Legal Arguments.canadian Schools

8/11/2019 Legal Arguments.canadian Schools

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COPYRIGHT BOARD OF CANADA

Access Copyright

Elementary and Secondary School Tariff(2010-2012, 2013-2015)

LEGAL SUBMISSIONS

of the

OBJECTORS

In Response to the June 6, 2014 Notice of the Board

Wanda NoelJordan Snel

5496 Whitewood Ave.Ottawa, ON K4M 1C7

Tel: 613-692-9232Fax: 613-692-1735

[email protected]@bell.net

and

J. Aidan ONeillAriel Thomas

Fasken Martineau DuMoulin LLP55 Metcalfe St., Suite 1300

Ottawa, ON K1P 6L5Tel: 613-236-3882

Fax: [email protected]

[email protected]

Counsel to the Objectors

August 8, 2014


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1. Fair dealing

1.1- Please describe the impact on fair dealing in elementary and secondary schools of

the addition of education in s. 29 of the Copyright Act and of the Alberta v. Access

Copyright and SOCAN v. Bell Supreme Court of Canada decisions. To what extent dothese developments expand fair dealing in elementary and secondary schools? In

particular, explain what the Supreme Court of Canada meant in the Alberta v. Access

Copyright decision when it used the term short excerpt.

1. The Objectors interpret the Boards question 1.1 as containing two separate sub-

questions, which they will answer in turn:

i. To what extent do the addition of education to section29 of the Copyright Act

and the Supreme Court of Canadas decisions inAlberta v. Access Copyright

(Alberta)1

and Society of Composers, Authors and Music Publishers of Canadav. Bell Canada (SOCAN v. Bell)2expand fair dealing in elementary and

secondary schools?

ii. What did the Supreme Court of Canada mean in theAlberta decision when it

used the term short excerpt?

i. To what extent do the addition of education to section29 of the Copyright Actand

the Supreme Court of Canadas decisions inAlberta and SOCAN v. Bellexpand fair

dealing in elementary and secondary schools?

2. The Supreme Court of Canadas decision inAlberta clarified the meaning of research

and private study in a classroom setting:

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.3

3. However, copies that were marked as being made only for the purpose of instruction

on the logging sticker in the 2005-2006 Survey were not categorized as having been

made for a fair dealing purpose by the parties in the previous K to 12 tariff proceeding.

4. The Supreme Courts reasoning above unambiguously means that this categorization

by the parties in the previous proceeding was far too restrictive. It is therefore almost

1Alberta (Education) v. Canadian Copyright Licensing Agency (Access Copyright), 2012 SCC 37, [2012]

2 S.C.R 3452Society of Composers, Authors and Music Publishers of Canada v. Bell Canada, 2012 SCC 36, [2012] 2

S.C.R. 3263Alberta at para. 23


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certain that a great deal of copying that was not the subject of the Supreme Court

appeal was incorrectly categorized as compensable in the previous tariff proceeding.

Had the Objectors had the benefit of the Supreme Courts guidance in advance, it is

likely that far more than the 17 million Category 4 copies would have been at iss ue in

that case.

5. Adding education itself as a fair dealing purpose serves to expand the already broad

application of fair dealing in K to12 education.

6. Within the context of evaluating whether a particular transaction in the 2005-2006

Survey data was conducted for a fair dealing purpose, the Objectors consider the

following stated purposes to be equivalent to the allowable fair dealing purposes in the

Copyright Act:

1. Research

2. Private study3. Criticism or review

4. Student tests or examinations

5. Future reference

6. Projection in class

7. Student instruction, assignments and class work4

7. Purposes 1, 2, and 3 are explicitly listed in the Copyright Act.5 Purposes 4, 5, 6, and 7

are decisively part of the rubric of instruction. As such, they squarely fall within the

category of research and/or private study, based on the Supreme Courts reasoning inAlberta. Additionally, certain of the purposes that teachers had handwritten on their

logging stickers were categorized individually by legal counsel as being equivalent to

one or more fair dealing purposes.6

8. The Objectors submit that copies made for the purpose of administering an educational

institution and for the purpose of facilitating the proper functioning of an educational

institution also fall within the meaning of education in section 29 of the Copyright Act.

This is particularly so when section 29 is interpreted largely and liberally, as the

Supreme Court interpreted it inAlbertaand SOCAN v. Bell. The Objectors categorized

the copies that were recorded as having been made for the purpose of administrationon the 2005-2006 Survey as having been done for a fair dealing purpose during the

second tariff period. This was done because the addition of education to the list of fair

4Exhibit Objectors-10 at para. 1465Copyright Act,R.S.C., 1985, c. C-42, s.29-29.2

6Exhibit Objectors-10, Appendix H, SPSS Syntax File at pp. 39-48


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dealing purposes in 2012 would expand the scope of fair dealing to include educational

purposes beyond the immediate student-teacher relationship.

9. Parliaments addition of education to the list of fair dealing purposes in section 29 of

the Copyright Actis clearly intended to have a meaningful impact on the fair dealing

rights of educational users and educational institutions in Canada. It cannot reasonablybe interpreted as a mere codification of the Supreme Courts reasoning inAlberta, but

only as an expansion of an already broad users right. Education should therefore be

read in a much broader sense than simply classroom instruction.

10. First, simply as a matter of fact, Bill C-11, containing the addition of education as an

enumerated fair dealing purpose, was passed by the Senate and received Royal Assent

on June 29, 2012,7before the Supreme Courts decision inAlbertawas rendered on

July 12 of the same year.

11. Second, as a matter of statutory construction, language in a statute is generallypresumed not to be redundant or useless. As the Chief Justice Laskin stated: [t]he rule

of construction that is applied is that redundancy is not generally to be countenanced

when assessing parts of a statute or of a single section, and the various words must be

given subject matter.8 Professor Ruth Sullivan also establishes the principle that

legislation must be interpreted according to the presumption that Parliament intended to

avoid superfluous or meaningless words.9

12.The addition of education as a fair dealing purpose is also meaningful in terms of the

second-step CCH v. LSUC (CCH)10fairness analysis. The fairness factors should be

evaluated in terms of giving meaning to the fair dealing purpose that they are intendedto facilitate. Fairnessshould therefore be considered in light of Parliaments intent to

expand educational fair dealing. This will be further explored in response to the Boards

Question 1.2.

ii. What did the Supreme Court of Canada Mean in theAlberta Decision When it Used

the Term Short Excerpt?

13. An explanation of what the Supreme Court meant in itsAlbertadecision by the use of

the term short excerpt is discussed below in response to Question 4.

7Bill C-11 Government of Canada Websitehttp://www.parl.gc.ca/LEGISInfo/BillDetails.aspx?Language=E&Mode=1&billId=5134851 8Rosen v. R., [1980] 1 SCR 961, 1979 CanLII 59 (SCC) at p. 966 (in dissent)9Ruth Sullivan, Sullivan on the Construction of Statutes, 5th ed. (Markham: LexisNexis, 2008) at 210-14cited in TLC The Land Conservancy of British Columbia (Re), 2014 BCSC 97 (CanLII) at para. 24710CCH Canadian Ltd. v. Law Society of Upper Canada, [2004] 1 S.C.R. 339, 2004 SCC 13
http://www.parl.gc.ca/LEGISInfo/BillDetails.aspx?Language=E&Mode=1&billId=5134851http://www.parl.gc.ca/LEGISInfo/BillDetails.aspx?Language=E&Mode=1&billId=5134851http://www.parl.gc.ca/LEGISInfo/BillDetails.aspx?Language=E&Mode=1&billId=5134851


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1.2- Taking into consideration the jurisprudential and legislative developments referred

to above, analyze the document entitled Copyright Matters! and the Fair Dealing

Guidelines (exhibits Objectors 3B and 3C) in light of the fair dealing factors identified in

CCH.

In particular, please address whether,

(a) the reproduction of a single article for a class would constitute fair dealing in light of

CCH?

(b) the reproduction of one chapter, for a class, regardless of the number of pages

reproduced, would constitute fair dealing in light of CCH?

