Tuesday 17 July 2012

Fleck's Five: SCC ruling no.2 - Photocopies for Primary and Secondary School Instruction

From our very good friend, lawyer and fellow blogger Lorraine Fleck (Hoffer Adler LLP, Toronto) comes the second of her series of analyses of the handing down by the Supreme Court of Canada of five major decisions on fair dealing defences to an action for copyright infringement. The 1709 Blog is delighted to be able to share Lorraine's efforts with its own readers.
Supreme Court of Canada: Photocopies for Primary and Secondary School Instruction Constitutes Fair Dealing

This is the second in a series of five posts about the Supreme Court of Canada’s copyright decisions released on Thursday July 12, 2012.

On Thursday, July 12, 2012, the Supreme Court of Canada (SCC) issued its decision in Alberta (Education) v Canadian Copyright Licensing Agency (Access Copyright), 2012 SCC 37. The decision is significant because it clarifies the test to assess whether use of copyright materials for research and private study is "fair dealing". "Fair dealing” is an activity that allows users of copyright materials to engage in activities that might otherwise constitute copyright infringement. Research and private study are activities which may constitute fair dealing.


Access Copyright represents authors and publishers of printed literary and artistic works. It filed a proposed tariff with Canada's Copyright Board for royalties to be paid on photocopies of printed literary and artistic works – mainly textbooks – for use in elementary and secondary schools in all Canadian provinces and territories except Quebec. The Board concluded that copies made at the teachers' request and which students were to read per the teachers' instruction were made for the purposes of research or private study. However, the Board found that the copies did not qualify as fair dealing – because they were made by the teachers for instructional purposes – and were therefore subject to a royalty. On appeal, the Federal Court of Appeal agreed with the Copyright Board. A coalition of provinces, territories and Ontario school boards (the “Coalition”) appealed to the SCC.

The Supreme Court’s Decision

The SCC, in a 5-4 split, allowed the appeal and remitted the matter back to the Copyright Board for reconsideration. The SCC found that the copies were fair dealing after applying its two-prong fair dealing test set out in CCH Canadian Ltd. v Law Society of Upper Canada. The fair dealing test has two steps:
Is the dealing for the purpose of either “research” or “private study” (the two fair dealing purposes allowed under the Copyright Act)?

Is the dealing “fair”? Factors in assessing fairness include: the purpose, character, and the amount of the dealing; the existence of any alternatives to the dealing; the nature of the work; and the effect of the dealing on the work.
Before the SCC, there was no dispute that the photocopies were made for the purpose of research or private study. Therefore, the appeal hinged on whether the dealing was “fair” – step 2 of the test.

The SCC disagreed with how the Board applied step 2 of the fair dealing test. The Board looked at the purpose of the copies as being from the perspective of the teachers, not the students, and therefore found the purpose of the copies was for instruction, not research or private study – reversing its finding in step 1 of the test. Because the copies no longer constituted fair dealing, they were not royalty free. The SCC’s view, however, was that the purpose of the copies in step 2 of the test should be looked at from the perspective of the user – in this case, the students. Given that the teachers’ had no ulterior or commercial motive for making the copies, and the teachers’ were there to facilitate the students’ research and private study and enable the students to obtain the material needed for their studies, the dealing was fair.

The SCC noted that while the purpose for making the copies should typically be examined from the user’s perspective, the copier’s perspective is not always irrelevant if the copier hides behind the user’s permitted copying in order to engage in activities that can make the dealing unfair. Such activities include commercial use.

In applying the rest of the fair dealing factors, the SCC found:
 That the Board was required to determine whether the proportion of each of the excerpts copied in relation to the whole work was fair. Examining the total number of copies was the incorrect approach.

 With respect to alternatives to the dealing, it was unrealistic to purchase books for every student as opposed to copying short excerpts to supplement student textbooks.

 Regarding the effect of the dealing on the works, there was no evidence of a link between photocopying short excerpts and declining textbook sales.
The SCC also noted that the word “private” in “private study” does not mean that users are to view the copyright works in isolation.


The SCC’s decision is significant in that it clarifies the test for analyzing fair dealing for the purposes of research and private study. The relevant perspective for assessing the purpose for the dealing is typically the user, not the copier, unless the copier is hiding behind the user’s dealing to make copies that would otherwise be infringing. The SCC’s decision – along with the Canadian copyright reform bill scheduled to become law this fall – also means that school boards will be able to photocopy reasonable excerpts from textbooks for educational purposes for the foreseeable future.
This post can also be found on Lorraine's IP Address blog, here.
Fleck's Five: SCC ruling no. 1 - Free Music Previews can be read here and here.

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