In July, the Federal Court of Ap­peal released its decision on the tariff Access Copyright can levy against K–12 schools to reproduce educational material.

Canada’s K–12 sector, represented by provincial ministries of education and school boards, earlier this year challenged a ruling of Canada’s Copyright Board to allow Access Copyright to significantly increase the fee that primary and secondary schools pay for paper copies of copyrighted material and requested a judicial review by the appeal court. CAUT intervened in the appeal court to promote a deeper understanding of “fair dealing” (the right to copy material without permission or payment in certain circumstances), and, failing that, to ensure that any negative fallout of the decision would be confined to the issue’s particular factual circumstances.

“The court’s decision can be seen as largely limited to the reproduction of curriculum-specific textbooks in the K–12 setting, and to this extent we are pleased that CAUT’s input was reflected in the ruling,” said Sam Trosow, a law professor at the University of Western Onta­rio and chair of CAUT’s advisory committee on copyright. “But other aspects of the decision are more worrisome.” In particular, CAUT questions the lack of adequate analysis of the relationship between fair dealing and educational instruction.

“Our hope is that the school boards will seek review of this decision to the Supreme Court,” Trosow said. “While limited to the facts on the record in this case, the ruling fails to provide the clarity and precision that the educational community was seeking.”

For CAUT the decision also underlines the urgent need for educational institutions to implement written policies that clarify and positively promote fair dealing along the lines endorsed by the Supreme Court of Canada in the CCH v. Law Society case. The absence of such codification is a vulnerability to advancing the rights of the users of copyright material.

“The decision is a disappointment for the educational community,” Trosow said. “But we have to put it in its overall context — the rights of students and teachers to access and use works have been steadily advancing over the last decade.”

He said Canadian court decisions have been overwhelmingly in favour of user rights and that the proposed copyright legislation before Parliament expands fair dealing. Even in the United States the copyright office has just affirmed new exceptions to digital locks provisions that recognize fair-use rights, Trosow said.

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Related Article
CAUT Bulletin January 2010 “Copyright Intervention: The Price of Knowledge”