Access Copyright Legal Arguments.canadian Schools

8/11/2019 Access Copyright Legal Arguments.canadian Schools

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ACCESS COPYRIGHT ELEMENTARY AND SECONDARY

SCHOOL TARIFFS (2010-2012 & 2013-2015)

ACCESS COPYRIGHT LEGAL SUBMISSIONS

(FILED PURSUANT TO BOARD NOTICE DATED JUNE 6, 2014)

August 8, 2014 THE CANADIAN COPYRIGHT

LICENSING AGENCY

1 Yonge Street, Suite 800

Toronto, ON M5E1E5

Arthur B. RenaudLSUC #26331F

Tel: (416) 868-1620 ext. 294

[email protected]

Erin FinlayLSUC #48054B

Tel: (416) 868-1620 ext. 234

Fax: (416) [email protected]

Lawyers for Access Copyright
mailto:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]


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from a number of sources: express written grants of rights (e.g. an affiliation agreement); written

agreements with other collectives (e.g. Copyright Clearance Center, Inc.); and through its appointment

as agent, express or implied, by rightsholders who have not otherwise made an express written grant

(non-affiliated rightsholders).

4.

Access Copyright provided legal justification for including the works of non-affiliated

rightsholders in the royalty calculation in the previous tariff proceeding in a detailed legal brief dated

October 9, 2007.3

In their response to Access Copyrights position, the Objectors asserted that the

copyright-protected works of non-affiliated rightsholders ought to be excluded from Access Copyrights

repertoire.

5. The Board made a legal finding4,well within its jurisdiction, that the works of non-affiliated

rightsholders who actively ratify Access Copyrights collective administration of their reprographic rights

(by cashing royalty distributions made by Access Copyright arising from the copying of their works in K-

12 educational institutions) are included within Access Copyrights repertoire by way of implied agency.

The Boards finding, on the evidence, was that approximately 0.1 percent of these rightsholders did not

ratify the agency relationship. The evidence in the present proceedings is that that percentage has

remained relatively constant since that time.5

b) Application of the evidentiary rule of issue estoppel

6. The Boards finding was not challenged by the Objectors on judicial review6

7. In these present proceedings, the Objectors have recycled their arguments from the inaugural

tariff proceedings. The Objectors assert that the only works in Access Copyrights repertoire are those

that are the result of valid affiliation agreements

. Absent changes to

the relevant provisions of theActor the tendering of evidence that introduces new facts that were

unascertained or unascertainable at the time of the inaugural tariff proceedings, the Boards previous

substantive findings of fact and law are binding on the parties in these proceedings.

7

. All works of non-affiliated rightsholders are to be

excluded.

8. This issue of law was conclusively resolved in the inaugural tariff proceedings. To the extent the

Objectors purport to support their recycled assertion with new analyses, this evidence is not grounded

in any new facts or any facts that were unascertained or unascertainable at the time of the inaugural

tariff proceedings. Accordingly, the Objectors are precluded from proffering evidence in these

proceedings to challenge the Boards substantive legal finding and from otherwise calling into question,

once again, the breadth of Access Copyrights repertoire8

.

9. The application of the evidentiary rule of issue estoppel ensures consistency in the Boards

decisions, respect for their finality, and allows the Board to augment its previous decisions. If the

Objectors are permitted to relitigate issues previously decided with finality, confidence in the fairness


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and integrity of the Boards previous decisions are undermined by the possibility of inconsistent findings

in unnecessarily duplicative proceedings.

c) Answers to Boards Post-Hearing Questions 2.1-2.4

10.

Should the Board decline to apply the evidentiary rule of issue estoppel, Access Copyright again

relies on the evidence of its Executive Director, Ms. Levy 9

, that explains the policy and practicalities that

support the administration of the rights of copyright holders on an exclusions basis which: a) ensures

that rightsholders whose works are copied receive fair compensation for the copying and use of their

works; and b) provides certainty to users as to which works may be copied with immunity from suit for

copyright infringement under section 70. 17 of theAct.

11. The facts and law underlying the Boards substantive findings on the breadth of Access

Copyrights repertoire remained unchanged: the parties agreed to set the royalty based on the Volume

Study data10

; Access Copyright has distributed based on that data for the period up to 201211

; AccessCopyright continues to pay royalties to non-affiliated rightsholders whose works were captured during

the study12; the decision to do so reflects Access Copyrights past (and current) practices; and almost all

of the non-affiliated rightsholders have cashed the cheques they received13

. The only fact that has

changed since the Decision that impacts the agency issue is that the Objectors have unilaterally decided

to stop paying royalties to Access Copyright and have deprived Access Copyright of data as to which

particular works have been copied in K-12 institutions after January 1, 2013.

12.

The Board set the inaugural K-12 tariff based on evidence of the general behaviour of collectives

and users by drawing conclusions about representative copying behaviour throughout the entire period

covered by the tariff14. It remains appropriate that the Board include works of non-affiliatedrightsholders in the royalty calculation based upon the proven facts and reasonable inferences

therefrom that: (a) Access Copyright has continued, and will continue, to distribute royalties once they

are paid,to non-affiliated rightsholders when their works are copied; and (b) that the vast majority of

those rightsholders will cash the cheques.15

13.

Access Copyright only distributed $2.576 per FTE for the 2010-2012 tariff period because the

tariff rate has not yet been finally certified by the Board. Those distributions were made to all

rightsholders for whom Access Copyright has information that their works have been copied , including

non-affiliated rightsholders. Once the tariff is certified, Access Copyright will, in accordance with its past

practices, distribute the remaining royalties to those rightsholders.

14. It would be patently unjust if the Board allowed the Objectors to copy the works of non-

affiliated rightsholders without consequence and without payment because the Objectors decided to

stop paying royalties under the Access Copyright tariff and ceased to disclose which works have been

copied. The Objectors should not, by their unilateral actions, be permitted to copy from copyright-


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protected works of non-affiliated rightsholders simply because they refuse to pay the tariff or otherwise

abide by its terms.

15. Exhibit AC-79 is the letter that accompanies Access Copyrights distribution cheques to all

rightsholders, including non-affiliated rightsholders. It explains the reasons for the distribution, the

sector that copied the rightsholders works and describes the uses made of the works (photocopying,

scanning, posting and electronic distribution). The letter is accompanied by a distribution report which

lists the individual works copied, the sector that copied the work, the number of copies made and the

amount paid for such copying. In response to the Boards request, a sample distribution report has been

filed as CONFIDENTIAL EXHIBIT AC-103. When a rightsholder accepts payment for the uses made (as

outlined in Exhibits AC-79 and AC-103), it does so with the full knowledge of what is being authorized

and the implied agency relationship is ratified.

16. For non-affiliated rightsholders, Access Copyright communicates directly with and pays the

copyright owner. In most cases, the copyright owner is the publisher16

, but sometimes the copyright is

owned by an author or authors estate. (For example, if a work is out-of-print, copyright typically reverts

to the author.) In those cases, Access Copyright pays the author. In all cases, Access Copyright

endeavors, to the best of its ability, to communicate directly with the copyright owner or its agent.

17. Copies made of works owned by non-affiliated rightsholders of an RRO are authorized by the

proposed tariffs. Australia has a statutory licence for educational and government copying of books,

magazines and newspapers that is managed by Copyright Agency, so there are no non-affiliated

rightsholders in Australia relevant to this tariff. The RROs of the United Kingdom and the United States

search for and distribute royalty distributions to non-affiliated rightsholders when the RROs are notified

that those rightholders' works have been copied. When foreign non-affiliated rightsholders accept

payment through their RRO, they ratify the agency relationship. To find otherwise would violate the

principle of National Treatment by treating foreign rightsholders differently than Canadian rightsholders

when their works are copied in Canada.

18. Access Copyright does not receive confirmation that an affiliation agreement was entered into

with the foreign RRO. It relies on the terms of its bilateral agreements, and the exchange of exclusions

and inclusions lists (e.g. for born digital works), under which the RRO represents the rights that it has.

d)

Sheet music

19. The Board has asked (Post-Hearing Question 2.5)Access Copyright to explain what value

accrues to the Objectors to have a tariff for the reproduction of sheet music instead of permitting them

to operate on a transactional basis.


