Posts tagged access copyright
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.
The Copyright Board of Canada last week approved an interim tariff applicable to the educational licence granted by Access Copyright, a not-for-profit organization that represents authors and publishers, to post-secondary educational institutions. According to the Copyright Board, more consultation is necessary before it will approve Access Copyright’s new proposed fee structure (Macleans Oncampus), which will significantly increase the cost for educational institutions to use the licence.
The new fee structure has prompted considerable criticism from universities and provincial governments and marked another chapter in the long-standing fued between the collective and educational institutions. The additional costs to educators of the new structure are so great that some licencees, like the University of Alberta, have announced that they will let their contract with Access Copyright expire and make other arrangements to obtain copies of course materials (see this article at Macleans Oncampus).
Michael Geist, perhaps one of the leading intellectual property law experts in Canada, wrote a fascinating article on the implications of Access Copyright’s conduct, which is available on his blog here (scroll down for more links to get a better sense of the background, and you can find a previous post on mine of the subject here). The basic idea behind Access Copyright and the photocopying licence for post-secondary educational institutions is that the creators of intellectual, intangible works should be compensated by the users or consumers of those works, which in this case are students and more generally members of the education community. The Copyright Act (Canada) (Department of Justice) requires collectives like Access Copyright to submit their tariffs (i.e. the fees charged to users) to the Copyright Board for approval. In his article, Geist argues that the new fee structure is excessive, and he highlights alternatives for universities and writers to get their needs met.
This current dispute follows a series of legal proceedings related to these tariffs, most recently involving a decision (CanLII) of the Federal Court of Appeal several months ago, which explains many of the issues at stake.
Paul Brent at the Law Times reported earlier this week that the Canadian Association of University Teachers has been granted leave to intervene in the upcoming judicial review (i.e. appeal) by provincial Ministers of Education of the decision by the Copyright Board of Canada last June, which raised the fees to be paid by schools on copied material to $5.16 per student. Access Copyright, the victor in the case, claimed “governments were not paying a fair price for the hundreds of millions of photocopies used in schools as substitutes for buying the books.”
The decision raised many interesting issues related to education and the protection of intellectual property, particularly the debate about the “fair dealing” exception in the Copyright Act (Canada). The Canadian copyright legal regime, in ultra-brief form, basically works like this:
- Copyright refers to the exclusive right of the owner to reproduce certain creative expressions, such as songs, plays, novels and so on. The purpose of this rule is to protect the rights of artists, writer and others, including their publishers and producers, to certain intangible creations that are otherwise easily reproducible. People have to make a living, and few people will pay you for something they can just get a good copy of for free.
- The other side of the coin is that in certain circumstances free reproduction should be permitted and even encouraged. The largest exception of this sort is called “fair dealing”, which allows copying without the consent of the copyright owner for particular purposes.
These are some of the relevant provisions of the Copyright Act:
29. Fair dealing for the purpose of research or private study does not infringe copyright.
29.1 Fair dealing for the purpose of criticism or review does not infringe copyright 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 of a communication signal [...]
(a) to make a manual reproduction of a work onto a dry-erase board, flip chart or other similar surface intended for displaying handwritten material, or
(b) to make a copy of a work to be used to project an image of that copy using an overhead projector or similar device
for the purposes of education or training on the premises of an educational institution.
(2) It is not an infringement of copyright for an educational institution or a person acting under its authority to
(a) reproduce, translate or perform in public on the premises of the educational institution, or
(b) communicate by telecommunication to the public situated on the premises of the educational institution
a work or other subject-matter as required for a test or examination.
(3) Except in the case of manual reproduction, the exemption from copyright infringement provided by paragraph (1)(b) and subsection (2) does not apply if the work or other subject-matter is commercially available in a medium that is appropriate for the purpose referred to in that paragraph or subsection, as the case may be.
You get the idea. The debate in the tariff decision focused largely on what types of copying generally done by schools falls within the exception of fair dealing. The Copyright Board sided mostly with Access Copyright and saw much of the copying done by schools to fall outside of the fair dealing umbrella. This generated a considerable amount of commentary from prominent intellectual property lawyers, including this from Michael Giest, this from Howard Knopf, and this from Sam Trosow. Here is how is the Copyright Board explained its decision.