Alberta v Access Copyright: Refining Fairness
With the cost of postsecondary education at a record high, textbooks and other written materials have become increasingly difficult for students to afford. Following the passing of the Copyright Modernization Act [CMA] in 2012, which amended the Copyright Act, an opportunity was provided to teachers regarding their ability to provide students with written materials within an educational setting at no cost. Unfortunately, this opportunity has been shrouded in a great deal of uncertainty. While the CMA builds on a number of common law principles which tend to confer powerful potential defenses upon users for instances of infringement, the polarization of the wants of copyright holders against the needs of users has resulted in an increase in tension between the two groups. This tension came to a head in the case of Alberta (Education) v Canadian Copyright Licensing Agency (Access Copyright), 2012 SCC 37 [Alberta].
Access Copyright is an organization which represents authors and publishers of literary and artistic works. The organization oversees the reproduction of such works by issuing licenses which ensure that individuals who reproduce works covered by the organization’s repertoire pay a royalty charge which is then distributed to the various authors involved. With respect to the case of Alberta, Access Copyright filed a tariff with the Copyright Board regarding materials which were being reproduced within elementary and secondary schools in all provinces apart from Quebec.
This case effectively turned upon the notion of “fair dealing” and its application to the relevant facts involved. Upon reviewing Access Copyright’s application, the Copyright Board determined that any copies made at the teacher’s initiative on the student’s behalf, with instructions that they read the materials, were made for the allowable purpose of “research or private study” within s. 29 of the CMA. However, the provision of these materials was not found to constitute “fair dealing” and was therefore subject to a royalty. Subsequently, the Board approved the filing of Access Copyright. At the request of the Ontario School Boards (the “Coalition”), the decision was brought before the Federal Court of Appeal for judicial review. According to the Coalition, the Copyright Board erred in their application of the principles associated with fair dealing as delineated in the case of CCH Canadian Ltd v Law Society of Upper Canada, 2004 SCC 13, which led them to incorrectly conclude that the reproductions did not fall under the “fair dealing” umbrella. Ultimately, the finding of the Board was upheld.
The decision was then brought to the Supreme Court of Canada for a final review.
Writing for the majority, Justice Abella found that the standard of review which applied to the Board’s decision was one of reasonableness as opposed to correctness, meaning that deference should be granted to the Board’s decision. However, in the view of the majority, the Board’s decision did not fall into a “range of reasonable outcomes” due to a misapplication of the CCH factors (Alberta, para 37). Because the decision was made based on this misapplication, the outcome was rendered unreasonable and the appeal was allowed, leading to a remittance of the issue to the Copyright Board for a second review.
In arriving at this conclusion, Justice Abella engaged in a rigorous analysis of the test for “fair dealing” laid out in the case of CCH. The concept of fair dealing, as outlined in the case of Society of Composers, Authors and Music Publishers of Canada v Bell Canada, 2012 SCC 36, is meant to allow users to engage in certain activities that might otherwise amount to copyright infringement (Alberta, para 12). Abella J reiterated that in order to determine whether a particular use might fall under the purview of fair dealing, the two stage analysis from CCH must be applied. First, the purpose of the dealing must be seen to fall under one of the enumerated heads listed within s. 29 of the CMA (i.e. the “fair dealing” provisions). Included within these heads is the purpose of “research or private study”, which became the focus of the Board’s original decision. Second, an evaluation of the test from CCH must be made, which includes six factors: the purpose, character and amount of the dealing; the nature of the work at issue; the effect of the dealing on the work; and an investigation as to whether or not alternative means of securing the materials were available. Ultimately, these factors are meant to allow both the Board and the courts to engage in a contextual analysis regarding whether or not the use of the work can be deemed “fair” (and thereby grant the user the availability of the right to harness the fair dealing exceptions) based on the ways in which the work was dealt with.