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20. First, the testimony of Mr. Chodorowitz in the previous tariff proceeding17

remains apt in

respect to sheet music in the absence of the blanket licence it would be extremely difficult for schools

to clear the rights before making copies on a transactional title-by-title, work-by-work basis.

21. Second, there is no evidence in these proceedings that K-12 institutions have ever sought

copyright clearances or transactional licences from print music publishers to copy sheet music, despite

having copied millions of pages18 from this genre per annum. Indeed, the evidence of record is that no

transactional licences or copyright clearances have ever been sought by K-12 institutions to permit

copying of works in Access Copyrights repertoire at any time19. The Board is entitled to draw a

reasonable inference20

that the Objectors will not alter their behaviour and now begin to seek

transactional licences.

22. Unless the Objectors were to completely cease the copying of sheet music there was no such

suggestion, much less such an undertaking from the Objectors to that effect the Board must weigh the

practical unworkability and unenforceability of a transactional licensing scheme against the reality that

the continued substantial copying of such works at K-12 institutions will deprive owners of the

reproduction rights in sheet music all compensation whatsoever if the proposed tariffs exclude sheet

music from the compensable genres of works.

23. Third, given CMRRAs expanding authority21to administer its affiliates sheet music reproduction

rights, the user uncertainty expressed by Ms. Rioux will dissipate over time. As CMRRAs sheet music

repertoire expands, the value to the Objectors (including the immunity from suit afforded by section

70.17 of theAct) will correspondingly increase. This value is one of the benefits that Mr. Chodorowitz

acknowledged in the previous tariff proceedings22

that accrued to the Objectors, albeit in relation to the

genres of works then under consideration.

24. With respect to the Boards request (Post-Hearing Question 2.6) for clarification as to the

respective mandates of Access Copyright and CMRRA for musical scores in books, the clarification was

provided to Objectors counsel and previously filed with the Board23. By way of summary, the CMRRA

print music right affiliation schedule24

defines published musical works to include sheet music and

musical scores in book form. To the extent a CMRRA affiliate publishes print musical works in the form

of books, there is no expansion of Access Copyrights repertoire since the reproduction of those works

already falls within Access Copyrights repertoire.

25.

Access Copyrights repertoire is only expanded through the operation of the October 2010

mandate agreements25

when a music publisher who has subscribed to Schedule G of the CMRRA

Affiliation Agreement publishes print musical works in the form of sheet music. Any redundancy

introduced by the broad definition of published musical works used in Schedule G by CMRRA with its

affiliates to include musical scores in books does not add or subtract works from Access Copyrights

already-established collective administration mandate.


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26. The joint operation of Schedule G and the mandate agreements afford Access Copyright the

right to collectively administer the reproduction right in both sub-genres of published print musical

works, from October 2010 onward, of those music publishers who have subscribed to Schedule G to

CMRRAs Affiliation Agreement.

LEGAL /EVIDENTIARY ISSUES RELATING TO COPYING BEHAVIOUR IN K-12 SCHOOLS

a)

Boards previous findings re: volume of copied published works were based on best available

evidence, are final and ought not be disturbed

27. Access Copyright and the Objectors jointly designed a comprehensive study which collected

data relating to the copying behaviour of teachers in a sample of K-12 institutions over a two week

period from February 2005 to March 2006 (the Volume Study).

28. The data captured by the Volume Study was subjected to a rigorous and comprehensive analysis

in the previous tariff proceedings by the parties respective experts. The parties tendered expert

evidence concerning those analyses. The experts were made available for cross-examination. At the end

of this process, the parties essentially agreed on the total number of photocopied pages. The parties

were afforded all opportunities to advance all relevant analyses and expert evidence and their

positions/arguments on the Volume Study.

29. The Board considered the parties evidence and arguments and made certain substantive

findings of fact. Among those findings was that approximately 10.3 billion pages were photocopied in K-

12 institutions per annum and that the volume was comprised of approximately 3.1 billion pages from

published works of various genres.

26

30. The Objectors accept that the data in the Volume Study should again be used to calculate the

volume of compensable copying in K-12 institutions for the purposes of the present proceedings27

. In

other words, the Volume Study data serves as a satisfactory proxy for the volume of copying during the

2010-2015 tariff periods.

31. Despite that acceptance, the Objectors purport to challenge the substantive findings of fact

made by the Board in the previous tariff proceedings arising from the Volume Study. As is the case with

the Objectors challenge to the breadth of Access Copyrights repertoire, the Objectors challenge is not

grounded in any new facts that were unascertained or unascertainable at the time of the previous tariffproceedings. The evidentiary rule of issue estoppel precludes the Objectors from challenging/re-opening

the Boards findings concerning total copying volume of published works in K-12 institutions.

32. The Objectors are not precluded from having the Board reconsider the final compensable

volumes for the purposes of the 2013-2015 tariff given the legislative and jurisprudential developments


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relating to fair dealing and other statutory exceptions; and given the fact that the issue of fair dealing is

always a fact-based inquiry to be determined upon reliable evidence tendered in each case.

b) A party may not rely on its own responses to interrogatories unless witnesses/evidence are

unavailable

33. The Objectors tendered no evidence from current K-12 teachers concerning their copying

behaviour during the periods covered by the proposed tariffs. Instead, the Objectors and their expert

witnesses purport to rely on the answers given by the Objectors in response to written interrogatories 28

asked by Access Copyright as evidence of current copying behaviour by teachers in K-12 schools.

34. Contrary to the position advanced by the Objectors in their Opening Statement29, it was not

impossible for the Objectors to tender evidence concerning teacher copying behaviour circa 2013/2014.

Mr. Chodorowicz admitted30that he had previously conducted polls of teachers in connection with the

previous tariff proceedings. Despite having been retained for almost a year31

, no poll of teacher copyingbehaviour was undertaken for the purposes of the present proceedings. Moreover, despite the fact that

he was at complete liberty to speak to teachers (unlike Mr. Dobner to whom teachers would not

speak32), Mr. Chodorowicz never spoke to teachers before filling his report33

.

35. Interrogatories are in the nature of examinations for discovery34. In adversarial proceedings, a

party is not permitted to read-in portions of its own discovery as evidence, unless there are no other

means to introduce the evidence, because the reliability of these out-of-court self-serving statements

cannot be tested through cross-examination; nor can the credibility of the declarants or the reliability of

the statements be assessed by the tribunal35

.

36. The unreliability of these self-serving statements is illustrated in at least two concrete examples

in these proceedings: 1) Mr. Chodorowiczs reliance on inaccurate FTE numbers provided by the

Objectors in the interrogatory process36which were contradicted by the reliable data provided in

connection with the Objectors reporting obligations under section 8(4) of the certified tariff; and 2) Mr.

Chodorowiczs initial conclusion (recanted at the hearing37) that copying from textbooks is rare,38a

conclusion arrived at from his reliance on the Objectors unreliable interrogatory responses which was

again contradicted by the reliable data gathered in the bibliographic studies conducted under section 10

of the certified tariff (the Bibliographic Studies).39

37.

The rule precluding a party from relying on its own self-serving interrogatory responses, unless

supported by a live witness whose evidence may be challenged (by the opposite party) and whose

credibility and reliability may be weighed (by the Board), ensures that the Board has probative evidence

upon which to make accurate findings of fact, findings that will be afforded significant deference in any

judicial review of those findings

40

.


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c)

Adverse inferences and weighing conflicting evidence

38. The Objectors did not tender evidence within their control, in particular, the evidence of

teachers concerning their current copying behaviour. The Board ought to draw an unfavourable

inference from that failure, that is, that their evidence would not have assisted the Objectors41

.

39. To the extent there is a conflict in the evidence tendered by the parties concerning the current

copying behaviour of K-12 teachers, the Board ought to afford determinative weight to evidence that

was put forward through a witness (Access Copyright witnesses and Mr. Gauthier) who could be

challenged through cross-examination and whose credibility could be subjected to the Boards scrutiny.