Are Copyright Matters! and the Fair Dealing GuidelinesFair Dealing, in Light of the

CCHFactors?

14. As the Board is well aware, the fair dealing analysis established by the Supreme Court

of Canada in CCHis a two-step process. First, the purpose must be for one of the

allowable fair dealing purposes listed in the Copyright Act. Second, the dealing must be

fair, according to an analysis of relevant factors.

15.The Objectors Fair Dealing Guidelines(which are identical to the guidelines in

Copyright Matters!) are designed to reflect what the Supreme Court decided in CCH

andAlberta, and what Parliament intended in adding education to the list of fair

dealing purposes.

16. In approving the Great Librarys fair dealing policy, the Supreme Courts decision in

CCH clearly established that there are two ways in which to determine whether fair

dealing applies to an institutions uses of copyright material. Each dealing may be

examined on an individual basis, or all of the institutions dealings may be fair if done

pursuant to a fair practice or policy. This is true even if there are individual dealings that

are unfair. The Fair Dealing Guidelineswere designed to establish both a fair practice

and a fair policy.11

17. The Objectors submit that copying behaviour in K to 12 schools is, in practice, generally

consistent with fair dealing, and that the Fair Dealing Guidelinesprovide schools with afair policy that renders the Objectors copying, as a whole, fair.

11CCH at para. 63


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Fair Dealing Purpose

18. The Fair Dealing Guidelines allow copying for the purposes of research, private study,

criticism, review, news reporting, education, satire, and parody in K to 12 schools.

19. These are the exact purposes listed in sections 29, 29.1, and 29.2 of the Copyright Act.In this respect, there should be no issue as to whether the Guidelinesaccurately reflect

the law.

20. The exact methodology with which the Objectors applied these purposes to the 2005-

2006 Survey data is explained in brief above in answer to Question 1.1, and in greater

detail in the report of Drs. Wilk and Whitehead.12

21. The Objectors submit that the vast majority of copying in K to 12 schools will be for one

of these purposes, especially the purpose of education.

First Factor: Purpose of the Dealing

22. This factor was described by the Supreme Court in CCHas evaluating a users real

purpose or motive in using the copyrighted work.13

23. The Fair Dealing Guidelines, again, only allow for the fair dealing purposes that are

specifically listed in the Copyright Act. As a policy, the Guidelinesare therefore clearly

fair within the purpose of the dealing factor.

24. As above, most of the copies at issue in this proceeding fall within the ambit of the

Supreme Courts decision inAlberta: The teacher/copier therefore shares a symbioticpurpose with the student/user who is engaging in research or private study. Instruction

and research/private study are, in the school context, tautological.

25. Copies made for instructional purposes are therefore fair pursuant to this factor. A

fortiori, copies made for the purpose of education are fair under this factor in the second

tariff period. The Objectors reasoning in applying thisto the 2005-2006 Survey data

and for including the purpose of administration within the meaning of education for

the second tariff period is explained in response to Question 1.1.

Second Factor: Character of the Dealing

26. The CCHdecision described this factor as follows:

12Exhibit Objectors-1013CCH at para. 54


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If multiple copies of works are being widely distributed, this will tend to be unfair. If,

however, a single copy of a work is used for a specific legitimate purpose, then it may be

easier to conclude that it was a fair dealing. If the copy of the work is destroyed after it is

used for its specific intended purpose, this may also favour a finding of fairness. It may

be relevant to consider the custom or practice in a particular trade or industry to

determine whether or not the character of the dealing is fair.14

27. The Fair Dealing Guidelineslimit the distribution of copies to a single copy for each

student enrolled in a class or course.15 As the Supreme Court found inAlberta, the

relevant perspective for evaluating fairness is that of the user of a copy, not the copier,

unless the copier is hiding behind some ulterior motive.16 However, in K to 12

education, as the Supreme Court stated, there is no such separate purpose on the part

of the teacherThe teacher/copier therefore shares a symbiotic purpose with the

student/user.17

28.The Supreme Court found in SOCAN v. Bellthat the primary perspective from which

fairness needed to be analyzed in that case was the users perspective, as the purpose

of providing [music download] previews is primarily to facilitate the research purposes of

the consumers.18 Just as in that case, the primary purpose in this case is to provide

short excerpts of literary works is to educate students. The primary perspective from

which fairness should be analyzed in this case, therefore, is the perspective of the

individual student.

29. From the perspective of the user, therefore, the distribution of a copy made under the

Guidelines is therefore narrow. The Objectors submit that the distribution would still be

narrow from the perspective of the teacher as well, who would normally make copies

for, at most, a class of students.

30.This type of distribution is also within the normal custom or practice of teachers, as

described in CCH.19 The character of the dealing factor, under the Fair Dealing

Guidelines, therefore tends strongly towards fairness.

31. The Objectors further submit that the distribution of most transactions in the 2005-2006

Survey data is narrow. It was not possible to evaluate exactly how copies were

distributed based on the limited information gathered in the survey. Most copies were

marked in the survey as being for the use of staff, teachers, librarians, or

students. From the perspective of these end users, the distribution is narrow. These

14CCHat para. 5515Exhibit Objectors-3C, s. 316Albertaat para. 2217Albertaat para. 2318SOCAN v. Bellat para. 3419CCHat para. 55


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transactions should therefore be considered as tending towards fairness. Where the

copying was marked as being for the use of others, the Objectors considered this

factor to lean against fairness.

32.Access Copyright will undoubtedly argue how the character of the dealing factor

allows consideration of copying in the aggregate, as set out inAlbertaand SOCAN v.Bell. However, there are two major problems with trying to analyze the copying

transactions at issue in this way.

33.First, as fair dealing is a personal right of the end user, the only correct aggregate to

consider would be that of one work being copied and distributed to a single student, not

all works copied in every transaction conducted by whatever large group Access

Copyright chooses to target. A particular students right to deal fairly with one particular

work for his/her own instruction cannot be cut short by the existence of a different

teacher copying a different work for a different student at a different school, no matter

how many pages these separate transactions may collectively add up to. The amount

of the dealing factor is an examination ofthe proportion betweenthe excerpted copy

and the entire work, not the overall quantity of what is disseminated.20 Conversely, the

character of the dealing is the quantification of the total number of pages copied21

and distributed of a particular work. In other words, the character of the dealing factor

looks at the size of a particular transaction or a set of transactions involving the same

work. A transaction that was fair dealing when it was conducted cannot subsequently

become unfair dealing when other transactions occur later.

34. The second (and related) inherent problem in considering the aggregate to be, simply,

all copies made at all schools, is that this is an arbitrary and nonsensical way to group

copying transactions. Why should one teachers copying behaviour affect the fair

dealing rights of another teacher's students, let alone another school or school boards

rights? The Objectors may be collectively represented in this proceeding, but in most

ways, the school boards and ministries they represent are completely distinct legal

entities.

35. It makes no sense to consider all teachers and students behaviour collectively in terms

of evaluating fairness. There would further be no rational way for the Objectors to have

a fair dealing policy in place that could address this type of aggregate copying. The Fair

Dealing Guidelinesare intended for individual teachers and students, since this is how

the users right of fair dealing is provided in the Copyright Act.

20Albertaat para. 2921Albertaat para. 29


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Third Factor: Amount of the Dealing

36.The Objectors submit that the definition of short excerpt found in the Fair Dealing

Guidelinesrepresents a fair portion of a work to copy and that, consequently, this factor

tends towards fairness in circumstances in which the limits in the Guidelineswere

respected. As noted above, to avoid unnecessary duplication of argument, theObjectors position on the definition of a short excerpt is set out fully in their answer to

Question 4.

37. Specifically with respect to copying an article, the Objectors submit that this is a fair

amount to copy regardless of whether the relevant work is considered to be the entire

periodical or newspaper, or the individual article (see the Objectors response to

Question 1.5).

38. With respect to copying an entire chapter, regardless of length, the Objectors submit

that this is in line with the international precedents set out in response to Question 4.Moreover, the Objectors note that it is likely rare for a book to have so few chapters that

each chapter would be substantially more than 10% of the books length.

