Meera Nair

heads I win …

In Posts on September 22, 2013 at 4:14 pm

Last week Howard Knopf alerted us to the latest movement by Access Copyright to impose blanket copyright fees across universities and colleges in Canada, regardless of ongoing work by educational institutions to ensure that legitimate copyright fees are paid and that legitimate fair dealing is not denied. In his post of 17 September 2012 Knopf provides Access Copyright’s statement of case to the Copyright Board of Canada, and draws attention to a number of details including the collective’s position that:

…  the fair dealing policy…  promoted by the Association of Universities and Colleges of Canada and the Association of Canadian Community Colleges and adopted by many Educational Institutions, which purports to characterize as fair dealing amounts of copying essentially identical to that licensed by Access Copyright, is unfair and results in copying that is not fair

The statement of case explains in detail what Access Copyright will do (arguments to be presented, witnesses to be called, evidence to be produced, etc.) when the Copyright Board hears this case on 11 February 2014. The Board will then either signal a shift in thinking on their part, or offer Canadian education yet another opportunity for further strengthening of fair dealing by the Supreme Court of Canada. Unpacking that sentence will take several paragraphs; I ask for patience from readers.

The starting point is the work of law professor Graham Reynolds (previously at Dalhousie University, now at the University of British Columbia). In his chapter “Of Reasonableness, Fairness, and the Public Interest, Judicial Review of the Copyright Board’s Decisions in Canada’s Copyright Pentalogy,” Reynolds illustrates that, when certifying the Access Copyright tariff for educational institutions with respect to photocopies of excerpts in K-12 schools spanning 2005-2009, the Copyright Board applied a very narrow interpretation of the principles enunciated by the Supreme Court of Canada in CCH Canadian v. Law Society of Upper Canada. The Copyright Board’s decision was appealed and finally settled by the Supreme Court (favorable towards fair dealing) in one of the famed pentalogy decisions, Alberta (Education) v. Canadian Copyright Licensing Agency (Access Copyright). The difference of opinion between the Board and the Court leads, as Reynolds suggests, to the conclusion:

[T]hat fairness (in the context of fair dealing) is not as discretionary a concept as it appears to be. [Alberta(Education) … clarifies] that the purpose of the Copyright Act requires a broad, liberal approach to fairness. By implication then, fairness is not broad and open-ended; rather it is infused with certain expectations with respect to the way in which it is to be applied (namely, in a large and liberal manner).

Reynolds makes plain that the purpose of the Copyright Act is evolving, moving away from an author-centric approach to an instrumental-public interest approach. Reynolds is equally specific that such a move is not an abandonment of owners’ rights; instead, the shift only ensures that limitations upon those rights are upheld as necessary to invigorate and maintain the public domain. In their examination of the K-12 situation of excerpts, the Copyright Board aspired to the earlier approach, even though the Supreme Court had consigned that approach to history.

The evolution of purpose of copyright in Canada illustrates a well-functioning system of laws and courts. Those authorities have made it abundantly clear that legal precepts are not immutable; they evolve in concert with developments in society. Evolution may take time, but is infinitely preferable to revolution.

The delay on the part of the Copyright Board can be explained with recourse to its very function; the Board’s mandate begins with:

The Board is an economic regulatory body empowered to establish, either mandatorily or at the request of an interested party, the royalties to be paid for the use of copyrighted works …”

This is not to imply that the Board is solely concerned with setting market prices. Yet it is hardly an accessible venue for discussion of exceptions; the lengthy and expensive process tends to discourage representations of public interest. As Knopf pointed out, even the Association of Universities and Colleges of Canada, in their wisdom, “abruptly withdrew its objections and withdrew from the Copyright Board hearing of April 2012, leaving its member universities unrepresented after having spent about $1.7 million.”

The Board’s past discomfort with endorsing a large and liberal interpretation of fair dealing (in both purpose and fairness) was quite evident; when reviewing the K-12 situation of excerpts, the Board wrote: “CCH now is the unavoidable starting point (para 75).” The connotation of “unavoidable” does not suggest the Board relished the task at hand. However, as Reynolds writes:

The end result is that post-Alberta (Education), the Copyright Board is significantly constrained in its ability to shape Canadian copyright law. Abella J’s reasons for judgment clarify that the Copyright Board does not have unlimited discretion under fairness (and fair dealing more broadly) to implement policy goals or promote values that are inconsistent with the purpose of the Copyright Act, as interpreted by the Supreme Court of Canada.

The difficulty for Canadian educational institutions, and Canadians in general, is that Access Copyright seems happy to play the game of “heads-I-win, tails-we-play-again”. In repeated and continued efforts to roll back the decade-plus evolution of copyright’s purpose — through lobbying, litigation and tariff applications — they display a lack of logic, as well as a questionable use of their members’ resources.

According to Access Copyright’s website, the following portions of the funds collected are withheld before distribution:

An administrative holdback of 20% to cover Access Copyright’s administrative and operational costs.

An allocation of 5% of copyright licensing royalties has been made toward costs for current and future tariff proceedings before the Copyright Board of Canada. These tariff proceedings help us ensure fair compensation for creators and publishers when their works are copied.

An allocation of 1.5% of copyright licensing royalties collected has been made for a cultural fund approved by Access Copyright’s board of directors.

The administrative holdback (20%) is high enough, leading to the question of why a further 5% must be withheld for future days in court. But that is not all; the information for title specific distribution  indicates that an additional 25% of royalties collected through the fee increase covering 2005-2009 has been reserved to “support current and future tariff proceedings held before the Copyright Board of Canada.”

Access Copyright is gambling (with its members’ money) that the Board’s decision will be favourable to copyright holders. But, if the Supreme Court of Canada should be called upon to revisit the issue, Access Copyright would do well to remember that each adjudication of fair dealing at the Court within the last ten years has only raised the profile of fair dealing and strengthened its application.

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