Noah Sarna on the issues, cases and events of interest to British Columbia's educational community
SCC grants leave to hear appeal in Access Copyright dispute
The Supreme Court of Canada earlier this month granted leave for an appeal of the Alberta Minister of Education from the decision of the Federal Court of Appeal in Alberta (Education) v. Access Copyright (CanLII).
In a nutshell, the dispute pits ministries of education and school boards against Access Copyright, a copyright collective. Access Copyright successfully argued before the Copyright Board of Canada that unauthorized reproduction of certain materials by schools was a violation of its copyright, which did not fall within the fair use provisions of the Copyright Act (Department of Justice). The Board also ordered that certain copying entitled Access Copyright to royalties.
Here is an early discussion on this case from this blog. Here is a discussion of the broader concerns for Access Copyright.
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Saskatchewan Vice-Principal may be personally liable for communicating information learned from student’s confiscated cellphone
September 14, 2022 - 5:39 pm
Tags: bazley v. curry, education law, privacy, university act, vicarious liability, vice-principal; saskatchewan
Posted in News | No comments
For most employees, , lawsuits connected to the workplace are someone else’s problem. Many people assume – and rightly so – that if the business gets sued because they were doing what they were hired to do, it will not affect them personally. If it was a screw-up, it may cost them their job, but [...]
Quebec decision highlights willingness of court to give platform to student claimants
September 1, 2022 - 6:06 pm
Tags: azar, concordia, education law, plaigarism, student grievances
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Yet another decision was released recently showing the tendency of courts to go the extra mile in hearing out student claimants, even when they don’t seem to have much of a case or to be coming before the courts with clean hands. In Azar c . Concordia University (CanLII), a former student brought an action [...]
Vancouver riot raises questions about scope of schools’ jurisdiction
August 22, 2022 - 12:02 am
Tags: Christy Clark, discipline, education law, Jim Chu, jurisdiction, president, riot, ubc, UBC-O
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Just when you thought it was out of the media spotlight, Vancouver’s Stanley Cup riot is back in the news. The Globe and Mail reported last week that Premier Christy Clark is frustrated that not a single charge has been laid in connection with the riot. Police Chief Jim Chu responded that hearing about jailings of rioters [...]
Carleton moves to dismiss claims of anti-abortion activists
July 18, 2022 - 11:21 am
Tags: abortion, Canadian Charter of Rights and Freedoms, carleton university, contract, education law, pridgen, reasonable cause of action, student grievances, tort
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The Ottawa Citizen reported last week that Carleton University, which is being sued by two anti-abortion student activists for shutting down an unauthorized protest on campus, has asked the court to toss out the students’ lawsuit on the basis that they did not disclose a reasonable cause of action – i.e. the claim is frivolous, vexatious, [...]
University Act amended to subject on-campus businesses to property tax
July 11, 2022 - 11:23 am
Tags: clark wilson llp, education law, on-campus businesses, porperty tax, university act; university of victoria
Posted in News | 1 comment
Seven words have been added to the University Act that will mean a new cost for on-campus businesses. Roughly a year ago, the BC Court of Appeal interpreted section 54 of the University Act (BCLaws) to mean that commercial tenants in a student union building at the University of Victoria were not occupying space that should [...]
SCC grants leave to appeal in Moore decision
June 30, 2022 - 1:53 pm
Tags: disability rights, discrimination, education law, human rights code, jeffrey moore, Supreme Court of Canada
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The Supreme Court of Canada announced this morning that it has granted leave to appeal the decision of the BC Court of Appeal in the case of Jeffrey Moore, which involved the claim that North Vancouver School District 44 had discriminated against him by failing to provide certain services aimed at special needs children. The Court of [...]
Court finds tuition discounts for teacher-parents to be taxed at market value
June 26, 2022 - 9:21 pm
Tags: education law, federal court of appeal, independent schools, tax, taxable benefit, tuition
Posted in News | No comments
Teachers in the private school system often enjoy the perk of being able to send their kids to the school they teach at with the help of a considerable discount on the tuition amounts normally paid by other parents. This usually involves getting to send a child to their school for half the amount other [...]
How educational institutions should respond to the riot
June 22, 2022 - 11:39 am
Tags: campus connection, criminal law, education law, expulsion, facebook, online reputation, schools, universities, vancouver riot 2022
Posted in News | 1 comment
A week after the Stanley Cup game seven loss and the riot that followed, Vancouverites are thinking less about how our boys in blue were thumped by the Bruins and more about how our cityscape was bruised by the rioters. In terms of our pride as a city, the game pulled the rug out from [...]
Court of Appeal upholds Hussack decision against Chilliwack school board
June 13, 2022 - 12:01 am
Tags: Chilliwack School District, court of appeal, education law, hussack, negligence, torts
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The BC Court of Appeal released its decision last week in the Hussack case (previously discussed here), largely dismissing the claims in appeal made by School District #33. Here is the coverage in the Vancouver Sun and here (BC Injury Law) and here (Injury Lawyers Blog) are commentaries on the outcome. Hussack deals with a high school student, [...]
UVIC successful at BCHRT in eviction of Victoria man
May 31, 2022 - 11:22 pm
Tags: b.c. human rights tribunal, education law, gerd'son, human rights code, real estate, student housing, university of victoria
Posted in News | No comments
The B.C. Human Rights Tribunal (BCHRT) handed down a decision last week that put an end to an extended tenancy in student housing by a Victoria man who obtained his last degree from the university almost 15 years ago. Here is a summary of the event in a recent article in the Vancouver Sun: Alkis Gerd’son [...]
July 7, 2022 - 7:08 pm
As a quick note, the Canadian Copyright Act carves out its exceptions through “fair dealing” as opposed to the United States’ “fair use.” While pointing out the difference is often an exercise in pedantry, the application to educational use often turns on those nuanced differences. If I can pull my head above the work that you can guess I’m buried in at the moment, I’ll read the case and post some commentary.
July 7, 2022 - 7:28 pm
In the case of the U.S. Copyright Act, s.107 (Fair use) offers a very broad exemption:
“…the fair use of a copyrighted work … teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include —
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
…”
It is important to note that the US generally works in a model of infringing or fair use, whereas Canada relies on a levy system. Therefore, when they carve out an exception to infringement (and I usually prefer to think of copyright as carving a protection out of the public domain, but anyway). they carve it out completely. The counterattack is to narrow the applicability of that exception, as they’ve done with the DMCA, the Sonny Bono Term Extension (see Eldred v. Ashcroft), etc.
In Canada, we don’t broaden or narrow the exception so much as vary the levies charged by the central collection bodies depending on the nature of the dealing. Radio stations pay one levy, DJs at private gatherings pay another, and schools and libraries are subject to other classes of levies.
What is interesting to note is the fourth characterization of the “fair use” in the U.S. Act:
“(4) the effect of the use upon the potential market for or value of the copyrighted work.”
This seems to go to the heart of Access Copyright’s argument. The Canadian Act does not give carte blanche to educational institutions, but rather a narrow set of educational permissions. This seems to create a very large area in which the Board, Access Copyright, etc., can allow certain use if a levy is paid, and otherwise puts a heavy onus on the educational institution to frame its use within the fair dealing exceptions. Michael Geist has been calling for a radical opening of these exceptions for years.