39. Access Copyrights only submission on this point was a single book titled Science Links

9,22which, according to counsel for Access Copyright when questioning Ms. Shannon

Delbridge, has four chapters.23 However, these so-called chapters are actually

called units within the table of contents, each with numerous sub-units called Topics

that would more properly be described as the chapters of the book. The contents also

include distinct sections for summaries, projects, and reviews. A total of 24 Topic

chapters are in the book, making the chapter length likely a much more restrictivemaximum than the Guidelines 10% limit.

Fourth Factor: Alternatives to the Dealing

40. The Supreme Court explained inAlbertathat:

[B]uying books for each student is not a realistic alternative to teachers copying short

excerpts to supplement student textbooks. First, the schools have already purchased

originals that are kept in the class or library, from which the teachers make copies. The

teacher merely facilitates wider access to this limited number of texts by making copies

available to all students who need them. In addition, purchasing a greater number oforiginal textbooks to distribute to students is unreasonable in light of the Boards finding

that teachers only photocopy short excerpts to complement existing textbooks. Under

the Boards approach, schools would be required to buy sufficient copies for every

22Exhibit AC-85 (note: as this exhibit was not provided to the Objectors, it does not appear in the Book ofAuthorities)23Hearing Transcript Volume 5, p. 895, line 23


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student of every text, magazine and newspaper in Access Copyrights repertoire that is

relied on by a teacher. This is a demonstrably unrealistic outcome. Copying short

excerpts, as a result, is reasonably necessary to achieve the ultimate purpose of the

students research and private study.24

41. This reasoning is equally applicable in this proceeding. Since the Fair Dealing

Guidelineslimit copying to short excerpts, it would be an entirely unrealistic alternative

for a teacher to purchase a copy of an entire book, magazine, or newspaper when the

teacher intends to use only a short excerpt to instruct his or her students. As there are

no realistic alternatives to the dealing, this factor under the Guidelinestends towards

fairness.

Fifth Factor: Nature of the Work

42.This factor examines whether the work is one which should be widely disseminated.25

It is in the nature of works intended for educational use to be widely shared and

disseminated.

The goal of education is the advancement of knowledge and the dissemination of truth - John F.

Kennedy26

If Virtue and Knowledge are diffused among the People, they will never be enslav'd. This will be

their great SecuritySamuel Adams27

The foundation of every state is the education of its youth - Diogenes28

43. The Fair Dealing Guidelinesare expressly written to further educational goals and toshare short excerpts from works for educational purposes. The works copied and

shared under the Guidelinesare therefore works with educational value that benefit

from being widely shared. It is in the nature of most educational works to seek the

largest audience (of appropriate age and skill) possible.

44. The Objectors therefore submit that the Fair Dealing Guidelines, and the copying

transactions identified in the 2005-2006 Survey, tend towards fairness under this factor.

45. However, there is one exception. Consumable works, by definition, are intended for

one-time use. Copying them may reasonably be considered less fair than other works

under the alternative to the dealing factor. However, this single factor is not itself

24Albertaat para. 3225SOCAN v. Bellat para. 4726John F. Kennedy,http://izquotes.com/quote/10074127Samuel Adams,http://www.values.com/inspirational-quotes/3017-If-Virtue-And-Knowledge-Are- 28Laertius Diogenes,http://www.giga-usa.com/quotes/authors/laertius_diogenes_a001.htm
http://izquotes.com/quote/100741http://izquotes.com/quote/100741http://izquotes.com/quote/100741http://www.values.com/inspirational-quotes/3017-If-Virtue-And-Knowledge-Are-http://www.values.com/inspirational-quotes/3017-If-Virtue-And-Knowledge-Are-http://www.values.com/inspirational-quotes/3017-If-Virtue-And-Knowledge-Are-http://www.giga-usa.com/quotes/authors/laertius_diogenes_a001.htmhttp://www.giga-usa.com/quotes/authors/laertius_diogenes_a001.htmhttp://www.giga-usa.com/quotes/authors/laertius_diogenes_a001.htmhttp://www.giga-usa.com/quotes/authors/laertius_diogenes_a001.htmhttp://www.values.com/inspirational-quotes/3017-If-Virtue-And-Knowledge-Are-http://izquotes.com/quote/100741


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determinative of fairness. The Objectors submit that, if the other factors are largely fair,

that a consumable may still be fairly copied pursuant to the Fair Dealing Guidelines.

Sixth Factor: Effect of the Dealing on the Work

46. The Fair Dealing Guidelinesonly allow the copying of short excerpts. By design, theGuidelinesare intended not to allow copying in situations in which a teacher or school

would ordinarily purchase an entire work. The Guidelinesfurther have a safeguard that

prohibits cumulative copying of the same work.29 The Objectors therefore submit that

the Fair Dealing Guidelinesare fair pursuant to this factor.

47. Access Copyright has led some highly speculative and vague evidence about the harm

the Guidelinesmay potentially have to the publishing industry as a whole. This is

legally irrelevant. This factor deals with the effect of the dealing on the work and

whether the dealing adversely affects or competes with the work.30The publishers

bottom line is simply not the Objectors concern, at least in terms of evaluating fairdealing.

48. As the Supreme Court found inAlberta:

[I]t is difficult to see how the teachers copying competes with the market for textbooks,

given the Boards finding that the teachers copying was limited to short excerpts of

complementary texts. If such photocopying did not take place, it is more likely that

students would simply go without the supplementary information, or be forced to consult

the single copy already owned by the school.31

49. Access Copyright has entirely failed to link photocopying behaviour or the Fair DealingGuidelinesto a decline in sales by educational publishers. There are numerous other,

better explanations for declining textbook sales that have been wholly ignored by

Access Copyright.

Other Factors

50. The Supreme Court wrote in CCHthat [i]n some contexts, there may be factors other

than [the six] listed here that may help a court decide whether the dealing was fair. 32

The Objectors submit that this is such a context, particularly given Parliaments clear

decision to singularly expand educational fair dealing. There are two additional factorsthat the Objectors would have the Board consider in determining the extent of fair

dealing in schools, and the fairness of the Fair Dealing Guidelines.

29Exhibit Objectors-3C, section 530SOCAN v. Bellat para. 48 (emphasis added)31Albertaat para. 3632CCHat para. 60


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51. The first additional factor is that all of the copying in schools, and all copying made

pursuant to the Fair DealingGuidelines, is non-commercial. The Guidelinesspecify in

their preamble that they are intended solely for the use of non-profit schools, and

section 7 of the Guidelinesprohibits any financial gain from selling copies.33 The

Supreme Court noted this specifically as a consideration in the purpose of the dealing

factor in CCH:

Moreover, as the Court of Appeal explained, some dealings, even if for an allowable

purpose, may be more or less fair than others; research done for commercial purposes

may not be as fair as research done for charitable purposes. 34

52. However, the Objectors submit that the non-commerciality of a dealing weighs,

by itself, towards the overall fairness of that dealing. The Copyright Act, in

numerous places, draws a line between commercial and non-commercial

copying. The clear intent that flows from the overall structure of the Act is that

these are fundamentally different kinds of copying behaviours.

53. The second additional factor that the Objectors would present to the Board is the

consideration of the public interest, which is the object of all law, including the

Copyright Act:

The Copyright Actis usually presented as a balance between promoting the public

interest in the encouragement and dissemination of works of the arts and intellect and

obtaining a just reward for the creator

[]

The proper balance among these and other public policy objectives lies not only in

recognizing the creators rights but in giving due weight to their limited nature.35

54. The Supreme Court in CCHalso noted the relevance of the "public interest"

when conducting a fair dealing assessment:

I agree with the Court of Appeal that the nature of the works in question judicial

decisions and other works essential to legal research suggests that the Law

Societys dealings were fair. As Linden J.A. explained, at para. 159: It is generally

in the public interestthat access to judicial decisions and other legal resources not

be unjustifiably restrained. Moreover, the Access Policy puts reasonable limits on the

Great Librarys photocopy service. It does not allow all legal works to be copied

regardless of the purpose to which they will be put. Requests for copies will be

honoured only if the user intends to use the works for the purpose of research, private

33Exhibit Objectors-3C, section 734CCHat para. 5435Thberge v. Galerie dArt du Petit Champlain inc., [2002] 2 S.C.R. 336, 2002 SCC 34 at paras. 30-31


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study, criticism, review or use in legal proceedings. This further supports a finding that

the dealings were fair. (emphasis added)36

55. It is beyond question that K to 12 schools represented by the Objectors serve a vital public

interest in educating Canadians. The plain fact that copying by teachers under the Fair

Dealing Guidelines is done entirely to further this interest should weigh heavily in theBoards considerations.

