In the aftermath of the Supreme Court of Canada’s 2012 copyright pentalogy that strongly affirmed the importance of user’s rights and the need for a broad, liberal interpretation for fair dealing, Access Copyright insisted that the decisions did not mean what they said. While educational groups developed reasonable fair dealing guidelines based on the decisions (along with earlier decisions such as the CCH case and the inclusion of education within the fair dealing purposes in 2012 reforms), Access Copyright argued that the copying required its licence and that fair dealing guidelines based on general percentages could not be used.

Last Friday, the Copyright Board of Canada issued its latest decision on the application of fair dealing to educational copying, providing yet another resounding blow to Access Copyright’s view of copyright. The Board created a tariff for copying in K-12 schools that was a fraction of what the copyright collective had wanted. It initially asked for $15 per full time student. By the time the issues had been fully assessed, the Board granted a tariff of $2.46 per student for 2010-2012 and $2.41 for 2013-2015. That rate is not only far lower than Access Copyright had demanded, but is nearly half of what was previously certified for the period from 2005-2009 (which was set at $4.81). The Board minced no words in explaining the reduction:

The main reason for that decrease is the fact that as a result of the decision of the Supreme Court in Alberta v. Access Copyright, 2012 SCC 37, copies made for student instruction, assignments or class work, that were not included in the fair-dealing analysis in the preceding decision, were now included. This resulted in the Board’s finding that a significant proportion of copying by elementary and secondary schools was fair under the fair-dealing provisions of the Copyright Act. These copies therefore do not generate remuneration.

In fact, a close look at the Copyright Board’s analysis reveals that it found that 97.2% of copying from books, 98.1% of newspapers, and 98.5% from periodicals qualified as fair under a fair dealing analysis. In other words, virtually all copying of books, newspapers, and periodicals in the large sample reviewed by the Board is covered by fair dealing and does not require a licence from Access Copyright. Moreover, the Board found that copying 1 to 2 pages from a book is insubstantial and does not even require a fair dealing analysis.

With the government and K-12 Copyright Board decisions both strongly rejecting Access Copyright’s theories of fair dealing, the only remaining decision involves universities and colleges. Canadian universities dropped out of that case, but many have recently written to the Board to ensure that their concerns are considered. Several aspects of last week’s decision should play a key role in any future decisions.

1.    Limited Repertoire

The Board has firmly rejected Access Copyright’s claims about the size of its repertoire. While its supporters frequently suggest that an Access Copyright licence gives licencees the right to copy anything, the Board makes it clear that that simply is not true. Access Copyright argued that it can collect for any copying and that once the payment is accepted, an agency relationship is created. On that basis, “Access argues that all works, unless explicitly removed by the owner of copyright, form part of its repertoire.” The Board firmly rejected this argument:

where the evidence does not indicate that the copying was of a work whose owner of copyright has entered into an affiliation agreement with Access, that copying is not included in the determination of the royalty rate for this Tariff.

As a result, Access Copyright’s repertoire is much smaller that it claims. Rather than representing all works, it only represents those works for which it has entered a formal agreement.

2.    Non-Substantial Copying

The Board had previously indicated in the universities case that it believed that copying a few pages is insubstantial and therefore not subject to any compensation. Access Copyright disagreed, arguing that anything copied is valued and therefore not insubstantial. The Board re-affirmed the insubstantial copying doctrine in this case, concluding that 1 – 2 pages from a book is insubstantial and not subject to any compensation.

3.    Fair Dealing – Percentages

At the heart of the universities case is the validity of the widely used education fair dealing guidelines which treat up to 10% of a work as fair. This decision provides the first glimpse into the Board’s view of the guidelines. It concludes:

For longer works, such as books, guided by the Supreme Court’s decisions in CCH, Alberta, and Bell, we use the following approximation: where the amount of a work copied was less than or equal to 5 per cent of the work, we conclude that the amount copied tends to make the dealing fair; where the amount copied was more than 5 per cent but no more than 10 per cent of the work, we conclude that the amount copied did not affect the fairness of the dealing; where the amount copied was greater than 10 per cent of the work, we conclude that the amount copied tends to make the dealing unfair.

Taken together:

• 1 – 2 pages is insubstantial with no fair dealing analysis required
• Up to 5% of a work is likely to be fair
• 5 – 10% of a work is neutral and the fairness will depend on other factors
• More than 10% tends to unfairness

This approach is largely consistent with the education fair dealing guidelines. The Board has concluded there is nothing unfair about copying 10% of a work. Indeed, given that many of the other fair dealing factors tend toward fairness for education, this decision represents a solid affirmation of the current Canadian education approach.

4.    Fair Dealing – Analysis

The amount of copying is only part of a full fair dealing analysis. The Board examined all six factors and found for education in the majority of instances. Important findings include:

• Access Copyright argued that since copies replace the purchase of works being copied, they are unfair. The Board rejected the argument.
• Access Copyright argued that a fair dealing analysis should consider “a just reward” for creators as part of the analysis. The Board rejected the argument.
• Access Copyright argued that the Board should consider whether the copying is transformative with the view that non-transformative copying tends to unfairness.  The Board rejected the argument.
• Access Copyright argued (again) that the aggregate volume of copying – said to be 300 million pages – should be factored into the analysis. The Board rejected the argument, noting that what matters is a specific copying transaction, not the aggregate amount of copying.
• Access Copyright argued that distribution of multiple copies of works that are not destroyed tend to unfairness. The Board rejected the argument.
• Access Copyright argued that there were reasonable alternatives available. The Board rejected the argument, concluding that alternatives for “non-consumables” tended toward fairness.
• Access Copyright argued that the copying had a negative effect on the market and for the creation of future works. The Board found that there could be some effect on the market, but concluded that the effect on future works was small.

Based on these findings, the Board found that most of the factors tended toward fairness. It therefore concluded that 97.2% of copying of books was fair, 98.1% of newspapers was fair, and 98.5% of periodicals was fair.

While not directly discussed in the case, it is worth noting that the fair dealing analysis focuses almost entirely on the decisions from the Supreme Court of Canada. This will not come as a surprise to copyright lawyers, but it runs counter to Access Copyright and its supporters attempts to paint the current Canadian approach as a direct result of the 2012 legislative reforms. The reality is that those reforms were very modest for educational institutions. The fair dealing guidelines and the logical decision to drop the Access Copyright licence is the result of the Supreme Court’s copyright rulings, not any lobbying efforts or legislative reforms.

I recently wrote an opinion piece for Academic Matters on striking the right balance on copyright and education which concluded:

a fair review of the current system reveals that the problem facing Access Copyright is not that copies are not valued, but rather that in light of new forms of access and the evolution of the law, its licence is no longer valuable.

That is the inescapable conclusion from the latest Copyright Board decision. Access Copyright has spent the better part of the past 15 years arguing for its vision of copyright law before Canadian courts and the Copyright Board. It has lost at virtually every stage and at every venue [Update: It responds to this decision, calling it “deeply problematic”).

While it seems determined to continue to its failed litigation strategy – its lawsuit against York University continues and it would not surprise if it sought judicial review of this Copyright Board ruling – the reality is that there is now a robust body of rulings that provide all parties with considerable guidance and certainty on the scope of fair dealing. Access Copyright may not like it, but those rulings are largely consistent with the guidelines currently used by educational groups across the country.