SCC 33888 Factum of Interveners CAUT_CFS 1637092_1

8/3/2019 SCC 33888 Factum of Interveners CAUT_CFS 1637092_1

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Court File No.: 33888

BETWEEN:

IN THE SUPREME COURT OF CANADA(ON APPEAL FROM THE FEDERAL COURT OF APPEAL)

THE PROVINCE OF ALBERTA AS REPRESENTED BY THEMINISTER OF EDUCATION AND OTHERS*

-and-THE CANADIAN COPYRIGHT LICENSING AGENCYOperating as "ACCESS COPYRIGHT"

-and-

APPELLANTS

RESPONDENT

CANADIAN PUBLISHERS' COUNCIL, ASSOCIATION OF CANADIAN PUBLISHERS, ANDCANADIAN EDUCATIONAL RESOURCES COUNCIL, CANADIAN ASSOCIATION OFUNIVERSITY TEACHERS AND CANADIAN FEDERATION OF STUDENTS, ASSOCIATIONOF UNIVERSITIES AND COLLEGES OF CANADA AND ASSOCIATION OF CANADIANCOMMUNITY COLLEGES, CMRRA-SODRAC INC., SAMUELSON-GLUSHKO CANADIANINTERNET POLICY AND PUBLIC INTEREST CLINIC, CANADIAN AUTHORSASSOCIATION, CANADIAN FREELANCE UNION, CANADIAN SOCIETY OF CHILDREN'SAUTHORS, ILLUSTRATORS AND PERFORMERS, LEAGUE OF CANADIAN POETS,LITERARY TRANSLATORS' ASSOCIATION OF CANADA, PLAYWRIGHTS GUILD OFCANADA, PROFESSIONAL WRITERS ASSOCIATION OF CANADA AND WRITERS UNIONOF CANADA AND CENTRE FO R INNOVATION LAW AND POLICY OF THE FACULTY OFLAW UNIVERSITY OF TORONTO

INTERVENERS

FACTUM OF THE INTERVENERS,CANADIAN ASSOCIATION OF UNIVERSITY TEACHERS ANDCANADIAN FEDERATION OF STUDENTS

TorysLLP79 Wellington Street West, Suite 3000Box 270, TD CentreToronto, ON M5K 1N2Wendy MathesonAndrew BernsteinTel: (416) 865.0040Fax: (416) 865-7380E-mail: abemstein@tm:ys.comCounsel for the Interveners,Canadian Association of University Teachers andCanadian Federation of Students

Osler, Hoskin & Harcourt LLPSuite 1900,340 Albert StreetOttawa, ON KlR 7Y6Patricia J. WilsonTel: (613) 235-7234Fax: (613) 235-2867E-mail: [email protected] Agent for the Interveners,Canadian Association of University Teachers andCanadian Federation of Students


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AND TO:

AND TO:

Counsel for the Interveners,Canadian Publishers' Council,Association ofCanadian Publishersand Canadian EducationalResources CouncilHebb & Sheffer1535A Queen Street WestToronto, Ontario M6R 1A7MarianHebbWarren ShefferTel: (416) 556-8187Fax: (866) 400-3215Counsel for the Interveners,Canadian Authors Association,Canadian Freelance Union,Canadian Society ofChildren'sAuthors, Illustrators and Performers,League ofCanadian Poets, LiteraryTranslators' Association ofCanada,Playwrights Guild ofCanadaCounsel for the Interveners,Professional Writers Association ofCanada and Writers Union ofCanadaOsler Hoskin & Harcourt LLP340 Albert Street, Suite 1900Ottawa, ON K1R 7Y6MarcusKleeGlen A. BloomTel: (613) 235-7234Fax: (613) 235-2867Email: [email protected]

Publishers' Council, Association ofCanadian Publishers and CanadianEducational Resources Council

Michael J. Sobkin90 blvd. de Lucerne, Unit #2Gatineau, Quebec J9H 7K8Tel: (819) 778-7794Fax: (819) 778-1740Email: [email protected] for the Interveners, CanadianAuthors Association, Canadian FreelanceUnion, Canadian Society ofChildren'sAuthors, Illustrators and Performers,League ofCanadian Poets, LiteraryTranslators' Association ofCanada,Playwrights Guild ofCanadaAgent for the Interveners, ProfessionalWriters Association ofCanada andWriters Union ofCanada