1.3- In his testimony (Volume 4, pages 735-736), Mr. Benot Gauthier described the

concept of compound copying as being copying by a person in a repeated manner or

for a person in repeated manners. In evaluating what constitutes fair dealing, please

explain how compound copying should be treated. In particular, please describe the

number of copying occurrences, the amount of each copying, and the delay between

each occurrence that would be necessary to make the copying tend to be unfair.

56.When evaluating compound copying in relation to fair dealing, the only apparentlyrelevant CCHfairness factor is the amount of the dealing, as compound copying may

reasonably be seen to take a greater amount of a work than each of the individual

copying instances being compounded.

57.The Objectors submit that, in this light, compound copying is relatively simple to

evaluate from a legal perspective. The number of occurrences of copying is irrelevant;

all that matters is the total amount (proportion) of a particular work taken over the

course of multiple copying transactions. The Objectors submit that, if the total amount

is still less than one of the amounts allowed under the definition of short excerpt (as

set out in response to Question 4), then the amount of the dealing factor tendstowards fairness.

58. Under this analysis, the delay between copying occurrences should not be relevant,per

se, but the relevant time period over which to theoretically measure compound copying

should be a school term or semester.

59. Unfortunately, the 2005-2006 Survey was not specifically designed to capture instances

of compound copying. Although Access Copyright has provided examples of a limited

number of instances in which the same work was copied more than once by the same

person during the study period, there is insufficient information to support the conclusionthat these copies exceed the limits set out in the Fair Dealing Guidelines.

60.First, as explained above under the character of the dealing factor, the Supreme Court

found in SOCAN v. Bellthat in situations in which the work is provided to the end user

to facilitate his or her fair dealing, fairness must be examined from the perspective of

36 CCHat para. 71


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the ultimate user or consumer,37and inAlbertathat there is noseparate purposeon

the part of the teacherThe teacher/copier therefore shares a symbiotic purpose with

the student/user.38

61.Fair dealing in the context of compound copying must therefore be examined from the

perspective of the end user. However, there is no information about which student(s) orclass of students for which a particular photocopying transaction took place. Although it

might be possible to identify different copying transactions by the same teacher or

administrative person, the Survey data cannot determine whether these transactions

took place in order to educate the same student or class of students.

62. Second, the copier identified by initials on the logging sticker in the Survey data may not

even be a teacher. Many photocopies are made by school administrators on behalf of

various teachers throughout a school. The logging sticker simply does not provide the

information needed to determine for whose benefit a particular copying transaction was

made.

63. Third, and most importantly, none of the transactions shown in Access Copyrights

evidence quantitatively add up to a substantially much larger than normal transaction. If

the Board were to evaluate the addition of these transactions, the Objectors are

confident it would find the total amount is still substantially less than 10% of the work.

64. In raising the issue of compound copying, Access Copyright has recognized the limited

nature of the information available. As a result, there is no way, on the evidence

provided, for the Board to meaningfully or accurately take into account the alleged issue

of compound copying in evaluating fair dealing.

1.4- Should the Board consider dealings with certain works, such as those that are

considered to be core textbooks, or those on the Trillium list, to be less fair than

dealing with other works?

65. No. The fact that a publisher considers a textbook to be core material, or the fact that

a textbook appears on the Trillium List or other similar approved textbook list is not, in

and of itself, relevant to fair dealing.

66. Textbooks that may be core material for one teacher may be used as a source ofsupplementary material by another teacher who uses a different core textbook.

67. The relevant consideration is the use to which the copy is being putand therefore the

reason the original may have been purchasednot the publishersclassification. What

37SOCAN v. Bellat para. 3438Albertaat para. 23


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the individual publishers may consider to constitute a core textbook may not be

considered as such by the teacher who is actually making use of it. Such being the

case, in practical terms, this means consideringunder the effect of the dealing factor

whether or not copying a short excerpt from a textbook is substituting for the normal

purchase of that textbook. There is no evidence whatsoever that this is the case, and

good reason to believe otherwise.

68. Teachers copy to supplement classroom instruction, not to replace the ordinary use of

textbooks. As the Board found in the previous 2005-2009 K to 12 tariff proceeding,

teachers generally limit themselves to reproducing relatively short excerpts from a work

to complement the main textbook.39

69. The Fair Dealing Guidelinesonly allow the copying of short excerpts from a textbook.

There is no reasonable way a short excerpt could substitute for a core textbook, which

would normally be used in its entirety. A teacher copying a short excerpt from a

textbook isprima faciereason to believe that the textbook being copied is not core

within that particular teachers lesson plan.

70. Notably, the Supreme Court inAlbertadid not consider it relevant that the copies at

issue were required reading for students.40

1.5In evaluating if the amount of the dealing tends to be fair with respect to a

compilation, Drs Wilk and Whitehead stated in their testimony that the amount of pages

copied had to be divided by the total number of pages of the compilation. Please

comment on this position in light of the Robertson v. Thompson Corp. Supreme Court ofCanada decision. Given the fact that a newspaper is protected as a compilation and

that each article is also protected as an individual copyrighted work, how should the

amount of the dealing be evaluated?

71. The Supreme Court, in Robertson v. Thomson Corp., clearly states that an article in a

newspaper is protected by copyright, both as an individual work and as part of the larger

compilation of the newspaper:

The right of reproduction adheres equally to the benefit of authors of individual works and

to those of collective works or compilations. In considering the publishers right of

reproduction, the majority says that the line between the rights of individual authors and

the rights of authors of collective works should be drawn on the basis of whose originality

is being reproduced This, with respect, seems to me to contradict the essence of

collective works and compilations, which inherently contain the originality of both the

392005-2009 K to 12 Tariff Reasons for Decision at para. 10440Category 4 copies were made for students with instructions to read them Albertaat para. 42


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therefore not limited to ten percent of an article, nor are users limited depending

upon how many articles may be on a particular newspaper page. It would be

highly inconsistent for Access Copyright to claim that dealing with an individual

article and with an entire book are legally equivalent.

77. In any case, even if the relevant work for the consideration of the amount of the

dealing factor is the article and not the newspaper, the Objectors submit that this factor

still tends towards a finding of fairness when a teacher is dealing with a single article for

a class of students.

78. The Supreme Court of Canada has already plainly stated, in CCH, that copying entire

articles may be fair pursuant to this fairness factor: The amount taken may also be

more or less fair depending on the purpose. For example, for the purpose of research

or private study, it may be essential to copy an entire academic article or an entire

judicial decision. However, if a work of literature is copied for the purpose of criticism, itwill not likely be fair to include a full copy of the work in the critique.43

79. In CCH,the Supreme Court approved the copying limits in the Great Librarys Access to

the Law Policy when it found that the Great Librarys adoption of that policy was fair

dealing. That policy provides: "Ordinarily, requests for a copy of one case, one article or

one statutory reference will be satisfied as a matter of routine."44

80. For educational purposes, as with the legal research considered in CCH, it is almost

certain that dealing with an entire newspaper article would be necessary. Most

newspaper articles are written to be concise statements of the facts of a particularsituation, or succinct arguments relating a single issue. Omitting even a small portion of

a newspaper article would likely leave out key context or facts necessary to fully

understand the article. Using an article for classroom education is therefore best served

by the entirety of an article.

81. In terms of a practical evaluation of the amount excerpted from a newspaper, the 2005-

2006 Survey data did not collect information with respect to the length of the copied

articles. It would consequently not have been possible for Drs. Wilk and Whitehead to

calculate the amount of the dealing with respect to the individual articles copied.

