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Alberta (Education) �v. �Canadian Copyright Licensing Agency (Access Copyright)

*April 2019

This instructional module is not intended as legal advice. All Opening Up Copyright modules are made available under a Creative Commons Attribution 4.0 (CC-BY-4.0) International license.

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SHARING RESOURCES �WITH STUDENTS

Is this covered by fair dealing?

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ALBERTA (EDUCATION) v. �ACCESS COPYRIGHT

Supreme Court applied the two-step test introduced in �CCH v. LSUC

Access

Copyright

v.

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ALBERTA (EDUCATION) v. �ACCESS COPYRIGHT

1^st Step

2^nd Step

Alternatives

Purpose

Amount

Effect

Character

Nature

✓

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PURPOSE OF THE DEALING

Purpose

Instruction = Non-private study

In “splendid isolation”

“Studying and learning are essentially personal endeavours, whether they are engaged in with others or in solitude” (para 27)

Previously…

“Teachers have no ulterior motive in providing the copies to the students” (para 23)

FAIR

In applying the six-factor analysis, the first factor is “the purpose of the dealing”. While the dealing has a clear connection to “research” and “private study”, the Court must consider the extent to which the purpose of the dealing tends toward a finding of fairness. When the Copyright Board made its earlier decision in this same case, it found that the copies made by teachers were predominantly for “instruction” or for “non-private” study, and thus they would tend toward unfairness. The Federal Court of Appeal agreed with the Copyright Board’s decision that the copies were made for “non-private study.”

A majority of the Supreme Court disagreed. The “research” and “private study” purposes of the students were found to be consistent with the instructional purposes of teachers. “Teachers had no ulterior motive in providing the copies to the students” (para 23). Instruction and private study were found, at least in the school context, to be effectively the same thing. The majority made it clear that the word “private” in “private study” should not be interpreted to suggest that the activity must take place in “splendid isolation”. “Studying and learning are essentially personal endeavours, whether they are engaged in with others or in solitude” (para 27).

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AMOUNT OF THE DEALING

Amount

“teachers do not make multiple copies of the class set for their own use, they make them for the use of the students” (para 29)

Number of copies

The amount of the work copied compared to the entire work

FAIR

The Copyright Board’s approach to the “amount of the dealing” factor was also found by a majority of the Supreme Court to be problematic. The Board had suggested that a teacher might make a large number of copies of the same short excerpt, and that this would tend toward unfairness. The majority pointed out that “teachers do not make multiple copies of the class set for their own use, they make them for the use of the students” (para 29). The Court also noted that “the quantification of the total number of pages copied … is considered under a different factor: the ‘character of the dealing’” (para 29). The majority reaffirmed that “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” (para 29).

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ALTERNATIVES TO THE DEALING

Alternatives

“buying books for each student is not a realistic alternative to teachers copying short excerpts to supplement student textbooks” (para 32)

FAIR

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EFFECT OF THE DEALING

Effect

“there was no evidence that this decline was linked to photocopying done by teachers” (para 33)

FAIR

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SUPREME COURT DECISION

✓

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SUPREME COURT REVIEW OF THE COPYRIGHT BOARD DECISION

Two Standards for Judicial Review:

“Reasonableness” standard

“Correctness” standard

“because the Board’s finding of unfairness was based on what was, in my respectful view, a misapplication of the CCH factors, its outcome was rendered unreasonable” (para 37)

“application of the CCH factors to the facts and its conclusions were not unreasonable” (para 41)

It is important to note that the Court was divided 5 to 4 on this decision. The central issue in the dissent was whether the Copyright Board had made a reviewable error. There are two different standards for judicial review: one is the “reasonableness” standard – whether or not the decision under review was reasonable; and the other is the “correctness” standard – whether or not the decision under review was correct. The standard of review for the Court to apply to the decision of the Copyright Board is reasonableness: simply whether the Board’s decision is reasonable, not whether its decision is correct.

