24 May, 2013

Retrospective - All's Fair in Dealing and Education

Having just a few days ago written about the Canadian progression in the field of fair dealing and education in the new Copyright Modernization Act 2012, I thought it would be best to address a case that changed the way the old provisions of fair dealing applied to both study and education in newfangled ways, applying the principles set out in the mammoth of a case that was CCH, practically still hot from the oven (discussed on this blog as well and worth reading should you be unfamiliar with it).

The case of Alberta (Education) v Canadian Copyright Licensing Agency (Access Copyright) dealt with the copying of excerpts from textbooks and other materials by teachers to distribute to their students as a means to study only specific parts of texts. Some of the materials being copied were under the copyright of Access Copyright, for which various royalty payments were negotiated in the 1990s between the school boards and the company. After subsequent negotiations there was an agreement made for royalties to be paid on a volume basis, instead of the old per-student basis negotiated for most of the decade.

The use of the copies was tracked individually to ascertain the volume being copied; looking at their purpose, who made the copies, and who they were for. Most of the copying was done by teachers either for themselves or for students at their behest, which was agreed to fall under fair dealing by both parties. The contentious matter was the copying of materials for students by the teachers to take home and read. It was argued that this copying of materials did not fall under fair dealing for research or private study, as the copies were not requested by the students themselves, not meeting the requirements set out in CCH, at the initial hearing for the Copyright Board. The schools argued that they would fall under the provision thus being exempt from the tariffs set by Access Copyright. The Copyright Board decided the use did not fall under fair dealing, failing to meet the requirements under CCH; however the schools appealed the decision.

Private "study"
The case culminated in the Supreme Court of Canada in mid-2012 where the matter of whether the teachers' use fell under fair dealing, specifically the aforementioned provision of research or private study was finally decided. One has to note that the Canadian provision expressly mentions the possible use of materials for study as a private one, possibly indicating that a teacher could not act as a conveyor of material to the student, largely being Access Copyright's argument in the case; as the copies were not made at the request of students, it did not fall under fair dealing.

The courts gave an interesting argument, deciding that the teachers' use did indeed fall under fair dealing. To fully appreciate how the Court reached this conclusion, it is useful to look at what exactly was said in the judgment:
"...there is no such separate purpose on the part of the teacher.  Teachers have no ulterior motive when providing copies to students.  Nor can teachers be characterized as having the completely separate purpose of “instruction”; they are there to facilitate the students’ research and private study.  It seems to me to be axiomatic that most students lack the expertise to find or request the materials required for their own research and private study, and rely on the guidance of their teachers.  They study what they are told to study, and the teacher’s purpose in providing copies is to enable the students to have the material they need for the purpose of studying.  The teacher/copier therefore shares a symbiotic purpose with the student/user who is engaging in research or private study.  Instruction and research/private study are, in the school context, tautological."
Clearly the Court saw that the relationship between a student and their teacher is symbiotic; one where the teacher merely facilitates the students' private study by providing them with the material. Should the students be instructed to go and look for the material themselves, copy it, and use it for personal study, their learning would clearly be hindered significantly. Without the teacher being a sort of "middle-man", and being a part of that personal study, the students would suffer.

The Court didn't alter its position in the matter of personal study, firmly sticking to its prior interpretations, but did apply common sense in the relationship between a teacher and a student in that regard. The case didn't enable anyone to abuse the provision under the veil of providing materials for others for personal study. The decision was a 5-4 split decision, clearly showing a side of disdain even in the judiciary to accept this use of fair dealing as such, but nevertheless the decision seems to be a practical one and clearly makes sense. Without the option for teachers to copy and distribute reading materials for their students, the underlying matter of fairness would be skewed towards the copyright owner instead of the user, clearly going against what fair dealing stands for; the allowance of use of various copyright materials to improve yourself, your knowledge and to improve society as well without the shackles of copyright payments when clearly there is no competing interest.

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