Short, Sweet and Stirring the Pot: Canada’s Copyright Board Holds Category 4 Copies are Fair Dealing

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The reposting of this article from the Osgoode IPilogue is part of a cross-posting agreement. The original version of the comment can be viewed at http://www.iposgoode.ca/2012/10/short-sweet-and-stirring-the-pot-canada’s-copyright-board-holds-category-4-copies-are-fair-dealing.

In a brief decision released September 19, the Copyright Board of Canada held that the Category 4 copies at issue in Alberta (Education) v Canadian Copyright Licensing Agency (Access Copyright) [Access Copyright] constituted fair dealing for the purposes of research and private study.

While specifying which category of photocopying constitutes fair dealing, and thus a non-compensable copy under the Access Copyright K-12 tariff, the decision further clarifies the tariff and fair dealing implications regarding K-12 education in classrooms across the country.

In response to July’s Supreme Court of Canada decision in Access Copyright, which was discussed on IPOsgoode by Mekhala Chaubal as well as myself, the Copyright Board held “the decision of the Supreme Court is clear and leaves no room for interpretations”. At issue before the Copyright Board was whether photocopies of portions of works made at the teachers’ own initiative and distributed to students for instructional purposes, were compensable copies as part of Access Copyright’s Elementary and Secondary Schools Tariff applicable to the K-12 level. This category of photocopying included only short excerpts from textbooks which were distributed to students as a complement to other textbooks used by students. This copying, which accounts for approximately 7% of all copying done in schools (16.9 million pages of copying), has been referred to as Category 4 during the previous proceedings.

As summarized by Abella J in Access Copyright, prior to the Supreme Court’s decision, the Copyright Board “concluded that the Category 4 copies were made for the allowable purpose of “research or private study” under s. 29 of the Act, but found, applying the CCH fairness factors, that the Category 4 copies did not constitute fair dealing and were therefore subject to a royalty.” On judicial review, the Federal Court of Appeal upheld the decision of the Copyright Board as reasonable. However, in light of the Supreme Court’s 5/4 decision in Access Copyright, the fair dealing matter was remitted to the Copyright Board for reconsideration based on a misapplication of the fairness factors.

Although the Copyright Board was given the task of re-applying the CCH fairness factors based on the majority’s reasons from July’s Supreme Court decision, the Copyright Board simply stated “based on the record before the Board and the findings of fact of the Supreme Court, Category 4 copies constitute fair dealing for an allowable purpose and as such, are non-compensable.” While Abella J did not specifically rule on the fair dealing of the Category 4 copies in Access Copyright, her applications of the CCH factors is perhaps what caused a reluctance on the part of the Copyright Board’s to re-apply the factors. The Copyright Board’s decision does clarify that fair dealing applies to Category 4 copies, photocopies of portions of works made at a teacher’s initiative and distributed as supplemental classroom material, are not applicable to the K-12 Tariff. Although disappointed by the  Copyright Board’s decision, Access Copyright has accepted the outcome of fair dealing applying to Category 4 copies.

It is interesting to note the deference of the Copyright Board to the majority’s decision in Access Copyright and the reluctance of the Board to re-apply the fairness factors enunciated in CCH. In July, the Supreme Court stated that the misapplication of the CCH factors by the Copyright Board was unreasonable and that the Board should reconsider whether Category 4 copies are subject to the K-12 Tariff. After reinforcing fair dealing as a user’s right, Abella J applied the CCH factors directly to the facts, weighing the factors in favour of fair dealing. In response to the Supreme Court’s decision, Access Copyright was of the opinion that the Copyright Board had the opportunity to determine that Category 4 copies did not constitute fair dealing, stating that there was no “final determination as to whether [Category 4] uses are fair”. Despite this argument, the Board declined to reassess whether Category 4 copies constituted fair dealing based on Access Copyright. The Copyright Board, in a perhaps begrudging tone, was of the opinion that the Supreme Court’s clear decision “leaves no room for interpretation”. Perhaps the Copyright Board did not want to offend the majority’s decision in Access Copyright? Perhaps the Board agrees with the Supreme Court’s decision? Or perhaps, simply put, the Board has had enough of the K-12 Tariff?

With strong deference to the majority’s reasoning in Access Copyright, the Copyright Board’s final issue is deciding whether the FTE (Full-Time Equivalent) student rate should be reduced to $0.36 or $0.3539.

The Copyright Board’s decision has created a controversy in the Canadian copyright community. Although the Board’s decision is applicable only to the K-12 tariff and Category 4 copies, it has rehashed the argument regarding the user’s rights and fair dealing language in July’s Access Copyright decision. A back and forth of blog entries has been fired off between Michael GeistBarry SookmanAriel Katz, and a reply again from Sookman, regarding the application of fair dealing to the Access Copyright licence currently being proposed to various Canadian universities. Instead of keeping the debate focused on the implications of Access Copyrighton Canada’s fair dealing doctrine and educational institutions, the discussion has shifted to a re-tweet from Ariel Katz and its accompanying “Hitler Finds Out” meme discussing the Access Copyright licence. Sookman and John Degen have been critical about the meme, expressing that (in the words of Sookman) this “reprehensible video should not have been circulated by a Canadian academic…”. However, YouTube lists over 9, 000 “Hitler Finds Out” memes, at least one of which has been previously tweeted by a Canadian academic, Western ProfessorJohn Reed, without controversy. As the meme is highly satirical in nature, those who claim the video “crossed the line” have undoubtedly missed the author of the video’s intended message. While the video may offend some in the Jewish community, the plethora of YouTube memes alludes to the fact that many members of the public find the meme to be an acceptable vehicle to disseminate a variety of messages.

In response to critics of his re-tweet, Ariel Katz apologized to those he may have offended and wishes to keep focused on “being able to have civilized debates over controversial issues.” As Katz points out, the rhetoric regarding the meme and suggestion that those who support a liberal fair dealing doctrine associate themselves with Nazis, “is a new low in the debate. Hopefully, we have now hit rock bottom, and can return to discussing the real issues.” Indeed, let this not become the next Bill C-30, which focused on the language used by those who debated the issue, as opposed to focusing on the issues of substance to the debate. Let us return to debating the implications of Access Copyright, and not waste time with highly offensive name-calling.

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