Supreme Court of Canada Interprets Fair Dealing Exemption to Cover Copying Short Excerpts of Published Works for Distribution in Classrooms

Nisha Anand
Published August 8th, 2012

Alberta (Education) v. Canadian Copyright Licensing Agency (Access Copyright), 2012 SCC 37

Summary – The Supreme Court of Canada has disagreed with the Canadian Copyright Board’s decision that the copying of short excerpts of published works for use in classrooms was copyright infringement under the Canadian Copyright Act.  A slim majority found that the teachers’ activities were fair dealing and therefore, did not justify royalty payments from the provincial and territorial school boards.

This is an appeal of the conclusion of the Canadian Copyright Board (“Board”) that copies made at the teachers’ initiative for distribution to students with instructions that they read the material did not constitute fair dealing and therefore, were subject to a royalty.  The Supreme Court of Canada (“SCC”), in a 5:4 split decision, found that conclusion to be unreasonable.  The appeal was allowed and the matter was remitted back to the Board for reconsideration.

Background – Access Copyright (“AC”) represents authors and publishers of literary and artistic works in printed materials which are subject to copying.  In 1999, AC, Canadian provinces and territories (except Quebec) and Ontario School Boards (“Coalition”) entered into a royalty agreement (“Agreement”) that governed, among other things, teachers copying excerpts from textbooks for distribution to students as part of class instruction in elementary and secondary schools (“Dealing”).  The Agreement allowed for increased royalties on a per student basis, but not based on the number of pages copied.  In 2004, the Agreement was up for re-negotiation and AC sought royalties to better reflect the volume and content of material that was being copied in schools.  Of the various activities that fall under the Agreement, the Dealing was the only issue appealed by the Coalition to the SCC.

Analysis – Fair dealing is an exception that allows users to engage in activity that would otherwise constitute copyright infringement.  Per CCH[1], the landmark fair dealing decision from the SCC, there are two requirements of fair dealing.  The first is that the dealing be for the allowable purpose of “research or private study”, “criticism or review” or “news reporting”.[2]  The second is that the dealing is “fair” based on:  the purpose, character, and amount of fair dealing; the existence of any alternatives to the dealing; the nature of the work; and the effect of the dealing on the work.[3]

Under the first branch of the fair dealing test, the Board concluded that because the photocopies were made at the teachers’ initiative and not at the request of the students, the purpose behind the dealing was non-private instruction, not “private study”.  Therefore, the Dealing was not for an allowable purpose and did not meet the test for fair dealing.  The Federal Court of Appeal upheld that decision.

However, the SCC held that the Board’s decision was unreasonable and that the Dealing was for the allowable purpose of “research or private study”, meeting the first requirement for fair dealing.  The Board had driven an “artificial wedge” between instruction by teachers and study by students.  “Photocopies made by a teacher to primary and secondary school students are an essential element in the research and private study undertaken by those students.” (para. 25)

The SCC also clarified that the word “private” should not be understood to mean “viewed in isolation” and thus, distribution of copied materials to students in schools was a non-commercial, private purpose.  Justice Rothstein, writing for the dissent, disagreed.  The dissent was of the opinion that the expression “private study” could refer to the situation where a student copies a published work for his or her own individual study and as such, endorsed the decisions of the Board and the Federal Court of Appeal.

Under the second branch of the fair dealing test, the SCC found that the Board had misapplied the “amount of the dealing”, the “alternatives to the dealing” and the “effect of the dealing on the work” fairness factors from CCH.

Regarding the “amount of the dealing”, although teachers copied only short excerpts from various published works, the Board found that the extent to which these excerpts were being distributed (i.e., to many classrooms of students or many students in a classroom) made the dealing unfair.  However, the “amount” factor pertains to the proportion between the excerpt and the entire work, and not the overall quantity of the copies that are distributed.[4]

Regarding the “alternatives to fair dealing”, the Board found that schools had the option of buying the original texts to distribute to students or placing the text in the library for consultation.  However, the SCC found the alternative to be unnecessary since the schools had already purchased the original from which the copies were made, and unrealistic since the teachers copied only short excerpts from each published work.

Regarding the “effect of fair dealing”, the Board concluded that the dealing had a negative impact on textbook sales with no evidentiary basis.  The SCC found that, to the extent that there had been a decrease in textbook sales, there were several contributing factors, including a decrease in student registration and increased use of the internet and electronic resources.

The SCC was divided on the level of deference owed to the Board in the circumstances and that divide resulted in disparate conclusions on every element of the test for fair dealing that was under consideration.  Relying on Dunsmuir[5] and the proposition that reviewing courts are to determine “whether the decision falls within a range of possible acceptable outcomes which are defensible in respect of the facts and the law”, the dissent was of the view that the Board was owed utmost deference.  Per the dissent, the Board’s conclusions were the result of extensive analysis, fell well within the reasonable range of outcomes and should be upheld.

Practice Point – This decision broadens the scope of fair dealing to include the copying and distribution of short excerpts from published works in schools, and further informs the test for fair dealing as set out in CCH.  In so doing, it may provide classroom instructors with some comfort in their ability to copy such materials for their students.

[1] CCH Canadian Ltd. v. Law Society of Upper Canada, 2004 SCC 13 (“CCH”)
[2] Copyright Act, R.S.C. 1985 (“Act”), c C-42, ss. 29, 29.1 and 29.2
[3] CCH, supra
[4] SOCAN v. Bell Canada, 2012 SCC 36
[5] Dunsmuir v. New Brunswick, 2008 SCC 9 (“Dunsmuir”)


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