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The Copyright Pentalogy

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Michael Geist

Fair Dealing

7. Fair Dealing Practices in the Post-Secondary Education Sector after the Pentalogy

Samuel E. Trosow

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  • 1 Entertainment Software Association v Society of Composers, Authors and Music Publishers of Canada, (...)
  • 2 Copyright Modernization Act, SC 2012, c 20 <http://laws-lois.justice.gc.ca/eng/AnnualStatutes/2012_20/FullText.html> [Bill C-11].
  • 3 Copyright Act, RSC 1985, c C-42 <http://laws.justice.gc.ca/en/C-42/>.
  • 4 Samuel E. Trosow, “Bill C-32 and the Educational Sector: Overcoming Impediments to Fair Dealing” i (...)
  • 5 The provisions of Bill C-32, An Act to amend the Copyright Act, 3rd Sess, 40th Parl, 2010 <http://www.parl.gc.ca/HousePublications/Publication.aspx?Language=E&Mode=1&DocId=4580265&Col=2&File=4> [Bill C</http> (...)

1Now that the Supreme Court of Canada has handed down its historic decisions in the pentalogy1 and Parliament has enacted Bill C-11,2 an extensive set of amendments to the Copyright Act,3 attention should now turn to how copyright policies will be implemented at local institutions. This chapter will focus on how Canada’s colleges and universities might respond to these developments and will build on my previous essay “Bill C-32 and the Educational Sector: Overcoming Impediments to Fair Dealing,”4 which analyzed the various educational provisions of Bill C-325 and identified various impediments to the implementation of fair dealing practices.

  • 6 Alberta (Education), supra note 1.
  • 7 Bell, supra note 1.
  • 8 CCH Canadian Ltd. v Law Society of Upper Canada, 2004 SCC 13, [2004] 1 SCR 339 <http://www.canlii.org/en/ca/scc/doc/2004/2004scc13/2004scc13.html> [ (...)
  • 9 ESA, supra note 1.

2Taken together, the judicial and legislative events of 2012 are a watershed, representing a significant moment in Canadian copyright history. The level of activity was unprecedented, five Supreme Court decisions and a major legislative enactment coming within a few weeks of each other. At least with respect to the use of copyrighted materials in the educational and library context, the combined message from these measures is unmistakable and clear: users’ rights are now firmly entrenched as core principles in Canadian copyright law, and the central policy tool to realize this principle is fair dealing. In the two decisions directly treating fair dealing, Alberta (Education) v Access Copyright [Alberta (Education)]6 and SOCAN v Bell Canada [Bell],7 the Court has not only reaffirmed the strong users’ rights–oriented policy language from CCH Canadian v Law Society of Upper Canada [CCH],8 but has also provided further guidance in applying the different levels of fair dealing analysis. And in a third case, ESA v SOCAN [ESA],9 the Court gave a strong endorsement to the principle of technological neutrality, which should have positive implications in the educational sector where the use of emerging technologies and new media is prevalent.

3To the extent that uncertainty was a material impediment to the implementation and realization of fair dealing in the period following the CCH decision, these concerns should now be behind us. Between the addition of “education” to the statutory fair dealing categories, and the guidance found in the case law, uncertainty can no longer suffice as a justification for putting off the adoption of robust fair dealing practices any longer.

4Yet, the full realization of the benefits of these developments still faces substantial barriers and obstacles at Canadian colleges and universities. Uncertainty aside, other problems persist and need to be addressed. In Overcoming Impediments, I argued that

  • 10 Trosow, Overcoming Impediments, supra note 4 at 542.

In the increasingly complex web of Canadian educational copyright policy, there remain serious impediments, or counter-factors, to the realization of fair dealing as a substantive users’ right, at least insofar as it is formally recognized and incorporated into the reality of everyday practice. These impediments include the risk aversion of educational administrators, the aggressive overreaching of content owners and their representatives; and the general lack of understanding about basic copyright rights and obligations. Taken together, they have frustrated the implementation of a unanimous SCC decision for over six years.10

5Similarly, Meera Nair conducted extensive research on the copyright policies of Canadian universities in the years following CCH and concluded that

  • 11 Meera Nair, “Fair Dealing at a Crossroads” in Michael Geist, ed, FromRadical Extremism toBala (...)

[I]t does not appear that Canadian universities have placed a priority upon codifying robust fair dealing practices…. Some institutions have diminished the role of fair dealing, favouring instead a system of permission (and potential payment) for inclusion of material that would legitimately sit as fair dealing. Despite five years of incubation, CCH Canadian has not, to any appreciable degree, taken root in the Canadian university landscape.11

6While there is now increasing reason for cautious optimism, the problems of undue risk aversion, overreaching on the part of content owners, and an inadequate understanding of copyright throughout the academy continue to persist, and so each factor must be addressed in an affirmative manner. The impacts of these problems are cumulative and mutually reinforcing; together they form a vicious cycle that results in an overreliance on unnecessary licences and a general deference to a permissions culture. This situation is not conducive to achieving the fair dealing policies that are justified under the current state of Canadian law, and they present harmful barriers to teaching, learning and research. The purpose of this chapter, then, is first to review and analyze the current state of the law, and second to apply this understanding to institutional copyright policies, alleviating all three prongs of the problem, and working toward the realization of reflexive and conscious fair dealing practices.

  • 12 “AUCC Model License April 2012” (April 2012) <http://www.caut.ca/uploads/Model_License_Agreement_AC.pdf>. Neither Access Copyright nor AUCC have visibly post</http> (...)

7Two interrelated actions are suggested, both of which are achievable on a local level. First, those schools that have entered into the AUCC-Access Copyright Model License12 (or a similar arrangement) should terminate the agreement at the earliest possible opportunity. Second, local campus fair dealing guidelines should be crafted that provide useful guidance to academic staff and students about their copyright rights and obligations, but that also avoid bright-line rule making that has plagued past efforts at drafting copyright policies. Before turning to these measures, the July 2012 rulings will be reviewed and analyzed as they pertain to the issues of educational fair dealing.

