CAUT granted intervenor status in review of school copyright tariff decision

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 [...]

29.4 (1) It is not an infringement of copyright for an educational institution or a person acting under its authority

(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.