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The Supreme Court Copyright Hearings, Day Two: The Fight to Roll Back Fair Dealing

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The Supreme Court of Canada held the second day of copyright hearings yesterday with Canadian education groups and Access Copyright squaring off over fair dealing from the perspective of copying materials in schools for classroom use. Much like the first day that involved some discussion that will be rendered largely moot by reforms found in Bill C-11, some of the debate in this case may also change once the bill becomes law. There was considerable focus on the extent to which the fair dealing categories of research and private study can include some element of classroom instruction. That discussion referenced the exclusion of a general education exception, which is not found in the current law but is included in Bill C-11.

As for this particular hearing, the education institutions offered a confused and confusing argument. The problems started from the opening question, with Justice Rothstein opening the door to considering whether short excerpts might be treated insubstantial copying without the need for fair dealing and the schools simply dismissing the possibility. It went downhill from there as the arguments veered between confusing numbers and a failure to address the basic question of why the school's copying met the six-factor fair dealing test. Access Copyright faced some challenges on the question of whose purpose is relevant when considering fair dealing (it wanted the focus on the teacher, the schools on the student), but the court seems very unlikely to overturn this decision.

Intervenors such as the Canadian Publishers Council would like the court to do more than just affirm the Access Copyright decision, however, as they argued for rolling back the CCH fair dealing analysis. Chief Justice McLachlin, who wrote that decision for a unanimous court, seemed to bristle at that possibility, noting that a flexible approach had found favour with many groups. Indeed, the attack on CCH seemed to stiffen her resolve on fair dealing and may lead the court to side with Access Copyright on the facts but to renew support for CCH and its fair dealing analysis.

The second hearing of the day involved a fight between broadcast distributors and the copyright collective Re:Sound over the "performance" of music in movie and TV show soundtracks. Re:Sound's counsel spent much of his hour assuring the court that the statutory interpretation issues were very clear, yet ducked so many questions that a frustrated Justice Abella was left to joke that "you're lucky I have nothing else to do this afternoon."

One of the most interesting exchanges occurred late in the day, as Chief Justice McLachlin discussed the creative process and noted that works often involve bringing together several other works into a new whole. When counsel responded that this was a compilation, the Chief Justice replied that it might actually be an entirely new work, bringing the issue of remix and transformative works to the Supreme Court of Canada.

This post originally appeared on www.michaelgeist.ca.