CAUT has been granted leave to intervene in an important copyright case that will have major implications for universities and colleges across Canada.

The case involves a judicial review application to the Federal Court of Appeal by school boards and provincial ministers of education against the Copyright Board of Canada decision to significantly increase the fee primary and secondary schools pay for the right to copy material for instruction-related purposes. The outcome of the review will play a role in determining whether post-secondary institutions will also see a major increase in copyright fees.

According to Paul Jones, CAUT’s professional officer who specializes in intellectual property issues, the ruling on the judicial review will also have important implications for the broader direction of copyright law.

“Recent court decisions have broadened the concept of ‘fair dealing’ — the right to use copyrighted material without permission or payment in certain circumstances,” Jones says. “In our view, the board failed to fully recognize the strength of the fair dealing right, and that this strength should be reflected in a reduced fee.”

David Fewer, director of the Canadian Internet Policy and Public Interest Clinic, agrees with Jones that the case hinges on the board’s understanding of fair dealing.

“Let’s say you have 100 pages to copy from several different sources; some of that copying can be done under fair dealing, some of it may have to be paid for,” he explains. “What the board did was adopt a restrictive definition of fair dealing, narrowing the amount of copying that is exempt from payment. This has huge potential cost implications for universities and colleges and will restrict the freedom of educators to make critical use of materials, especially for distribution in the classroom.”

Copyright law gets “very technical, very quickly, but millions of dollars and fundamental issues of free speech and academic freedom are at stake,” Fewer says. “The involvement of the post-secondary educational community is welcome.”

CAUT has retained noted intellectual property lawyer Howard Knopf to act on its behalf in the intervention. Knopf expects the court should hear the case within the next two months.

He says the board’s K–12 decision is the first reported case dealing with photocopying since the Supreme Court of Canada’s landmark 2004 CCH v. Law Society of Upper Canada judgment. CCH established that fair dealing is a user’s right that must be given a large and liberal interpretation.

“The Supreme Court said we need more fair dealing, not less,” said Knopf, “but the Copyright Board seems to be going in the opposite direction.”

Sam Trosow, a professor of law at the University of Western Ontario and chair of CAUT’s copyright advisory committee, says there is a concern some of the language in the board decision could acquire the status of binding precedent on the university and college sector if it is confirmed by the court. “That’s why it’s so important we have this opportunity to make our case before the judges,” he adds.

Learning and research activities undertaken in colleges and universities involve “very different” fair dealing issues than those in the K–12 system, notes Trosow.

“It is essential that the court avoids making a one-size-fits-all pronouncement that applies from kindergar­ten to post-doctorate levels,” he says. “If the board’s fair dealing analysis is upheld, the ramifications will go well beyond the increased monetary burden that students will be forced to bear, reaching into the way Canadian researchers engage in innovative activities such as electronic reserves.”

---------------------------------------------------------------
ON THE NET
CAUT’s affidavit and factum in the matter of the Province of Alberta as represented by the Minister of Education and Others (Applicants) and the Canadian Copyright Licensing Agency operating as “Access Copyright” (Respondent) are available at www.caut.ca .

CAUT’s Intellectual Property Advisory on Fair Dealing.