The Copyright Board of Canada has released its long awaited decision in the tariff dispute surrounding reproductions in primary and secondary educational institutions. First filed in March 2004 to cover the period 2005-2009, Access Copyright was requesting that the tariff be set at the rate of $8.92 per FTE student. The Objectors (the Ministries of Education of the twelve Canadian provinces and territories outside Quebec and the Ontario school boards) proposed rate was $2.43 per FTE
In setting the tariff at $5.16 per FTE student for 2009, at first glance the Board seems to have “split the difference” between the positions of the parties. But the 75 page decision warrants careful analysis to be fully understood. The decision indicates that there were three legal issues raised by the controversy:
- to what extent can primary and secondary schools avail themselves of the fair dealing exception?
- does the exception set out in subsection 29.4(2) of the Act apply to works in Access Copyright’s repertoire?
- are works of non-affiliated rights holders who have cashed a royalty cheque part of Access Copyright’s repertoire for the purposes of this case?
However the first issue, the applicability of the fair-dealing exception was given the most detailed treatment by the Board. Acknowledging that fair dealing is now recognized as a users' right, the Board stated the general proposition that:
“A reproduction made pursuant to the fair dealing exception does not trigger remuneration
and must therefore be subtracted from its calculation.” [para 56] .
The issue though was how to calculate the amount of copying which would attributed to fair dealing and therefore offset from the tariff computation. Not surprisingly, Access Copyright argued for a very limited reading of fair dealing. While they conceded that single copies made solely for the purpose of research or private study should be excluded, they argued that making a copy for a student who is required to read it is not fair dealing because the copy is necessarily made for educational purposes rather than for research or private study. They also argued that fair dealing based on criticism or review was not relevant to the case. While the objectors emphasized that research, private study, criticism and review are the cornerstones of the elementary and secondary school curricula, it does not appear as if they were able to produce the level of internal practices shown by the Great Library in the CCH v Law Society of Upper Canada case.
The Board rejected Access' attempt to defeat fair dealing. Before engaging in an analysis of the fair dealing factors based on the evidence presented, the Board identified six principles it was going to follow:
- First, all exceptions provided in the Act are now users’ rights. They must be given a liberal interpretation, according to the purposes of copyright in general, including maintaining a balance between the rights of copyright holders and the interests of users, and the exception in particular. [para 76]
- Second, the fair dealing exception applies only to certain allowable purposes: private study, research, criticism, review, and news reporting. Dealings for other purposes are not covered by the exception, even if they would otherwise be fair. [para 77]
- Third, dealings for an allowable purpose are not ipso facto fair. The fairness of the dealing is assessed separately, according to an open list of factors. . . [para 78]
- Fourth, since all of the conditions forapplication of the exception must be satisfied, the exception will not apply as long as any one condition is not met. [para 79]
- Fifth, a practice or a system may constitute a “dealing” just as well as an individual act. The exception can benefit a practice or system if it is established either that all of the individual dealings are research-based and fair, or that the practice or the system itself is research-based and fair. [para 80]
- Sixth, the notion of fair dealing is a legal concept that must be interpreted according to the framework laid down in CCH. [para 81]
So far so good in terms of the legal framework that the Board articulated would guide its determination.
However, once the Board turned to a an application of the evidence, things did not fare so well for the Objectors. Before beginning their analysis of the evidence, the Board raised the issue of the existence of evidence of a practice. In the CCH decision, there was strong evidence of practice forward by the Great Library:
CCH found the existence of a practice or system essentially by relying on the Great Library’s access policy. This policy limits which copies will be made (photocopy requests for most non-allowable purposes are refused), restricts the length of excerpts that can be reproduced and warns that librarians may refuse requests of greater scope than is usually deemed reasonable. [para 83]
However, such evidence was not put forward by the Objectors in this case, a deficiency that was apparently quite relevant for the Board:
Nothing in the record leads us to conclude that there is a practice or system equivalent to the Great Library’s access policy. There seem to be only two constant facts. The first is the posting of notices required by the pan-Canadian licence, stating what is permitted by the licence, not what the institution believes is allowed as fair dealing. The second is that, as a general rule, students are not allowed to use photocopiers. These facts do not suffice to establish a system. [para 84]
Recall that in the CCH case the Great Library's practice, as evidenced by their access policy, was the factor that satisfied the court that the library did not need to demonstrate fair dealing in each particular instance. Unfortunately for the Objectors, no evidence of such policies was proffered.
The importance of the Objectors' failure to make this critical showing was quite evident:
Stating that research, private study, criticism and review are the cornerstones of primary and secondary education is one thing; establishing that the institutions have implemented measures aimed either at restricting photocopying only to fair dealing or at separately documenting dealings that are fair from those that trigger remuneration is quite another. [Para 84]
While the analysis of each of the fair dealing factors followed, by this point in the decision it was becoming clear that the Objectors were not going to be able to make full use of the CCH case. Ultimately the Board accepted some of the arguments on each side. While Access' attempts to limit fair dealing at the threshold level was unsuccessful, the Objectors did not fare well in the weighing of the factors, especially the factor regarding the effect of the copying on the work. In the end, the Board excluded 1,649.779 copies on account of fair dealing (Access argued only 807,214 should be excluded and the Objecters claimed about 20 million). This 1.6 million does not include copies made by teachers of assigned readings. What warants further analysis, and what will no doubt prove to be a contested point is whether or not a similar result would have been reached had evidence of systematic practices been presented.
More analysis of these fair-dealing issues will follow in a subsequent posting as will an analysis of the ongoing importance of designing well thought-out institutional policies about the scope and limits of fair dealing in advance. I will also get back to the two other issues identified by the Board, both of which went in Access Copyright's favor. No doubt there will be numerous press releases, claims of victory and commentary in the coming days, and it does seem very likely that we haven't heard the end of this controversy yet.