82. As another practical matter, newspaper articles are often found on a single page of that

newspaper. Omitting any portion of such an article when photocopying would likely

require taking scissors to the page.

43CCHat para. 5644CCHat para. 61


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3. Rates

Please explain the position of the Objectors with respect to Access Copyright proposed

Tariffs. If, and as alleged by the Objectors, reproductions by K to 12 schools are not

compensable, why do the Objectors propose rates at $ 0.49 (2010-2012) and $ 0.46

(2013-2015) per FTE and not zero? The Objectors also refer in their Statement of Case

to the certification of a transactional tariff to cover copies not authorized by the

Copyright Act. Please provide an explanation for this proposal, which should include

details about proposed rates and methodology.

Why Do the Objectors Propose Rates of $0.49 (2010-2012) and $0.46 (2013-2015) Per

FTE and Not Zero?

83. The Objectors have never alleged that there are zero compensable transactions within

K to 12 schools. When the 2005-2006 Survey data are evaluated on a transaction-by-

transaction basis, there appear to be certain transactions that exceed the limits of use rs

rights (as best can be reasoned from the limited data) in the Copyright Act. These

transactions also appear to be subject to a rightful compensation claim by Access

Copyright.

84. The rates of $0.49 and $0.46 per FTE therefore represent the best estimations the

Objectors can put forward of the economic value of the respective proposed tariffs,

based on the data available.

85. However, the Objectors do submit that the general practices of K to 12 schools under

the Fair Dealing Guidelines are consistent with fair dealing. Fair dealing, as a users

right in the Copyright Act, is not only applicable in individual cases or instances, but also

as an overallpractice or policy.

86. As the Supreme Court stated in CCH:

This raises a preliminary question: is it incumbent on the Law Society to adduce

evidence that every patron uses the material provided for in a fair dealing manner or canthe Law Society rely on its general practice to establish fair dealing? I conclude that the

latter suffices. Section 29of the Copyright Actstates that [f]air dealing for the purpose of

research or private study does not infringe copyright. The language is

general. Dealing connotes not individual acts, but a practice or system. This comports

with the purpose of the fair dealing exception, which is to ensure that users are not

unduly restricted in their ability to use and disseminate copyrighted works. Persons or

institutions relying on the s. 29fair dealing exception need only prove that their own


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dealings with copyrighted works were for the purpose of research or private study and

were fair. They may do this either by showing that their own practices and policies were

research-based and fair, or by showing that all individual dealings with the materials were

in fact research-based and fair.45

87. The Objectors submit that they have met the burden established by CCHto show thattheir own practices and policies are fair.

Details of the Objectors Proposed Transactional Tariff

88. A blanket FTE-based tariff is essentially made obsolete by the changes to the Copyright

Act made in 2012, and the Supreme Courts decisions in CCH andAlberta. A

transactional tariff that licenses particular transactions would have much greater utility

for the Objectors and would complement, rather than conflict with, the educational fair

dealing regime envisioned by adding education as one of the enumerated fair dealing

purposes.

89. The Objectors are not in a position to write a completely new tariff proposal on Access

Copyrights behalf. However, the essential terms of the transactional tariff would be:

i. Access Copyright would grant one-time licences to a K to 12 teacher or staff

member to copy a Published Work in its Repertoire, subject to its direct licensing

limit of up to 25% of a work (and the other limits enumerated in section 3(3) of

the proposed tariffs).46

ii. A per-page royalty rate of the following would apply based on the type of work

(calculated at the Nordicity 2013-2015 page values47rounded to the nearest

cent), plus applicable taxes:

a. Books and textbooks: $0.11

b. Newspapers: $0.02

c. Periodicals: $0.01

d. Consumables: $0.05

e. Sheet music: $0.3048

iii. A user of the tariff would provide reasonable bibliographic information to AccessCopyright, including title, author, ISBN/ISSN, and the specific numbers of the

pages used (as applicable).

45CCHat para. 6346Exhibit AC-2F, Appendix B at p. 2447Exhibit Objectors-8 at p. 43, Table 3048Subject to Access Copyright being able to confirm in that a particular work of sheet music is within itsRepertoire


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iv. The transactional tariff would only apply for the year 2015 (and going forward

until a new tariff is certified for 2016 and beyond). A transactional tariff cannot be

applied retroactively because there are no records of copying transactions. The

Objectors submit that the blanket rates it has proposed are appropriate for the

years already passed.

v. The transactional tariff would apply in the alternative to, not in addition to, any

FTE-based tariff.

vi. Otherwise, essentially the same terms and conditions as in the existing proposed

tariffs would apply. The Objectors however reserve the right to take issue with

any of Access Copyrights proposed terms if and when the Board allows

submissions on the administrative provisions of the tariffs.

90. There is no evident reason why the Nordicity per-page rates would apply differently to a

transactional licence than to a blanket licence. A selection premium is already built into

the Nordicity rates.

91. Access Copyright currently allows transactional permission requests through its

website49, but it is not guaranteed that permission will be given even if a work is within

Access Copyrights repertoire. In any case, Access Copyright is certainly equipped to

handle transactional permissions through a tariff.

4. Copy righ t Matters

Please explain on what basis the Objectors established their position with respect to the

definition of what constitutes a short excerpt as described in paragraph 4 of section 3 of

Copyright Matters! (Exhibit Objectors 3B).

92. While the Supreme Court of Canada inAlbertafound that dealing with "short excerpts"

is fair, the Court did not discuss the meaning of "short excerpts." In that case, the

Supreme Court described the amount of the dealing factor as follows:

49See, for example, theAccess Copyright Website How to Calculate the Price for a Transactional (Pay-Per-Use) Licence:http://www.accesscopyright.ca/permissions/how-to-calculate-the-price-for-a-transactional-%28pay-per-

use%29-licence/
http://www.accesscopyright.ca/permissions/how-to-calculate-the-price-for-a-transactional-%28pay-per-use%29-licence/http://www.accesscopyright.ca/permissions/how-to-calculate-the-price-for-a-transactional-%28pay-per-use%29-licence/http://www.accesscopyright.ca/permissions/how-to-calculate-the-price-for-a-transactional-%28pay-per-use%29-licence/http://www.accesscopyright.ca/permissions/how-to-calculate-the-price-for-a-transactional-%28pay-per-use%29-licence/http://www.accesscopyright.ca/permissions/how-to-calculate-the-price-for-a-transactional-%28pay-per-use%29-licence/


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[T]he amount factor is not a quantitative assessment based on aggregate use, it is an

examination ofthe proportion betweenthe excerpted copy and the entire work, not the

overall quantity of what is disseminated.50

93.The seventeen million Category 4 copies that were specifically at issue inAlberta were

not evaluated individually, but rather found to be categorically fair based on the Boardsdetermination that teachers generally copy short excerpts to supplement classroom

instruction and to facilitate the research and private study of their students.

94. Following theAlberta decision, the Objectors were left with the task of determining a

reasonable definition of a short excerpt for teachers to apply in their copying activities.

Canadian teachers clearly needed such a definition to ensure that their copying fell

within the limits permitted by the Supreme Courts decision. The Objectors

subsequently looked to legislation, court decisions and scholarly writing in other

countries to identify a practical description of short excerpt for teachers.

95.The definition of a short excerpt within the Fair Dealing Guidelinesand in Copyright

Matters!is as follows:

A short excerpt means:

a) up to 10 per cent of a copyright-protected work (including a literary work, musical

score, sound recording, and an audiovisual work);

b) one chapter from a book;

c) a single article from a periodical;

d) an entire artistic work (including a painting, print, photograph, diagram, drawing,

map, chart, and plan) from a copyright-protected work containing other artistic

works;

e) an entire newspaper article or page;

f) an entire single poem or musical score from copyright-protected work containing

other poems or musical scores;

g) an entire entry from an encyclopedia, annotated bibliography, dictionary, or

similar reference work.51

96. The amount of the dealing factor was a threshold testin the volume analysis of Drs.

Wilk and Whitehead.52A copying transaction that did not meet the Objectors

quantitative definition of a short excerpt in paragraph 4 of section 3 of CopyrightMatters! could not quality as fair dealing under this analysis.

