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PAGE 12 FOCUS February 8/15, 2010 • Law Times Educators battling Access Copyright over tariff for copying books Copyright Board makes controversial schools ruling T BY PAUL BRENT For Law Times he Copyright Board of Canada doesn't make a huge number of de- cisions during any given year, so its June copyright tariff rul- ing for primary and secondary schools certainly got the atten- tion of all involved. In a decision that was two years in the making, the board decided to raise the fees on copied material to $5.16 per stu- dent, slightly more than double the amount that was previously paid by schools for using pho- tocopies as substitutes for buy- ing books. With the decision, it essentially split the diff erence between the $2.43-per-student rate proposed by provincial ministers of education (other than Quebec) along with On- tario school boards and Access Copyright's claim for $8.92 per student per year. In claiming victory, Ac- cess Copyright stated that "the Copyright Board accepted Ac- cess Copyright's position that governments were not paying a fair price for the hundreds of millions of photocopies used in schools as substitutes for buying the books." Copyright lawyer Howard Knopf, who had been follow- ing the case closely, described the decision as "bad news for Canadian educators, librarians, on pages 13 -15 Intellectual Property titles Canadian Film & Television Business & Legal Practice A practical reference that pulls together the legal and business issues of film and television development, production, finance, and distribution, in a single source. Looseleaf & binder • $280 • Releases invoiced separately (1/yr) P/C 0484030000 • ISBN 0-88804-297-3 Canadian Patent Act Annotated, Second Edition Your one-stop source, bringing together commentary and current case law interpreting patent legislation. Looseleaf & binder • $227 • Releases invoiced separately (1-2/yr) P/C 0406030000 • ISBN 0-88804-168-3 Canadian Patent Reporter Intellectual Property Statutes: Legislative History Provides the legislative history of the four main intellectual property statutes — copyright, trade-mark, patent and industrial design — going back to 1952. Looseleaf & binder • $229 • Releases invoiced separately (1-2/yr) P/C 0489030000 • ISBN 0-88804-302-3 Law of Confidential Business Information Covers a broad range of issues including steps to protect confidentiality, types of fiduciary relationships, restrictive covenants, defences and remedies. Looseleaf & binder • $135 • Releases invoiced separately (1/yr) P/C 0438030000 • ISBN 0-88804-231-0 O'Brien's Encyclopedia of Forms, Eleventh Edition — Computers and Information Technology, Division X Internet version included with your print subscription. Canada's leading intellectual property law report since 1942, available online and in print, includes precedent-setting intellectual property law judicial and board decisions from across Canada. Full service subscription (parts and bound volume) P/C 0325094999 • $399/vol • ISSN 0008-4689 • 8 vol/yr Back volumes and Annual Cumulative Index available upon request Intellectual Property An easy to use electronic service that keeps you up to date with the latest decisions in intellectual property. Each week subscribers receive an e-mail bulletin summarizing recent court decisions which are linked to the case digest and the full text decision in pdf format. Visit www.canadalawbook.ca to sign up for our no-obligation free trial. Annual subscription price: $410 • P/C 0539700999 $23 for each additional recipient • P/C 0539710999 This service delivers all of the appropriate and up-to- date forms of agreements to help you conduct your IT business. It also provides checklists and optional clauses that assist in quickly customizing the agreements. Looseleaf, binders (4) & Internet access • $523 Releases invoiced separately (1-2/yr) • P/C 0886030000 Vol. 1/2/3 ISBN 0-88804-267-1/-358-9/-436-4 Vol. 4 ISBN 978-0-88804-467-9 Parallel Importation This book addresses parallel importation with reference to law, economics and business and incorporates both practical and theoretical perspectives. Hardbound • 210 pp • February 2010 • $95 • P/C 0177010000 ISBN 978-0-88804-492-1 students, and taxpayers. Th e price of knowledge just went up a lot today in Canada." On the same day, Access Copyright said the new, higher tariff "represents less than .05 per cent of the cost of running Cana- da's education system and can be absorbed without diffi culty." Knopf, however, noted the Copyright Board "accepted Access [Copyright's] argu- ment, without supporting evi- dence, that more than 99 per cent of works reproduced by educational institutions are currently part of its repertoire. Th at seems to be very counter- intuitive, considering the vast number of publishers and au- thors from around the world who have never heard of Access Copyright and the iff y inter- national payment system for reprographic rights." Knopf estimated taxpayers in English Canada will ultimately pay out $12 million more per year as a result of the decision. Eight months later, Knopf is more than just an interested observer. He is now represent- ing the Canadian Association of University Teachers in an appeal of the tariff decision launched by educators. "My client was very concerned that the decision would have a signifi cant adverse eff ect in the post-secondary world because, if you think fair dealing is important from [kin- dergarten] to Grade 12, and it is, it is a whole lot more important as you go upstairs in the hierar- chy of the post-secondary world. Th e association applied and was granted leave to intervene in the appeal, and since that time the three Canadian publishers' asso- ciations have applied for leave to intervene." Knopf says his client's action is unrelated to any eff orts by the grade-school educators repre- sented by the Council of Min- isters of Education, Canada. "Although both organizations are sympathetic to the notion of fair dealing, my client has been quite critical of how [the council] handled the case at the Copyright Board and indeed some of its arguments in the Court of Appeal," he says. Knopf contends the Copy- right Board's tariff ruling was a dramatic reversal from the landmark CCH Canadian Ltd. v. Law Society of Upper Canada decision that "clarifi ed very clearly that users' rights are just as important as copyright own- ers' rights and should be given what the [Supreme Court] chief justice, Beverley McLach- lin, said [was] 'a large liberal in- terpretation.'" Th e June Copy- right Board decision "retreated in the view of many from the CCH case," he argues. Th e appeal of the board's de- cision will be closely followed by copyright law observers, says Samuel Trosow, an associate pro- fessor at the University of Western Ontario. "What worries me about that case is that even though the educators, the K-12 group, did a very, very . . . poor job creating a good record in that case, there was language in the Copyright Board decision that could per- haps be taken out of context and not just limited to the particular facts in that case but interpolated out generally even further, per- haps even into the college and university environment. "I don't think that there is For a 30-day, no-risk evaluation call: 1.800.565.6967 Canada Law Book is a Division of The Cartwright Group Ltd. Prices subject to change without notice, to applicable taxes and shipping & handling. CA095 (LT 1-2x4).indd 1 www.lawtimesnews.com CA095 2/3/10 1:43:24 PM any basis for saying that if an instructor is using materials for teaching purposes and asks the class to read it, that that is necessarily outside of fair deal- ing," Trosow says. "One gets that idea from the Copyright Board decision, which is quite understandable perhaps based on the record that was there, but I wouldn't say that as a matter of law." LT The Honourable Julie A. Thorburn and Keith G. Fairbairn Editor: Louis H. Milrad Tony Duarte Robert H . Barrigar, Q.C. Edited by Marcus Gallie, Ridout & Maybee LLP First, S Fourth Series (Volumes 1 to 65): Edited by Glen Bloom, Osler, H Founding Editor: Gordon F. H Q.C., LL.D. oskin & H enderson arcourt LLP econd and Third Series: Edited by Gowling, Strathy & H enderson, C.C., Rose Ann MacGillivray