Osler Hoskin & Harcourt LLP340 Albert Street, Suite 1900Ottawa, ON K1R 7Y6Patricia WilsonTel: (613) 787-1009Fax: (613) 235-2867Email: [email protected] for the Interveners, AUCC andSolicitors for the Interveners, AUCC ACCC

andACCC


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AND TO:

AND TO:

AND TO:

Cassels Brock & Blackwell LLPScotia Plaza2100 - 40 King Street WestToronto, Ontario M5H 3C2Casey M. ChisickTimothy PinosJason BeitchmanTel: (4I6) 869-5403Fax: (4I6) 644-9326Email: [email protected] for the Intervener,CMRRA-SODRAC Inc.David FewerUniversite d'OttawaCentre for Law, Technology andinnovation (CIPPIC)57 Louis Pasteur St.Ottawa, Ontario KIN 6N5Tel: (613) 562-5800 Ext: 2558Fax: (613) 562-54I7Counsel for the Intervener,Samuelson-Glushko CanadianInternet Policy and Public InterestClinicMacera & Jarzyna427 Laurier Avenue West, SuiteI200Ottawa, Ontario KIR 7Y2Howard P. KnopfTelephone: (613) 238-8173Fax: (613) 235-2508Email:[email protected] for the Intervener, Centrefor Innovation Law and Policy of theFaculty ofLaw University ofToronto

McMillan LLP50 O'Connor Street, Suite 300Ottawa, Ontario KIP 6L2Eugene Meehan, Q.C.Tel: (6l3) 232-7171Fax: (613) 231-3191Email: [email protected] for the Intervener, CMRRASODRACinc.


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SCHEDULE "A"Province ofAlberta as represented by the Minister ofEducationProvince ofBritish Columbia as represented by the Minister ofEducation; Province ofManitobaas represented by the Minister ofEducation, Citizenship and Youth; Province ofNew Brunswickas represented by the Minister ofEducationProvince ofNewfoundland and Labrador as represented by the Minister ofEducation; NorthwestTerritories as represented by the Minister ofEducation, Culture and Employment; Province ofNova Scotia as represented by the Minister ofEducationTerritory ofNunavut as represented by the Minister ofEducation; Province ofOntario asrepresented by the Minister ofEducation; Province ofPrince Edward Island as represented bythe Minister ofEducationProvince of Saskatchewan as represented by the Minister ofEducation; Yukon Territory asrepresented by the Minister ofEducation; Airy and Sabine District School Area Board; AlgomaDistrict School BoardAtikokan Roman Catholic Separate School Board; A von Maitland District School Board;Bloorview MacMillan School Authority; Bluewater District School Board; Brant HaldimandNorfolk Catholic District School BoardBruce-Grey Catholic District School Board; Campbell Children's School Authority; CaramatDistrict School Area Board; Catholic District School Board ofEastern Ontario; Collins DistrictSchool Area Board; Connell and Ponsford District School Area BoardConseil des ecoles catholiques du Centre-Est de !'Ontario; Conseil des ecoles publiques de l'Estde !'Ontario; Conseil des ecoles separees catholiques de Dubreuilville; Conseil des ecolesseparees catholiques de FoleyetConseil scolaire de district catholique Centre-Sud; Conseil scolaire de district catholique de l'EstOntarien; Conseil scolaire de district catholique des Aurores Boreales; Conseil scolaire dedistrict catholique des Grandes R i v h ~ r e s Conseil scolaire de district du Grand Nord de !'Ontario; Conseil scolaire de district du Nord-Estde !'Ontario; District School Board ofNiagara; District School Board Ontario North East;Dufferin-Peel Catholic District School BoardDurham Catholic District School Board; Durham District School Board; F oleyet District SchoolArea Board; Gogama District School Area Board; Gogama Roman Catholic Separate SchoolBoard; Grand Erie District School BoardGreater Essex County District School Board; Halton Catholic District School Board; HaltonDistrict School Board; Hamilton-Wentworth Catholic District School Board; HamiltonWentworth District School Board; Hastings & Prince Edward District School Board