50Albertaat para. 2951Exhibit Objectors-3C52Exhibit Objectors-10 at para. 159


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97.This was a highly conservative approach for the Objectors to take, since the amount of

the dealing is only one of the six fairness factors, and is not by itself determinative of

fairness. As the Supreme Court stated in CCH, the quantity of the work taken will not

be determinative of fairness, but it can help in the determination. It may be possible to

deal fairly with a whole work.53

98. During the oral argument at the Supreme Court inAlberta, the meaning of "short

excerpt" was discussed by the Appellants (the Objectors in this Proceeding.) 54 The

Objectors cited the Australian Copyright Act's definition of what constitutes a

"reasonable portion" under fair dealing,55as well as the agreement between educational

publishers, authors and educators in the United States regarding what educational uses

could be made under the fair use provision in the United States Copyright Act.56

99.Both the United States and Australia's copyright laws characterize 10% of a work, or an

entire chapter, or an entire article, as being a "fair" amount. Such being the case, theSupreme Court inAlberta made its decision in full knowledge of what was considered a

"short excerpt" under fair dealing law in Australia and under fair use in the United

States.

100. These international comparisons support the view that dealing with a single article from

a newspaper, magazine or journal, and dealing with 10% or less of a work or a single

chapter of a book, is "fair."

101. Every foreign jurisdiction has nuances and important distinctions in comparison to

Canadian copyright law. Fundamentally, however, the measure of a reasonable portionof a work to use without compensation or infringement should rationally be similar

across jurisdictions that have a similar common law philosophy of copyright law. These

international comparisons are provided not as being determinative of Canadian law, but

rather to illustrate the fact that there is some international consensus on the answer to

the question before the Copyright Board: what is a short excerpt?; i.e., what amount of

copying is fair? This established consensus then guided the Objectors in developing the

definition of short excerpt set out in the Fair Dealing Guidelines.

53CCHat para. 5654Supreme Court of Canada, Hearing Transcript forAlberta (Education) v. Canadian Copyright Licensing

Agency (Access Copyright), December 7, 2012, p. 7, line 21 to p. 8, line 2555Copyright Act 1968(Australia), http://www.austlii.edu.au/au/legis/cth/consol_act/ca1968133/ ss. 40- 4256U.S. Copyright Law, USC Title 17, http://www.copyright.gov/title17/circ92.pdf s. 107


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Australia

102. The fair dealing sections in Australia's Copyright Act 1968have certain quantitative

specifications about the amount of dealing permitted without the payment of royalties.57

With regard to published literary works (as well as other works), subsection 40(1)

provides that fair dealing for purposes of research or study does not constitute an

infringement of copyright.

103. Subsection 40(3) provides that all of a copyright-protected work contained in a single

article in a periodical publication may be reproduced pursuant to fair dealing for the

purposes of research or study.

104. Subsection 40(4) limits the reproduction right in 40(3) to one article per periodical

publication. Notably, and with respect to question 1.5 above, the Australian Copyright

Actclearly treats the periodical itself as the relevant work for evaluating fair dealing,despite the fact that the articles within a periodical are also separately protected works.

105. Subsection 40(5) describes a reasonable portion of a work that can be reproduced

pursuant to fair dealing:

(5) Despite subsection (2), a reproduction, for the purpose of research or study, of not

more than a reasonable portion of awork oradaptation that is described in an item of the

table and is not contained in anarticle in a periodical publication is taken to be a fair

dealing with thework oradaptation for the purpose of research or study. For this

purpose, reasonable po rt ion means the amount described in the item.

Works,adaptations and reasonable portions

Item Work oradaptation Amount that is

reasonable portion

1 A literary, dramatic or

musical work (except a

computer program), or an

adaptation of such a

work,that is contained in

a published edition of at

least 10 pages

(a) 10% of the number of

pages in the edition; or

(b) if thework or

adaptation is divided into

chapters--a single

chapter

2 A publishedliterary workin electronic form (except

acomputer program or

an electronic compilation,

such as a database), a

publisheddramatic work

(a) 10% of the number ofwords in thework or

adaptation;or

(b) if thework or

adaptation is divided into

57Copyright Act 1968(Australia), ss. 40-42
http://www.austlii.edu.au/au/legis/cth/consol_act/ca1968133/s189.html#workhttp://www.austlii.edu.au/au/legis/cth/consol_act/ca1968133/s10.html#adaptationhttp://www.austlii.edu.au/au/legis/cth/consol_act/ca1968133/s115.html#articlehttp://www.austlii.edu.au/au/legis/cth/consol_act/ca1968133/s195au.html#dealing_withhttp://www.austlii.edu.au/au/legis/cth/consol_act/ca1968133/s189.html#workhttp://www.austlii.edu.au/au/legis/cth/consol_act/ca1968133/s10.html#adaptationhttp://www.austlii.edu.au/au/legis/cth/consol_act/ca1968133/s189.html#workhttp://www.austlii.edu.au/au/legis/cth/consol_act/ca1968133/s10.html#adaptationhttp://www.austlii.edu.au/au/legis/cth/consol_act/ca1968133/s189.html#workhttp://www.austlii.edu.au/au/legis/cth/consol_act/ca1968133/s10.html#adaptationhttp://www.austlii.edu.au/au/legis/cth/consol_act/ca1968133/s189.html#musical_workhttp://www.austlii.edu.au/au/legis/cth/consol_act/ca1968133/s47ab.html#computer_programhttp://www.austlii.edu.au/au/legis/cth/consol_act/ca1968133/s10.html#adaptationhttp://www.austlii.edu.au/au/legis/cth/consol_act/ca1968133/s189.html#workhttp://www.austlii.edu.au/au/legis/cth/consol_act/ca1968133/s189.html#workhttp://www.austlii.edu.au/au/legis/cth/consol_act/ca1968133/s10.html#adaptationhttp://www.austlii.edu.au/au/legis/cth/consol_act/ca1968133/s189.html#literary_workhttp://www.austlii.edu.au/au/legis/cth/consol_act/ca1968133/s47ab.html#computer_programhttp://www.austlii.edu.au/au/legis/cth/consol_act/ca1968133/s189.html#dramatic_workhttp://www.austlii.edu.au/au/legis/cth/consol_act/ca1968133/s189.html#workhttp://www.austlii.edu.au/au/legis/cth/consol_act/ca1968133/s10.html#adaptationhttp://www.austlii.edu.au/au/legis/cth/consol_act/ca1968133/s189.html#workhttp://www.austlii.edu.au/au/legis/cth/consol_act/ca1968133/s10.html#adaptationhttp://www.austlii.edu.au/au/legis/cth/consol_act/ca1968133/s10.html#adaptationhttp://www.austlii.edu.au/au/legis/cth/consol_act/ca1968133/s189.html#workhttp://www.austlii.edu.au/au/legis/cth/consol_act/ca1968133/s10.html#adaptationhttp://www.austlii.edu.au/au/legis/cth/consol_act/ca1968133/s189.html#workhttp://www.austlii.edu.au/au/legis/cth/consol_act/ca1968133/s189.html#dramatic_workhttp://www.austlii.edu.au/au/legis/cth/consol_act/ca1968133/s47ab.html#computer_programhttp://www.austlii.edu.au/au/legis/cth/consol_act/ca1968133/s189.html#literary_workhttp://www.austlii.edu.au/au/legis/cth/consol_act/ca1968133/s10.html#adaptationhttp://www.austlii.edu.au/au/legis/cth/consol_act/ca1968133/s189.html#workhttp://www.austlii.edu.au/au/legis/cth/consol_act/ca1968133/s189.html#workhttp://www.austlii.edu.au/au/legis/cth/consol_act/ca1968133/s10.html#adaptationhttp://www.austlii.edu.au/au/legis/cth/consol_act/ca1968133/s47ab.html#computer_programhttp://www.austlii.edu.au/au/legis/cth/consol_act/ca1968133/s47ab.html#computer_programhttp://www.austlii.edu.au/au/legis/cth/consol_act/ca1968133/s189.html#musical_workhttp://www.austlii.edu.au/au/legis/cth/consol_act/ca1968133/s10.html#adaptationhttp://www.austlii.edu.au/au/legis/cth/consol_act/ca1968133/s189.html#workhttp://www.austlii.edu.au/au/legis/cth/consol_act/ca1968133/s10.html#adaptationhttp://www.austlii.edu.au/au/legis/cth/consol_act/ca1968133/s189.html#workhttp://www.austlii.edu.au/au/legis/cth/consol_act/ca1968133/s10.html#adaptationhttp://www.austlii.edu.au/au/legis/cth/consol_act/ca1968133/s189.html#workhttp://www.austlii.edu.au/au/legis/cth/consol_act/ca1968133/s195au.html#dealing_withhttp://www.austlii.edu.au/au/legis/cth/consol_act/ca1968133/s115.html#articlehttp://www.austlii.edu.au/au/legis/cth/consol_act/ca1968133/s10.html#adaptationhttp://www.austlii.edu.au/au/legis/cth/consol_act/ca1968133/s189.html#work