Here, to the extent there is a conflict in the evidence concerning teacher copying behaviour between

the self-serving interrogatory answers (and the Objectors expert evidence that is based upon such

answers) and the evidence of the Bibliographic Studies about which the Board heard direct evidence

from Access Copyrights witnesses, that conflict must be determined in favour of Access Copyright.

40.

Moreover, in weighing any conflicts in the evidence, the Board is fully entitled to take into

consideration any evidence that suggests that any expert witness impermissibly departed from his role

as a non-partisan, objective witness and instead became an advocate for the party who retained him.

41. For decades, common law courts have insisted that experts be independent from the parties

who retain them; provide objective, unbiased opinion evidence only in relation to matters within their

expertise; and avoid assuming the role of advocates for the parties who retain them.42

42. The Objectors expert witness, Mr. Chodorowicz, approached his mandate as an expert witness

in a non-objective, partisan manner to advocate the interests of the Objectors. As was revealed during

his cross-examination, Mr. Chodorowicz selectively extracted only those portions of an authoritative

document

43that supported the Objectors position but inappropriately withheld from his report and his

examination in chief all mention of other relevant excerpts that were directly contrary to the Objectors

position and that were clearly relevant to his mandate. Moreover, a number of answers given to

questions asked of him on cross-examination were evasive and inconsistent44

.

43. This conduct ought to be taken into account when the Board weighs his evidence. In particular,

where his evidence conflicts with that of Mr. Dobner in respect to the impacts of K-12 teacher copying

behaviour on the publishers markets, the evidence of Mr. Dobner - who testified in a straightforward

and forthcoming manner in accordance with his obligations as an expert witness - should be preferred.

INSUBSTANTIAL COPYING

44.

In question 4(c) of the Boards technical questions in its June 6, 2014 Notice, the Board referred

to its 2009 decision in Satellite Radio45as apparent support for setting a threshold for uncompensable

insubstantial copying in the present proceedings. The Boards findings in that decision were specific to

those proceedings and are inapplicable to the present proceedings.


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45. As correctly found by the Board in Satellite Radio46, whether or not there has been reproduction

of a substantial part of a work is a question of fact which must be determined in light of all the

circumstances of each case. In Satellite Radio, the 4-6 second byte soup was unrecognizable in terms

of audio files and was both inaccessible and completely invisible to users. Applying the then leading

jurisprudence47, the Board correctly determined the issue of substantiality by assessing the quality

that was taken rather than quantity. An assessment restricted to a quantitative measurement of the

percentage of the work copied would have been contrary to that jurisprudence.

46. The principles in U & R Tax Services Ltd. were reaffirmed by the Supreme Court of Canada in

Cinar Corporation v. Robinson48. The Court confirmed that theActprotects creators against both literal

and non-literal copying so long as the copied material forms a substantial part of the work from which it

is copied. Whether a part copied is substantial must be decided using a qualitative and holistic approach

rather than merely considering the quantity copied. If the copying of any part, even a small quantitative

part, represents a substantial portion of the authors skill and judgment expressed in the work, the

copyright in the work is infringed.

47.

On the facts and circumstances of Satellite Radio, the Board found that the 4-6 seconds were

not a substantial part of the work. The 4-6 seconds were part of a technological process, were not

chosen by the user and could not be linked together to make a longer segment of a musical work. As the

Board found, [a]t no time does a subscriber possess a series of 4 to 6 second clips which when taken

together would constitute a substantial part of the work.49

48. The facts of Satellite Radiostand in stark contrast to the facts in the present proceedings. Here,

unlike the Satellite Radio decision, the copied portions of published educational works are completely

recognizable and accessible by users and chosen by them. The evidence in these proceedings50

establishes that K-12 teachers return to the same published educational resource to copy additional

portions. As such, while an individual copying event may be less than 2.5% of a work, the phenomenon

of compound copying means that teachers copy more than the supposed threshold from a given work

for a given class in a given year.

49. In addition, the evidence in these proceedings51

establishes that, in many published educational

works, a substantial amount of original skill and judgment can be expressed in one or two pages of a

work. An arbitrary 2.5% threshold, measured solely on a quantitative basis, would permit the substantial

copying of such a work.

50. In their submissions to the Supreme Court of Canada in Alberta (Education), the Objectors

identified a quote, a sentence , that is, a portion so de minimus, so unimportant that it is not within

the right of a copyright owner to control52

as the proportion of a work that, if copied, would be

insubstantial. The Objectors conceded in oral argument that the copying at issue in that case went

beyond de minimus copying.


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51. In these proceedings, the Objectors take the contrary position, claiming that all copying below a

certain quantitative threshold significantly more than a simple quote or sentence falls within the

ambit of insubstantial copying. Moreover, the Objectors deduction for insubstantial copying ignores

completely the qualitative aspects of the portions copied53

. That analysis ought to be given no weight by

the Board as it does not accord with the jurisprudence and with the Objectors admission in Alberta

(Education).

52. The evidence in these proceedings54confirms that K-12 teachers value the ability to copy from

publishers works and that the portions copied are qualitatively instrumental to meet the educational

needs of students.55

As such, the portions copied are not unimportant or de minimusand thus

cannot constitute insubstantial copying. If, from a K-12 teachers perspective, the portions copied

have a high educational value that will benefit her students, the portions must be presumed to

represent a key portion of the authors skill and judgment whose objective in creating the work was also

to express the educational concepts in a way that benefits students.

53.

For all the above reasons, an arbitrary quantitative threshold alone cannot be used to determine

substantiality. In any event, the evidentiary record confirms that the portions copied by K-12 teachers

are not qualitatively unimportant or de minimus. The Board should make no deduction from the

compensable volume on account of insubstantial copying.

FAIR DEALING

a)

Overview of Access Copyrights position

54. Access Copyright supports the Statement of Principles on Fair Dealing in Education released by

the Association of Canadian Publishers (ACP) in December 201356

.Access Copyrights position on fairdealing in elementary and secondary schools is also reflected in the Canadian Educational Resources

Councils (CERCs) Fair Dealing Guidelines for K-12 Setting.57

55. The ACP principles and CERC guidelines advocate for a principled and balanced approach to fair

dealing that advance the policy objectives of copyright law. This principled and fair approach is absent

from consideration in the Fair Dealing Guidelines published by Council of Ministers of Education,

Canada (CMEC) in the third edition of Copyright Matters!(the Guidelines).

b)

Legislative and jurisprudential developments

56. Since November, 2012, Section 29 of theActhas expressly identified education as one of the

eight enumerated purposes that may qualify as fair dealing, provided the person advocating fairness is

able to satisfy its evidential and legal burdens and demonstrate that the dealing is, on the facts of that

case, fair. 58


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57. In answer to the Boards Post-Hearing Question 1.1, the amendments to the legislation

expanded the first step of the fair dealing test to allow three new enumerated purposes, including

education. Neither the legislation, nor the Supreme Court of Canadas decisions inAlberta (Education)

or SOCAN v. Bellaltered the second fairness step of the fair dealing test.59 The determination of fair

dealing remains a case-by-case analysis60and a matter of impression61

dependent on the facts of the

case.

58.

InAlberta (Education), Access Copyright and the Objectors agreed that the copying at issue by

teachers in K-12 schools met a broad and liberal definition of research or private study under the first

step of the CCHfair dealing test.62

Similarly, for the purposes of the present tariff proceedings, Access

Copyright concedes that the purpose of the copying in K-12 schools meets an allowable purpose under

the first step of the CCHtest (other than copying made solely for the purpose of entertainment). The

Board must now engage in a second step fairness analysis and assess the evidence and arguments

advanced in these proceedings in respect to the six fair dealing factors identified in CCH.

59.

