The Supreme Court of Canada issued its much anticipated rulings in the five copyright cases (ESAC v. SOCAN, Rogers v. SOCAN, SOCAN v. Bell - song previews, Alberta v. Access Copyright, Re:Sound) it heard last December (my coverage of the two days of hearings here and here). It will obviously take some time to digest these decisions, but the clear takeaway is that the court has delivered an undisputed win for fair dealing that has positive implications for education and innovation, while striking a serious blow to copyright collectives such as Access Copyright.
Led by Justice Abella, the court has reaffirmed that fair dealing is a user's right that must be interpreted in a broad and liberal manner. In fact, the court provides further guidance on interpreting fair dealing with an emphasis on the need for a flexible, technology-neutral approach. In reading the decisions in the Access Copyright and song previews cases, it is hard to imagine a bigger victory for education, Internet users, and innovative companies. This post will provide some quick key points in the Access Copyright and song previews decisions.
The Access Copyright case has enormous implications for education and copyright in Canada. With the court's strong endorsement of fair dealing in the classroom, it completely eviscerates much of Access Copyright's business model and calls into question the value of the model licence signed by many Canadian universities. Writing for the majority, Abella adopts several crucial findings, not the least of which is that fair dealing is a user's right. Piece by piece, Abella tears apart Access Copyright's claims. First, she says the attempt by Access Copyright to separate teacher copies for students and students making their own copies should be rejected. The court states:
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.
In light of that finding, Abella states:
photocopies made by a teacher and provided to primary and secondary school students are an essential element in the research and private study undertaken by those students. The fact that some copies were provided on request and others were not, did not change the significance of those copies for students engaged in research and private study.
Moreover, Abella refuses to limit "private study":
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.
Abella then rejects Access Copyright's claims that fair dealing analysis depends on examining the aggregate amount of copying. Instead, she says that the excerpt itself is the relevant consideration:
First, unlike the single patron in CCH, teachers do not make multiple copies of the class set for their own use, they make them for the use of the students. Moreover, as discussed in the companion case SOCAN v. Bell, the "amount" factor is not a quantitative assessment based on aggregate use, it is an examination of the proportion between the excerpted copy and the entire work, not the overall quantity of what is disseminated. The quantification of the total number of pages copied, as the Court noted in CCH is considered under a different factor: the "character of the dealing".
Abella also rejects claims that buying full books for all students is an alternative to copying an excerpt:
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.
Finally, Abella also dismisses claims that copying in schools has a detrimental economic impact:
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.
While there is a dissent in this case, the majority has confirmed that classroom copying can be treated as fair dealing. When combined with the addition of education to the list of fair dealing categories, all Canadian educational institutions should reexamine their copyright practices with the view to adopting a far more aggressive, user-oriented approach. For Access Copyright, this decision means that tens of millions of dollars it was seeking from K-12 schools may not be forthcoming and its broader licensing model with educational institutions will need to change.
The other major fair dealing case involves whether the song previews on services such as iTunes qualify as research for fair dealing purposes. Once again, Abella delivers a strong stand in favour of fair dealing. After standing up for fair dealing as a user's right, Abella argues for a very broad approach to the fair dealing research category:
It is true that an important goal of fair dealing is to allow users to employ copyrighted works in a way that helps them engage in their own acts of authorship and creativity: Abraham Drassinower, "Taking User Rights Seriously", in Michael Geist, ed., In the Public Interest: The Future of Canadian Copyright Law (2005), 462, at pp. 467-72. But that does not argue for permitting only creative purposes to qualify as "research" under s. 29 of the Copyright Act. To do so would ignore the fact that the dissemination of works is also one of the Act's purposes, which means that dissemination too, with or without creativity, is in the public interest. It would also ignore that "private study", a concept that has no intrinsic relationship with creativity, was also expressly included as an allowable purpose in s. 29. Since "research" and "private study" both qualify as fair dealing purposes under s. 29, we should not interpret the term "research" more restrictively than "private study". 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 bold emphasis is mine as this statement will be repeated hundreds of times in the future as it provides an incredibly broad approach to research that can be used by consumers, businesses, and education to justify a fair dealing analysis. In fact, Abella clarifies that the two-part fair dealing test -- does the dealing qualify under a fair dealing category and is the dealing fair as determined by the six factor analysis -- requires a low threshold for the category analysis since what really counts is whether the use or dealing itself is fair. Abella states:
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. SOCAN's submission that "research" be restricted to the creation of new works would conflate the allowable purpose with the fairness analysis and unduly raise the bar for entering that analysis. Moreover, its restricted definitional scope of "research" contradicts not only the Court's admonition in CCH that "in order to maintain the proper balance between the rights of a copyright owner and users' interests, [the fair dealing exception] must not be interpreted restrictively" (para. 48), but also its direction that the term "research" be given a "large and liberal interpretation" so that in maintaining that balance, users' rights are not unduly constrained (paras. 48, 51).
The other major fair dealing element comes when Abella goes through the six factors to determine whether the song previews are in fact fair. The court concludes that what is relevant is not the aggregate amount of copying (ie. short excerpts of millions of songs) but rather the specific amount copied:
There is no doubt that the aggregate quantity of music heard through previews is significant, but SOCAN's argument conflicts with the Court's statement in CCH that "amount" means the "quantity of the work taken" (para. 56). 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.
Further, Abella is particularly concerned by the implications for the Internet with an aggregate approach, noting:
Further, given the ease and magnitude with which digital works are disseminated over the Internet, focusing on the "aggregate" amount of the dealing in cases involving digital works could well lead to disproportionate findings of unfairness when compared with non-digital works. If, as SOCAN urges, large-scale organized dealings are inherently unfair, most of what online service providers do with musical works would be treated as copyright infringement. This, it seems to me, potentially undermines the goal of technological neutrality, which seeks to have the Copyright Act applied in a way that operates consistently, regardless of the form of media involved, or its technological sophistication.
The emphasis on technological neutrality is crucial and is likely to be used as an integral part of copyright analysis in the future. There is obviously much more, including three more cases to discuss, but the big takeaway is that the Supreme Court has delivered a vision of copyright that emphasizes balance, user rights, and innovation.
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