The Board, the Federal Court of Appeal and the SCC all agreed that the first stage of the analysis was easily met, meaning the use of the materials could potentially align with the enumerated head of “research or private study”. The most significant disagreement between the Board’s decision and that of the SCC occurred during their independent analysis of the first step in the six factor test: purpose. While the first stage of the analysis deals with purpose as well, the first stage is simply meant to ensure that the proposed use potentially fits within an enumerated head. At the second stage, the analysis of the purpose of the use is meant to ensure that the ways in which the work was dealt with allow the use to fall within the established head in fact. According to the Board, the fact that the materials were provided to students by the teacher at their own discretion – that is, not at the request of the students – meant that the use was predominantly “instructional” and “non-private” in nature (Alberta, para 15). As noted, the Court of Appeal then upheld the Board’s decision, concluding that the real purpose of the use was for instruction, not private study. Abella J, referring to the ruling in CCH, disagreed with these findings, stating that such a result would serve to expressly contradict the “large and liberal” interpretation of fair dealing based on the unanimous ruling in CCH (CCH, para 51). Moreover, within CCH Justice McLachlan stated in clear terms that “research is not limited to non-commercial or private contexts.” (CCH, para 51) By applying these principles to the decision of the Board, Abella J concluded that the word “private” in “private study” should “…not be understood as requiring users to view copyrighted works in splendid isolation.” (Alberta, para 27) So long as the teacher was not disguising their true purpose based on the fair dealing exception – for example, attempting to copy the materials for a commercial purpose – their actions should be deemed to fall under the purpose of “research or private study”.
As a result, the analysis should be based on the understanding that the works were not being used solely by the teacher for his/her own private use, a notion which impacted the analysis of the remaining factors involved. Justice Abella stated that the Board also erred in its analysis of the “amount” factor by not only attempting to conflate the notions of “amount” and “character” into a single analysis, but also by misapplying the intended evaluation of the “character” factor. The amount factor is meant to consider the amount of the work copied in proportion to the work as a whole, while the character factor is meant to consider the simple quantity of reproductions. While the Board acknowledged that the amount copied by the teacher was small, they failed to complete the analysis in a holistic sense as they also stated that the teacher had engaged in creating numerous copies, which in their collective opinion made the dealing “unfair”. According to Abella J, first and foremost the Board should have separated these factors and engaged in an individualized analysis of each. Additionally, and perhaps most importantly, within what should have been the “character of the dealing” analysis, the Board’s determination that the quantity of reproductions caused the dealing to be rendered unfair was based on a misapplication of the factor itself. The court in CCH determined that if a specific patron “…submitted numerous requests for multiple reported judicial decisions from the same reported series over a short period of time,” (CCH, para 68) the dealing might be deemed unfair based on the “character” analysis. However, in this case the teachers were not making multiple copies for themselves. Rather, they were creating the copies for their students, meaning this was not an instance wherein a single patron was copying materials for private use. The Board’s “…skewed characterization of the teachers’ role as being independent and differently motivated from that of the student users,” (Alberta, para 28) led to an improper evaluation. While the number of copies appears initially large, when broken down based on the different users (i.e. students) involved it becomes clear that the simple quantification of reproductions based on the perspective of the teacher is misleading.
The court further elaborated that the Board had also misapplied the factors of “alternatives” and “effect”, stating that no realistic alternatives existed for the teachers and that no demonstrable link could be identified which suggested the reproductions of the teachers were adversely affecting the market potential for the works involved.
Based on the foregoing proposed misapplications, Abella J found the outcome to be unreasonable, and remitted Access Copyright’s filing to the board for re-evaluation.
This case carries both legal and social implications. First and foremost, Alberta results in the clarification of the enumerated heads listed in CCH, particularly with regard to the “purpose” and “character” factors listed within the second stage of the test.
Beyond this, the social implications should not be understated. Fair dealing is meant to serve as a user right which enables individuals to pursue fair uses of copyrighted content without the need to provide remuneration to the original creator/author. While stringent in terms of its potential applicability, it is a crucial weapon at a user’s disposal which promotes free dissemination in certain contexts. Individual uses – such as those potentially enshrined within other heads, including parody or satire – require protection as well; however, it seems reasonable to suggest that the fair dealing exception of “research or private study” is naturally suited to an educational setting depending on one’s interpretation of “private study”. The fact that the SCC chose to expand the scope of fair dealing based on this specific enumerated head bodes well for users moving into the future, as it demonstrates the SCC’s dedication towards the plight of counterbalancing the limits placed upon users based on certain provisions within the CMA.
Moving forward, Canada’s fair dealing regime continues to face challenges. While some might assume the decision in Alberta would dissuade a collective agency from pursuing similar claims against educational bodies, this past spring a lawsuit was filed by Access Copyright against York University regarding the institution’s “fair dealing” guidelines. The guidelines, which can be found here, mention numerous limitations that professors must observe, including limiting reproductions to “less than 10 per cent of a work” or “no more than one chapter” of a single book. According to Access Copyright, these amounts exceed the limit imposed by the fair dealing provisions as outlined in CCH, effectively promoting “substantial infringement” of copyrighted works.
Regardless of the eventual outcome, it is clear that the tension between user and creator rights remains pervasive.