School Copyright Ruling Strikes Fair Balance for Creators and Users

The role of copyright within the Canadian education system has emerged as a contentious issue in recent years as the internet and digital technologies have transformed how schools provide students with access to materials. At the centre of the fight are a series of Supreme Court of Canada rulings that establish the boundaries of "fair dealing," which permits copying of reasonable portions of materials without the need for permission or further compensation.

Last month, the Copyright Board of Canada issued a landmark decision on copying practices in primary and secondary schools, largely affirming the approach adopted by educational institutions. As a result, Access Copyright, the copyright collective that represents publishers and authors, will collect far less for in-school copying than it originally demanded.

The reason for the reduction rests primarily on the emergence of fair dealing principles that emphasize the need for balance between creators' and users' rights. The copyright board's fair dealing analysis found that 97.2 per cent of copying from books, 98.1 per cent from newspapers, and 98.5 per cent from periodicals qualified as fair. In other words, virtually all copying of books, newspapers, and periodicals in the large sample reviewed by the Board is covered by fair dealing and does not require a licence.

In response to the decision, Access Copyright and its allies have tried to increase the pressure for legislative reform. The Association of Canadian Publishers claims that there is little clarity in Canada on fair dealing, yet the reality is that the Supreme Court established the fair dealing copyright rules in 2004 and reconfirmed its approach in 2012. Reasonable guidelines based on those decisions are now widely used by educational institutions across the country and their principles are reflected in the copyright board decisions.

The Writers' Union of Canada tried to shift the focus away from the courts, attributing the copyright board ruling to the 2012 copyright reforms that added "education" to the list of fair dealing purposes under the law. The argument seems designed to suggest that Parliament created the problem and that it can "fix" it when the law undergoes a review in 2017.

However, even a cursory reading of the copyright board decision reveals that the 2012 reforms had little impact on the ruling. In fact, it unequivocally states that the reduced fees are directly attributable to the Supreme Court decisions, which are grounded in long-standing principles about the copyright balance.

No copying free-for-all

As for Access Copyright, it called the decision "deeply disappointing," arguing that it means that large amounts of copying will go uncompensated. Rhetoric aside, fears that Canada is now a copying free-for-all are simply untrue. The board estimated that its decision would provide Access Copyright with nearly $10 million per year in compensation. In fact, provincial ministers of education have expressed their own concerns with the decision, suggesting that the fees are still too high.

Revenue from collective licensing is only part of the compensation story. Nearly 90 per cent of all copying in primary and secondary schools does not engage Access Copyright as the copies do not involve works from its repertoire or are copied with prior permission from the rights holder. Moreover, educational institutions increasingly rely on digital materials, which require that subscription fees be paid directly to rights holders and avoid the need to involve a copyright collective.

Alternative revenue sources are particularly common within universities and colleges. The Canadian Research Knowledge Network, a partnership of 75 Canadian universities representing 1.2 million researchers and students, has entered into thousands of agreements with publishers to offer access to their members. Last year, it spent more than $100 million in licensing fees for electronic content.

Access Copyright wants the government to believe that the changes to the Copyright Act are responsible for an evolving approach to copying permissions. Yet the evidence suggests that it is digital technologies, new services, and court decisions that are the real agents of change. The problem for Access Copyright is that copies are still valued, but in light of new forms of access and the evolution of the law, its licence is no longer valuable.