One of the recent pentalogy of copyright decisions that has forever changed Canadian copyright law is Alberta (Education) v. Canadian Copyright Licensing Agency (Access Copyright), 2012 SCC 37. The decision focused on the concept of fair dealing, and its application to photocopying books for educational purposes.
After spending much (printer) ink on the two-step test for fair dealing that has been outlined in CCH Canadian Ltd. v. Law Society of Upper Canada, 2004 SCC 13, the SCC ruled, in a very close 5-4 majority, that photocopies of short excerpts from books, made by teachers for students in elementary and secondary schools, should not be subject to an additional tariff.
This is because they come within the ambit of “fair dealing for the purposes of research or private study,” as outlined in s. 29 of the Copyright Act, RSC 1985, c C-42. Naturally, the decision has many ramifications for the textbook industry, as well as for authors, educational institutions, teachers and students. Both the majority and the minority were engaged mostly with determining what is “fair”, within the definition of the Act, as well as with respect to the facts of the case. Ultimately, the SCC decided in favour of users, firmly entrenching the soon to-be-famous adage that “fair dealing is a user’s right,” (at para. 22), quoting Society of Composers, Authors and Music Publishers of Canada v. Bell Canada, 2012 SCC 36, covered by IP Osgoode here.
On appeal from the Federal Court of Appeal (FCA), the facts of the case were simple enough: Access Copyright, a collective that licenses literary works, filed a tariff proposal with the Copyright Board stating that the photocopies made by teachers in elementary and secondary schools for their students did not constitute fair dealing, and therefore should be subject to royalty payments. The crux of the matter revolved around the second stage of the CCH test: the fairness analysis. The 5 factors from CCH were used to determine the concept of fairness within the context of the case: the purpose, character, amount of the dealing, existence of alternatives to the dealing, and the effect of the dealing on the work (at para. 12).
It is important to note, that the SCC did not make a general ruling as to what “fairness” entails, agreeing unanimously that this criterion was fact-specific. In this case, the facts supported a finding that the photocopying was fair, and the Court remitted the matter to the Copyright Board to determine whether a royalty really would be the best option in these circumstances. While we wait for the Board to make its decision on the tariff, here is a brief breakdown of the Court’s debate, and some personal thoughts on why the majority’s decision was a fitting one, in this case.
I. Purpose of the Dealing:
Justice Abella, writing for the majority, disagreed with the Board’s view with respect to three aspects: that the purpose of the dealing should centre around the teacher’s (or copier’s) perspective, that the purpose then became instruction (not research or private study), and finally, that the teacher became the facilitator of the dealing, and in doing so, made it unfair, since the teacher’s purpose (instruction) was separate from the allowable purpose of the students (research or private study). According to Justice Abella, the teacher’s purpose could not be separated from that of the students’, because the teacher would have no ulterior or commercial motive to replicate excerpts unless they were for the students themselves.
The majority also stated that it was incorrect for the Board to have deemed a student request for a photocopy as different from a teacher initiated one, since it was the teacher who had the expertise to know the most suitable material, and this was a part of the process of research and private study, rather than of just pure instruction. As far as the majority was concerned, the purpose is indistinguishable into categories of student versus teacher.
Justice Abella dealt another blow to the Board’s analysis when she determined that “private study,” as contained within the Act, could not have meant “requiring users to view copyrighted works in splendid isolation” (at para. 27). Rather, the term was supposed to have been interpreted conceptually (i.e. relating to one or a select group), than geographically.
Justice Rothstein, on the other hand, disagreed, along with the rest of the minority. Choosing to hierarchize the purposes, the justices deemed the teacher’s purpose to not only be relevant, but also, predominant in the fairness analysis. This was because efficient teaching tools – which include the photocopying of excerpts – are essential to the very nature of the job of teaching itself (at para. 43). The minority then deemed the purpose of the teacher to be crucial in the fairness analysis.
With respect to the interpretation of the words “private study,” Justice Rothstein pointed out that the inclusion of the word private in the act could inferentially mean that it was meant to distinguish private and non-private studies. In agreeing with the majority that studying and learning were “personal endeavours,” he also noted that “words used by the legislator should be construed to give them some meaning” (para. 47).
The opposing viewpoints on the matter highlight an interesting component – that of voluntariness, on the part of the students. The Board wanted the SCC to consider the will of the final user – the student, as distinct from that of the copier – the teacher, the latter of who would presumably have a separate agenda from the student. However, I think this seems a trifle far-fetched; while it is true that the process of instruction is essential to teaching, it seems unlikely that the photocopying of excerpts from supplementary textbooks would enable a teacher to obtain any direct commercial gain.
On the question of whether this gain could be indirect, clarification is needed from the courts. For instance, would it matter if the schools in question were private or public institutions? In the former, a good teacher could mean higher salaries, and promotions, while in the latter, a teacher whose skills were enhanced by photocopying excerpts might gain less monetarily, but may gain through an enhanced reputation as a better teacher.
II. Amount and Character of the Dealing:
Once again, Justice Abella focused on the Board’s attempts to distinguish between the student and the teacher’s motives as being a false dichotomy, insisting instead on their unity. The majority viewed the amount as being essential to determine fairness, but entrenched it in the concept of proportionality.