Alberta (Education) turned on the issues presented to the Court, as framed by the Objectors,

and the Courts assessment of the evidence of record a record significantly different from the

evidentiary record before the Board in the present proceedings:

a) The disputed copying behaviour at issue inAlberta (Education)was limited to an assessment

of the impact of the copying of 16.9 million pages of copyright-protected works in the

context of the Objectors admission that their copying of approximately 229 million pages

should trigger the payment of millions of dollars to Access Copyright under the first certified

tariff. Relying on the Objectors submissions, the Court understood that publishers and

creators would continue to receive millions of dollars from K-12 institutions through a

collective licence for the copying of their works63

. Here, the Objectors submit that practically

all copying in K-12 schools is exempt from royalty payments under the Acts exceptions.

b) InAlberta (Education), the copying behaviour at issue, and ultimately found to be fair,

involved a teachers situational, unplanned need to copy a few pages or little bits (and

certainly not chapters) from a book in order to assist a student struggling to understand

the educational content in the assigned textbook. Here, the Objectors submit that

practically all copying in K-12 schools non-situational, planned and organized copying of up

to 10% of a work or an entire chapter, including the compilation of various excerpts into

textbook-like collections64

, coordinated for maximum value and designed specifically to

avoid payment is fair.

c) InAlberta (Education), the copying behaviour under consideration by the Court was limited

to the copying of little bits solely to complement or supplement the content in the core

textbook in the situational context of a struggling student(s) and thus would not substitute

or replace the need to purchase the published work. Here the evidence, including a clear

admission from the Objectors expert economist, Mr. Chodorowicz65,is that certain copying


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behaviours encouraged by the Guidelines will lead to substitution for, and elimination of,

certain published works.

d) InAlberta (Education), the copying behaviour at issue was triggered by the unexpected

educational needs of the student. Here, all copying behaviour claimed by the Objectors to

be encompassed by the fair dealing exception are contextually unlimited and subject only to

the unmonitored one chapter or 10% arithmetic ceiling.

e)

Unlike the evidence here before the Board, in Alberta (Education)there was scant evidence

(labeled an evidentiary vacuum by the Supreme Court66

) in the record that the markets for

the publishers works had been negatively impacted by the copying behaviour there at issue.

f) InAlberta (Education), the Supreme Court found that the Board had erred in its assessment

of market impacts by including, in that assessment, more than a quarter billion copied

textbook pages per year for which the schools already paid a tariff.67

Here, the Objectors do

not pay the tariff and claim that almost all copied pages are fair dealing. UnlikeAlberta

(Education), the market impact assessment in the present proceedings must include the

uncompensated copying of over 300 million pages per year that the Objectors claim is fair.

60. Hence, none of the hallmarks of fairness before the Court inAlberta (Education) unplanned,

spontaneous situational copying that did not substitute for the purchase of published works and did not

otherwise negatively impact the market are part of the evidentiary record currently before the Board.

The present proceedings are a markedly different case thanAlberta (Education).

61. The decision in SOCAN v. Bellwas also based upon the evidentiary record and arguments

advanced by the parties. The two-fold ratio of that case is that the word research as used in section 29

of theActis not to be restricted to creative endeavors, but includes activities that do not require the

establishment of new facts or conclusions; and that it is the ultimate user or consumers perspective to

whom the musical previews were communicated that is to be considered when determining whether

their dealing with the previews was research-based and otherwise fair. 68

62. Access Copyright submits that, at most,Alberta (Education)corrected the Boards legal error in

finding that copies made by a teacher on her own initiative without a triggering request from a student

could not be fair research or private study (which resulted in a further reduction of 16.9 million

pages from compensable volume in the Boards re-determination decision). SOCAN v. Bellinstructs the

Board to consider the students (as the end-user) purpose when assessing fair dealing.

63. In addition, the evidence in SOCAN v. Bellestablished that the end users research-based

streaming of short previews did not compete with or adversely affect the purchase of downloads of the

works previewed. Indeed, the effect of the ISPs dissemination of low-quality and impermanent

previews to end users increased the ultimate sale and permanent downloading of the entire works by


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end users. In other words, there was no negative impact on the market for the musical works

previewed: in fact, the converse was true.

64. The evidence of record in the present proceedings establishes, among other things, a significant

negative impact on the market for educational works. Beyond this fundamental distinction, the copies in

the present proceedings are not disseminated to end users to help them decide whether or not to

purchase the entire work from which the copies have been made. Rather, the copies are disseminated

as replacements or substitutions for the purpose of the original work. Moreover, the copies made by

educational institutions for use by students are not impermanent or of a lesser quality than the original

work from which the copies were made. To the contrary, they were made so as to provide a learning

resource of equal readability to the original and thus substitute for the need to purchase the original

work.

c) The Objectors policies and practices are not presumptively fair

65.

In answer to the Boards Post-Hearing Question 1.2, the Guidelines relied upon by the Objectors

are only relevant to a fair dealing assessment if their own practices and policies are [for a fair dealing

purpose and] fair. It is only if the Board finds that the Objectors general practices are fair that the

Guidelines can serve to obviate the Objectors burden to prove that all individual dealings with the

works in Access Copyrights repertoire are fair.69

66. While the Guidelines (clauses 5 and 6) speak of K-12 institutions designating supervisors or

other persons to evaluate copying behaviour that exceeds the prescribed copying limits; and purport to

place ambiguous limits on copying of multiple short excerpts grounded in the subjective intentions of

the teachers [an] intention [to copy]substantially the entire work is prohibited the Guidelines aresilent as to the appointment of any supervisor to monitor and enforce the limits.

67. Contrary to the Objectors stated position that there is no obligation on educators to monitor,

enforce and police the [Guidelines]70

, the absence of any obligation to monitor and enforce the limits is

a pertinent omission.

68. The importance of monitoring and enforcement of a fair dealing policy is underscored by the

CCH decision. That decision turned on the evidence before that Court, including the nature of the works

(edited and head-noted judicial decisions and other works essential to legal research) and the

implementation by the Great Library of an Access to the Law Policy. That policy provided, on its face, a

strict procedure that controlled the nature and extent of the copying behaviour. The policy was

supported by the uncontradicted testimony at trial that the Great Library monitored and strictly

enforced the policy71. Such enforcement was only possible because of the single locusof the copying

activities permitted such monitoring to occur.72 This evidence contributed to the Courts conclusion that

the Great Library could rely on the general practice set out in the policy without establishing that all


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individual dealings were, in fact, for an allowable purpose and fair.

69. Here, there is overwhelming evidence in the evidentiary record73 that monitoring and

enforcement of the Guidelines is completely absent and that the copying limits prescribed by the

Guidelines are illusory.74

70. In fact, it is highly unlikely that anyversion of the Guidelines past, present or future could be

deemed to be fair and thereby obviate the Objectors burden to prove that each of their individual

dealings are for a fair dealing purpose and are fair. The Objectors past behaviour demonstrates that the

Guidelines will not be followed, no matter their purported limits. The second version of Copyright

Matters!was in place in K-12 institutions between 2005-2012

75

. That version prohibited the copying of

sheet music and consumables, yet the Volume Study established that K-12 teachers copied 19 million

pages of sheet music and 170 million pages of consumables per year. Based on the evidence of their

past behaviour, the only reasonable inference that may be drawn is that none of the Objectors

practices, systems or policies can ever be presumptively fair.

71. Therefore, the Objectors cannot rely on their general practices to establish that the Guidelines

are fair76. In the absence of language in the Guidelines or other policies which ensure that the

prescribed copying limits are followed, controlled, monitored and enforced; and evidence that copying

limits are, in fact

, followed, controlled, monitored and enforced, the Board is in no position to make any

determination that the Guidelines are presumptively fair.

d)

The Guidelines ignore the jurisprudence and thus cannot be fair

72.

After theAlberta (Education) decision, the Objectors published the Guidelines.In contrast to fairuse guidelines published in other jurisdictions, the Guidelines were arrived at without anynegotiation or

meaningful consultation with any relevant stakeholders (e.g. educational resource publishers).77

73. Under the Objectors definition of short excerpt, the copying of, inter alia, up to ten per cent

of a work, an article, a poem, an entire musical score and an entire chapter of a work is fair. 78Beyond

the ambiguity or fuzziness of that definition79

74. In attempting to delineate what constitutes fair dealing from dealing which is not, the

Guidelines advocate a bright-line arithmetic rule that defines fairness solely by the amount of the

dealing. That arithmetic ceiling finds no support in any Canadian jurisprudence and is plainly

inconsistent with the Objectors own previous solemn representations to Parliament and the Supreme

Court of Canada.