Fair Dealing Analysis under CCH and the Pentalogy

  • 13 The original Canadian Copyright Act of 1921 (SC 1921, c 24) contained a fair dealing provision tha (...)
  • 14 Efforts to add further definition of the concept to the Act had not been successful. While the 198 (...)
  • 15 This attitude was reflected in the 1999 trial court decision in CCH Canadian Ltd. v Law Society of (...)
  • 16 CCH Canadian Ltd. v Law Society of Upper Canada, 2002 FCA 187, [2002] 4 FC 213 <http://www.canlii.org/en/ca/fca/doc/2002/2002fca187/2002fca187.html>.
  • 17 CCH, supra note 8.

8Since the Copyright Act sets out fair dealing in sections 29, 29.1 and 29.2 as an exception to infringement,13 but does not provide a further definition, its interpretation has been left to the courts.14 Historically, fair dealing had been narrowly construed by the courts and was generally a disfavoured concept.15 But the judicial hostility to fair dealing was reversed in CCH by the Court of Appeal in 200216 and again by a unanimous Supreme Court.17 In the landmark 2004 holding that fair dealing was an important users’ right, and not just a technical defense to copyright infringement, the Supreme Court set out a two-part analysis for determining whether fair dealing would apply in any particular situation. In the first stage, the party claiming fair dealing must come within one of the categories specified in the Copyright Act (which had been research, private study, criticism, review or news reporting). If the first step is satisfied, then the six fair dealing criteria are applied in order to determine whether the infringement should be excused.

  • 18 Ibid at para 51.
  • 19 Bell, supra note 1 at para 15. The service providers gave consumers the ability to listen to free (...)

9At the first level of analysis, the CCH court held that the category of research should be given a “large and liberal interpretation in order to ensure that users’ rights are not unduly constrained.”18 In Bell, the issue at the threshold level of analysis was also whether the previews were provided for the allowable purpose of “research” under the first step of the CCH fair dealing test.19

  • 20 Ibid at para 19.
  • 21 Ibid at para 20.
  • 22 Ibid at para 19.

10While SOCAN took the position that the provision of the previews did not constitute “research” within the meaning of section 29,20 the Copyright Board, the Court of Appeal and the Supreme Court all disagreed. SOCAN had argued that research should be limited to “the systematic investigation into and study of materials and sources in order to establish facts and reach new conclusions” and that “the goal of the ‘research’ must be for the purpose of making creative works, since only uses that contribute to the creative process are in the public interest.”21 SOCAN further argued that “the purpose of ‘research’ should have been analysed from the perspective of the online service provider and not the consumer [and that] [f]rom this perspective, the purpose of the previews was not ‘research’, but to sell permanent downloads of the musical works.”22 In rejecting SOCAN’s position on the meaning of research, the Court stated:

  • 23 Ibid at para 22.

Limiting research to creative purposes would also run counter to the ordinary meaning of “research”, which can include many activities that do not demand the establishment of new facts or conclusions. It can be piecemeal, informal, exploratory, or confirmatory. It can in fact be undertaken for no purpose except personal interest. It is true that research can be for the purpose of reaching new conclusions, but this should be seen as only one, not the primary component of the definitional framework.23

  • 24 Ibid at para 28.
  • 25 Ibid at para 30.

11The court also rejected SOCAN’s position on the frame of reference issue, stating that “[t]he provider’s purpose in making the works available is therefore not the relevant perspective at the first stage of the fair dealing analysis.”24 From the end user’s perspective, “consumers used the previews for the purpose of conducting research to identify which music to purchase, purchases which trigger dissemination of musical works and compensation for their creators, both of which are outcomes the Act seeks to encourage.”25

  • 26 See Alberta (Education), supra note 1 at para 14.

12In Alberta (Education), it was common ground that the first prong had been satisfied and that the issues revolved around applying the six fair dealing criteria.26

  • 27 Bell, supra note 1 at para 27. See also Michael Geist, “Has Canada Effectively Shifted from Fair D (...)

13Especially now with the addition of education, parody and satire as allowable fair dealing categories, it is increasingly likely that the fair dealing claimant will be successful at this first, threshold level of analysis. The court in Bell explicitly stated that “[i]n mandating a generous interpretation of the fair dealing purposes, including ‘research’, the Court in CCH created a relatively low threshold for the first step so that the analytical heavy-hitting is done in determining whether the dealing was fair.”27

  • 28 Bell, supra note 1 at para 34.

14Turning to the second prong of analysis, the Bell court had little trouble finding that on balance, the six factors favoured a finding of fair dealing. On the first factor, the purpose of the dealing, the Court reiterated that the relevant frame of reference is that of the end user; “the predominant perspective in this case is that of the ultimate users of the previews, and their purpose in using previews was to help them research and identify musical works for online purchase.”28 With respect to the amount of the dealing, SOCAN argued that the Board should have applied an aggregate approach: that is, looking at the significant amount of the previews streamed by consumers in their totality. Again, the Court rejected SOCAN’s approach:

  • 29 Ibid at para 41.

Since fair dealing is a “user’s” right, the “amount of the dealing” factor should be assessed based on the individual use, not the amount of the dealing in the aggregate. The appropriate measure under this factor is therefore, as the Board noted, the proportion of the excerpt used in relation to the whole work. That, it seems to me, is consistent with the Court’s approach in CCH, where it considered the Great Library’s dealings by looking at its practices as they related to specific works requested by individual patrons, not at the total number of patrons or pages requested. The “amount of the dealing” factor should therefore be assessed by looking at how each dealing occurs on an individual level, not on the aggregate use.29

  • 30 Ibid at para 48.
  • 31 Ibid.