The dissenting judges took the position that the Board’s “application of the CCH factors to the facts and its conclusions were not unreasonable” (para 41), and argued, therefore, that the appeal should be dismissed. Writing for the majority, however, Justice Abella concluded that “because the Board’s finding of unfairness was based on what was, in my respectful view, a misapplication of the CCH factors, its outcome was rendered unreasonable” (para 37). Therefore, the appeal was allowed.

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ALBERTA (EDUCATION) DECISION

THANKS, MR. SAM!

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2012 COPYRIGHT MODERNIZATION ACT

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COPYRIGHT PENTALOGY

ESAC v. SOCAN

Alberta (Education) v. Access Copyright

SOCAN v. Bell

Rogers v. SOCAN

Re:Sound v. MPTAC

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LEARNING OBJECTIVES

Recount the circumstances and outcome of Alberta (Education) v. Canadian Copyright Licensing Agency (Access Copyright)

Identify the more significant factors in the fair dealing analysis that contributed to the decision

Outline the main issue from the dissenting opinion in the case

You should now be able to:

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THANK YOU FOR YOUR ATTENTION

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The “amount” factor of the six-factor test refers to the number of copies made.

True
False

In this case the teachers were making copies:

Of entire texts
Of short excerpts
Of relevant book chapters

The Alberta (Education) decision confirms that, under fair dealing, Sam can lawfully reproduce an entire book if it is for the purpose of instruction.

True
False

QUESTIONS

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For the “alternatives to the dealing” factor of the six-factor test the Supreme Court found that buying books for each student was:

A realistic alternative to copying short excerpts
Not a realistic alternative to copying short excerpts
A realistic alternative to photocopying a text book
Not necessary because students already had a textbook

For the “purpose of the dealing” factor of the six-factor test, the Supreme Court and the Copyright Board interpreted “private study” in different ways. Provide the source for each interpretation.

The Copyright Board interpreted “private study” as something that is done in private that does not apply to teachers photocopying materials for instruction.
The Supreme Court interpreted “private study” as something that can be done with others or in isolation. Instruction in the school context is effectively the same as private study and thus using excerpts of materials for instruction should be considered fair dealing.

QUESTIONS

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The Supreme Court reached its decision that the Copyright Board’s earlier decision did not meet the “reasonableness” standard because that earlier decision had misapplied the CCH six factors.

True
False

The standard of review for the Court to apply to the decision of the Copyright Board is:

“Reasonableness:” whether the decision is reasonable
“Correctness:” whether the decision is correct

QUESTIONS

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Alberta (Education) v. Canadian Copyright Licensing Agency (Access Copyright), 2010 FCA 198. https://decisions.fca-caf.ca/fca-caf/decisions/en/item/36867/index.do

Alberta (Education) v. Canadian Copyright Licensing Agency (Access Copyright), 2012 SCC 37. https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/9997/index.do

CCH Canadian Ltd. v. Law Society of Upper Canada, 2004 SCC 13. https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2125/index.do

Entertainment Software Association v. Society of Composers, Authors and Music Publishers of Canada, 2012 SCC 34. https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/9994/index.do

Re:Sound v. Motion Picture Theatre Associations of Canada, 2012 SCC 38. https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/9999/index.do

CASES AND LEGISLATION

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Rogers Communications Inc. v. Society of Composers, Authors and Music Publishers of Canada, 2012 SCC 35. https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/9995/index.do

Society of Composers, Authors and Music Publishers of Canada v. Bell Canada, 2012 SCC 36. https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/9996/index.do

CASES AND LEGISLATION

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Image credits (in order of appearance):

[Sam]. (2018). Wikimedia Commons. CC BY-SA. https://commons.wikimedia.org/wiki/File:Senior_Guy_At_The_Office_Cartoon.svg

Marie Van den Broeck. (2015). Kids. The Noun Project. CC BY. https://thenounproject.com/icon/kids-235684/

