Appeared in the Toronto Star on July 15, 2012 as Supreme Court Shakes the Foundations of Copyright Law Copyright cases only reach the Supreme Court of Canada once every few years, ensuring that each case is carefully parsed and analyzed. Last week, the court issued rulings on five copyright cases […]
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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?
Beyond Users’ Rights: Supreme Court Entrenches Technological Neutrality as a New Copyright Principle
The technological neutrality principle is discussed in several cases, but gets its most important airing in the Entertainment Software Association of Canada v. SOCAN decision. The majority of the court states:
Led by Justice Abella, the court has reaffirmed that fair dealing is a user’s right that must be interpreted in a broad and liberal manner. In fact, the court provides further guidance on interpreting fair dealing with an emphasis on the need for a flexible, technology-neutral approach. In reading the decisions in the Access Copyright and song previews cases, it is hard to imagine a bigger victory for education, Internet users, and innovative companies. This post will provide some quick key points in the Access Copyright and song previews decisions.
The Access Copyright case has enormous implications for education and copyright in Canada. With the court’s strong endorsement of fair dealing in the classroom, it completely eviscerates much of Access Copyright’s business model and calls into question the value of the model licence signed by many Canadian universities. Writing for the majority, Abella adopts several crucial findings, not the least of which is that fair dealing is a user’s right. Piece by piece, Abella tears apart Access Copyright’s claims. First, she says the attempt by Access Copyright to separate teacher copies for students and students making their own copies should be rejected. The court states:
The Supreme Court of Canada has ruled that Internet providers are not broadcasters for the purposes of the Broadcasting Act when they simply transmit content to subscribers. The court noted “when providing access to the Internet, which is the only function of ISPs placed in issue by the reference question, […]