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Works,adaptations and reasonable portions

Item Work oradaptation Amount that is

reasonable portion

in electronic form or an

adaptation published in

electronic form of such a

literary ordramatic work

chapters--a single

chapter

106. Subsection 40(6) provides that the dealing only needs to meet one of the criteria: 10%

or a single chapter. A user is not limited to the shorter of the two options, and the length

of a chapter is irrelevant.

107. The term "reasonable portion" denotes an amount that is synonymous with, if not larger

than, the amount described by the term "short excerpt." The Australian Copyright Act,

in some ways, allows broader reproduction under fair dealing than that allowed by the

Fair Dealing Guidelines, since the Australian Copyright Actdoes not contain the samesafeguards or limitations. The Objectors therefore submit that the quantitative limits of

up to 10% of a work or a single chapter or article are reasonable amounts for the

Copyright Board to use in assessing the fairness of a dealing in Canada.

108. Although Australia has enacted mandatory statutory licences for government

institutions, this is not relevant to the determination of what is considered a reasonable

portion. The statutory licence scheme that the federal and state governments use does

not account for the users right of fair dealing. This has been the subject of some legal

debate in Australia. The Australian Law Reform Commission has recommended

making statutory licences voluntary and has stated that they should better account forusers rights.58 The Commission recommends that government and education licences

in Australia's Copyright Act should be modified to reflect fair dealing rights.

New Zealand

109. New Zealand's copyright literature uses the term "small extract. Section 43 of New

Zealand's Copyright Actleaves the amount of the dealing undefined.59 However, the

New Zealand Copyright Council has developed an Information Sheet, entitled Copyright

Use in the Education Sector,stating that copying "a small extract, up to 10% may be

used as a rough guideline" to assess what amount can be copied for educational use

58Australia Law Reform Commission, Copyright and the Digital Economy Final Reporthttp://www.alrc.gov.au/sites/default/files/pdfs/publications/final_report_alrc_122_2nd_december_2013_.pdfat pp. 196-19859Copyright Act 1994(New Zealand), ss. 40-43, online:http://www.legislation.govt.nz/act/public/1994/0143/latest/DLM345634.html
http://www.austlii.edu.au/au/legis/cth/consol_act/ca1968133/s189.html#workhttp://www.austlii.edu.au/au/legis/cth/consol_act/ca1968133/s10.html#adaptationhttp://www.austlii.edu.au/au/legis/cth/consol_act/ca1968133/s189.html#workhttp://www.austlii.edu.au/au/legis/cth/consol_act/ca1968133/s10.html#adaptationhttp://www.austlii.edu.au/au/legis/cth/consol_act/ca1968133/s10.html#adaptationhttp://www.austlii.edu.au/au/legis/cth/consol_act/ca1968133/s189.html#dramatic_workhttp://www.alrc.gov.au/sites/default/files/pdfs/publications/final_report_alrc_122_2nd_december_2013_.pdfhttp://www.alrc.gov.au/sites/default/files/pdfs/publications/final_report_alrc_122_2nd_december_2013_.pdfhttp://www.alrc.gov.au/sites/default/files/pdfs/publications/final_report_alrc_122_2nd_december_2013_.pdfhttp://www.legislation.govt.nz/act/public/1994/0143/latest/DLM345634.htmlhttp://www.legislation.govt.nz/act/public/1994/0143/latest/DLM345634.htmlhttp://www.legislation.govt.nz/act/public/1994/0143/latest/DLM345634.htmlhttp://www.alrc.gov.au/sites/default/files/pdfs/publications/final_report_alrc_122_2nd_december_2013_.pdfhttp://www.alrc.gov.au/sites/default/files/pdfs/publications/final_report_alrc_122_2nd_december_2013_.pdfhttp://www.austlii.edu.au/au/legis/cth/consol_act/ca1968133/s189.html#dramatic_workhttp://www.austlii.edu.au/au/legis/cth/consol_act/ca1968133/s10.html#adaptationhttp://www.austlii.edu.au/au/legis/cth/consol_act/ca1968133/s10.html#adaptationhttp://www.austlii.edu.au/au/legis/cth/consol_act/ca1968133/s189.html#workhttp://www.austlii.edu.au/au/legis/cth/consol_act/ca1968133/s10.html#adaptationhttp://www.austlii.edu.au/au/legis/cth/consol_act/ca1968133/s189.html#work


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under fair dealing. It also states that "[s]ometimes it is fair to copy a whole work such

as a poem or journal article."60

Israel

110. Israel amended its Copyright Act in 2007 to introduce fair use provisions.61 The fair use

provision in section 19 of that statute leaves the amount that may be copied under that

provision undefined. However, guidelines have been published in the Journal of the

Copyright Society(2010) in an article entitled "Fair Use Best Practices for Higher

Education Institutions: The Israeli Experience."62

111. In order to apply the fair use provision in educational institutions, post-secondary

institutions in Israel collectively created a Code of Best Practices for the use of copyright

materials. This Codewas negotiated by a coalition of all of the major post-secondary

educational institutions in Israel, and sets out their shared understanding of fair use foreducation under the Israeli Copyright Act.

112. The Code instructs users to take the following considerations into account in

determining how much they can fairly copy:

The use of roughly one fifth of a work is considered fair use. The determination

should not be made simply on a quantitative basis but on a qualitative one as

well.

The use of an entire article taken from a periodical or an anthology of articles is a

fair use.

The use of an entire indivisible work, such as a picture, photograph, drawing,

table, etc., is a fair use.63

113. These limits were recently validated in a court-approved negotiated settlement in a

dispute between Hebrew University and two major Israeli publishers concerning the

extent of fair use for educational purposes. Both the publishers and the university

agreed to the following definition of fair use:

Scope of fair use:

60Copyright Use in the Education Sector, New Zealand Copyright Council, Nov. 2008, online:http://www.copyright.org.nz/html/blob.php/Copyright+Use+in+the+Education+Sector.Oct+2008.pdf?attach=true&document=439&filetypecode=1&fileId=112at p. 461Copyright Act of 2007(Israel) s.19,http://www.wipo.int/wipolex/en/text.jsp?file_id=132095 62Dotan, Amira, Niva Elkin-Koren, Orit Fischman-Afori, Ronit Haramati- Alpern, Fair Use Best Practices inHigher Education, Journal of the Copyright Society of the U.S.A., online:http://www.colman.ac.il/English/AcademicUnits/Law/Faculty/Orit_Fishman_Afori/Documents/Fair%20Use%20Best%20Practices%20Israel%20SSRN.pdfat p. 2363Ibid.at p. 23.
http://www.copyright.org.nz/html/blob.php/Copyright+Use+in+the+Education+Sector.Oct+2008.pdf?attach=true&document=439&filetypecode=1&fileId=112http://www.copyright.org.nz/html/blob.php/Copyright+Use+in+the+Education+Sector.Oct+2008.pdf?attach=true&document=439&filetypecode=1&fileId=112http://www.copyright.org.nz/html/blob.php/Copyright+Use+in+the+Education+Sector.Oct+2008.pdf?attach=true&document=439&filetypecode=1&fileId=112http://www.wipo.int/wipolex/en/text.jsp?file_id=132095http://www.wipo.int/wipolex/en/text.jsp?file_id=132095http://www.wipo.int/wipolex/en/text.jsp?file_id=132095http://www.colman.ac.il/English/AcademicUnits/Law/Faculty/Orit_Fishman_Afori/Documents/Fair%20Use%20Best%20Practices%20Israel%20SSRN.pdfhttp://www.colman.ac.il/English/AcademicUnits/Law/Faculty/Orit_Fishman_Afori/Documents/Fair%20Use%20Best%20Practices%20Israel%20SSRN.pdfhttp://www.colman.ac.il/English/AcademicUnits/Law/Faculty/Orit_Fishman_Afori/Documents/Fair%20Use%20Best%20Practices%20Israel%20SSRN.pdfhttp://www.colman.ac.il/English/AcademicUnits/Law/Faculty/Orit_Fishman_Afori/Documents/Fair%20Use%20Best%20Practices%20Israel%20SSRN.pdfhttp://www.colman.ac.il/English/AcademicUnits/Law/Faculty/Orit_Fishman_Afori/Documents/Fair%20Use%20Best%20Practices%20Israel%20SSRN.pdfhttp://www.wipo.int/wipolex/en/text.jsp?file_id=132095http://www.copyright.org.nz/html/blob.php/Copyright+Use+in+the+Education+Sector.Oct+2008.pdf?attach=true&document=439&filetypecode=1&fileId=112http://www.copyright.org.nz/html/blob.php/Copyright+Use+in+the+Education+Sector.Oct+2008.pdf?attach=true&document=439&filetypecode=1&fileId=112


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(1) With respect to a book, the scope of fair use for the purposes of this Agreement only,

shall be deemed to be up to 20% of the number of pages in the book, for the purposes of

any single Coursepack, or for the purposes of a list of the electronic reserves of any

single course;

(2) With respect to an article, the scope of fair use shall be the entire article, provided that

if in a single course, there is a need for more than one article from a book that is a

collection of articles, the provisions regarding the permitted scope of fair use of a book as

set out in paragraph (1) shall apply;64

United States

114. The fair use provision was first introduced in the United States Copyright Act in1976.

Prior to that time, fair use was a well-established judicial doctrine recognizing that a

defendant's allegedly infringing act could be defended as fair, and thus not infringe

copyright. The introduction of fair use into the Copyright Actprecipitated the negotiationofAn Agreement on Guidelines for Classroom Copyright in Not-For-Profit Educational

Institutions with respect to books and periodicals (the Agreement).65 The Agreement

was negotiated by representatives of publishers, authors and educational institutions.

115. The Agreement states that it describes the minimuma safe harbourand not the

maximum limits of educational copying from books and periodicals under fair use. The

Agreement is long and relatively detailed. The most relevant aspects of the Agreement

for the purposes of this submission are the quantitative limits used to separate a fair use

from an unfair one.

116. Under the Agreement, it is fair use to make a single copy of a chapter from a book and

an article from a periodical or newspaper. It is fair use for a teacher to make multiple

copies, one for each student in a class, provided the amount copied meets a number of

tests set out in the Agreement, one of which is brevity. The brevity test is met if a

teacher copies a complete article or an excerpt of not more than 10% of the work.

117. In 2012, the United States District Court for the Northern District of Georgia issued a

comprehensive decision on fair use.66 This decision reviewed the Agreement, which

was negotiated in 1976, 38 years ago, and concluded that the safe harbour represented64Mediation Settlement Between Schocken Publishing House, Bialik Institute Publishing, and TheHebrew University, Unofficial English translation at p. 465An Agreement on Guidelines for Classroom Copyright in Not-For-Profit Educational Institutions withrespect to books and periodicals,http://www.copyright.gov/circs/circ21.pdfpp. 5-6.66Cambridge University Press; Oxford University Press, Inc.; Sage Publications, Inc. v. Mark P. Becker,in his official capacity as President of Georgia State University, 2012 U.S. Dist. LEXIS 78123 (N.D. Ga.May 11, 2012),http://www.nacua.org/documents/CambridgeUPress_v_Becker_051112.pdf. The decisionis under appeal.
http://www.copyright.gov/circs/circ21.pdfhttp://www.copyright.gov/circs/circ21.pdfhttp://www.copyright.gov/circs/circ21.pdfhttp://www.nacua.org/documents/CambridgeUPress_v_Becker_051112.pdfhttp://www.nacua.org/documents/CambridgeUPress_v_Becker_051112.pdfhttp://www.nacua.org/documents/CambridgeUPress_v_Becker_051112.pdfhttp://www.nacua.org/documents/CambridgeUPress_v_Becker_051112.pdfhttp://www.copyright.gov/circs/circ21.pdf


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by the Agreement is "very restrictive".67 In other words, the Court considered the brevity

test set out in the Agreementincluding the 10% limitas being overly conservative

from the perspective of an educational user.

118. One of the issues before the Court was what portion of a book is sufficiently small to

qualify for fair use. The Court rejected a flat word or page count, opting instead for a

percentage of pages that reasonably limits copying, as well as a reasonable limit on the

number of chapters which may be copied.68 The Court stated: "it is relevant here that

the excerpts were generally a small part (averaging around 10%) of the whole work.

Such a small excerpt does not substitute for the book as a whole." 69

119. The Court reached the following conclusions regarding the amount of the dealing factor.

First, when a book is divided into chapters or contains fewer than ten chapters, unpaid

copying of no more than 10% of the pages in the book is permissible under the amount

of the dealing factor. Second, where a book contains ten or more chapters, the unpaidcopying of up to, but no more than one chapter (or its equivalent), is permissible under

the amount of the dealing factor.

Conclusion

120. It is clear that Access Copyright did not establish the permitted copying limits in its

various tariffs and licences, such as 10% of a work, an article, or one chapter, without

first considering what amount would be reasonably unlikely to substitute for the

purchase of a work. Access Copyrights board members and its affiliates are publishers

and authorsstakeholders that would certainly not allow the licensing of copying if itwould interfere with their sales.

121. Furthermore, the Objectors did not set out to design Fair Dealing Guidelines that would

mimic the Access Copyright tariffs. Rather, the reason the limits in the Objectors Fair

Dealing Guidelines and Access Copyrights tariffs and licences are so similar is because

all are likely the result of a similar legal analysis. Copying limits such as 10% of a work,

a single article, or a single chapter, are selected by design in order that they not

substitute for the normal purchase of a copyright-protected work. Seen from this

viewpoint, it is not surprising that experts on both sides would come to similar

conclusions as to the reasonable amounts that can be copied without interfering in sales

of the works themselves.

67Ibid. atpage 5668Ibid.at page 7169Ibid.at page 74


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122. As indicated above, the definition of a short excerpt, in particular, is not something that

was picked out of thin air by the Objectors. Instead, it was based on a careful review

of the consensus reached in a number of common law jurisdictions, as well as in Israel,

that have all dealt with a similar issue. The Objectors submit that this consensus should

be considered by the Board in determining how reasonably to define a short excerpt

for teachers and students in Canada in the context of this tariff proceeding.

*********************

ALL OF WHICH IS RESPECTFULLY SUBMITTED, this 8thday of August, 2014.

Wanda Noel

Jordan Snel

5496 Whitewood Ave.

Ottawa, ON K4M 1C7Tel: 613-692-9232

Fax: 613-692-1735

[email protected]

[email protected]

and

J. Aidan ONeill

Ariel ThomasFasken Martineau DuMoulin LLP

55 Metcalfe St., Suite 1300

Ottawa, ON K1P 6L5

Tel: 613-236-3882

Fax: 613-230-6423

[email protected]

[email protected]

Counsel to the Objectors

Legal Arguments.canadian Schools

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