,it ignores the Supreme Court jurisprudence upon which

the Objectors purport to ground its validity.

75. In March 2011, two of the Objectors members (the Nova Scotia Minister of Education and chair

of CMEC; and Deputy Minister) and Objectors counsel, gave evidence to the legislative committee on


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Bill C-32 that was studying, among other issues, the proposed extension of the allowable fair dealing

purposes to include education.80

The Objectors representatives were appearing before the

committee on behalf of all education ministers other than Quebec.

76. In their testimony, the Minister and Deputy Minister identified short excerpts as a clip from a

television program for a current events class or a diagram illustrating a science or math topic 81; or one

or two pages from [a] book82

.

77. In December, 2011, the Supreme Court of Canada inAlberta (Education)was presented with a

very narrow issue83

, that is, whether a teacher copying pages from a copyright-protected work for

distribution to students struggling with the course subject matter, without any prior request from

students, fell within the ambit of the research or private study fair dealing purposes.

78. As noted above, the volume associated with the disputed copying at issue was 16.9 million

pages, approximately 7% of the total compensable copying volume per annum in K-12 institutions. The

Objectors did not dispute their obligation to pay royalties to Access Copyright for the copying

behaviours that accounted for the remaining 93% (nearly quarter billion pages) of the volume of copied

pages.

79. The issue as to what proportion copied from an educational resource qualified as a short

excerpt for the purposes of fair dealing was not before the Court. However, throughout their

submissions, the Objectors variously defined short excerpt as follows:

a) a few pagesfor students having a problem with a lesson you are trying to teach 84

;

b)

the copying in dispute in this case is short excerpts copied to supplement the main

textbook85

;

c) what is a short excerpt?...in Canada, I cant give you a percentage answer or a

mathematical answer86

;

d) we are taking short excerpts from a different resource, and it is a very short excerpt 87

;

e) [the undisputed quarter billion pages which the Objectors agreed was compensable]

would be things like chapters from a book; not short excerpts but long excerpts, if you want

to continue with the analogy that I began with that fair dealing deals with little bits 88

;

f) the [Objectors] position is not that this Court should set a mathematical formula [for

defining short excerpt]89

; and

g) Under the [previous] negotiated licencethe [Objectors] would pay for an article, a poem,

up to 10 percent of a work, a chapter. So, the fair dealing provision under that negotiated


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licence was not important because the licence paid for way more than what you could copy

under fair dealing (emphasis added). 90

80. Consistent with its decision in CCH (when the Court refused to grant the Law Societys claimed

declaratory relief for a 10% copying threshold91

), the Supreme Court inAlberta (Education) did not

define short excerpt in purely arithmetic terms. The amount of the dealing was but one factor the

Court considered in the overall factual matrix in the context of the Objectors representations about

teacher copying behaviour.

81. Accordingly, and in partial answer to the Boards Post-Hearing Question 1.1, the Supreme Court

of Canada correctly declined to provide a purely mathematical definition of short excerpt inAlberta

(Education). The Courts reluctance to do so was a clear recognition that an assessment of fair dealing

cannot start and end with a quantitative limit on the amount of the dealing factor. Evidence on the

amount of dealing factor is to be considered and weighed along with the evidence relating to all other

fair dealing factors.

82. One need only compare the Objectors representations to other august bodies as to what is, and

what is not, a short excerpt to the definition of short excerpt used in the Guidelines to appreciate

the Objectors radical departure in the nature and extent of the copying that they submit in the present

proceedings falls within the scope of the fair dealing exception. The Objectors stated position in these

proceedings contradicts their own previous formal representations and, not unsurprisingly, finds no

support inAlberta (Education).

83. The manifest inconsistency and unfairness of the definition of short excerpt developed by

CMEC is captured by Mr. Georges unabashed admission in answer to a question from the Board that

the copying of a chapter comprising 45% of the source work would be fair since the teacher is not

required to choose the most restrictive option92

84. The Guidelines otherwise ignore all other fair dealing factors. They do not encourage teachers to

seek out reasonable alternatives to copying. They place no limits on the aggregate volume of copying

that teachers may make. They place no objective limits on compound copying. They do not require

teachers to consider the qualitative aspects of the portions copied. They permit

.

93

teachers to make

textbook-like collections comprised of chapters (or other substantial portions) copied from published

works; and permit the systematic, pre-planned copying from published works that is not restricted in

any way to meet the situational needs of individual students.

85. Combined with a definition of short excerpt that permits the copying of substantial portions

of works even well in excess of the supposed 10% ceiling the Guidelines incentivize K-12 institutions

to make free self-made resources comprised of copied chapters and other substantial portions of

publishers works and dis-incentivize the purchase of resources from which these copies are made. 94


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86. Copying from publishers works thus facilitates the Objectors adoption of the emerging

pedagogical model whereby teachers now draw on a number of different alternatives to the core

textbook model. From an economic fairness standpoint, payment for such facilitation should be

made.95

87.

Finally, as discussed further below, the evidence of record confirms that the Objectors actual

copying behaviour and the copying permitted under the Guidelines has already had significant negative

impacts on the publishers markets for their works and will very likely continue to have serious negative

impacts on those markets. Apart from the harm to the publishers, the evidence establishes that both

creators and users of such works will also be negatively impacted by the copying behaviour encouraged

by the Guidelines.

e) Assessment of the evidence of record in respect to the six fair dealing factors

A.

Legal and evidentiary burdens

88. As discussed above, whether the dealing is fair is a question of fact and depends on the facts of

each case96

. In any adversarial proceedings such as the present proceedings, the Board must, when

making its findings of fact, be mindful where the legal and evidential burdens lie in respect to the fair

dealing factors.

89. The Supreme Court of Canada in CCH97

confirmed that the party (in these proceedings, the

Objectors) who asserts that its copying behaviour is fair bears the legal burden of establishing that fact.

This means that if, after consideration of all relevant factors, the Board remains in a state of uncertainty

as to whether the copying was fair, or finds that the parties respective positions are evenly balanced, itmust find that the copying was not fair.

90. In addition, the Objectors, who assert that their copying behaviour is fair, bear a number of

evidential burdens. They are obliged to adduce evidence, or point to evidence in the record, to permit

the first five recognized factors relating to fairness to be assessed by the Board. Should the Objectors fail

to discharge any of these evidential burdens, the Board cannot weigh any of these factors in their

favour.

91. In respect to the sixth fair dealing factor the effect of the dealing on the markets in which the

works are sold Access Copyright, the party responding to the Objectors fair dealing assertion, bears

the evidential burden to adduce evidence, or point to evidence in the record, concerning the market

impacts of the copying behaviour.


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B.

Fairness Analysis The Purpose of the Dealing

92. Access Copyright submits that the proper consideration of this factor requires the Board to do

more than merely confirm that one or more of the pre-requisite statutory allowable purposes has been

met. In identifying this fairness factor, the Courts must have intended that the fact-finders assessment

of the purpose of the dealing factor look beyond that confirmation. To redundantly restrict the

second-stage analysis of this factor to repeating that the purpose is an allowable one would rob this

fairness factor of any meaning whatsoever.

93. Assessing the fairness of the purpose requires that the Board consider all of the purposes of the

copying and weigh the evidence to determine whether the copiers purposes are, on balance, fair. In

other words, the Board must ask, Is there something about these other purposes that renders the

copying more or less fair? Whether or not the purposes are, on balance, fair requires an assessment of

copyright policy: does the purpose of the copying further the public interest in the encouragement and

dissemination of works of the arts and intellect andobtaining a just reward for the creator?

(underlining added for emphasis).98

The balance sought in copyright must seek to balance all three of

those public policy objectives.