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Homepayne Roman Catholic Separate School Board; Huron Perth Catholic District SchoolBoard; Huron-Superior Catholic District School Board; James Bay Lowlands Secondary SchoolBoard; Kawartha Pine Ridge District School BoardKeewatin-Patricia District School Board; Kenora Catholic District School Board; LakeheadDistrict School Board; Lambton Kent District School Board; Limestone District School Board;Missarenda District School Area BoardMoose Factory Island District School Area Board; Moosonee District School Area Board;Moosonee Roman Catholic Separate School Board; Murchison and Lyell District School AreaBoard; Nakina District School Area Board; Near North District School BoardNiagara Catholic District School Board; Niagara Peninsula Children's Centre School Authority;Nipissing-Parry Sound Catholic District School Board; Northeastern Catholic District SchoolBoard; Northern District School Area BoardNorthwest Catholic District School Board; Ottawa Children's Treatment Centre SchoolAuthority; Ottawa-Carleton Catholic District School Board; Ottawa-Carleton District SchoolBoard; Parry Sound Roman Catholic Separate School BoardPeel District School Board; Peterborough Victoria Northumberland and Clarington CatholicDistrict School Board; Rainbow District School Board; Rainy River District School Board; RedLake Area Combined Roman Catholic Separate School BoardRenfrew County Catholic District School Board; Renfrew County District School Board; SimcoeCounty District School Board; Simcoe Muskoka Catholic District School Board; St ClairCatholic District School Board; Sudbury Catholic District School BoardSuperior North Catholic District School Board; Superior-Greenstone District School Board;Thames Valley District School Board; Thunder Bay Catholic District School Board; TorontoCatholic District School Board; Toronto District School BoardTrillium Lakelands District School Board; Upper Canada District School Board; Upper GrandDistrict School Board; Upsala District School Area Board; Waterloo Catholic District SchoolBoard; Waterloo Region District School BoardWellington Catholic District School Board; Windsor-Essex Catholic District School Board; YorkCatholic District School Board; and York Region District School BoardAlgonquin and Lakeshore Catholic District School Board; Asquith-Garvey District School BoardConseil scolaire de district catholique du Nouvel-Ontario; Conseil scolaire de district catholiqueFranco-Nord; Conseil scolaire de district des ecoles catholiques de Sud-Ouest; Conseil scolairede district du Centre Sud-Ouest


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TABLE OF CONTENTSPage

PART I - OVERVIEW ............................................................................................................... 1PART l l - QUESTION IN ISSUE ............................................................................................2PART I I I - STATEMENT OF ARGUMENT .......................................................................... 2

Goals of the CopyrightAc t are served by teachers and. students ......................................... 2Whose purpose counts? ....................................................................................................... 5Does there need to be a request? ......................................................................................... 7Not merely "classroom instruction" .................................................................................... 7Aggregation is not appropriate ............................................................................................ 9Conclusion ......................................................................................................................... 10

PART IV - SUBMISSION ON COSTS ................................................................................... 10PART V - RELIEF REQUESTED .......................................................................................... 10PART VI- TABLE OF AUTHORITIES ................................................................................ 11PART Vll - STATUTES RELIED ON .................................................................................... 12


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PART I - OVERVIEW

1. The Canadian Association ofUniversity Teachers and Canadian Federation ofStudents together represent the interests of teachers and students at the university andcollege level. CAUT and CPS intervene in this case to assist the Court in analyzing fairdealing to ensure that this user right appropriately protects fair dealing in the teaching andlearning environment.2. The decisions below erred by introducing legal hurdles that have no place in the lawof fair dealing. There is no place for a principle that only a teacher's purpose should beconsidered, without regard for the student. Yet the respondent in this appeal continues toadvance a position that amounts to this: isolate the teacher, and ignore the student.3. The respondent would agree to consider the student only if the student has made arequest for the copy. But there is no sound basis to uphold an artificial distinction based onwhether the copy is requested by a student, or, instead, the product of a proactive teacheranticipating her student 's interests. The suggestion that it can only be fair dealing when astudent "requests" a copy belies common sense. Similarly, the decisions below focused,wrongly, on whether the copying was teacher-initiated or was accompanied by teacher'sinstructions.4. Neither of these hurdles is consistent with this Court's decision in CCH, nor theunderlying purposes of fair dealing under the Copyright Act.5. The Federal Court ofAppeal also narrowed the fairness analysis by limiting it to"classroom instruction," which it then found weighed against fairness. Yet, "classroominstruction" mischaracterizes the logged purpose, which, fairly characterized, serves theinterests protected by fair dealing.6. In the fairness analysis, the dealing should be considered as a whole. The peoplewho are engaging in the dealing should all be considered, including the ultimate user of thework. Both the teacher and the student must be considered. This ensures that this importantuser right is not narrowed to the point that a person who wishes to use the work must take


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specified steps themselves, or risk endangering the fairness analysis. Students should beable to have help from their teacher.7. Both teaching and learning actively serve the goals of the Copyright Act, includingthe sharing and dissemination of knowledge, the development and exercise of essential skillsin research, private study, criticism and review, and the creation of new works. This, in tum,means that, in conducting the fairness analysis, these activities must weigh in favour of,rather than against, fair dealing.