15With respect to the final factor, the effect of the dealing on the work, the Court was dismissive of SOCAN’s position. Noting that the previews were of short duration and degraded quality, the Court stated: “it can hardly be said that previews are in competition with downloads of the work itself,”30 and that “since the effect of previews is to increase the sale and therefore the dissemination of copyrighted musical works thereby generating remuneration to their creators, it cannot be said that they have a negative impact on the work.”31 The court was unanimous in its holding that the Board properly applied the fair dealing tests.

  • 32 The other categories of copies, those that were made by the teachers for their own use and those t (...)

16The companion case arising out of the contested K-12 reproduction tariff was a more difficult case. Both the Copyright Board and the Court of Appeal agreed with Access Copyright’s position that the photocopying of texts in question did not constitute fair dealing. But the Supreme Court majority found numerous errors in the Board’s approach, which rose to the level of being unreasonable and reversed the Board and the Court of Appeal. In this case, it was common ground that the first prong of the CCH test had been satisfied; the attention of the Court turned to the evaluation of the six fair dealing factors under its second prong. The issue before the Court was the fair dealing status of copies of works made at the teachers’ initiative, with instructions to students that they read the material.32

  • 33 Sillitoe v McGraw-Hill Book Company (U.K.) Ltd., [1983] FSR 545 (Ch D) (commercial sale of study n (...)
  • 34 University of London Press, Ltd. v University Tutorial Press, Ltd., [1916] 2 Ch 601 (commercial sa (...)
  • 35 Copyright Licensing Ltd. v University of Auckland, [2002] 3 NZLR 76 (HC) (sale of course packs by (...)
  • 36 Alberta (Education), supra note 1 at para 21.
  • 37 Ibid at para 25.

17In asserting that the first fair dealing factor, the purpose of the dealing, did not favour the schools, Access Copyright had relied on three commonwealth cases where attempts by fair dealing claimants to invoke private study by standing in the shoes of end users had been rejected. In both Sillitoe v McGraw-Hill33 and University of London Press v University Tutorial Press34 commercial publishers sought to invoke the private study prong of fair dealing on behalf of their student customers. The third case, Copyright Licensing Ltd. v University of Auckland35 involved a university providing course packs for students. While the Copyright Board and the Court of Appeal agreed with Access Copyright, the Supreme Court declined to follow these precedents because they “do not stand for the proposition that ‘research’ and ‘private study’ are inconsistent with instructional purposes, but for the principle that copiers cannot camouflage their own distinct purpose by purporting to conflate it with the research or study purposes of the ultimate user.”36 In rejecting Access Copyright’s artificial separation between the purposes of teachers and their students, the Court put to rest the notion that private study is somehow vitiated in the case of required readings. The court noted that “photocopies made by a teacher and provided to primary and secondary school students are an essential element in the research and private study undertaken by those students.”37 While the same result should apply in the post-secondary sector, the expansion of the fair dealing categories to include “education” renders the issue of the fine-line distinction between private study and instruction as irrelevant, since required readings would certainly come within the scope of “education” even if a narrow interpretation had been applied to “private study.”

  • 38 Re Statement of Royalties To Be Collected By Access Copyright For The Reprographic Reproduction, I (...)
  • 39 Alberta (Education) v Access Copyright, 2010 FCA 198, [2011] 3 FCR 223 <http://www.canlii.org/en/ca/fca/doc/2010/2010fca198/2010fca198.html>.
  • 40 See “Fair Dealing Policy With Intro” (22 December 2010) <http://www.scribd.com/doc/45806217/Fair-Dealing-Policy-With-Intro-December-22-2010> [AUCC Policy] (containing AUCC’s cover me</http> (...)
  • 41 The matter of the AUCC Fair Dealing Guidelines, including its current status, will be further disc (...)
  • 42 AUCC Policy, supra note 40 (see cover sheet at fifth paragraph). It is likely only a matter of tim (...)

18It is important to bear in mind that Access Copyright’s position on the narrow scope of “private study” was not only upheld by the Copyright Board38 and the Federal Court of Appeal,39 but the private study/instruction dichotomy was also incorporated into the Fair Dealing Policy issued by the Association of Universities and Colleges of Canada (AUCC) in December 201040 and subsequently adopted by many colleges and universities.41 The AUCC policy explicitly stated that it “does not permit making copies for sale to students in course packs, making copies of required readings for library reserve, or posting copies on course management systems, e.g., Blackboard, or on course websites.”42

19With respect to the first fair dealing factor, purpose of the dealing, the Alberta majority applied the CCH criteria in a flexible and liberal manner, concluding that

  • 43 Alberta (Education), supra note 1 at para 27.

the word “private” in “private study” should not be understood as requiring users to view copyrighted works in splendid isolation. Studying and learning are essentially personal endeavours, whether they are engaged in with others or in solitude. By focusing on the geography of classroom instruction rather than on the concept of studying, the Board again artificially separated the teachers’ instruction from the students’ studying.43

20Before turning to the other grounds on which the Court found the Board’s decision to be unreasonable, a close reading of Abella J’s reasoning on the first factor is warranted:

  • 44 Ibid at para 23.
  • 45 Ibid at para 24.

Teachers have no ulterior motive when providing copies to students. Nor can teachers be characterized as having the completely separate purpose of “instruction”; they are there to facilitate the students’ research and private study. It seems to me to be axiomatic that most students lack the expertise to find or request the materials required for their own research and private study, and rely on the guidance of their teachers. They study what they are told to study, and the teacher’s purpose in providing copies is to enable the students to have the material they need for the purpose of studying. The teacher/copier therefore shares a symbiotic purpose with the student/user who is engaging in research or private study. Instruction and research/private study are, in the school context, tautological.44
The Board’s approach, on the other hand, drives an artificial wedge into these unified purposes by drawing a distinction between copies made by the teacher at the request of a student (Categories 1-3), and copies made by the teacher without a prior request from a student (Category 4).45

21This passage explicitly rejects the private study-instruction dichotomy and demonstrates the majority’s insights into the educational processes of teaching and learning and its relationships with instructional materials. Going forward, this holistic understanding of teaching and learning should have significant implications for the development of educational fair dealing policies. Instructors and librarians have always understood this holistic relationship between teaching, learning and educational materials; these insights need to be better reflected in institutional copyright policies.

