Law Times

Law Times • February 2, 2015 Page 9 www.lawtimesnews.com Fair dealing continues to evolve Access Copyright alters pricing as litigation lingers By shannon Kari Law Times he five copyright-relat- ed decisions released by the Supreme Court of Canada in July 2012 were supposed to bring some certainty to that area of the law. But the principles of fair deal- ing and how to apply them to the reproduction of copyrighted ma- terial in an educational setting are still a matter of debate and it appears to be litigation as usual. In fact, it's possible the issue will end up making its way back to the country's top court a few years from now. In the midst of the still-un- resolved differences of opinion, the national organization that represents authors and publish- ers of printed work that's sub- ject to copying has announced a new marketing strategy and pricing scheme. The new prices, which take effect on July 1, will drop the ex- isting f lat price per full-time stu- dent in universities and colleges by about one-third for copying up to 20 per cent of a covered title. In a release explaining the changes, Access Copyright says it's also introducing a new pay-per-use option "to provide a convenient, f lexible solution" for institutions that already have a centralized permissions pro- cess in place. The pricing changes also come as many educational institutions have decided not to renew agree- ments with the organization as a result of the Supreme Court decision in Alberta (Education) v. Canadian Copyright Licensing Agency (Access Copyright). The court, in a 5-4 decision, found it was fair dealing for teachers in elementary and high schools to provide copies of ex- cerpts of educational materials to students, thereby exempting them from royalties in those cir- cumstances. The court ruling involved less than 10 per cent of total an- nual photocopying by elemen- tary and high schools in Cana- da, much of which was subject to licensing agreements. But the f light of some post-secondary institutions has had a significant impact on the bottom line at Ac- cess Copyright. According to its annual report, yearly revenue from licence fees dropped to $27 million in 2013 from nearly $71 million the previous year. The new pricing scheme for universities and colleges isn't a result of the Supreme Court decisions, says Erin Finlay, gen- eral counsel at Access Copyright. "This is not meant to address the court cases. This is meant to ad- dress market uncertainty," she says. Some of the uncertainty relates to what Finlay describes as a "theoretical belief " that the Supreme Court opened the door for widespread free reproduction of educational materials under the guise of fair dealing. Access Copyright is part of ongoing litigation that may clarify the application of the Supreme Court's findings but has also sparked criticism of the organization. The first part of a bifurcated trial originating from a lawsuit Access Copyright filed against York University is to be- gin in May 2016. Access Copy- right alleges the university's fair-dealing policies encourage unauthorized copying. There are also two tariff proceedings before the Copyright Board. While many legal experts have suggested that the principles set out by the Supreme Court would also apply to post-secondary in- stitutions, Access Copyright be- lieves the findings have a much narrower application. "We were talking about a sliver of total copying" on the facts in that pro- ceeding, says Finlay. "Fair dealing is always case by case," she adds. Wanda Noel, an Ottawa- based lawyer who successfully represented the school boards in the Access Copyright proceed- ing at the Supreme Court, thinks the ruling has settled the broader issues. "It would not be fair for school boards to have to buy ev- ery student a book for a short ex- cerpt. The fight now is what is a short excerpt," says Noel. "The bottom line is the Access Copyright tariff has very limited value," she adds, emphasizing that's her own view and she's not speaking for her clients. Although the Supreme Court has set out a test to determine whether the reproduction is fair dealing, in each case there has been sufficient guidance on how to apply it, says Sangeetha Punni- yamoorthy, a partner at Dimock Stratton LLP and co-counsel for the Federation of Law Societies of Canada, an intervener in Society of Composers, Authors, and Music Publishers of Canada v. Bell Cana- da, one of the other cases decided by the Supreme Court in 2012. In that decision, the court found that downloading short excerpts of musical works for research purposes was fair dealing and didn't require payment of royalties. "What is consistent is that the court is trying to strike a balance between rewarding the creators and encouraging the dissemination of works," says Punniyamoorthy. "I don't think anyone is saying you can copy anything and everything." Recent amendments to the Copyright Act now in- clude education as an ex- ample of fair dealing along with research, private study, parody, and satire. Access Copyright isn't suggesting that some copy- ing for educational purposes is inappropriate, says Finlay. She outlines a factual sce- nario where an elementary school teacher copies a sec- tion of another math book for a student who may benefit from the secondary source. What's not fair is "sys- temic and preplanned copy- ing of core learning resources," says Finlay. She adds there's a misconception that the dispute is one between publishers and edu- cational institutions. More than 40 per cent of royalties collected annually by Access Copyright go to the creators of published works, according to Finlay. Many educational institu- tions in North America have come up with policies that limit reproduction under fair dealing to no more than 10 per cent or one chapter of a work, says Noel. "I think that it is a fair and reasonable in- terpretation," she says. The 10-per-cent policy is also the subject of ongoing litigation in the United States under its fair-use principles. Last fall, in a case involving electronic storage of works for students to access, the U.S. Court of Appeals for the Eleventh Circuit found in Cambridge University Press v. Patton that it was improper for a lower court to use the 10-per-cent threshold as an acceptable baseline total. In- stead, it found the court must determine whether the al- leged infringement is improper on a case-by-case basis. Based on its analysis, it sent the proceeding back to the lower court to reassess the claims of copyright infringement. LT FOCUS NOT TOO BIG. NOT TOO SMALL. ;IEVIEPE[½VQXLEXGSQFMRIWI\TIVMIRGIPIEHIVWLMTERHXIEQ[SVO ;IEPMKRFIWXTVEGXMGIW[MXL¾I\MFMPMX]ERHTVEKQEXMWQ ;ILEZIERMRREXIETTVIGMEXMSRJSVIEGLGPMIRX´WYRMUYIGLEPPIRKIW -JXLMWWSYRHWPMOIXLIVMKLX½XJSV]SY]SY´ZIHMWGSZIVIH6MKLXWM^IH8LMROMRK ® . *MRHSYXLS[XLMWETTVSEGLGEREWWMWX]SY &YWMRIWW0E['SQQIVGMEP0MXMKEXMSR'SQQIVGMEP6IEP)WXEXI 'SRWXVYGXMSR -RWSPZIRG] 'SVTSVEXI 6IWXVYGXYVMRK )QTPS]QIRX 0EFSYV ;MPPW )WXEXIW 8VYWXW ® Untitled-4 1 2014-11-04 9:35 AM 'What is consistent is that the court is trying to strike a balance between rewarding the creators and encouraging the dissemination of works,' says Sangeetha Punniyamoorthy. T

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