Recent changes in the fair dealing exception under Canadian copyright have caused certain Canadian educational institutions to question the value of their Access Copyright license or tariff. Notwithstanding these changes, it is generally recommended that educational institutions first assess their individual copyright licensing situations prior to deciding whether they can rely on the fair dealing exception as a substitute for their Access Copyright license or tariff.  

It is recommended that educational institutions assess their individual copyright licensing situations.

Background on Access Copyright

Access Copyright is a collective society. It administers the rights of certain authors and publishers of literary and artistic works. It does  so by licensing use of the works to third parties through either individual licensing agreements, or through certified tariffs from the Copyright Board (the “Board”). Individual licensing agreements are private transactions between the licensed party and Access Copyright. Certified tariffs, however, apply equally to all users to whom or which they apply.

Access Copyright has, among others, a certified tariff for the reprographic reproduction, in Canada, of works in its repertoire by public elementary  and secondary educational institutions (the “K-12 tariff”). Access Copyright also has a certified interim tariff (the “post-secondary interim tariff”), and a pending proposed tariff, for the reprographic reproduction, in Canada, of works in its repertoire by post-secondary educational institutions.

Changes to the Fair Dealing Exception

The Copyright Act (Canada) (the “Act ”) provides a fair dealing exception to copyright infringement.

According to the Supreme Court of Canada, the fair dealing exception is a user’s right. It maintains the balance between the rights of a copyright owner and the interests of the user.1

To fall under the fair dealing exception, a two-stage test must be satisfied, namely

  1. the allegedly infringing act must have been for one of the Act’s allowable purposes specified in the fair dealing exception; and
  2. the dealings must have actually been “fair”.2

In July 2012, the Supreme Court of Canada issued its decision in Albert (Education) v. CanadianCopyright Licensing Agency (Access Copyright).3 This case was an appeal by all of the Ministries of Education for each Canadian province and territory (excluding Quebec) to the decision of the Copyright Board certifying Access Copyright’s tariff for K-12 public educational institutions. A central issue in this case, and the case decided by the Copyright Board when certifying the tariff, was whether copies made by a teacher to distribute to students as part of class instruction can qualify as fair dealing (namely, for the purpose of “research or private study”) under the Copyright Act. The allowable purposes under the Act at the time of the decision included “research or private study”, “news reporting”, and “criticism or review”.

According to the Supreme Court of Canada, the fair dealing exception is a user’s right.

In its decision, the majority of the Court gave a broad interpretation to the meaning of research and private study. They found that copies of a copyrighted work made by a teacher to distribute to students as part of class instruction are, unless made for an ulterior or commercial motive, for the purpose of the students’ “research or private study.”

Shortly thereafter, in November 2012, the majority of Bill C-11: the Copyright Modernization Actcame into force. The bill added the purposes of “education”, and “parody or satire” to the fair dealing exception. It is unclear to what extent the new “education” purpose expands the fair dealing exception beyond the broad interpretation given by the Supreme Court of Canada in Aberta, supra, to the research and private study purpose. Arguably, this new purpose simply affirms the Court’s decision.

In any case, the second stage of the test is the more difficult stage to meet. The second stage requires that the dealing be “fair”. What is “fair” is not defined in the Act. The Supreme Court of Canada has clearly stated that what is “fair” depends on the individual facts of each case and an assessment of the following factors:

  1. the purpose of the dealing,
  2. the character of the dealing,
  3. the amount of the dealing,
  4. alternatives to the dealing,
  5. the nature of the work, and
  6. the effect of the dealing on the work.

With respect to these factors in the case of Alberta,supra, the majority for the Court found that the teachers’ purposes and the students’ purposes were unified: the purpose for reproducing the materials was for the students’ research and private study. With respect to the alternatives to the dealing the Court found that it was NOT realistic to require teachers to purchase textbooks for each student as an alternative to copying short excerpts. With respect to the effect of the dealing on the work, the Court found that there was no evidence showing a connection between decreased textbook sales and photocopying short excepts. Although  the Court decided that the dealings at issues in Alberta, supra, were fair, the Court cautioned that similar dealings may not be fair where the person making the copies is doing so for an ulterior motive such as for a commercial purpose.