  • 46 Ibid at para 29.
  • 47 Ibid. The court further noted that a quantification of the aggregate amount was relevant under the (...)

22The court found the Copyright Board’s decision unreasonable on other grounds as well. On the “amount of the dealing” factor, the Board found that if a teacher had repeatedly copied from the same book, making a set shared by more than one class or by many students in the same class, this tended to make the dealing unfair. The court disagreed with this approach because, as with the music previews in Bell, the relevant frame of reference is that of the ultimate end user, here the students. The court found that “teachers do not make multiple copies of the class set for their own use, they make them for the use of the students46 and that in assessing the “amount” factor, the proper inquiry is not “based on aggregate use, it is an examination of the proportion between the excerpted copy and the entire work, not the overall quantity of what is disseminated.”47

  • 48 Ibid at para 32.

23The court also found the Board’s approach to the “alternatives to the dealing” factor was unreasonable. The Board found that the schools had an alternative to the copying in that they could have purchased more books. But the Court found that “buying books for each student is not a realistic alternative to teachers copying short excerpts to supplement student textbooks” and that making copies of short excerpts was “reasonably necessary to achieve the ultimate purpose of the students’ research and private study.”48

  • 49 Ibid at para 35. It should be noted that the dissent agreed with the majority on this last point r (...)

24Finally, the Court also disagreed with the Board’s approach to the final factor, “effect of the dealing on the work.” While Access Copyright claimed that this factor weighed against fair dealing because of the diminution of text sales over the last twenty years, there was no evidence presented linking this decline in sales to the photocopying practices of teachers. Nonetheless, the Board found that the impact of photocopies competed with the original texts enough to make the dealing unfair. In reversing this finding, the Court observed that “other than the bald fact of a decline in sales over twenty years, there is no evidence from Access Copyright demonstrating any link between photocopying short excerpts and the decline in textbook sales.”49

  • 50 Access Copyright, “Impact of Supreme Court Copyright Decision Limited to Small Proportion of Copyi (...)
  • 51 See “Ruling of the Board” (19 September 2012) (CB) <http://www.cb-cda.gc.ca/avis-notice/index-e.html#access3-19092012>.

25The court remanded the case back to the Copyright Board for a new determination consistent with the ruling. Access Copyright quite predictably tried to minimize the effect of the ruling and argued that the Supreme Court’s decision left open questions of fact to be determined in order to properly recalculate the tariff on remand. They even made the rather remarkable claim that “[i]n its decision, the Supreme Court did not conclude that the copying at issue was ‘fair’ under the terms of the Copyright Act.”50 But the Copyright Board disagreed, indicating that “[t]he decision of the Supreme Court is clear and leaves no room for interpretations: based on the record before the Board and the findings of fact of the Supreme Court, Category 4 copies constitute fair dealing for an allowable purpose and as such, are non-compensable.”51

  • 52 ESA, supra note 1.
  • 53 Re Tariff No. 22.A (Internet—Online Music Services) 1996-2006 (18 October 2007) (CB) <http://www.cb-cda.gc.ca/decisions/2007/20071018-m-e.pdf>.
  • 54 Entertainment Software Association and the Entertainment Software Association of Canada v CMRRA/SO (...)
  • 55 ESA, supra note 1 at para 5.

26Before moving on, the implications from a third case from the pentalogy, ESA,52 will be briefly addressed. This appeal also arose from a contested tariff application from SOCAN at the Copyright Board. SOCAN was seeking compensation for musical works downloaded on the Internet under the communication to the public by telecommunication right in section 3(1)(f) of the Copyright Act. The Entertainment Software Association, representing producers of video games that incorporate musical works into their games, objected to additional compensation for downloads of musical works under the communication right on various grounds, including that under general industry practice, the reproduction rights to the musical works are separately cleared. The Copyright Board agreed with SOCAN and certified a tariff,53 and the decision was upheld on appeal.54 The Supreme Court reversed, holding that “the Board’s conclusion that a separate, ‘communication’ tariff applied to downloads of musical works violates the principle of technological neutrality, which requires that the Copyright Act apply equally between traditional and more technologically advanced forms of the same media….”55

27The court pointed to the disparity that had been created between buying a physical copy in a store and downloading the same game on the Internet:

  • 56 Ibid.
  • 57 Ibid at para 9.

there is no practical difference between buying a durable copy of the work in a store, receiving a copy in the mail, or downloading an identical copy using the Internet. The Internet is simply a technological taxi that delivers a durable copy of the same work to the end user.56
...
SOCAN has never been able to charge royalties for copies of video games stored on cartridges or discs, and bought in a store or shipped by mail. Yet it argues that identical copies of the games sold and delivered over the Internet are subject to both a fee for reproducing the work and a fee for communicating the work. The principle of technological neutrality requires that, absent evidence of Parliamentary intent to the contrary, we interpret the Copyright Act in a way that avoids imposing an additional layer of protections and fees based solely on the method of delivery of the work to the end user. To do otherwise would effectively impose a gratuitous cost for the use of more efficient, Internet-based technologies.57

28While fair dealing was not at issue in ESA, and while the controversy did not arise in the educational sector, the decision could have broad implications for educational fair dealing analysis in the future. The court’s insistence that the Copyright Act be interpreted in such a way as to avoid additional copyright protections and fees based on methods of delivery was stated in the most general of terms. The ruling was not limited to the delivery of online video games, and should be equally applicable to the online delivery of course materials as well as online instruction itself. Just as a different result should not arise between purchasing a video game at a physical retail store and downloading the same content from the Internet, the same principle should apply to photocopying course instructional materials in the library or over a network. The same principles should apply to a course pack regardless of whether a paper copy is purchased in a bookstore or delivered online, as well as to classroom instruction regardless of whether it takes place in a physical classroom or online. This is not to say that technology-enhanced learning or online dissemination of course readings should obtain any special status or privilege. But for the purpose of fair dealing analysis, there should be an even playing field with traditional instructional methods. The decision of how to use technology-enhanced learning should not be driven by copyright concerns, any more than the decision to purchase a video game online or in a store should be.