94. Access Copyright submits that the Board ought to consider whether or not the purpose of the

copying was transformative in nature. Canadian courts have yet to determine whether a transformative

purpose is relevant to an assessment of the fairness of the copying behaviour.99

95. Applying copyright policy, the Board should ask, Is the copying transformative, such that a new

audience will experience the expression of the idea or an audience will experience the expression in a

new way? If yes, the copying tends toward fairness because it furthers both the encouragement and

dissemination of works of the arts and intellect without (arguably) infringing on the original authors

right to obtain a just reward for his work.

96. The Board should also ask, Is the copying for a purpose other than the purpose for which the

original work was created? If yes, the copying tends towards fairness if it encourages the creation of

works and the dissemination of works without interfering with the creators just reward. For example,

the purpose of sampling an original musical work may be to create a new transformative or derivative

work. The sample may encourage new works of the arts in terms of the new expression that is created.

In another example, the purpose of the dealing may be to encourage the purchase of the work 100

. These

facts may weigh towards fairness.

97. However, when the purpose of the copying is identical to the purpose underlying the creation of

the original work, or where no sale will result, that dealing tends towards unfairness. If the purpose of

the original work that has been copied was educational in nature and to be used for instruction, and the

portions copied from the work are used solely for the identical purpose, in particular without any

transformative or derivative benefits to the copying, none of the policy objectives of copyright law are

met. As such, the copying will tend to be less fair.


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98. Here, K-12 institutions have copied resources intended for educational purposes and used the

copied portions for the identical purpose. There is no transformative or derivative purpose in the nature

of that copying that would advance copyright policy. Not only do the copies lack any transformative

purpose, but they are not transformative in any way. The copies at issue in this proceeding are merely

slavish, identical duplications of portions of original copyright-protected works.

99. In addition, K-12 teachers copy, and are encouraged by the Guidelines to copy, instead of

purchasing the original works in order to save money.101Barring an access issue (which has not been

proven or alleged in this case), such copying does not further copyright policy in the dissemination of

works of art and intellect. To the contrary, it discourages

works of art and intellect and deprives the

creator of his just reward.

100. Finally, in these proceedings, there are no safeguards in place to prevent the copies from

replacing the original work102

. To the contrary, the copies at issue in this case are made for the purpose

of avoiding the purchase of the original work.

C.

Fairness Analysis The Character of the Dealing

101. An assessment of this factor requires the Board to consider the extent of copying, in the

aggregate, and requires the Board to examine how the works were dealt with 103. A particular dealing

might be unfair if multiple copies of works are being widely distributed....if a single copy of a work is

used for a specific legitimate purpose, or if the copy no longer existed after it was used, this would

favour a finding of fairness104

.

102.

InAlberta (Education), the Objectors did not contest the Boards findings related to the

character of the dealing factor. Because the issue was not before the Court, its reasons are silent on this

factor, other than to identify the Boards error in considering the aggregate amount of copying twice,

once under the character of the dealing factor and again under the amount of the dealing factor,

thereby conflating the two factors105

. The Boards finding that the character of the dealing the

aggregate volume of copying tends towards unfairness was not challenged by the Objectors on judicial

review and was thus left undisturbed by the Court.

103. In their assessment of the copying behaviour in the present proceedings, the Objectors ignored

completely the evidence relating to the character of the dealing.106That evidence confirms that over

300 million pages from works in Access Copyrights repertoire approximately 90 pages per student 107

are copied in each academic year by K-12 institutions. K-12 teachers make multiple copies from works

for wide distribution to the entire class. It is inconceivable that the copying of 90 pages per student per

year is situational or done to help a student understand a particular concept; rather, the copying is pre-

planned and systematic. The Objectors have introduced no evidence that these copies are made to

meet the needs of individual students who are having difficulty understanding a particular concept.


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104. Unlike the SOCAN v. Bellcase, where no copy existed after the preview was heard, where users

did not receive a permanent copy and where the file was automatically deleted from the users

computer108, students (and teachers) keep copies for at least the entire duration of their classes, and

often beyond109 and the copies can be (and are) further reproduced and disseminated by users.110

105.

In addition, the shift in teaching pedagogy from the purchase and use of a textbook for every

child in a class to differentiated instruction and resource-based learning means that copies are not

made to complement a core textbook, but rather, are made as the core learning resource for a class, 111

thereby substituting for the purchase of textbooks. The copying behaviour encouraged by the Guidelines

is thus substitutive and not complementary.112

D.

Fairness Analysis The Amount of the Dealing

i)

Qualitative assessment essential

106.

The amount of the dealing factor requires an assessment of both the quantitative amount of

the copying and the importance of the part copied 113. The amount factoris an examination of the

proportion between the excerpted copy and the entire work114or the proportion of the excerpt used

in relation to the whole work115

.

107. The Guidelines, and the Objectors position in these proceedings, presumptively fix as fair the

copying of all or portion of a work provided the amount copied does not exceed an arbitrary percentage

(10%) or other quantitative segment (e.g.a chapter or an article) of the work as published, without any

qualitative assessment of the importance of the portion copied.

108.

The Objectors bear the burden to establish that the amount of the dealing, considered both

qualitatively and quantitatively, is fair. The evidence in these proceedings116

confirms that, in assessing

this factor, the Objectors experts ignored completely any qualitative aspects of the amount copied.

109. Teachers copy any and all key aspects of an educational work. They copy entire chapters, which

may contain an entire analysis of a given topic. They copy entire poems, articles and short stories from

compilations.117They copy two pages of a textbook designed to contain an entire lesson which may

comprise the essence of the creators expression, created with a significant investment of time, skill and

effort, and which are pedagogically important.118

Such copying very clearly reproduces the heart of the

work and is thus unfair. The Guidelines authorize and encourage this copying behaviour and do not

instruct K-12 teachers to assess any qualitative aspects of the portions copied.

ii)

No impairment of copyright in works comprising a compilation

110. The Boards assessment of this factor must also take into consideration Parliaments clear

instruction119that the creation/publication of a compilation of works which enjoys its own copyright

protection does not impair the protection conferred by theActin respect to the copyright in the


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individual works comprising the compilation. The decision in Robertson v. Thomson Corp.120

, re-affirmed

Parliaments instruction.

111. In these proceedings, whenever discrete works are published in a compilation, the Guidelines

10% rule permits K-12 teachers to copy the entiretyof one or more works provided the portions

copied fall under the arbitrary ceiling. The 10% ceiling may encompass several poems or short stories

within the compilation. Given that K-12 teachers are not required to use the most restrictive option 121

,

the separate definitions of short excerpt are internally incongruous since the 10% rule (para. 4(a) of

the Guidelines) would permit copying behaviour that exceeds the definition of short excerpt under

paras. 4(c) (f).

112. Moreover, even assuming K-12 teachers restricted themselves to the copying behaviour

permitted by the Guidelines an assumption that is contradicted by the evidence122

113. A finding of fairness would result in the creator/publisher of a work essentially losing all

copyright protection if he chooses to market and monetize his work other than as a stand-alone work.

Analogizing this result to musical works underscores the unfairness of that finding: a song released as a

single would be protected by copyright, but if the song was released as part of an album, the artist and

composer would lose that protection since that single work could be copied for free. That result would

be manifestly unfair and an affront to copyright policy.

compliance with

the Guidelines ignores Parliaments instruction not to impair theActs protection in the discrete works

published within a compilation. When 100% of a discrete work contained within a compilation is copied,

that behaviour is manifestly unfair.

114. In Post-Hearing Question 1.5, the Board asked for a comment in respect to the Objectors

evidence to the effect that in calculating the amount of the dealing in respect to a compilation, the

amount copied must be divided by the total number of pages in the compilation. The relevant

proportion for newspapers and magazines is the portion copied relative to the length of the article, not

the compilation.

115. The Objectors evidence, and any argument they may advance in reliance thereon, runs contrary

to the ratioin Robertson v. Thomson Corp.123

iii)

The Objectors have not met their evidential burden on the amount of the copying factor

which recognizes that the copyright in discrete works

comprising a compilation must be respected. In the context of these tariff proceedings, and the Boards

assessment of fairness, the Board cannot overlook that the effective disaggregation of compilations into

discrete works that is permitted by the Guidelines will result in the expropriation of 100% of the

creators expression if the entirety of that discrete work is copied without compensation. There is

nothing fair about expropriating the entirety of a creators expression.

