Meera Nair

thank you Madame Abella

In Posts on July 20, 2012 at 2:05 pm

A week has passed since our Supreme Court issued five decisions concerning copyright in the analog and digital age. The commentary is fascinating; see Howard Knopf here, Bob Tarentino here, and ongoing, detailed coverage from Michael Geist here.  In his posting today, Geist emphasizes that the long-term prospects for Canada are very good: (i) The language of user rights is not merely a conceptual term; it is a robust principle which will affect all future examinations of copyright. (ii) The Copyright Act must be read as technologically neutral; developments in technology cannot be assumed as sufficient reason to extract added licensing fees from people. (iii) Fair dealing is positioned for continued growth via the Court’s support of the “large and liberal interpretation” first enunciated in CCH Canadian.

To which I would add one more note of satisfaction. In Alberta (Education) v. Canadian Copyright Licensing Agency (Access Copyright),  the Supreme Court reminded Canadians that libraries were places where students and teachers may access and copy work germane to the pursuit of education. It borders on the absurd that we should need such a reminder but, as I wrote a year ago, AUCC’s copyright and fair dealing policies include an edict that material placed on reserve should not serve as a substitute for purchased copies. To which my question was, “What is the purpose then of library reserves, or indeed libraries in general?

The decision penned by Madame Abella debunks any idea that libraries should not serve as a source for required readings. In Education v. Access Copyright the material under consideration was quite specific: “… copies of works made at the teachers’ initiative with instructions to students that they read the material. Teachers would photocopy short excerpts from textbooks and distribute those copies to  students as a complement to the main textbook … (para. 7).” Clearly, if students are instructed to read the material, it could not be described as optional. To the suggestion that schools purchase individual copies of all copyrighted material for all students, Madame Abella was quite direct:

In my view, buying books for each student is not a realistic alternative to teachers copying short excerpts to supplement student textbooks.  First, the schools have already purchased originals that are kept in the class or library, from which the teachers make copies.  The teacher merely facilitates wider access to this limited number of texts by making copies available to all students who need them.  In addition, purchasing a greater number of original textbooks to distribute to students is unreasonable in light of the Board’s finding that teachers only photocopy short excerpts to complement existing textbooks.  Under the Board’s approach, schools would be required to buy sufficient copies for every student of every text, magazine and newspaper in Access Copyright’s repertoire that is relied on by a teacher.  This is a demonstrably unrealistic outcome.  Copying short excerpts, as a result, is reasonably necessary to achieve the ultimate purpose of the students’ research and private study (para. 32 – emphasis mine.)

Following the multi-facetted guidance set by CCH Canadian, Madame Abella deemed such copying as fair dealing. The entire decision is well worth reading; a legacy point is:

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 (para.23).

By requiring that the conduct of copier and end-recipient be examined together, this Court is ensuring that fair dealing be as malleable as possible to address situations as of yet unknown.

Again, it must be emphasized that the Court was examining the copying of excerpts of additional material used by teachers. Fair dealing is not license to copy entire textbooks for an ulterior motive of profitable mass distribution, and in no way can this decision be read as such. But it ought to be clear to AUCC, and the post-secondary community at large, that libraries should be allowed to function as per their central purpose — to facilitate widespread access to legitimately acquired material.

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