29Overall, the pentalogy demonstrates a strong and ongoing endorsement of the principles established in CCH. In addition to providing historical continuity to the general concept of users’ rights, these decisions provide further guidelines in applying the different levels of fair dealing analysis, which should help clarify and guide future fair dealing determinations. This guidance comes at an important juncture, as many institutions continue to exhibit uncertainty and undue caution in the face of continuing pressure from rights holders.

30To summarize, several clear principles emerge from these cases, which should help guide the development of educational fair dealing policies in the future.

31First, at the initial level of fair dealing analysis, there is now a very low threshold in terms of coming within one of the enumerated statutory categories. This result will be even more pronounced with the addition of education, parody and satire as fair dealing categories. It has become clear that even without the addition of the words “such as” to section 29 of the Copyright Act, the “analytical heavy-hitting” will be done as part of the factual analysis looking at the six individual fair dealing factors in the second prong of fair dealing analysis.

32Second, with respect to the first fair dealing category, which takes a deeper look at the purpose of the dealing, the point of view of the end user is the proper frame of analysis. In schools, this means looking at the use by the students, and in libraries it means looking at the use by the patrons. It is also now clear that artificial distinctions, like whether an instructor has required a reading, are not determinative, as assigning a reading does not preclude private study.

33Third, determinations about the amount of the dealing should be assessed by looking at how each dealing occurs on an individual level, not on aggregate use. The issue of whether to adopt the aggregate versus individual point of view has been a highly disputed point, with the collectives pushing for the user-disabling aggregate approach. The individual approach, which was endorsed in both Alberta (Education) and Bell, keeps the control localized in the hands of the end user, who is best able to make reasonable assessments under this factor. This user-centric approach is most conducive to the establishment of local fair dealing policies that are based on actual practices and are understandable to end users.

34Like the first factor, the Court has stressed that since fair dealing is a users’ right, a user-centred inquiry should prevail.

  • 58 In CCH, supra note 8 at para 70, the Court stated that: “The availability of a licence is not rele (...)

35Fourth, on the alternatives to the dealing factor, fair dealing claimants are not expected to bear unreasonable burdens or expenses. In Alberta, the suggested alternative of simply purchasing more texts was dismissed as unreasonable. The court has been consistent on this factor, the CCH court having stated that the availability of a licence is not relevant.58 Finally, and with respect to the last factor, the effect of the dealing on the work, both Alberta (Education) and Bell hold that demonstrable harm needs to be shown in order to turn this factor against the fair dealing claimant. Simply making generalizations about lost sales due to copying will not suffice to defeat a particular fair dealing claim.

36Finally, with respect to all of the fair dealing factors, the principle of technological neutrality can be used to help justify new practices that make use of emerging technologies and new media in a beneficial manner.

Moving Forward after the Pentalogy

  • 59 “Statement of Proposed Royalties to Be Collected by Access Copyright for the Reprographic Reproduc (...)
  • 60 In January 2012, Access Copyright entered into separate license agreements with the University of (...)
  • 61 For objections to the proposed tariff, see Glen Bloom, “AUCC Letter to Copyright Board” (15 July 2 (...)

37As Canada’s colleges and universities move forward in their development of new copyright policies, a thorough understanding of the implications of the pentalogy, together with its relationship to the new provisions of the Copyright Act, are essential. At the present time, there are two interrelated issues that warrant the immediate attention of the educational community. The first involves the ongoing proceedings at the Copyright Board with respect to Access Copyright’s proposed post-secondary tariff,59 as well as the ongoing debate over the ensuing licences between Access Copyright and various individual institutions.60 While a full discussion of the scope of the Proposed Tariff and the ensuing licences as well as the various grounds of objection that have been raised,61 is beyond the scope of this chapter, the local decisions that are made on these issues will have an important bearing on how fair dealing policies will unfold on these campuses in the future. The AUCC Model License agreements have termination dates of December 2015, whereas the University of Western Ontario and University of Toronto agreements have an earlier termination date of December 2013.

  • 62 See supra notes 40-42 and accompanying text.
  • 63 Canadian Association of University Teachers, “CAUT Guidelines for the Use of Copyrighted Material” (...)
  • 64 Association of Canadian Community Colleges, “Fair Dealing Policy” (30 August 2012) <http://www.michaelgeist.ca/component/option,com_docman/task,doc_download/gid,115/>.
  • 65 University of Toronto, Office of the Vice-President and Provost, “New Fair Dealing Guidelines” (5 (...)
  • 66 See Michael Geist, “Fair Dealing Consensus Emerges Within Canadian Educational Community”, Michael (...)

38The second interrelated issue concerns the development, implementation and evaluation of institutional fair dealing guidelines. As indicated earlier in this essay, AUCC released a set of fair dealing guidelines in December 201062; these were followed by a very divergent set of guidelines from the Canadian Association of University Teachers (CAUT) in April 2011.63 After the pentalogy, a new set of guidelines is emerging, including entries from Association of Canadian Community Colleges (ACCC)64 and the University of Toronto,65 and there does seem to be a growing consensus about the content of the guidelines.66 Comparing these emerging policies with the scope of the permissions granted by Access Copyright under the Proposed Tariff and the various licences indicates enough of an equivalency to suggest that Access Copyright is simply granting back permission to make copies that are already permitted under fair dealing. The Access Copyright licence says that “[s]ubject to compliance with each of the conditions in Sections 4 and 5, this tariff entitles an Authorized Person for Authorized Purposes only, to

(a) make a Copy of up to ten per cent (10%) of a Repertoire Work;

(b) make a Copy of up to twenty per cent (20%) of a Repertoire Work only as part of a Course Collection; or

(c) make a Copy of a Repertoire Work that is

(i) an entire newspaper or periodical article or page,

(ii) a single short story, play, poem, essay or article,

(iii) an entire entry from an encyclopaedia, annotated bibliography, dictionary or similar reference work,

(iv) an entire reproduction of an artistic work (including a drawing, painting, print, photograph and reproduction of a work of sculpture, an architectural work of art and a work of artistic craftsmanship), and

(v) one chapter, provided it is no more than twenty per cent (20%) of a book.

