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Thursday, July 19, 2012
by Rebecca E. Hoffman
The Supreme Court of Canada has determined that photocopies of excerpts from textbooks, made by teachers for the use of their students, is "fair dealing," and not copyright infringement. Alberta (Education) v. Canadian Copyright Licensing Agency (Access Copyright), No. 33888, (Can. July 12, 2012).
Access Copyright is a copyright licensing and royalty-collecting agency representing Canadian writers and publishers. The nonprofit "bridges the gap between content users and creators," according to its website. According to the Supreme Court of Canada's opinion, "When Access Copyright does not reach a licensing or royalty agreement with users who photocopy published works in its repertoire, it can apply to the Copyright Board to certify a royalty in the form of a tariff."
The provinces and territories, other than Quebec, had entered into royalty agreements covering provincial teachers' copying of portions of copyrighted works. In 2004, when the contracts were being renewed, the parties disputed whether photocopies "made at the teachers' initiative with instructions to students that they read the material" passed the test to qualify as "fair dealing." Under Canada's Copyright Act, unauthorized copying is permitted if it qualifies as "fair dealing," which is a lot like our "fair use."
Access Copyright took the position that although this variety of copying was for the "allowable purpose" of "research and private study," it did not otherwise pass muster under CCH Canadian Ltd. v. Law Society of Upper Canada,  1 S.C.R. 339. In that case, the Federal Court of Appeal, which heard the present dispute on appeal from the Copyright Board of Canada, held that the primary purpose of the copies was instruction rather than "private study." The Supreme Court disagreed. "The teacher/copier ... shares a symbiotic purpose with the student/user ... . Instruction and research/private study are, in the school context, tautological."
As for the "amount of the dealing" factor, the Supreme Court said "amount" should be assessed by comparing the excerpt to the entire work. The fact that copies were distributed to the entire class, then, did not increase the amount, even if this equated to a large number of total copies. The Supreme Court also found, with respect to the "alternatives to the dealing" factor, that buying books for each student was not a realistic alternative.
The court also took issue with the Copyright Board's approach to the "effect of the dealing on the [market for the] work," finding that the recent decline in textbook sales had not been shown to be linked to teacher photocopying. Furthermore, "[i]f such photocopying did not take place, it is more likely that students would simply go without the supplementary information, or be forced to consult the single copy already owned by the school."
In a win for the schools, the court concluded that the CCH factors had been misapplied, and sent the matter back to the Copyright Board of Canada (a regulatory body akin to the Copyright Royalty Board in the United States and the initial forum for adjudicating the royalty dispute between the provinces and Access Copyright) for reconsideration.
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