116. In Post-Hearing Question 1.3, the Board asked how compound copying should be assessed in

the fair dealing analysis. Compound copying describes copying behaviour whereby a teacher returns to


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the same educational resource at different times to copy discrete additional portions of the work.

Access Copyright filed evidence124

that compound copying occurs in K-12 institutions.

117. In CCH125, the Supreme Court of Canada observed that the dealings with a work may not be fair

if a specific patron of the Great Library submitted numerous requests for multiple reported decisions

from the same work over a short period of time, observing further that there [was] no evidence that

[such behaviour] has occurred. InAlberta (Education), the majority was concerned that the Board

looked at the overall quantity of what [was] disseminated under the amount of the dealing factor, and

thus disregarded the rights of the individual student. It found that the Board conflated its assessment of

the aggregate volume of multiple copies being distributed to entire classes (the character of the dealing)

with an assessment of the proportion between the excerpted copy and the entire work (the amount of

the dealing). As such, the amount of the dealing factor must be looked at from an individual students

perspective and in relation to the qualitative and quantitative proportions taken from the work.126

118. Access Copyright filed evidence that, during the two-week Volume Study, teachers engaged in

compound or sequential copying; that is, copying by the same teacher from the same work. 127 The

Board may draw a reasonable inference that individual students receive copied portion after copied

portion from the same book made by the same teacher in the same class in the same year. This copying

behaviour is consistent with the evidence before the Board that K-12 schools use class sets of

textbooks128, (e.g. where 90 students share a set of 30 textbooks, and that those sets are copied for

students homework assignments.129). This behaviour is also consistent with the evidence that Ministries

of Education no longer purchase a core textbook for every child in the class. 130Teachers copy a few

pages each time they go to the photocopier and return to copy from the same book for the same class,

over and over again.

119.

In their analysis, Drs. Wilk and Whitehead conceded that they did not account at all for the

phenomenon of compound copying131

. The Objectors led no evidence from teachers. Furthermore, the

Volume Study measured copying only for a two-week period and therefore could not capture the

amount of a work received by an individual student over the course of a school year. Thus, the Board

cannot determine the volume of compound copying.

120. In the circumstances, the amount of the dealing with respect to an individual work cannot be

assessed in this proceeding. The quantity copied by multiple visits to a photocopier by the same teacher

to copy excerpts from the same work is understated since, in the Objectors analysis, each successive

visit to the photocopier resets the amount of the copying from the work at zero instead of being added

to the percentage copied from the same work on previous visits to the photocopier. Therefore, the

uncontradicted evidence is that compound copying occurs but no quantitative estimate of the extent to

which teachers engage in that behaviour is available to the Board.

121. The Objectors were the only parties to these proceedings who could shed light on the frequency

of such behaviour and the typical amount of the work copied. The Objectors bore the burden to adduce

evidence on this phenomenon. Such evidence could have been led by calling teachers, or panels of


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teachers, as witnesses or, better yet, polling them to gather evidence as to the incidence of compound

copying and introducing this polling evidence through Mr. Chodorowicz. He confirmed 132

that he had

polled teacher behaviour in the past in connection with the inaugural K-12 tariff proceedings. In the

absence of such evidence, the Board cannot rely on the Volume Study data or the Objectors analysis of

the data to accurately assess the amount of the dealing. An adverse inference may be drawn if, without

reasonable explanation, a party fails to adduce evidence available to it that could have resolved a

disputed issue. In this evidentiary vacuum, the Board can only find that compound copying occurs in K-

12 schools and, in the context of the amount of dealing factor, tends toward unfair dealing.

122.

That finding ought to be made irrespective of the number of copying occurrences, the amount

of the copying and the delay between each occurrence. All such subsidiary details mistakenly focus

solely on the quantitative aspects of the behaviour on a particular day at a particular time, and disregard

the phenomenon of a teacher returning to the same book throughout the year 133

and the paramount

consideration of the qualitative aspects of the portions copied. Given that the portions copied are

substantial from a qualitative perspective, the particulars requested by the Board would not be helpful

to the fairness analysis.

E.

Fairness Analysis Alternatives to the Dealing

123. In CCH, the Supreme Court of Canada concluded, based upon the evidentiary record before it,

that it was not apparent that there were available alternatives to the copying activities carried out by

the Great Library at the request of patrons of the Law Society who were engaged in research-based

activities. Moreover, the Supreme Court of Canada concluded that it would be burdensome to expect

remotely located patrons to travel to Toronto each time they wanted to track down a legal source and

would be unreasonable to expect them to conduct all their research from the original works physically

restricted to the Great Library. With all reasonable alternatives to copying ruled out, the copying

activities carried out tended to be fair.134

124. InAlberta (Education), the Supreme Court of Canada understood that what was at issue was the

situational copying of little bits (and much less than what could be copied under the Access Copyright

licence) from multiple educational resources to meet the unexpected needs of particular students and

that teachers only photocopy to complement existing textbooks135. In that factual matrix, the Court

found that buying books for each student is not a realistic alternative to teachers copying short

excerpts to supplement student textbooks136

.

125. In these proceedings, the evidence establishes that publishers offer reasonable alternatives to

copying the content for free (e.g. McGraw Hills iLit digital, disaggregated collection of literary

selections).137 One of the Objectors witnesses from the Manitoba Textbook Bureau confirmed that it

could purchase individual chapters from the publishers separate from the textbook.138

In the current

factual matrix, purchasing the content is clearly a reasonable alternative to copying it for free.


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126. The evidence is that the copying will substitute for the purchase of the works from which copies

are made139and permit teachers to get around the financial shortages they are facing 140; will lead to the

unrestricted copying of entire works published within a compilation; and will lead to entire chapters

(even if they comprise 45% of a works) being copied without any compensation to the rightsholders.

There is also evidence before the Board that K-12 schools no longer purchase a core textbook for every

child in a class and that textbook sales are declining.141

127.

The pedagogical shift to resource-based learning requires teachers to copy from a variety of

resources, including published books, magazines and newspapers. This evidentiary record is markedly

distinct from the facts and circumstances cited by the Court inAlberta (Education). In this context ,

where teachers photocopy in order to create

their core resource (as opposed to supplementing one that

has already been purchased), buying those professionally published resources is certainly a reasonable

alternative to copying them.

128. As with the assessment of all fair dealing factors, the Boards consideration of this factor ought

to promote copyright policy. If there are no reasonable alternatives to copying a work (such as was the

case in CCH)and copying must occur in order to disseminate the work or to encourage works of the arts,

then the dealing will tend towards fairness. If however, there are

alternatives to copying and copying is

not reasonably necessary to disseminate the work or to achieve the ultimate purpose of the user, the

dealing will tend to be unfair.

129. The Objectors have not introduced any evidence that there were no alternatives to the dealing.

The Guidelines do not require or instruct K-12 teachers to consider any other available alternative to the

copying from published educational resources. To the contrary, the Objectors evidence in these

proceedings is that teachers have a myriad of other alternatives to copying from published works, such

as open access content, self-created works and the purchase of individual chapters.142

Given all of those

alternatives, it is unfair that teachers copy, and are encouraged by the Guidelines to copy, from

copyright-protected published works.

130. On this record, there is no evidence that the copying activities in question were reasonably

necessary in order to meet the students educational objectives. To the contrary, the purchase of the

original works (including excerpts thereof) or a licence to copy the original works would meet the same

objective. In the absence of such evidence that the copying was necessary to achieve the ultimate

purpose because there were no alternatives available, the Boards assessment of this issue must tend

toward unfairness.

F.

Fairness Analysis Nature of the Works

131. In CCH, the court found that, if a work has not been published, the dealing may be more fair in

that its reproduction could lead to a wider public dissemination of the work one of the goals of

copyright law143. All of the works at issue in this proceeding are published works. This fact related to

the nature of the works tends to make the dealing unfair.