The notion of whether it is fair to copy an excerpt depends on the proportion of the excerpt to the overall work, and not how much was actually copied in terms of the number of pages (quantity). The totality of all copying, according to the majority, is related to the character of the dealing, not the amount. By confusing the two, the Board removed the concept of proportionality from the analysis, which the majority found unacceptable.
Justice Rothstein and the minority, on the other hand, took a broader view of the “amount of the dealing” aspect, because the teachers, in his opinion, would return to the same textbooks to copy different excerpts, thereby increasing the overall proportion of copied work, making the practice unfair.
III. Existence of Alternatives to the Dealing:
In considering whether there were other reasonable alternatives to photocopying the excerpts, the majority found it unreasonable to expect schools to purchase every article that was useful in addition to textbooks. Basing its criteria on the “reasonably necessary aspect,” it differed from the minority by saying that, in the absence of other viable alternatives, photocopying excerpts was the best available course of action.
The minority was adamant to point out that just because there were no other viable alternatives, this did not make the copying fair (at para. 57). According to them, schools would have had to buy extra copies, and make them available to the public, thus solving the issue of photocopying.
IV. Effect of the Dealing on the Work:
The final criterion, according to the majority, considered whether photocopying would have had a negative impact on the commercial sales of the original materials, and whether this was enough to make a dent in the perceived or potential success of the original books. Both sets of justices were in agreement here— namely that there was a very slight chance, if any at all, that the photocopies would affect the market for the originals, since there was such a large gap between the number of photocopies being made, versus the textbooks sold.
The Court took into account the fact that there was no evidence specifically pointing to photocopying by teachers as a reason for the decline of sales and profits. Therefore, it was not prepared to consider declining sales as a direct or indirect effect of photocopying by teachers.
The decision is a reminder to the Canadian public, lawyers and lower courts that fair dealing is here to stay in Canadian law, and must be given a broad interpretation (at para. 48). This has led to commentators questioning whether the SCC has cast the net too broadly. Coupled with the recent changes to the Act through Bill C-11, the decision could potentially mean that a lot more can be included in the category of “education” than would have been previously done, and this might mean a lot more leeway will be given to users, when it comes to using materials. Access Copyright itself has insisted that it will keep pushing for the rights of the creators, and that the decision will only affect a relatively small bracket.
While reading the decision, some other things come to mind as well. The case concerns the use of supplementary texts and their photocopying, and limits the use of its principles to small, short excerpts. Therefore, it seems that the SCC was quite aware that it would not deal a blow to the entire textbook industry, since in most cases, students will still buy the textbooks they need the most, as has always been the case. Further, in determining fairness, the SCC has not deviated from the CCH case at all, and to speculate, perhaps did so to stress to the lower courts that the application of those factors is crucial in all analysis of fair dealing.
Then, there is the question of whether the Board’s argument would have stood regarding copying of the excerpts by other users. For example, students themselves can now make the copies without the involvement of the teacher – a simple snap with an iPhone can do the trick. In such a case, would there even be the need to consider the facilitator’s purpose as anything other than that it might be to ensure students learn the material, since in this example, there is no facilitator at all? Simply put, the SCC’s eventual determination of a symbiotic purpose seems to be correct, because it gives future courts the option of either lumping in the teacher’s and students’ purposes together, or it eliminates the need for the former altogether. In my opinion, it makes for a less-complicated path in the recognition that fair dealing as, to truly be a user’s right, it must focus on the benefit to the end user.
The Court also draws a sharp line between users and creators in this category, and chooses the former over the latter. While this has no doubt been done to give fair dealing its dues in Canadian law, it also puts creators at a sizeable disadvantage. There is no precise definition of what constitutes a “short” excerpt, and future courts will have to rely on the amount, character and proportionality factors, combined with sizeable judicial discretion to determine whether it falls within the realm of fairness.
The ruling also puts authors in further danger of being inadequately compensated, because with even less dues being paid to the publishers, it leaves the authors with very little, thanks to the profit-making criteria of the publishing world.
The most positive thing, however, seems to be that the SCC has prevented a deviation in the understanding and purpose of the nature of learning, namely that is a constantly evolving, symbiotic process that is both private and public. . At the same time, the Board might have received its wish, albeit in an indirect way. By focusing on the purposes of the user and on the facilitator, the SCC has in fact prioritized the rights of the end user over anybody else’s, even the creator’s. Only time will tell what the overall impact on students’ education, and the educational publishing industry, will be.
Editor’s note: The Supreme Court of Canada did not make a definitive ruling on the issue of fair dealing. Rather, the Court held that the Copyright Board’s finding of unfairness was based on a misapplication of the fairness factors enunciated in CCH Canadian Ltd. v. Law Society of Upper Canada. The Court therefore remitted the case back to the Copyright Board for reconsideration as to whether photocopies made by teachers to distribute to students as part of class instruction at the primary and secondary level are subject to a tariff. See Alberta (Education) v. Canadian Copyright Licensing Agency (Access Copyright), 2012 SCC 37 at paras. 37 – 38.
Mekhala Chaubal is a JD Candidate at Osgoode Hall Law School.