The Copyright Board of Canada delivered a devastating defeat to Access Copyright on Friday, releasing its decision on a tariff for copying by employees of provincial governments. Yesterday’s post provided a detailed review of the decision, including the Board’s findings on the limits of Access Copyright’s repertoire, the scope of insubstantial copying, and the proper interpretation of fair dealing.

The decision focused on copying within provincial and territorial governments, but much of the analysis can be easily applied within an education context. Indeed, since the Supreme Court of Canada 2012 copyright decisions, there has been a very public battle over the validity of fair dealing guidelines that have been widely adopted by the Canadian education community.  I’ve written several posts on the education consensus (here and here) and there are no shortage of the fair dealing guidelines readily available online.

Access Copyright has argued that “these new policies authorize and encourage copying based on a definition of ‘fair dealing’ that is not supported by the law. Instead, they represent what some of the education sector’s lawyers and administrators would like the law to be.” It filed a lawsuit against York University over its guidelines, claiming that the policy is unfair.

The Copyright Board’s decision puts to rest many of Access Copyright’s claims, confirming that all three branches of Canadian copyright are consistent on the issue of fair dealing: the legislature (2012 reforms that expanded fair dealing), the courts (the SCC pentalogy decisions that strongly endorsed fair dealing as a user right), and now the Copyright Board. Having rejected virtually all of Access Copyright’s arguments, the education community will look to the Board’s decision for additional guidance on fair dealing and confirmation that its approach is consistent with Canadian law.

The Board decision identifies a two-step process for users seeking to determine whether a licence is needed to use a work (in addition to public domain and open licensing considerations). First, users should consider whether the amount copied is insubstantial. If so, no further analysis is needed as no copyright event is triggered. The Board states that insubstantial copying is 1 to 2 pages of a work, not constituting more than 2.5 percent of the entire work. In other words, where two pages are copied from a work of 80 pages or more, or one page is copied from a work of 40 pages or more, the copying is insubstantial and not compensable.

Second, if more is copied, fair dealing may apply. As is well known, fair dealing involves a two-step test. The first is whether the dealing or use is for an appropriate purpose. This requires one of the purposes in the Act: research, private study, news reporting, criticism, review, education, parody, or satire. The Board states that in assessing this part of the test, all purposes receive a large and liberal interpretation. Moreover, the qualifying purpose need not be the predominant purpose (ie. there may be multiple purposes behind the dealing or use and the main one does not need to be one of the statutory purposes). So long as one of the purposes is found in the statute, the usage qualifies for the first part of the test. The Board also ruled that the purpose is that of the individual user, not the larger organization.

The second part of the test involves a six factor analysis to determine whether the dealing is more or less fair.  The Board offers some additional insights into each of these factors:

1.    Purpose

The Board characterized purpose in this part of the test as “goal” of the dealing. It confirmed that the purpose or goal may be for the benefit of someone else. It also ruled that there can be multiple goals or purposes without an impact on the fairness of the dealing.

2.    Character

The Board rejected an “aggregate” approach to determine the character of any particular dealing. It also confirmed that the correct approach is to examine the amount of copying by the individual copier, not the organization as a whole since the “dealings of one user should not tend to make the independent dealings of another user less fair.” It added that not destroying a copy after it is used does not favour unfairness.

3.    Amount

The Board provided some numbers to gauge whether the amount copied is fair. It stated that approximately 10 percent of a book in the context of research or private study tends toward fairness. Moreover, it accepted that an entire newspaper, journal or magazine article may have to be copied for the purpose of research or private study. Where an entire article was copied for the purpose of research or private study, while the amount of the dealing factor tends towards unfairness, it does not do so strongly. This analysis is consistent with the education fair dealing guidelines.

4.    Alternatives

The Board stated that alternatives to the dealing must be realistic and must not simply be the availability of a licence. It characterized Access Copyright’s claim that the availability of any alternative tended toward unfairness as “overly simplistic.” The Board acknowledged that “where a copy of a work has already been purchased, it may not be realistic to expect that a copy be purchased for every person who seeks to make a copy thereof.” Further, “the option of acquiring a one-time licence was not counted as a valid alternative.”

5.    Nature

Access Copyright argued that dealing with published works tends to make the dealing unfair. The Board disagreed. It noted that the works in question were published, but that “the natures of the works in this matter do not tend to make the dealing more or less fair. On the one hand, they are published works, and are not of a nature where further dissemination without the dealing is unlikely. On the other hand, they are not private writings where such dissemination could be undesirable.”

6.    Effect of the Dealing

Access Copyright argued that every dealing with a copyrighted work will be one where there was an opportunity for the copyright owner of the work to sell a one-time right to license that use. The Board continued the Supreme Court’s insistence that there be actual evidence of economic harm in order to assess the effect of the dealing. In this case, it noted that “no direct evidence that would permit us to ascertain with any certainty the effect of the dealing captured by the Volume Study on the works that were reproduced, and given that relying on aspects that have already been considered under other factors could have the effect of erasing proportionality from the fairness analysis, we find that this factor neither tends to make the dealings in the Volume Study more fair nor less fair.”

Access Copyright may seek judicial review of the decision (effectively appealing it), yet the ruling is based on a meticulous analysis of existing Canadian caselaw and largely upholds the position of the Canadian education community on fair dealing. For Access Copyright, the solution to its problems does not lie in further litigation nor in making claims based on what it would like the law to be. Rather, it comes from rapidly changing its business model to reflect what Parliament, the Supreme Court, and now the Copyright Board have ruled with respect to fair dealing.