PART II -QUESTION IN ISSUE8. CAUT and CFS will focus on three aspects ofthe fairness analysis:

(a) the errors oflaw that affected the analysis of purpose in the decisions below;(b) the proper analysis ofpurpose; and(c) the use of aggregation in considering the amount of the dealing.

PART I I I - STATEMENT OF ARGUMENT

Goals of the CopyrightAct are served by teachers and students9. The central goals of the Copyright Act are to encourage the creation and thedissemination of literary, artistic and other works, as well as providing a just reward to theircreators. The Act is intended to reflect a balance between the rights of creators and therights of users. It creates a lengthy but limited statutory monopoly for creators of works.

Society ofComposers, Authors andMusic Publishers ofCanada v.Canadian Association of nternet Providers, [2004] 2 S.C.R. 427,2004 SCC 45 at para. 40 [SOCAN v. CAIP]10. Fair dealing is a user right that counterbalances the above monopoly. It serves thepurposes of the Act by encouraging dissemination of information, knowledge and ideas.

CCHCanadian v. Law Society o fUpper Canada, [2004] 1 S.C.R.339,2004 SCC 13 at para. 48 [CCH Canadian]


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11. At the K-12level and onward, teachers disseminate information, knowledge andideas to students. Students learn how to engage in research, study, criticism and review.Students create new works with the assistance of teachers. As students move forwardthrough school, college and university there is an inevitable blurring of the lines betweenlearning in the classroom and research, private study, criticism and review.12. Indeed, while the nature ofknowledge-sharing and modes of instruction and learningcan vary significantly throughout the primary and secondary (i.e., K -12) school, it varieseven more at the post-secondary level. Post-secondary students have an increasing role ininitiating the activities involved in their own education. Although classic teacher/studentlecture or classroom instruction can form a significant part of the undergraduate experience,it plays a smaller role in the university or college environment than in K -12.13. This continues as students progress from undergraduate studies to graduateprograms. At this stage, students are not only active researchers, but also use worksdiscussed in class to further their own research. At every level, students use information,knowledge and ideas in the creation of heir own works.14. All of these activities serve the purposes of the CopyrightAct and should beencouraged in the consideration ofwhether a dealing is fair.15. Fair dealing. Fair dealing is a user right, not merely an exception to the statutorymonopoly provided by the Copyright Act. As a result, this Court has insisted that fairdealing be interpreted generously and given a "large and liberal" construction. Thisapproach to fair dealing applies both on the threshold question ofwhether the dealing is fora listed purpose and on the subsequent fairness analysis, which asks whether the dealing isor is not fair in the circumstances.

CCHCanadian at paras. 48, 5116. Threshold met. In this case, there is no issue that the first step of the test for fairdealing has been met. The Board accepted as fact that the copies at issue were made for anallowable purpose. At the Federal Court of Appeal, the parties agreed.


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Alberta (Education) v. Access Copyright, 2010 FCA 198 at paras.22, 28, 34, 35 [FCA Decision]

17. Fairness factors. This appeal therefore focuses on the second stage of the CCH test;the application of he non-exhaustive list of fairness factors. But this Court should not losesight of the fact that the threshold requirement- an allowable purpose- has been satisfied.18. In weighing the fairness factors, the Court can explicitly take into consideration thecompeting goals of the Act, and balance the rights of creators against the rights ofusers.However, simply asserting (as the respondent does) that intellectual property rights shouldbe respected does not assist with the question of how far those rights go, what are theirlimits, and how the balance that lies at the heart of the Act should be maintained.19. Errors of law. The Board and Federal Court ofAppeal erred in their fairnessanalysis. Although the CAUT and CFS take issue with each aspect ofthe analysis, it willfocus its submissions on these matters:

a) that it is an error of law to focus only on one part of the dealing whenconsidering the purpose of the dealing in the context of the fairness factors -the court should look at the dealing as a whole;

b) that it is similarly an error of law to have the decision on fair dealing turn onwhether the copy is made "at the requestof' a user, rather than "on behalfof'a user- there is no such requirement in the Copyright Act;

c) that the purpose of the dealing in this case should be characterized broadly,not narrowly as mere "classroom instruction";

d) that, in the context of the fairness factors, dealing for the purpose of teachingand learning should weigh in favour of, rather than against, fair dealing; and

e) that in considering the amount of the dealing aggregation is not appropriate,which is demonstrated by the respondent's own submissions.


