Tag Archives: access copyright

Canada’s Copyright Board Finds Most Educational Copying is Fair Dealing

*This week is Fair Use Week, an annual celebration of the important doctrines of fair use and fair dealing. It is designed to highlight and promote the opportunities presented by fair use and fair dealing, celebrate successful stories, and explain these doctrines.  

Today’s post is by guest blogger, Wanda Noel, a Canadian lawyer with a practice focused exclusively on copyright. Noel was legal counsel in three recent Supreme Court of Canada and Canadian Copyright Board decisions interpreting the fair dealing provision in the Canadian Copyright Act, including acting as counsel to the objectors in this matter.* 

On February 19, 2016, the Canadian Copyright Board issued a decision setting the Access Copyright Elementary and Secondary School Tariff, 2010-15. With its decision, the Copyright Board set a tariff rate of $2.46 for 2010-2012 and $2.41 for 2013-2015 per full time equivalent student per year to copy print materials such as books, magazines and newspapers.

The announced tariff rate is substantially lower than the per-student rates requested by Access Copyright, a copyright collective representing educational publishers and authors. Access Copyright initially requested rates of $15.00 for the years 2010-12 and $9.50 for the years 2013-15. These rates were a significant increase over the prior rate of $4.81 set by the Copyright Board in 2009. The Copyright Consortium of the Council of Ministers of Education, Canada (CMEC), representing the ministers of education in every Canadian province and territory, except Quebec, and the school boards of Ontario objected to the proposed Access Copyright rates and requested much lower rates.

This Copyright Board decision is the first application of fair dealing in educational institutions since two significant events in 2012 altered the copyright landscape in Canada. First, the Copyright Act was amended to add “education” as a new purpose in the fair dealing provision. Second, the Supreme Court of Canada issued a landmark decision interpreting fair dealing to permit teachers to copy and use short excerpts from published works for students in their classes.

The Board attributed the decrease from the prior rate of $4.81 to the decision of the Supreme Court of Canada in Alberta v. Access Copyright, [2012 SCC 37.] That decision established that copying short excerpts of copyright-protected works for student instruction, assignments or class work did not require royalty payments because the copying was fair dealing. This conclusion resulted in the Board’s finding that a significant proportion of copying by elementary and secondary schools was fair under the fair dealing provisions of the Copyright Act. Based on data available from a large-scale copying study in Canadian schools, the Board found that 97.2% of copying from books, 98.1% of newspapers and 98.5% from periodicals was fair dealing. This large volume of copying therefore did not require a licence from the owner of the copyright.

The royalty payments of $2.46 and $2.41 set by the Board relate primarily to the copying of consumables. Consumables are works that are intended for one-time use and contain a statement that copying is not permitted. An example is a workbook with questions and answer sheets to be completed by students. The Board found that none of the dealings with consumables were fair. Over three quarters (79% for 2010-2012, and 81% for 2013-2015) of the tariff value is attributable to consumables.

This Copyright Board decision is noteworthy because of the Board’s findings relating to fair dealing. For a dealing to be fair, two tests established by the Supreme Court of Canada in 2004 in CCH v. Law Society of Upper Canada 1 SCR 339 must be met. First, the dealing must be for one of the purposes set out in the Copyright Act. The Board found that the vast majority of copies being considered passed the first test because they were made for one of the following purposes captured by the copying study: research, criticism, review, future reference, private study or student instruction. Only copies made for entertainment and administration did not pass the first test.

The second test is that the dealing must be fair. To determine fairness, the Board applied six fairness factors established by the Supreme Court of Canada in its CCH decision: purpose of the dealing, amount of the dealing, character of the dealing, nature of the work, alternatives to the dealing, and effect of the dealing. These six factors were applied separately to books, newspapers, periodicals and consumables. The Board’s fairness analysis for consumables differed from the other genres particularly on the factors of the nature of the work and alternatives to the dealing.

The Copyright Board also accepted the position of the CMEC Copyright Consortium with respect to several issues besides fair dealing, including the fact that significant amounts of copying are not substantial (and therefore do not trigger any royalty payments under the Copyright Act), the limited nature of Access Copyright’s repertoire, and Access Copyright’s inability to adequately licence the copying of sheet music.

The present Copyright Board’s decision follows another recent tariff decision relating to Access Copyright issued in May of 2015 covering copying by provincial and territorial government employees, where a number of the legal issues were similar. Access Copyright had sought rates as high as $24 per full-time employee, but the highest rate certified was only $0.49. This government tariff decision is currently the subject of a judicial review application in the Federal Court of Appeal brought by Access Copyright.

