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Supreme Court rules against Access Copyright photocopying tariff

The Supreme Court of Canada today released several key decisions that effectively expand the definition of “fair dealing” under copyright law.

While four of the five rulings deal specifically with digital music and video games, the court also ruled against Access Copyright in an appeal pertaining to the use of copyrighted material in Canadian classrooms.

At issue is a photocopying tariff that applies to short excerpts from textbooks used by students in kindergarten to Grade 12. In a decision dating back several years, the Copyright Board determined that such uses do not constitute fair dealing and are therefore subject to a royalty.

While the Supreme Court has not overturned the royalty, it has remitted the matter to the Copyright Board for reconsideration. In its decision, the court stated that the Copyright Board’s approach in levying the royalty drives “an artificial wedge” between research and private study “ which are allowed under fair dealing “ and a teacher’s role as a facilitator in learning.

From the Supreme Court decision, written by Justice Rosalie Abella:

Teachers have no ulterior motive when providing copies to students. Nor can teachers be characterized as having the completely separate purpose of instruction; they are there to facilitate the students’ research and private study. It seems to me to be axiomatic that most students lack the expertise to find or request the materials required for their own research and private study, and rely on the guidance of their teachers. They study what they are told to study, and the teacher’s purpose in providing copies is to enable the students to have the material they need for the purpose of studying…. Instruction and research/private study are, in the school context, tautological.

Copyright activist Michael Geist interprets the Supreme Court’s expanded definition of fair dealing as a “victory for education, Internet users, and innovative companies.” With respect to the photocopying tariff in particular, he writes:

The Access Copyright case has enormous implications for education and copyright in Canada. With the court’s strong endorsement of fair dealing in the classroom, it completely eviscerates much of Access Copyright’s business model and calls into question the value of the model licence signed by many Canadian universities.

For his part, novelist John Degen calls the decision “another astonishingly short-sighted blow to Canadian writing and publishing,” one that “has free culture activists dancing in their well-appointed academic offices.”

He adds that, ironically, the decision creates more confusion, not less, about what can be legally copied for classroom use: “Without question, anyone claiming to be in the role of a teacher will now be under the impression that almost any amount of copying done for that role is allowable under the law.”