With the start of the school year less than two weeks away, the Canadian education community is increasingly thinking about copyright and the implications of Bill C-11 and the Supreme Court of Canada’s five copyright decisions. While Access Copyright argues that little has changed (in recent correspondence to the Copyright Board it even objected to a six-month delay in formulating a school survey on copying practices to fully account for Bill C-11 and the decisions), most recognize that the law has undergone a dramatic change that confirms significant flexibilities for educational uses.

I’ve posted several pieces on these issues (fair use in Canada, technological neutrality, impact on Access Copyright), but given the ongoing efforts to mislead and downplay the implications of the decisions, this long post pulls together the Supreme Court’s own language on how to assess fair dealing. The quotes come directly from the three major fair dealing decisions: CCH Canadian, Access Copyright, and SOCAN v. Bell Canada.

Note that this post is limited to the Court’s decisions and does not focus on the changes in Bill C-11. The legislative reforms provide additional support for education as they include the expansion of fair dealing to include education as a purposes category, a cap of $5000 on statutory damages for all non-commercial infringement, a non-commercial user generated content provision, an education exception for publicly available on the Internet, a new exception for public performances in schools, and a technology-neutral approach for the reproduction of materials for display purposes that may apply both offline and online.

General principles

While the Court provides guidance on all aspects of fair dealing, its decisions have also articulated three guiding principles to assist with the analysis. First, fair dealing is a users’ right that must not be interpreted restrictively. In CCH, the Court stated:

Before reviewing the scope of the fair dealing exception under the Copyright Act, it is important to clarify some general considerations about exceptions to copyright infringement. Procedurally, a defendant is required to prove that his or her dealing with a work has been fair; however, the fair dealing exception is perhaps more properly understood as an integral part of the Copyright Act than simply a defence. Any act falling within the fair dealing exception will not be an infringement of copyright. The fair dealing exception, like other exceptions in the Copyright Act, is a user’s right. In order to maintain the proper balance between the rights of a copyright owner and users’ interests, it must not be interpreted restrictively. As Professor Vaver, supra, has explained, at p. 171: “User rights are not just loopholes. Both owner rights and user rights should therefore be given the fair and balanced reading that befits remedial legislation.”

The SOCAN case confirmed the importance of users’ rights:

CCH confirmed that users’ rights are an essential part of furthering the public interest objectives of the Copyright Act. One of the tools employed to achieve the proper balance between protection and access in the Act is the concept of fair dealing, which allows users to engage in some activities that might otherwise amount to copyright infringement. In order to maintain the proper balance between these interests, the fair dealing provision “must not be interpreted restrictively”

Second, the ESAC v. SOCAN case adds another general principle of interpretation: technological neutrality. I discuss the implications of technological neutrality in this post, but the key quote from the Court is as follows:

The principle of technological neutrality requires that, absent evidence of Parliamentary intent to the contrary, we interpret the Copyright Act in a way that avoids imposing an additional layer of protections and fees based solely on the method of delivery of the work to the end user. To do otherwise would effectively impose a gratuitous cost for the use of more efficient, Internet-based technologies.

The third principle is specific to fair dealing. The Court in CCH stated that evidence of fair dealing can be demonstrated in two ways: either the specific dealings or the institutional policies and practices:

Section 29 of the Copyright Act states that “[f]air dealing for the purpose of research or private study does not infringe copyright.” The language is general. “Dealing” connotes not individual acts, but a practice or system. This comports with the purpose of the fair dealing exception, which is to ensure that users are not unduly restricted in their ability to use and disseminate copyrighted works. Persons or institutions relying on the s. 29 fair dealing exception need only prove that their own dealings with copyrighted works were for the purpose of research or private study and were fair. They may do this either by showing that their own practices and policies were research-based and fair, or by showing that all individual dealings with the materials were in fact research-based and fair.

First stage purposes test

As I argued in an earlier post, the combination of the Supreme Court’s decisions and inclusion of education as a fair dealing purpose in Bill C-11 effectively mean that all educational copying qualifies under the first stage. This is consistent with the government’s intent, since it added education as a category in Bill C-11.

In fact, the Court’s analysis suggests that virtually all educational uses would be covered by the existing categories without further legislative reform. In SOCAN, it concluded that the first stage purposes test has a low threshold:

In mandating a generous interpretation of the fair dealing purposes, including “research”, the Court in CCH created a relatively low threshold for the first step so that the analytical heavy-hitting is done in determining whether the dealing was fair.

The same case defined the research category in the following manner:

Limiting research to creative purposes would also run counter to the ordinary meaning of “research”, which can include many activities that do not demand the establishment of new facts or conclusions. It can be piecemeal, informal, exploratory, or confirmatory. It can in fact be undertaken for no purpose except personal interest. It is true that research can be for the purpose of reaching new conclusions, but this should be seen as only one, not the primary component of the definitional framework.

