On May 5, 2011, the Supreme Court of Canada granted leave for an appeal of the Alberta Minister of Education from a decision of the Federal Court of Appeal.
Access Copyright -- a Canadian copyright licensing agency and collective -- requested, and the Copyright Board decided a royalty should be payable when copyrighted portions of books, newspapers and magazines are photocopied for high school and elementary students across Canada (outside Quebec), and found this copying did not constitute fair dealing or come under another exception in the Copyright Act.
The Alberta Minister of Education applied to the Federal Court of Appeal for judicial review of the Board's decision. That court allowed the application for judicial review in part, and held [Fed. C.A., July 23, 2010 (33888)] that the Copyright Board failed to address an important part of the test under s. 29.4 of the Act, which exempts certain copies from royalties if the copied works were not commercially available in media appropriate for tests or examinations.
The Federal Court of Appeal also found that the Board had determined, as a question of fact without any reviewable error, that (a) multiple copies made for the use of the teacher making the copies, and (b) single or multiple copies made for students without their request for the purpose of private study, research, criticism and/or review, were unfair dealing.
It will be interesting to see the parties with a stake in the appeal and how the Supreme Court of Canada will rule, as well as how such ruling may ultimately dovetail with any amendments of Canada's Copyright Act which may be on the horizon.