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Whose purpose counts?20. The Copyright Board and the Federal Court of Appeal both held that, in consideringthe purpose of the dealing, it is necessary to look at the purpose of the teacher, who actuallymade the copy, rather than the students, who will use and benefit from the copies. Therespondent goes further and asks this Court to adopt a rule that the "purpose of the dealing"will always and only be the purpose of the person actually making the copy, rather than theultimate user, unless an express request had been made by the user.

Decision of the Board, dated June 26, 2009 and corrected July 17,2009 at para. 98 [Board Decision]FCA Decision, 2010 FCA 198 at paras. 37, 38,46

21. There is no reason to isolate one participant in the dealing, excluding from theanalysis the other people who participate in or benefit from the dealing. This is the oppositeof the approach taken in CCH, which required an objective assessment ofthe users' anddefendants' purposes. It also is contrary to fair dealing's status as a user right (not a narrowexception) that depends on an overall analysis of whether or not the dealing is fair.22. In CCH, the trial judge construed fair dealing strictly and narrowly, holding that theperson engaging in the copying could not rely on the use that the ultimate user intended tomake of the work. In doing so, it relied on some of the very same cases from otherjurisdictions that the respondent relies on in its factum, such as Sillitoe and De Garis.However, this Court rejected this categorical approach. Instead, in explaining how theassessment ofpurpose is to be conducted, the Court stated "courts should attempt to makean objective assessment of the user/defendant's real purpose or motive in using thecopyrighted work."

CCHCanadian Ltd. v. Law Society ofUpper Canada, [2000] 2F.C. 451 at para. 175 (F.C. T.D.)CCHCanadian at para. 54

23. This is sensible. It is the use of the work, rather than jus t the copying of the workthat needs to be considered when considering the "purpose of the dealing." This means thatthe user must be considered, not just the copier.


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24. This is how this Court dealt with the purpose of the dealing when applying thefairness factors in CCH. The defendant actually engaged in the copying was the LawSociety. However, in construing the purpose of the dealing, the Court focused on all aspectsof the transaction, including the purposes of the requesting lawyers (i.e., the ultimate users).

CCHCanadian at para. 6425. The result of the respondent's argument would be that a user must physically makethe copies at issue him or herself, or, as discussed below, request that it be done. However,this artificial distinction, and its corollary - that absent a request by the user someone whoassists the user cannot rely on the user's purposes - is inconsistent with both the idea of a"user's right" and a large and liberal construction of fair dealing.26. This is particularly important because not all users can necessarily make their owncopies. Some do not have the original that they want copied (as with the lawyers in CCH).Others do not have access to the equipment needed to make a copy (e.g., many students).This means that, to exercise their right, they need some form of assistance. Holding thatonly the copier's (and not the user's) purpose can be considered undermines a student'sability to get help from his or her teacher.

Focus should be on the dealing as a whole27. Fair dealing requires focus on the dealing as a whole. The approach in the decisionsbelow - requiring the Court to determine a "dominant" purpose - means the Court mustselect one of hese different parties and only one of its purposes. This determination isinherently arbitrary, since the different parties may have different purposes, all ofwhich arenecessary for the copying to occur.28. The only way to avoid arbitrariness in analyzing the purpose is to avoid identifying asingle party in isolation. Rather, the proper approach is to consider the course of dealing asa whole. This makes particular sense in light of fact that the determination ofpurpose is onefactor ofmany in the fairness analysis. The ultimate user- here, the student- should not beexcluded from the consideration.


