Fair Dealing for Copyright in Canada

Copyright issues in Canada may not be top of most people's list of interesting news items but Canada may be on the cusp of legislating new copyright reforms and the reason may be a recent set of rulings from their supreme court.  The courts ruling covered several media formats and distribution methods and could generally be construed as a win for consumers.  That would be 'free-loaders' if you were of a certain group that saw the rulings as representing a way from consumers to make broader use of content without paying for it.  The details of the rulings make this conclusion less clear and the result maybe that the Canadian legislature may enact a new set of copyright rules by the end of the year.

The rulings covered music and educational materials (content) and centered on the issue of 'fair dealing' which equates to the US fair use doctrine and similarly requires a review of specific criteria to determine whether a use can be considered 'fair dealing' and thus is permitted.  From the ruling Judge Abella sets out this criteria:  (Corrected from Rothstein)

… the concept of fair dealing allows users to engage in some activities that might otherwise amount to copyright infringement.  The test for fair dealing was articulated in CCH as involving two steps.  The first is to determine whether the dealing is for the allowable purpose of “research or private study” under s. 29, “criticism or review” under s. 29.1, or “news reporting” under s. 29.2 of the Copyright Act.  The second step of CCH assesses whether the dealing is “fair”. The onus is on the person invoking “fair dealing” to satisfy all aspects of the test.  To assist in determining whether the dealing is “fair”, this Court set out a number of fairness factors: the purpose, character, and 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. 

In reviewing each of these fairness hurdles Abella offered several zingers and reading between the lines it doesn't seem there was much sympathy for the argument education publishers presented.  For example, in reviewing the 'purpose' factor he dismissed the reasoning that “private study” should not be understood as requiring users to view copyrighted works in splendid isolation (my italics) and that focusing on the 'geography' of teaching artificially separated the teacher from the studying students.  At issue is whether teachers can be separated from the students with respect to the use of the content and Judge Abella politely shoots this down saying that,

with respect, was a flawed approach.  First, unlike the single patron in CCH, teachers do not make multiple copies of the class set for their own use, they make them for the use of the students.   Moreover, as discussed in the companion case SOCAN v. Bell, the “amount” factor is not a quantitative assessment based on aggregate use, it is an examination of the proportion between the excerpted copy and the entire work, not the overall quantity of what is disseminated. 

Interesting that the Judge is suggesting it doesn't really matter how big the class is but rather the amount of material taken from the entire work which equates to the US concept of fair use.

In the press, the reaction to the set of decisions oscillated between 'free content' and 'the end of publishing'.  A point counter point ran in the Canadian Financial Post.  De Beer suggests that the ruling is not an assault on copyright (as his fellow FP columnist Corcoran comments) but rather an opportunity for innovation in education:

The education case that Financial Post editor Terence Corcoran calls an assault on copyright will drive innovation in classrooms across the country by providing necessary breathing room for teachers and students to deal fairly with copyright-protected materials. Schools will probably continue a trend that predates this decision by shifting away from collective blanket licences. But, where copying goes beyond validated fair dealings, institutions will instead choose market-oriented solutions like custom database subscriptions and direct licences on various terms from authors or publishers.

In my (biased) view, I thought the Judge's comments with respect to the 'alternatives to the dealing' argument presented by the publishers to be most interesting.

I also have difficulty with how the Board approached the “alternatives to the dealing” factor.  A dealing may be found to be less fair if there is a non-copyrighted equivalent of the work that could have been used, or if the dealing was not reasonably necessary to achieve the ultimate purpose (CCH, at para. 57).  The Board found that, while students were not expected to use only works in the public domain, the educational institutions had an alternative to photocopying textbooks: they could simply buy the original texts to distribute to each student or to place in the library for consultation

He goes on to suggest that buying books for the entire class when only a portion is needed is is not realistic,

Under the Board’s approach, schools would be required to buy sufficient copies for every student of every text, magazine and newspaper in Access Copyright’s repertoire that is relied on by a teacher.  This is a demonstrably unrealistic outcome. 

Here there may be some similarity to the recent Georgia case in the US where Judge Evans plainly stated that if a publisher's chapter is readily and easily available and the permission is set at a "reasonable price" then the law comes down on the publisher's side. Abella does not go this far; however, there's some logic in taking his argument down that path.  This may be consoling to Canadian rights holders if they are able to easily deliver the 'except' in question rather than the entire book.  On other words, if the precise excerpt was available and reasonably priced to the student could Abella's argument be as strong?

Lastly, Abella thought publishers argument regarding financial harm caused by teachers' photocopying spurious and pointed to many other macro issues impacting publishers fortunes such as, "the adoption of semester teaching, a decrease in registrations, the longer lifespan of textbooks, increased use of the Internet and other electronic tools, and more resource-based learning."

In his concluding comments, de Beer suggests that this ruling may undercut copyright agency's (such as Access Copyright) desire to license use on a universal basis. Similar arguments have been made by others to the extent that blanket agreements will be less viable options for most institutions and many education institutions will establish direct agreements with select publishers and for others will seek permission on an needed basis.  This point coincides with a substantial increase in the per head rate that Access Copyright rolled out to education institutions for universal access late last year the size of which was 'heavily debated' and will come as welcome news to many Provosts.

All interesting developments, but the most interesting outcome may concern the government's effort to reform Canadian copyright.  Given these rulings (not all covered here), content owners may be motivated to pressure the legislature to set rules more in their favor but that remains to be seen.