Michael Geist

The Supreme Court of Canada held the second day of copyright hearings yesterday with Canadian education groups and Access Copyright squaring off over fair dealing from the perspective of copying materials in schools for classroom use. Much like the first day that involved some discussion that will be rendered largely moot by reforms found in Bill C-11, some of the debate in this case may also change once the bill becomes law. There was considerable focus on the extent to which the fair dealing categories of research and private study can include some element of classroom instruction. That discussion referenced the exclusion of a general education exception, which is not found in the current law but is included in Bill C-11.

As for this particular hearing, the education institutions offered a confused and confusing argument. The problems started from the opening question, with Justice Rothstein opening the door to considering whether short excerpts might be treated insubstantial copying without the need for fair dealing and the schools simply dismissing the possibility. It went downhill from there as the arguments veered between confusing numbers and a failure to address the basic question of why the school’s copying met the six-factor fair dealing test. Access Copyright faced some challenges on the question of whose purpose is relevant when considering fair dealing (it wanted the focus on the teacher, the schools on the student), but the court seems very unlikely to overturn this decision.

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