The Access Copyright case tackles the private study category, concluding:

With respect, the word “private” in “private study” should not be understood as requiring users to view copyrighted works in splendid isolation. Studying and learning are essentially personal endeavours, whether they are engaged in with others or in solitude. By focusing on the geography of classroom instruction rather than on the concept of studying, the Board again artificially separated the teachers’ instruction from the students’ studying.

Second Stage Six Factor Analysis

The Court has now firmly entrenched the six factor analysis as the test for determining whether a particular use or dealing is fair. The Court has repeatedly emphasized that no single factor is determinative (as demonstrated below, the five of the six factors will typically favour education though any fair dealing analysis is always fact specific). In CCH, the Court stated:

To conclude, the purpose of the dealing, the character of the dealing, the amount of the dealing, the nature of the work, available alternatives to the dealing and the effect of the dealing on the work are all factors that could help determine whether or not a dealing is fair.  These factors may be more or less relevant to assessing the fairness of a dealing depending on the factual context of the allegedly infringing dealing.  In some contexts, there may be factors other than those listed here that may help a court decide whether the dealing was fair.

The Court’s guidance on each factor is discussed below.

1. Purpose of the Dealing

The purpose of dealing involves two issues: whether there is a qualifying purpose and whose purpose should be considered. On the first issue, the Court’s analysis on the broad scope of research and private study applies, ensuring that virtually all educational uses will make the dealing “more fair” under this factor.

The second issue was critically important in the Access Copyright case, with the Court concluding that the purpose of the student (who engages in research or private study) is relevant even when the copying is completed by (or under the instruction of) the teacher:

Teachers have no ulterior motive when providing copies to students. Nor can teachers be characterized as having the completely separate purpose of “instruction”; they are there to facilitate the students’ research and private study. It seems to me to be axiomatic that most students lack the expertise to find or request the materials required for their own research and private study, and rely on the guidance of their teachers. They study what they are told to study, and the teacher’s purpose in providing copies is to enable the students to have the material they need for the purpose of studying. The teacher/copier therefore shares a symbiotic purpose with the student/user who is engaging in research or private study. Instruction and research/private study are, in the school context, tautological.

It is also worth emphasizing that the Court has ruled that the purpose can be both commercial and non-commercial (though most education will qualify as non-commercial). In SOCAN:

while research done for commercial reasons may be less fair than research done for non-commercial purposes (CCH, at para. 54), the dealing may nonetheless be fair if there are “reasonable safeguards” in place to ensure that the works are actually being used for research.

2. Character of the Dealing

In CCH, the Court stated the following about the character of the dealing:

In assessing the character of a dealing, courts must examine how the works were dealt with. If multiple copies of works are being widely distributed, this will tend to be unfair. If, however, a single copy of a work is used for a specific legitimate purpose, then it may be easier to conclude that it was a fair dealing. If the copy of the work is destroyed after it is used for its specific intended purpose, this may also favour a finding of fairness.

The Court provided a good example of how this factor is applied in SOCAN:

SOCAN’s argument was based on the fact that consumers accessed, on average, 10 times the number of previews as full-length musical works. However, no copy existed after the preview was heard. The previews were streamed, not downloaded. Users did not get a permanent copy, and once the preview was heard, the file was automatically deleted from the user’s computer. The fact that each file was automatically deleted meant that copies could not be duplicated or further disseminated by users.

3. Amount of the Dealing

There are several issues worth considering when assessing the amount of the dealing. If the use is a very small amount of the work, there is no need for a fair dealing analysis (something Justice Rothstein seemed to pursue during the December hearing and which was recently applied in a federal court decision). In CCH, the Court stated:

If the amount taken from a work is trivial, the fair dealing analysis need not be undertaken at all because the court will have concluded that there was no copyright infringement.

If the copying extends beyond a very small amount, the Court in CCH noted that the amount copied will depend on the context, including the possibility of a full article qualifying as fair dealing:

the quantity of the work taken will not be determinative of fairness, but it can help in the determination. It may be possible to deal fairly with a whole work. As Vaver points out, there might be no other way to criticize or review certain types of works such as photographs: see Vaver, supra, at p. 191. The amount taken may also be more or less fair depending on the purpose. For example, for the purpose of research or private study, it may be essential to copy an entire academic article or an entire judicial decision. However, if a work of literature is copied for the purpose of criticism, it will not likely be fair to include a full copy of the work in the critique.

The Court in both SOCAN and Access Copyright confirmed that the amount of the dealing refers to the individual copy, not the aggregate amount being copied. This is very significant in an education context since it means the total amount being copied by a teacher, school, school board, or all educational institutions is irrelevant for the purposes of the amount of the dealing analysis. In SOCAN, the Court stated:

Since fair dealing is a “user’s” right, the “amount of the dealing” factor should be assessed based on the individual use, not the amount of the dealing in the aggregate. The appropriate measure under this factor is therefore, as the Board noted, the proportion of the excerpt used in relation to the whole work. That, it seems to me, is consistent with the Court’s approach in CCH, where it considered the Great Library’s dealings by looking at its practices as they related to specific works requested by individual patrons, not at the total number of patrons or pages requested. The “amount of the dealing” factor should therefore be assessed by looking at how each dealing occurs on an individual level, not on the aggregate use.