Reaction to the SCC Decision and the Changes to the Act

In response to the decision of the Supreme Court  of Canada in Alberta, supra, and the amendments to the Act, the Council of Ministers of Education Canada (“CMEC”), Copyright Consortium developed Fair Dealing Guidelines.4 These guidelines purportedly describe the uses non-profit K-12 schools may make of copyrighted materials which are permitted under the expanded fair dealing exception. The uses described in the Fair Dealing Guidelines are quite similar to the uses permitted by Access Copyright’s K-12 tariff.

In October 2012 the Ontario Public School Boards’ Association advised school boards in the province that commencing January 1, 2013, boards will no longer operate under Access Copyright’s tariff. Some school boards within Ontario have already adopted policies to comply with the CMEC Fair Dealing Guidelines with the belief that in so  doing they may “opt out” of the Access Copyright tariff entirely.

The Association of Universities and Colleges of Canada and the Association of Community Colleges of Canada have also, purportedly, recommended to their members the adoption of a fair dealing policy. The policy is almost identical to CMEC’s Fair Dealing Guidelines. The permitted uses described in the policy are also similar to a number of rights granted under their members’ interim Access Copyright tariff. Arguably, however, there are still a number of rights under the proposed Post- Secondary Access Copyright tariff which are not covered by the policy.

Educational  Institutions  Should Conduct their Own Copyright Licensing Assessment

Although the fair dealing exception has been expanded, the exception may still not be substitutable, in individual cases, for rights granted under an Access Copyright license or tariff. Educational institutions should first assess their individual copyright licensing situation prior to determining whether they can replace their Access Copyright license or tariff with the fair dealing exception.

It should be noted that many of the public K-12 educational institutions across Canada performed a copyright licensing assessment as part of the certification process for the Access Copyright K-12 tariff. The assessment was conducted during the 2005-2006 school year and examined copying in 894 schools and 31 school boards across Canada (excluding Quebec) for ten consecutive days at each location. The results were then extrapolated to determine the total amount of copying by all public elementary and post-secondary educational schools and boards across Canada (except Quebec). The assessment found that of the 10.3 billion copies of pages made, only 246 million pages (approximately 2.5%) triggered remuneration to Access Copyright. Why the significant difference? Of the original 10.3 billion pages copied, only 3.1 billion pages were from published documents. Furthermore, over 2.8 billion pages of these published documents were in the public domain, documents intended for a single use and that may not be reproduced, and documents sold with the separate authorization from the owners to reproduce them for in-class use.  

Care should be taken when determining the extent to which the fair dealing exception covers an educational institution’s use of copyrighted materials.

Although such an extensive assessment may not be possible in all cases, an educational institution will still likely want to consider the following:

  1. what copyright it is using, and how it is using that copyright;
  2. how much of its copyright use is covered by rights granted by third-parties or works in the public domain;
  3. the scope of its individual fair dealing exception and how much of its copyright use falls thereunder; and
  4. the overlap of rights granted under its current Access Copyright license / tariff with the above.

If, after performing a copyright licensing assessment, the educational institution discovers that an Access Copyright license or tariff does not provide novel rights, or that the novel rights are not being used (or with some changes, could be rendered unnecessary), then the institution may be justified in not renewing its Access Copyright license or opting out of the tariff.

Notwithstanding the above, care should be taken when determining the extent to which  the fair dealing exception covers an educational institution’s use of copyrighted materials, and when developing (or relying on another party’s) fair dealing guidelines. As previously stated, whether a particular dealing is fair depends on the facts of each case. What may be fair for one educational institution may not be fair for another. Because fairness is assessed on a case-by-case basis, it will also be challenging for educational institutions to draft fair dealing guidelines which can easily be applied by their users, but which account for the subtle differences of each situation to keep their users within the safe harbour of the fair dealing exception.