Canadian Author’s Collective, Access Copyright, Dealt Major Blow; Future Uncertain

*This is a guest blog post by Bobby Glushko, Head of the Scholarly Communications and Copyright Office for the University of Toronto Libraries*

On May 22, 2015, the Copyright Board of Canada certified a surprisingly low tariff for copying undertaken by the full time professional staff of provincial governments, such as legislators, aides, and other provincial employees. The tariff, 11.56¢ per employee, per year, for the 2005- 2009 period and 49.71¢ per employee, per year, for the 2010-2014 period, is vastly lower than the $15 tariff initially proposed by Access Copyright. In its decision, the Board supported several interesting copyright theories which may have long term significance for libraries in Canada.

It has long been the custom that Canadian institutions would hold licenses with one or many of the various rightsholder collectives to cover their uses of copyrighted content. These licenses were generally paid on a per employee basis, and were set by either negotiation or through the operation of the Copyright Board of Canada, an administrative body established by Parliament to, among other things, issue tariffs for the use of copyrighted content. One of the major collectives issuing these licenses is Access Copyright, a collective representing authors, publishers, and visual artists. Over the past decade, the costs of the Access Copyright license, a license which allows for institutions to copy significant portions of published works in their licensing repertoire, and the price of the tariff have risen dramatically, from a low of $3 per employee to as high as a proposed $45 per employee. With such uncertainty in the market, and a substantial realignment of the law, Canadian universities and colleges have been forced to re-examine the value of the Access Copyright license, and many of them have chosen to forgo purchasing a license or accepting the tariff, choosing instead to handle rights clearances in house, often in their libraries, and to license content on a transactional basis where necessary.

These changes have not gone unchallenged, however.   In April 2013, Access Copyright sued York University, claiming that by operating without an Access Copyright license or working under a tariff, York was “authorizing and encouraging copying that is not supported by the law.” In their claim, Access Copyright argued that due to the presence of copyright infringement at York, the University needed to be subject to the Board’s tariff, and could not operate outside a license arrangement. A similar suit was brought by Copibec, the comparable author’s collective from Quebec, against Université Laval as well.

While the litigations are still ongoing, this recent action by the Board calls into question their viability and even the continued existence of Access Copyright. Projected revenues from the proposed tariff were around twenty-five million dollars over the covered period; the issued tariff provides for approximately three hundred seventy thousand dollars over the same period, an amount that will likely not even cover the cost of Access Copyright’s action before the Board to obtain the tarriff. As devastating as the financial loss is, the loss on substantive legal arguments appears to be even worse. While the Board’s rationale is not binding on the courts, judges have tended to give deference to the Board as a finder of fact. In this current tariff proceeding, the Board ruled against Access Copyright on several legal arguments, two of which are expanded upon below.

First, the Board rejected the argument that Access Copyright had the capacity to license all published works from which it was not explicitly excluded from licensing, even in the absence of a formal arrangement with a rightsholder. While this may seem obvious in a non-extended licensing jurisdiction, that is, a jurisdiction where all types of published works are subject to a non-voluntary licensing regime, it was in fact a longstanding claim by Access Copyright that they had the capacity to do this. By rejecting this argument, the Board dealt a huge blow to any litigation involving Access Copyright’s repertoire, and essentially posed an existential threat to the organization.

Second, and equally as important, the Board flatly rejected Access Copyright’s interpretation of the scope of fair dealing in Canada. Since the Supreme Court of Canada’s series of rulings on copyright law in 2012, which have been termed the Copyright Pentalogy, the scope of fair dealing has been subject to a fairly fierce debate. Nearly all Canadian universities have adopted fair dealing guidelines which state that the copying of 10% or one chapter of a book, or one article from a journal issue, would generally tend to be fair for the purposes of education, teaching, or private study, given the assumption that the other fair dealing factors do tend towards fairness in the context of higher education. In this action before the Board, Access Copyright advanced a theory of the scope of fair dealing that was far more limited; a theory which the Board wholeheartedly rejected in favour of a scope of fair dealing closely aligned with the commonly adopted university guidelines. The implications of this for the ongoing litigation are tremendous, as a rejection of the fair dealing guidelines adopted across Canada is an essential element of Access Copyright’s legal strategy.

Given the current climate, where most Universities and Colleges are choosing to operate outside of a tariff or a license with Access Copyright, the Board’s decision comes as yet another huge setback in what has been a series of losses for the collective. Perhaps this decision, rather than being the next chapter for Access Copyright, may be an indication that its long story is coming to an end.

If you’re interested in these issues, come join us at the Copyright in Canada Conference on October 2nd 2015 in Toronto, Ontario.