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132. In addition, the works in CCH that had been copied in strict accordance with the Access to the

Law Policy were editorial versions of judicial decisions (including head-notes) and other legal resources

essential to legal research. The Supreme Court of Canada agreed with the Federal Court of Appeal that it

was generally in the public interest that access to judicial decisions (funded by the public purse) and

other legal resources not be unjustifiably restrained. This observation was also made in recognition of

the fact that, without permitting the copying behaviour at issue in CCH, lawyers in remote Ontario

locations without ease of access to the Great Library would essentially have to replicate the Great

Librarys holdings in order to have equal access to the law.

133. The nature of the works at issue in the present proceedings educational works created and

published for profit many of which are customized to the requirements stipulated by the Ministries of

Education triggers no access to law considerations or other public interest. The copying of the works in

question does not engage the broader public interest to ensure the public have unfettered access to the

law. These facts related to the nature of the works tend to make the dealing unfair.

134. Indeed, in the inaugural tariff proceedings, the Board held that access to classroom materials

did not raise the same public interest concerns as access to legal resources.144

Instead, the works copied

were educational works, tailor-made for and marketed to the very users that copied them. Moreover, as

also noted by the Board, there was rarely an alternative to a legal judgment; but a textbook can always

be replaced with other resources. As a consequence, the Board found that a consideration of this factor

tended toward unfairness, a finding that the Objectors did not challenge on judicial review. The nature

of the works at issue in the present tariff proceedings has remained unchanged since the 2009 Board

decision.

135.

The evidence confirms that the bulk of the copies at issue in these proceedings (44% of total

copying) are made from textbooks145. Consumables were the second highest source of copying in 2012,

representing 23% of the total copying in that year 146. The works at issue are published original works,

created with skill and judgment by professional authors, many of them educators. They are of high

quality and originality and require a great deal of research, pedagogical expertise and editorial

judgment147. The Objectors require that the publishers works be diverse and represent Canadian

content, Canadian examples and Canadians of note, primarily authored and produced in Canada.148

In

addition, the nature of consumables workbooks which are created and intended for one-time use

makes the copying of them manifestly unfair as the copying eliminates the need to purchase them. An

overall assessment of the nature of the works copied tends toward unfairness.

136. In Post-Hearing Question 1.4, the Board asked whether, in making its assessment of fair dealing,

it ought to make distinctions between core textbooks or those prescribed by the Ontario Ministry on

the Trillium Listfrom other works. The answer is no. The distinction between a core and

supplemental resource is relevant only to whether it meets or exceeds a certain percentage of the

requirements of a particular curriculum. The distinction in no way dilutes the value of any resource, no

matter how K12 institutions define it. For example, a novel is not defined as a core resource but is


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an invaluable supplemental instructional resource to teach English. The copying from such works

ought not be treated any differently than copying from a core math textbook.149

137. As discussed below, the substantial copying from all copyright-protected works encouraged by

the Guidelines negatively impacts the publishers markets for their works, irrespective of the core vs.

supplemental definition prescribed by K-12 institutions.

G. Fairness Analysis - Effect of the Dealing on Publishers Markets

i)

Overview

138. The parties appear to have a fundamental disagreement concerning the scope of this fair

dealing factor. Access Copyright submits that a plain reading of CCH, in particular paragraph 72, supports

its contention that in assessing impacts and likely impacts of the copying behaviour, the Board must

consider all likely impacts upon the markets for the publishers works, including all suppliers

(publishers and creators) of educational resources to those markets and the users (ultimately students)

of such resources.

139.

The Objectors, on the other hand, contend that the onlyrelevant consideration is whether

Access Copyright is able to make a causal or concrete link between copying behaviour and a

corresponding decrease in the sales of the works copied. That position runs counter to a plain reading

ofCCH.

140. Even if the Objectors myopic position on this fair dealing factor were accepted as a correct

interpretation of CCH,the evidence on this record establishes, among other negative impacts, that since

the implementation of the Guidelines in 2013:

a) the decrease in primary sales of educational resources of the six largest publishers in 2013 has

been double the decrease in sales observed in 2012150

;

b) at least one publisher has ceased the publication of consumables and another has ceased the

publication of books of plays and reduced the publication of anthologies151

;

c) by Mr. Chodorowiczs own admission, that copying behaviour will, in fact, substitute for the

purchase of the works from which copies are made;152

and

d) the copying behaviour permitted and encouraged under the Guidelines has otherwise had and

will have a direct substitutive impact on the works from which copies are made. 153

141. Access Copyright has also tendered a substantial body of evidence, much of it unchallenged by

the Objectors, that the copying behaviour, the implementation of the Guidelines and the Objectors


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cessation of royalty payments has already had, and will likely have in the future, a number of

detrimental (in some cases dramatically so, e.g. Oxford University Press154

) impacts on:

a) publishers, in terms of a reduction in primary sales, the elimination of secondary licensing

income, the elimination of certain genres of works (e.g. consumables and anthologies) made

particularly vulnerable to copying under the Guidelines, and a reduction of investment in the

development of new works) ;

b)

Canadian creators, in terms of the loss of secondary licensing income and reduced demand ( and

primary royalties) for their services; and

c) the quantity, diversity, indigeneity and quality of educational resources available to the K-12

education system, resulting in long term negative impacts on Canadian students.

142. The Objectors summarily dismiss Access Copyrights evidence of negative market impacts as

overly dramatic and entirely speculative. The evidence upon which the Objectors exclusively rely to

respond to Access Copyrights evidence is that of Mr. Chodorowicz. The Board ought to give little or no

weight to his evidence since, in a number of respects, the facts upon which he relied to provide his

opinion were inaccurate or unreliable155; and the testimony he gave, both in his expert report and in

examination-in-chief, was significantly undermined through cross-examination.156

ii)

Impacts arising from the elimination of secondary licensing income

143. It is not disputed that, effective January 2013, the Objectors ceased all payments to Access

Copyright under the previous certified tariffs once the Guidelines were published. The aggregate

financial impact on publishers and creators was the loss of approximately 13.5 million dollars per

annum.

144. The loss of that income (for which publishers did not have to incur any costs they go right to

the bottom line157

) has resulted in :

i. the shuttering of Oxford University Presss K-12 publishing division 158

;

ii. layoffs at McGraw Hill Ryerson159

;

iii. less money to publishers to invest in new titles160

;

iv. a strong disincentive to Canadian creators to continue making creative contributions to K-12

resources161

; and

v. according to a report that Mr. Chodorowicz considers authoritative, problematic legal

interpretations of the previous law have nearly decimated the market for licensing


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educational uses of copyright materials, including significant damage on the publishing

sector in particular (underlining added for emphasis).162

iii)

Impacts on primary sales

145.

In addition to the evidence of such impacts referred to in the Overview, the facts provided by

the publisher witnesses and the expert opinion of Michael Dobner163

provide clear evidence, that was

unshaken on cross-examination, of direct material impacts and likely impacts from the actual copying

behaviour, the increased copying behaviour encouraged by the Guidelines and the elimination of royalty

payments for such copying, including reduced profitability and the substitution/elimination of works.

iv)

Impacts on creators

146. The creator survey164commissioned by Access Copyright and designed and executed by Mr.

Gauthier gave a voice to creators. Mr. Dobner opined on the results of the survey to the effect that as

a direct result of the implementation of the Guidelines and the consequential elimination of secondary

licensing income; and the likely reduction in primary royalties arising from fewer mandates from

publishers, a significant number of creators will cease their creative contributions to K-12 resources,

robbing the market of the skills and talents of the creators.165

None of this evidence was rebutted by

the Objectors.

v)

Impacts on investment in K-12 resources

147. The expert evidence of Mr. Dobner, factually supported by the publisher witnesses,clearly

established that the implementation of the Guidelines and the cessation of payments under the tariff

will likely reduce the number and diversity of new titles in Canada and the redirection of foreign-parent

investment to other foreign jurisdictions where return on investment is greater. 166

vi)

Impacts on quality, diversity and indigeneity o

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