4. Alternatives to the Dealing

In CCH, the Court described alternatives to the dealing as follows:

Alternatives to dealing with the infringed work may affect the determination of fairness. If there is a non-copyrighted equivalent of the work that could have been used instead of the copyrighted work, this should be considered by the court.

The Court has provided some additional guidance that is relevant for educational institutions. First, the availability of a licence is not relevant to determining whether the dealing is fair. In CCH it stated:

The availability of a licence is not relevant to deciding whether a dealing has been fair. As discussed, fair dealing is an integral part of the scheme of copyright law in Canada. Any act falling within the fair dealing exception will not infringe copyright. If a copyright owner were allowed to license people to use its work and then point to a person’s decision not to obtain a licence as proof that his or her dealings were not fair, this would extend the scope of the owner’s monopoly over the use of his or her work in a manner that would not be consistent with the Copyright Act’s balance between owner’s rights and user’s interests.

Second, buying books for all students is not a realistic alternative to fair dealing copying. In Access Copyright, the Court concluded:

buying books for each student is not a realistic alternative to teachers copying short excerpts to supplement student textbooks. First, the schools have already purchased originals that are kept in the class or library, from which the teachers make copies. The teacher merely facilitates wider access to this limited number of texts by making copies available to all students who need them. In addition, purchasing a greater number of original textbooks to distribute to students is unreasonable in light of the Board’s finding that teachers only photocopy short excerpts to complement existing textbooks. 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. Copying short excerpts, as a result, is reasonably necessary to achieve the ultimate purpose of the students’ research and private study.

5. Nature of the Work

The Court in CCH described the nature of the work in the following manner:

The nature of the work in question should also be considered by courts assessing whether a dealing is fair. Although certainly not determinative, if a work has not been published, the dealing may be more fair in that its reproduction with acknowledgement could lead to a wider public dissemination of the work – one of the goals of copyright law. If, however, the work in question was confidential, this may tip the scales towards finding that the dealing was unfair.

Educational uses are likely to fare well on this issue since their use within education suggests a work where dissemination is important. The Court’s analysis in SOCAN, which showed that musical works for purchase meet this standard, is a good example:

SOCAN does not dispute the desirability of the sale and dissemination of musical works, but argues that since these works are easily purchased and disseminated without the use of previews, previews are of no additional benefit to promoting further dissemination. But the fact that a musical work is widely available does not necessarily correlate to whether it is widely disseminated. Unless a potential consumer can locate and identify a work he or she wants to buy, the work will not be disseminated.

6. Effect of the Dealing on the Work

The Court in CCH emphasized that the effect of the dealing on the work is an important factor, but it is not the most important factor:

the effect of the dealing on the work is another factor warranting consideration when courts are determining whether a dealing is fair. If the reproduced work is likely to compete with the market of the original work, this may suggest that the dealing is not fair. Although the effect of the dealing on the market of the copyright owner is an important factor, it is neither the only factor nor the most important factor that a court must consider in deciding if the dealing is fair.

The Court in both CCH and Access Copyright emphasized the need for actual evidence of economic harm in order to demonstrate a negative effect. In CCH, it found:

Another consideration is that no evidence was tendered to show that the market for the publishers’ works had decreased as a result of these copies having been made. Although the burden of proving fair dealing lies with the Law Society, it lacked access to evidence about the effect of the dealing on the publishers’ markets. If there had been evidence that the publishers’ markets had been negatively affected by the Law Society’s custom photocopying service, it would have been in the publishers’ interest to tender it at trial. They did not do so. The only evidence of market impact is that the publishers have continued to produce new reporter series and legal publications during the period of the custom photocopy service’s operation.

In Access Copyright, it stated:

In CCH, the Court concluded that since no evidence had been tendered by the publishers of legal works to show that the market for the works had decreased as a result of the copies made by the Great Library, the detrimental impact had not been demonstrated. Similarly, other than the bald fact of a decline in sales over 20 years, there is no evidence from Access Copyright demonstrating any link between photocopying short excerpts and the decline in textbook sales. In addition, it is difficult to see how the teachers’ copying competes with the market for textbooks, given the Board’s finding that the teachers’ copying was limited to short excerpts of complementary texts. If such photocopying did not take place, it is more likely that students would simply go without the supplementary information, or be forced to consult the single copy already owned by the school.

Conclusion

Access Copyright has tried to minimize the Court’s decision, arguing that it only applies to seven percent of the copying in its tariff for K-12 schools. I noted in an earlier post, the evidence actually shows that 88 percent of copying in those schools already occurs without the need for Access Copyright or a fair dealing analysis. At issue is only 5.8 percent of copying for which Access Copyright is demanding millions in compensation. Yet the Court’s analysis of fair dealing provides very strong guidance that the overwhelming majority of these remaining copies qualify as fair dealing and do not require additional compensation. As the education community develops its copyright policies, it need only rely on what the Supreme Court of Canada has actually said when it comes to determining the application of fair dealing.