  • 67 Memorial University, “Memorial will not sign copyright agreement between AUCC and Access Copyright (...)

39Even before the pentalogy, several institutions questioned the value of the AUCC Model License. Memorial University emphasized this point in its announcement that it would not be signing the license, stating, “[a] dominant theme running through all discussions, consultations and feedback on this issue was the absence of a compelling value proposition for Memorial under the proposed licensing terms.”67 Similarly, in its announcement rejecting the AUCC Model License, the University of British Columbia stated:

  • 68 University of British Columbia, “UBC is not signing a license agreement with Access Copyright” (15 (...)

The AUCC model license only permits copying of up to 10% of a work (20% in case of course packs) and only with respect to a narrow repertoire that is almost exclusively print-based. Therefore, the license would not be cost-effective for UBC and does not absolve faculty members and students from the need to respect the legal rights of copyright owners.68

40In order for collective licensing to maintain relevance in the Canadian educational sector, collectives must offer licensing options that provide additional value to institutions and end users. The level of general permissions must clearly go beyond what is already permitted under fair dealing, and institutions should be encouraged to obtain transactional licences where they are needed.

41With the benefit of the pentalogy rulings and the passage of Bill C-11 with educational fair dealing intact, the task facing Canadian educational institutions is clear. Schools that have already entered into licence agreements with Access Copyright should terminate them at the earliest possible opportunity, and guidelines for campus copyright practices should be crafted. These guidelines should provide useful guidance to academic staff and students about their copyright rights and obligations, but should also be flexible enough to accommodate the varied instances in which fair dealing might arise.

42In March 2014 we will celebrate the tenth anniversary of the CCH decision. It would be fitting to have robust fair dealing policies and practices in place by that time that reflect the true meaning of the decision, and that empower academic staff and students to become conscious practitioners of fair copyright practices.

Notes

1 Entertainment Software Association v Society of Composers, Authors and Music Publishers of Canada, 2012 SCC 34, [2012] 2 SCR 231 <http://scc.lexum.org/decisia-scc-csc/scc-csc/scc-csc/en/item/9994/index.do> [ESA]; Rogers Communications Inc. v Society of Composers, Authors and Music Publishers of Canada, 2012 SCC 35, [2012] 2 SCR 283 <http://scc.lexum.org/decisia-scc-csc/scc-csc/scc-csc/en/item/9995/index.do>; Society of Composers, Authors and Music Publishers of Canada v Bell Canada, 2012 SCC 36, [2012] 2 SCR 326 <http://scc.lexum.org/decisia-scc-csc/scc-csc/scc-csc/en/item/9996/index.do> [Bell]; Alberta (Education) v Canadian Copyright Licensing Agency (Access Copyright), 2012 SCC 37, [2012] 2 SCR 345 <http://scc.lexum.org/decisia-scc-csc/scc-csc/scccsc/en/item/9997/index.do> [Alberta (Education)]; Re:Sound v Motion Picture Theatre Associations of Canada, 2012 SCC 38, [2012] 2 SCR 376 <http://scc.lexum.org/decisia-scc-csc/scc-csc/scc-csc/en/item/9999/index.do> [Re:Sound] [the pentalogy].

2 Copyright Modernization Act, SC 2012, c 20 <http://laws-lois.justice.gc.ca/eng/AnnualStatutes/2012_20/FullText.html> [Bill C-11].

3 Copyright Act, RSC 1985, c C-42 <http://laws.justice.gc.ca/en/C-42/>.

4 Samuel E. Trosow, “Bill C-32 and the Educational Sector: Overcoming Impediments to Fair Dealing” in Michael Geist, ed, From “Radical Extremism” to “Balanced Copyright”: Canadian Copyright and the Digital Agenda (Toronto: Irwin Law, 2010) 541 (analyzing the educational provisions of Bill C-32 and identifying various impediments to the implementation of robust fair dealing policies in the Canadian colleges and universities) [Trosow, Overcoming Impediments].

5 The provisions of Bill C-32, An Act to amend the Copyright Act, 3rd Sess, 40th Parl, 2010 <http://www.parl.gc.ca/HousePublications/Publication.aspx?Language=E&Mode=1&DocId=4580265&Col=2&File=4> [Bill C-32] was carried forward into the text of Bill C-11, which was ultimately enacted.

6 Alberta (Education), supra note 1.

7 Bell, supra note 1.

8 CCH Canadian Ltd. v Law Society of Upper Canada, 2004 SCC 13, [2004] 1 SCR 339 <http://www.canlii.org/en/ca/scc/doc/2004/2004scc13/2004scc13.html> [CCH].

9 ESA, supra note 1.

10 Trosow, Overcoming Impediments, supra note 4 at 542.

11 Meera Nair, “Fair Dealing at a Crossroads” in Michael Geist, ed, FromRadical Extremism toBalanced Copyright”: Canadian Copyright and the Digital Agenda (Toronto: Irwin Law, 2010) 90 at 101.

12 “AUCC Model License April 2012” (April 2012) <http://www.caut.ca/uploads/Model_License_Agreement_AC.pdf>. Neither Access Copyright nor AUCC have visibly posted a copy of the agreement on their website.