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Does there need to be a request?29. Nor should there be a distinction between works copied by teachers at the request ofa student and works copied without first receiving a request. All copies are made for thestudent' s uses. The fair dealing provisions in the Act do not require a user "request."30. The respondent defends this distinction on the basis that the student "authorizes" thecopy, making the student 's purpose relevant. The result defies common sense. If an 8 yearold child asks for a copy it would be fair dealing. But, if the Grade 3 teacher anticipates thather students could be interested in something and proactively provides it, it would not befair. This distinction does not make sense. The copy was made for the benefit of the studentwhether it was initiated by the teacher, or requested by the student.31. Similarly, compare two hypothetical teachers: one who puts copies of articles onreserve as a matter ofcourse for students who are interested in doing extra reading on aparticular topic, and one who responds to specific requests by students for further reading onthe same topic by handing out articles to the students who asked for them. While only one iscopying the articles "at the request of' their students, both are copying "on behalfof' theirstudents. Both are acting for their s tudents' benefit, in furtherance of the learning process,including research and private study. It makes no sense to distinguish between these twoteachers in determining the purpose of the dealing.Not merely "classroom instruction"32. It is also apparent that the decision of the Federal Court ofAppeal was too narrowlydrawn when it characterized the purpose of the dealing as "classroom instruction."33. To begin with, that label is misleading. There was no logging sticker for the purpose"classroom instruction." That phrase was used by the Federal Court ofAppeal, but theactual logging purpose is broader: "student instruction, assignments and class work."

FCA Decision, 2010 FCA 198 at para. 13


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34. Moreover, the Federal Court of Appeal construed its own phrase, classroominstruction, narrowly. Its analysis proceeded as if the student did not have an active role atall. That approach oversimplifies classroom instruction, even if it were a proper label.35. Instead, the Court should have regard for the process of student instruction,assignments and class work, and consider that purpose broadly. K-12 teachers make copiesfor the purpose of teaching their students through the dissemination of materials (including,but not limited to, classroom instruction). Students, in tum, use those copies for the purposeof learning from them. They may be doing research, for example. Teacher and students arejointly engaged in the process of teaching and klarning, and in doing so employ the statutorypurposes of fair dealing, including research, private study, criticism and review. Thepresence of a valid purpose has been admitted in this case.36. If fair dealing is to be given a "large and liberal" interpretation as a user right, thenthe appropriate question is whether all the purposes in the course of the dealing, consideredas a whole and not in isolation, make the dealing more or less fair.

CCHCanadian at para. 5237. There are many different uses of copyrighted works in the K -12 system that involvelearning, but not classroom instruction. This is particularly true on the facts of this case,which involve four-and-one-half copies per student per year. A grade 5 English teacher canmake copies of a poem and ask students to read it to themselves at home, simply to hear therhythm and cadence as they read it. A grade 12 music teacher can ask her class to set thepoem to music. An art teacher can ask the c l a s ~ to draw what they think the poem is about,or what it inspires. None of these are "classroom instruction," but all contribute to thestudents' learning process. All are within the logging sticker, "student instruction,assignments and class work."38. Beginning at the K-12 level and increasing at college and university, teaching andlearning involve research, private study, criticism, review and creation ofnew works. Thereis an inevitable blurring of the lines between student instruction, assignments and classwork, research, private study, criticism and review. The learning process is multi-facetedand serves the overarching purposes of the Copyright Act, which should work in favour of


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fairness. This is why the U.K. Copyright Tribunal warned "[i]feducation is burdened tooheavily with copyright restrictions, teaching and scholarship is discouraged, to thedisadvantage of the public interest in general. .. "

Universities UK Ltd. v. Copyright Licensing Agency Ltd., [2002]RPC 36 at para. 3939. CAUT and CFS are not suggesting that all cases involving learning automaticallylead to a conclusion of fairness. However, when the purpose of the dealing passes thethreshold- that is, the first step of the CCHtest- and the dealing serves the goals of heCopyright Act, these activities must weigh in favour of, rather than against, fair dealing.

