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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The Supreme Court of Canada heard three of the five scheduled copyright cases yesterday in the first day of an unprecedented focus on copyright at Canada’s highest court. The hearing drew many of Canada’s top copyright lawyers and featured a court that was highly engaged in the morning session but content to allow the lawyers to make their case with scant interruption in the afternoon. The three cases involved the Entertainment Software Association of Canada (whether downloading a video game involves communication to the public of the music in the game), the large telcos (music downloads), and Bell v. SOCAN (song previews as fair dealing).

There were several notable developments and lines of questioning. First, the fair dealing discussion that dominated the Bell v. SOCAN case would be familiar to anyone who has followed the debate on Bill C-11 as the usual suspects trotted out the usual scare tactics. The arguments included SOCAN likening music previews to ice cream samples (and therefore not worthy of being treated as research for fair dealing purposes), CRIA arguing for a “circumscribed definition of fair dealing”, and CSI claiming that including consumer research within fair dealing could put Canada offside its international obligations. 

None of these arguments gained any real traction with the court.

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