13 The original Canadian Copyright Act of 1921 (SC 1921, c 24) contained a fair dealing provision that was based on the U.K. Copyright Act of 1911. Section 16(i) (corresponding to s 2.1(i) of the UK Act), provided that “any fair dealing with any work for the purposes of private study, research, criticism, review, or newspaper summary” did not constitute an infringement of copyright.

14 Efforts to add further definition of the concept to the Act had not been successful. While the 1984 report by Consumer and Corporate Affairs Canada, From Gutenberg to Telidon: A White Paper on Copyright: Proposals for the Revision of the Canadian Copyright Act suggested that the fair dealing provisions be amended to better define the doctrine and provide a list of factors to be considered in determining whether a particular use was fair, the proposal was rejected by a Parliamentary Committee the next year. (See House of Commons, Standing Committee on Communications and Culture, A Charter of Rights for Creators, Report of the Sub-Committee on the Revision of Copyright (1985)). The White Paper’s proposals were not incorporated into the Phase I amendments of 1988, nor was fair dealing covered in the Phase II amendments of 1997. In the recently completed round of copyright amendments, Parliament also declined to provide further definition to fair dealing, despite being requested to do so from stakeholders on both sides of the issue.

15 This attitude was reflected in the 1999 trial court decision in CCH Canadian Ltd. v Law Society of Upper Canada, [2000] 2 FC 451, 179 DLR (4th) 609 <http://www.canlii.org/en/ca/fct/doc/1999/1999canlii7479/1999canlii7479.html> which rejected fair dealing as a defense. The court applied a strict construction to the category of research and finding that the Library’s copying was not for an allowable purpose as they were not the ones actually engaged in the research. See Denis S Marshall, “First Impressions of a Troubling Case: Some Comments on CCH Canadian Limited v the Law Society of Upper Canada” (2000) 25:1 Can L L 18.

16 CCH Canadian Ltd. v Law Society of Upper Canada, 2002 FCA 187, [2002] 4 FC 213 <http://www.canlii.org/en/ca/fca/doc/2002/2002fca187/2002fca187.html>.

17 CCH, supra note 8.

18 Ibid at para 51.

19 Bell, supra note 1 at para 15. The service providers gave consumers the ability to listen to free “previews” of works before deciding on a purchase. SOCAN sought compensation for these previews in addition to what would be paid for the download (ibid at para 3).

20 Ibid at para 19.

21 Ibid at para 20.

22 Ibid at para 19.

23 Ibid at para 22.

24 Ibid at para 28.

25 Ibid at para 30.

26 See Alberta (Education), supra note 1 at para 14.

27 Bell, supra note 1 at para 27. See also Michael Geist, “Has Canada Effectively Shifted from Fair Dealing to Fair Use?”, Michael Geist Blog (13 July 2012) <http://www.michaelgeist.ca/content/view/6589/125/>.

28 Bell, supra note 1 at para 34.

29 Ibid at para 41.

30 Ibid at para 48.

31 Ibid.

32 The other categories of copies, those that were made by the teachers for their own use and those that were made at the request of the students, were considered fair dealing and were not in issue.

33 Sillitoe v McGraw-Hill Book Company (U.K.) Ltd., [1983] FSR 545 (Ch D) (commercial sale of study notes incorporating substantial portions of copyrighted works to students did not qualify as private study).

34 University of London Press, Ltd. v University Tutorial Press, Ltd., [1916] 2 Ch 601 (commercial sale of publication of old exams to students did not qualify as private study).

35 Copyright Licensing Ltd. v University of Auckland, [2002] 3 NZLR 76 (HC) (sale of course packs by university to students did not qualify as private study).

36 Alberta (Education), supra note 1 at para 21.

37 Ibid at para 25.

38 Re Statement of Royalties To Be Collected By Access Copyright For The Reprographic Reproduction, In Canada, of Works In Its Repertoire (Educational institutions–2005-2009) (17 July 2009) (CB) <http://cb-cda.gc.ca/decisions/2009/Access-Copyright-2005-2009-Schools.pdf>.

39 Alberta (Education) v Access Copyright, 2010 FCA 198, [2011] 3 FCR 223 <http://www.canlii.org/en/ca/fca/doc/2010/2010fca198/2010fca198.html>.

40 See “Fair Dealing Policy With Intro” (22 December 2010) <http://www.scribd.com/doc/45806217/Fair-Dealing-Policy-With-Intro-December-22-2010> [AUCC Policy] (containing AUCC’s cover memo). See also University of Regina, “Fair Dealing Policy” (March 2011) <http://www.uregina.ca/copyright/assets/docs/pdf/fair-dealing-policy-revised-march-2011.pdf> (adopting the policy with the cover memo) and York University, “Copyright @ York» Fair Dealing Guidelines (AUCC)” <http://copyright.info.yorku.ca/fair-dealing-guidelines/> (adopting the text of the guidelines without the memo) (all accessed 28 November 2012).

41 The matter of the AUCC Fair Dealing Guidelines, including its current status, will be further discussed in the next section.

42 AUCC Policy, supra note 40 (see cover sheet at fifth paragraph). It is likely only a matter of time for this aspect of the AUCC policy to be explicitly withdrawn, not only by AUCC but also by the institutions that adopted it. Unfortunately, AUCC has never actually posted its fair dealing guidelines to its publicly available website so one must rely on other documentation for evidence of its position. As of 24 March 2013, there is not even an acknowledgement of the pentalogy on the AUCC website.

43 Alberta (Education), supra note 1 at para 27.

44 Ibid at para 23.

45 Ibid at para 24.

46 Ibid at para 29.

47 Ibid. The court further noted that a quantification of the aggregate amount was relevant under the “character of the dealing factor “and had already been considered there. In reapplying this aggregate factor, the Board had erroneously conflated the two criteria (ibid at para 30).

48 Ibid at para 32.

49 Ibid at para 35. It should be noted that the dissent agreed with the majority on this last point regarding the unreasonable nature of the Board’s conclusion on this factor (ibid at para 57).