40. The dangers that the respondent points to, specifically the effect on publishers,can be addressed by other fairness factors such as the amount of he dealing and the effectof the dealing on the market for the work.Aggregation is not appropriate41. The amount ofcopying, to the extent that it may be relevant, should be considered basedon an individual dealing, not on an aggregated basis. To do otherwise leads to at least twoproblems. First, it makes fair dealing essentially unworkable in practice. The person making thecopies cannot know the aggregate figures in advance, or perhaps at all, and cannot know whetherhe or she can make the copies to further a valid purpose. Second, the concern that aggregationattempts to raise (the sheer quantity of he copying) is already dealt with by the fairness factors.42. Although it does not appear that evidence was tendered on this point in this case, anaggregate analysis may show an adverse impact on the market for the work. Even then, thisis but one factor and not determinative. The textured nature of fair dealing is very differentthan pointing to comparative numbers and suggesting that their sheer quantities shoulddetermine the outcome of the analysis.43. The difficulty with aggregation is illustrated by the respondent's submissions. Therespondent advances the aggregate figures yet urges the Court to r ~ j e c t the average- that is,4.5 copies per student per year. The respondent observes that some students may have


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- 10-received no copies, and others hundreds. These individual circumstances would be relevantto considering whether the dealing is fair, according to the respondent. We agree.

44. Further, aggregation and averages go hand in hand. The court should not rely on oneand reject the other.Conclusion45. Both teaching and learning actively serve the goals of he Copyright Act, includingthe sharing and dissemination ofknowledge, the development and exercise of essential skillsin research, private study, criticism and review, and the creation ofnew works. CAUT andCFS submit that the decisions below erred in their fairness analysis, introducing legalhurdles and narrow characterizations, and finding that the purpone of the dealing weighedagainst it being fair. Quite the contrary, properly considered, the analysis of fairness factorsdiscussed above weighs in favour of, and not against, fairness.

PART IV - SUBMISSION ON COSTS46. CAUT and CFS are not seeking costs and ask that no costs be awarded against them.

PART V - RELIEF REQUESTED47. CAUT and CFS respectfully request that their counsel be permitted to make oralsubmissions at the hearing.November 17, 2011 AL..~ . : - m , _ . . . ICH IS RESPECTFULLY SUBMITTEDU, //

F -------Andrew Bernstein/

lexandra PetersonOf counsel for the Intervener, Canadian Association ofUniversityTeachers and Canadian Federation ofStudents


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PART VI- TABLE OF AUTHORITIESAuthority Citing

ParagraphsCases1. Society ofComposers, Authors and Music Publishers of 9Canada v. Canadian Association of nternet Providers,[2004] 2 s.c.R. 427, 2oo4 se c 452. CCHCanadian v. Law Society ofUpper Canada, [2004] 1 10, 15,22,24,36

s.c.R 339, 20o4 sec 133. CCH Canadian Ltd. v. Law Society ofUpper Canada, [2000] 222 F.C. 4514. Statement ofRoyalties to be Collected by Access Copyright 20

for the Reprographic Reproduction, in Canada, ofWorks inits Repertoire (Educational Institutions- 2005-2009)Decision of the Board, dated June 26, 2009 and correctedJuly 17' 2009

5. Alberta (Education) v. Access Copyright, 2010 FCA 198 16,20,336. Universities UK Ltd. v. Copyright Licensing Agency Ltd., 38[2002] RPC 36Legislation7. Copyright Act, R.S.C. 1985, c. C-42 4, 7, 9, 14, 15, 18,

19,38,39,45


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PART VII- STATUTES RELIED ON

Copyright Act, R.S.C., 1985, c. C-42, s. 29 and s.29.129. Fair dealing for the purpose of research or private study does not infringecopyright.29. L'utilisation equitable d'une oeuvre ou de tout autre o ~ j e t du droit d'auteauraux fins d' etude privee ou de recherche ne constitue pas une violation du droitd'auteur.29.1 Fair dealing for the purpose of criticism or review does not infringecopyright if the following are mentioned:(a) the source; and(b) if given in the source, the name of the

(i) author, in the case of a work,(ii) performer, in the case of a performer's performance,(iii) maker, in the case of a sound recording, or(iv) broadcaster, in the case ofa communication signal.

29.1 L'utilisation equitable d'une oeuvre ou de tout autre objet du droit d'auteuraux fins de critique ou de compte rendu ne constitue pas une violation du droitd'auteur ala condition que soient mentionnes:(a) d'une part, la source;(b) d'autre part, si ces renseignements figurent dans la source:

(i) dans le cas d'une oeuvre, le nom de I' auteur,(ii) dans le cas d'une prestation, le nom de l'artiste-interprete,(iii) dans le cas d'un enregistrement sonore, le nom du producteur,(iv) dans le cas d'un signal de communication, le nom du radiodiffuseur.

SCC 33888 Factum of Interveners CAUT_CFS 1637092_1

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