Emily Chow is an IPilogue Writer and a 1L JD Candidate at Osgoode Hall Law School.
Photocopying classroom materials in a K-12 public school system may have seemed harmless and benign before the 2012 Supreme Court of Canada case, Alberta v Canadian Copyright Licensing Agency (Access Copyright). The decision reframes traditional teaching pedagogies by considering the artist and owner rights under copyright law. In doing so, I saw an opportunity to compile a list of resources for educators to make informed decisions about how they use and distribute learning materials (located at the end of this article).
Countless teachers throughout my K-12 years printed and distributed excerpts from a short story or a news article outside of our textbooks that held the most evocative paragraphs for pre-reading and open discussion. Other times, we looked at diagrams from an older edition of a textbook that were “much better for the purposes of our class.” While working as a tutor, I often collected scans of creative math problems from various textbooks.
Despite its benefits, copying materials can present consequences for the content’s owners, artists, and publishers. As a copyright collective, Access Copyright made royalty agreements during the years of 1991-1997 with all Canadian provinces and territories, except Quebec (which has its own collective, Copibec), permitting use of copyright-protected content in primary and secondary schools on a per-student basis. These agreements were slated for renewal in 2004, during which Access Copyright sought to restructure the royalty system to reflect the quantity and extent of photocopies made in schools. Four different categories of usage arose from an assessment of school photocopying habits. The contested one in this case, Category 4, comprised of photocopying instances where teachers would assign readings from materials outside the textbook.
Access Copyright argued that Category 4 circumstances were not covered under the fair dealing exceptions and thus subject to tariffs. The Copyright Board agreed, claiming that despite the permissible use of the photocopied materials for educational purposes, the use was not fair and so royalties needed to be paid. A series of appeals regarding the definition of fairness ultimately led the case to the Supreme Court.
What constitutes “fair” dealing? The landmark 2004 SCC case, CCH Canadian Ltd. v Law Society of Upper Canada [CCH] defined the tests for fair dealing. It is the potential copier’s responsibility to ensure that their use passes the tests. As Abella J. summarizes in Alberta, fairness is assessed considering the “purpose, character, and amount of dealing; the existence of any alternatives to the dealing; the nature of the work; and the effect of the dealing on the work.” According to the Copyright Board, copies made without a student’s request for access do not fall under the permissible “private study” purpose. Consequently, copies made by teachers for the purposes of in-class instruction, pre-readings, and supplementary materials may be considered infringements of copyright. Likewise, I probably also would need to pay royalties for my small collection of math problems and diagrams.
In a 5/4 split, the SCC ruled in favour of educational institutions. Writing for the majority, Abella J. contended that a teacher’s goal of instruction—facilitating the education of their students—was necessarily “symbiotic” with students’ studying. She took issue with how the Copyright Board misapplied other factors of the CCH tests, which arbitrarily placed educator copying habits in competition with the textbook market. She also pointed out the possibility of schools being doubly charged by Access Copyright, first upon purchase of the original work, and again upon copying. Note, York University v Access Copyright was a unanimous SCC decision that reaffirmed Justice Abella’s emphasis on end-user considerations in a post-secondary setting.
Where do these cases leave Canadian educators now? They may continue to teach using copyright-protected materials, and are not required to destroy any copies by shredding them en masse or, theatrically, igniting a large pyre.
Overall, Alberta (Education) v Access Copyright serves as a useful reminder in understanding the legal framework to use original works. Below are several accessible resources that may also inform one’s judgement of fairness and fair dealing, as well as some interesting “further reading”.
In particular, the Fair Dealing Decision Tool is a fantastic Canadian resource that can guide educators’ decision-making and reflection processes for the materials in question. It also points out any citation requirements (e.g., author/artist/owner name, title) and/or digital safeguards necessary to limit access to the material.
Dr. Meera Nair’s interesting take on the importance of copyright education for educators in classrooms and the promotion of creative thought: https://fairduty.wordpress.com/2017/10/16/how-canadian-education-really-hurts-creators/
IPilogue’s Sabrina Macklai writes about the recent 2021 SCC decision regarding post-secondary fair dealing in York University v Access Copyright: https://www.iposgoode.ca/2021/08/a-win-for-users-rights-supreme-court-finds-access-copyright-tariff-not-mandatory-and-end-user-perspective-must-be-considered-in-fair-dealing-analyses/
Council of Ministers of Education Canada’s resources for teachers: https://www.cmec.ca/739/Copyright_information_for_teachers_.html
Fair Dealing Canada: https://fair-dealing.ca/
Access Copyright’s information and services tab for educators: https://www.accesscopyright.ca/educators/
Canadian Association of Research Libraries’ Resource Library’s copyright open educational modules for university instructors and staff: https://www.carl-abrc.ca/influencing-policy/copyright/opencopyrightcourse/
Osgoode Hall’s Professor Giuseppina D’Agostino’s comparative analysis of Canadian, UK, and American fair use/dealing: https://lawjournal.mcgill.ca/wp-content/uploads/pdf/7046615-dAgostino.pdf