50 Access Copyright, “Impact of Supreme Court Copyright Decision Limited to Small Proportion of Copying in Schools, Access Copyright Says” (12 July 2012) <http://accesscopyright.ca/media/28161/impact_of_supreme_court_copyright_decision_limited_to_small_proportion_of_copying_in_schools.pdf>. In response to this claim, see Howard Knopf, “Access Copyright’s Fantasy of a ‘Seven Per Cent Solution’”, Excess Copyright Blog (23 July 2012) <http://excesscopyright.blogspot.ca/2012/07/access-copyrights-fantasy-of-seven-per.html>.

51 See “Ruling of the Board” (19 September 2012) (CB) <http://www.cb-cda.gc.ca/avis-notice/index-e.html#access3-19092012>.

52 ESA, supra note 1.

53 Re Tariff No. 22.A (Internet—Online Music Services) 1996-2006 (18 October 2007) (CB) <http://www.cb-cda.gc.ca/decisions/2007/20071018-m-e.pdf>.

54 Entertainment Software Association and the Entertainment Software Association of Canada v CMRRA/SODRAC Inc., 2010 FCA 221 <http://canlii.org/en/ca/fca/doc/2010/2010fca221/2010fca221.html>.

55 ESA, supra note 1 at para 5.

56 Ibid.

57 Ibid at para 9.

58 In CCH, supra note 8 at para 70, the Court stated that: “The availability of a licence is not relevant to deciding whether a dealing has been fair. As discussed, fair dealing is an integral part of the scheme of copyright law in Canada. Any act falling within the fair dealing exception will not infringe copyright. If a copyright owner were allowed to license people to use its work and then point to a person’s decision not to obtain a licence as proof that his or her dealings were not fair, this would extend the scope of the owner’s monopoly over the use of his or her work in a manner that would not be consistent with the Copyright Act’s balance between owner’s rights and user’s interests.”

59 “Statement of Proposed Royalties to Be Collected by Access Copyright for the Reprographic Reproduction, in Canada, of Works in its Repertoire” (2010) C Gaz I, vol 144, no 24 <http://www.gazette.gc.ca/rp-pr/p1/2010/2010-06-12/html/sup1-eng.html> [Proposed Tariff].

60 In January 2012, Access Copyright entered into separate license agreements with the University of Toronto and the University of Western Ontario, the terms of which were substantially similar to the proposed tariff. AUCC and ACCC subsequently reached agreements with Access Copyright for a “Model License”. See Samuel E Trosow, Scott Armstrong & Brent Harasym, “Objections to the Proposed Access Copyright Post-Secondary Tariff and its Progeny Licenses: A Working Paper” (14 August 2012) <http://ir.lib.uwo.ca/fimspub/24/>. See also Howard Knopf, “U of T and Western Capitulate to Access Copyright”, Excess Copyright Blog (31 January 2012) <http://excesscopyright.blogspot.com/2012/01/u-of-t-and-western-capitulate-to-access.html>; Samuel Trosow, “Toronto and Western sign licensing agreement with Access Copyright”, Sam Trosow Blog (31 January 2012) <http://samtrosow.ca/content/view/112/2/>, and Ariel Katz “Governance Issues: The UofT-Access Copyright Agreement”, Ariel Katz Blog (12 February 2012) <http://arielkatz.org/governance-issues-the-uoft-accesscopyright-agreement/>.

61 For objections to the proposed tariff, see Glen Bloom, “AUCC Letter to Copyright Board” (15 July 2010) <http://www.scribd.com/doc/38477597/AUCC-Letter-to-Copyright-Board-July-15-2010> and the joint objection filed by the Canadian Federation of Students and the Canadian Association of University Teachers, “Objection: Access Copyright Post-Secondary Educational Institution Tariff 2011-2013” (11 August 2010) <http://caut.ca/uploads/CAUT_CFS_Objection_to_ACT.pdf>.

62 See supra notes 40-42 and accompanying text.

63 Canadian Association of University Teachers, “CAUT Guidelines for the Use of Copyrighted Material” (April 2011) <https://www.caut.ca/uploads/Copyright_guidelines.pdf>, and the revised CAUT Guidelines for the Use of Copyrighted Material (February 2013) <https://www.caut.ca/uploads/Copyright_guidelines_2013_en.pdf>.

64 Association of Canadian Community Colleges, “Fair Dealing Policy” (30 August 2012) <http://www.michaelgeist.ca/component/option,com_docman/task,doc_download/gid,115/>.

65 University of Toronto, Office of the Vice-President and Provost, “New Fair Dealing Guidelines” (5 November 2012) <http://www.provost.utoronto.ca/public/pdadc/2012_to_2013/26.htm>; University of Toronto, “Copyright Fair Dealing Guidelines” (November 2012) <http://www.provost.utoronto.ca/Assets/Provost+Digital+Assets/26.pdf>.

66 See Michael Geist, “Fair Dealing Consensus Emerges Within Canadian Educational Community”, Michael Geist Blog (14 November 2012) <http://www.michaelgeist.ca/content/view/6698/125/>.

67 Memorial University, “Memorial will not sign copyright agreement between AUCC and Access Copyright” (28 June 2012) <http://today.mun.ca/news.php?news_id=7462>.

68 University of British Columbia, “UBC is not signing a license agreement with Access Copyright” (15 May 2012) <http://www.broadcastemail.ubc.ca/2012/05/15/ubc-is-not-signing-a-license-agreement-with-access-copyright/>. See also University of Saskatchewan announcement of 3 July 2012, stating: “The agreement with Access Copyright is not cost effective for us given the material that is covered by the license.” University of Saskatchewan, “The U of S will not sign the Access Copyright model license” (3 July 2012) <http://www.usask.ca/copyright/news/model-license-decision.php>.

Auteur

Associate professor at the University of Western Ontario in the Faculty of Information & Media Studies and the Faculty of Law. He is a network investigator with the GRAND NCE and serves on the Librarians Committee of the Canadian Association of University Teachers

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