review of the ruling only to lose badly at the Federal Court of Appeal, which upheld virtually all of the Board’s decision (the only exception was a minor issue on coding errors in its repertoire, which is the source of the reconsideration referenced in the release). Access Copyright presumably issued the announcement on a year-old decision in response to the fact that the deadline has passed for an appeal of the Federal Court of Appeal ruling to the Supreme Court of Canada. What stands – and what Access Copyright seemingly endorses with its latest spin – includes:
1. The Board reducing its proposed tariff due to fair dealing decisions from the Supreme Court. Note that the 2012 reforms are not cited in the following from the Board:
The main reason for that decrease is the fact that as a result of the decision of the Supreme Court in Alberta v. Access Copyright, 2012 SCC 37, copies made for student instruction, assignments or class work, that were not included in the fair-dealing analysis in the preceding decision, were now included. This resulted in the Board’s finding that a significant proportion of copying by elementary and secondary schools was fair under the fair-dealing provisions of the Copyright Act. These copies therefore do not generate remuneration.
2. The Board re-affirming the insubstantial copying doctrine, concluding that 1 – 2 pages from a book is insubstantial and not subject to any compensation.
3. The Board largely upholding the framework of education fair dealing guidelines:
For longer works, such as books, guided by the Supreme Court’s decisions in CCH, Alberta, and Bell, we use the following approximation: where the amount of a work copied was less than or equal to 5 per cent of the work, we conclude that the amount copied tends to make the dealing fair; where the amount copied was more than 5 per cent but no more than 10 per cent of the work, we conclude that the amount copied did not affect the fairness of the dealing; where the amount copied was greater than 10 per cent of the work, we conclude that the amount copied tends to make the dealing unfair.
4. The Board rejecting virtually all of Access Copyright’s fair dealing arguments:
• Access Copyright argued that since copies replace the purchase of works being copied, they are unfair. The Board rejected the argument.
• Access Copyright argued that a fair dealing analysis should consider “a just reward” for creators as part of the analysis. The Board rejected the argument.
• Access Copyright argued that the Board should consider whether the copying is transformative with the view that non-transformative copying tends to unfairness. The Board rejected the argument.
• Access Copyright argued that the aggregate volume of copying – said to be 300 million pages – should be factored into the analysis. The Board rejected the argument, noting that what matters is a specific copying transaction, not the aggregate amount of copying.
• Access Copyright argued that distribution of multiple copies of works that are not destroyed tend to unfairness. The Board rejected the argument.
• Access Copyright argued that there were reasonable alternatives available. The Board rejected the argument, concluding that alternatives for “non-consumables” tended toward fairness.
• Access Copyright argued that the copying had a negative effect on the market and for the creation of future works. The Board found that there could be some effect on the market, but concluded that the effect on future works was small.
The Federal Court of Appeal hinted that it would have gone even further than Board as part of its review. For example, on the fair dealing guidelines it stated:
Although both parties were clearly disappointed by the fact that the Board did not offer any detailed comments on their evidence relating to those Guidelines, Access did not challenge this finding, which was based on its assessment of the weight of the evidence. This was a wise decision, for indeed, the Board’s conclusion was clearly open to it on the evidentiary record.
Similarly on the Board’s fair dealing analysis, the court stated:
It may well be that the Board’s methodology is not perfect, but again, given the particular circumstances of this case, I have not been persuaded that its overall determination that a large portion of the exposures were fair (again this was much less than the numbers proposed by the Consortium using a similar statistical approach) was unreasonable because of the method it chose to weigh the evidence in forming its overall impression of the fair dealing factors.
The near-total loss helps explain why Access Copyright had chosen not to appeal to the Supreme Court, relying instead on spin that requires readers to ignore its own prior reaction to the decision and the words of the Copyright Board and Federal Court of Appeal.