Saishraddha Malage. (2015). Highlight. The Noun Project. CC BY. https://thenounproject.com/icon/highlight-241534/

Smashicons. (2017). Printer. The Noun Project. CC BY. https://thenounproject.com/icon/printer-1127745/

Bieu Tuong. (2018). School. The Noun Project. CC BY. https://thenounproject.com/icon/school-1983588/

IMAGE AND SOUND REFERENCES

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Clker-Free-Vector-Images. (n.d.). Lawyer. Pixabay. Pixabay Licence. https://pixabay.com/vectors/lawyer-attorney-barrister-judge-28838/

Icon Sea. (2015). Building. The Noun Project. CC BY. https://thenounproject.com/icon/building-164596/

Dig deeper. (2017). [Supreme Court of Canada]. Wikimedia Commons. CC BY. https://commons.wikimedia.org/wiki/File:Supreme_court_of_Canada_in_summer.jpg

Ruslan Dezign. (2017). Target. The Noun Project. CC BY. https://thenounproject.com/icon/target-1005058/

ATOM. (2017). Copy. The Noun Project. CC BY. https://thenounproject.com/icon/copy-1474212/

Тимур Минвалеев. (2016). Percent. The Noun Project. CC BY. https://thenounproject.com/icon/percent-397874/

IMAGE AND SOUND REFERENCES

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B. Farias. (2017). Decision. The Noun Project. CC BY. https://thenounproject.com/icon/decision-1074053/

AFY Studio. (2018). Leaf. The Noun Project. CC BY. https://thenounproject.com/icon/leaf-1737325/

Gregor Cresnar. (2015). Dollar sign. The Noun Project. CC BY. https://thenounproject.com/icon/dollar-sign-171145/

Federal Court. (2007). [Federal Court’s Coat of Arms]. https://www.fct-cf.gc.ca/en/pages/the-federal-courts-coat-of-arms

Andrew Doane. (2017). Deserted Island. The Noun Project. CC BY. https://thenounproject.com/icon/deserted-island-1422103/

Tony Michiels. (2014). Stack. The Noun Project. CC BY. https://thenounproject.com/icon/stack-38035/

IMAGE AND SOUND REFERENCES

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Bernar Novalyi. (2016). Judge. The Noun Project. CC BY. https://thenounproject.com/icon/judge-684236/

Closing Slides Music: Rybak, Nazar. (n.d.). Corporate Inspired. HookSounds. CC BY. http://www.hooksounds.com/

Unattributed materials are contributions from the Opening Up Copyright Project Team and placed in the Public Domain.

IMAGE AND SOUND REFERENCES

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University of Alberta. (2019). Alberta (Education) v. Canadian Copyright Licensing Agency (Access Copyright). Opening Up Copyright Instructional Module. https://sites.library.ualberta.ca/copyright/

LICENSING AND ATTRIBUTION

Suggested Citation:

For the project overview and complete list of modules please visit the project website at: https://sites.library.ualberta.ca/copyright/

Questions, comments, and suggestions should be directed to: ouc@ualberta.ca

This module is made available and licensed under a Creative Commons Attribution 4.0 International Licence

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CONTRIBUTORS

Copyright Office

Technologies in Education

Centre for Teaching and Learning

University of Alberta Library

School of Library and Information Studies

Adrian Sheppard

Amanda Wakaruk

Mireille Smith

Anwen Burk

Cosette Lemelin

Graeme Pate

Krysta McNutt

Michelle Brailey

Toby Grant

Julia Guy

Kris Joseph

Michael B. McNally

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ACKNOWLEDGMENT

The Opening Up Copyright (OUC) module series is made available by the University of Alberta Copyright Office.

OUC modules have been produced with the assistance of funding at the University of Alberta through its Centre for Teaching and Learning's Teaching and Learning Enhancement Fund (TLEF) (2017-21) and OER Grant Program (2020), and through a Support for the Advancement of Scholarship (SAS) grant (2021).