The Copyright Board held today that the disputed copies in Access Copyright’s K-12 tariff, the copies that were subject to the appeal before the Supreme Court of Canada in Alberta (Education) v. Access Copyright constitute fair dealing.
In its previous ruling, the Board held that those copies were not fair dealing. This ruling, upheld by the Federal Court of Appeal, was ultimately reversed by the Supreme Court. The Supreme Court found that “Because the Board’s finding of unfairness was based on what was … a misapplication of the CCH factors, its outcome was rendered unreasonable”. The Court allowed the appeal with costs “and remitted the matter to the Board for reconsideration based on these reasons.”
Today the Board issued its ruling. It rejected Access Copyright’s argument that “that the Court did not conclude that Category 4 copies constituted fair dealing.” AC submitted that since “What is or not fair is a matter of fact, which only the tribunal of fact can decide; the Board should reassess whether Category 4 copies are fair, based on the principles outlined by the Supreme Court.”
The Board disagreed, stating that “The decision of the Supreme Court is clear and leaves no room for interpretations: based on the record before the Board and the findings of fact of the Supreme Court, Category 4 copies constitute fair dealing for an allowable purpose and as such, are non-compensable.”
This issue is now over. There still remain a few open issues, including the fascinating issue of whether the FTE rate should be lowered by $0.36 or only $0.3539.
Access Copyright issued a media release today announcing that it is “disappointed but accepts” the Board’s decision, so it’s probably not going to seek judicial review. It was quick to add, however, that the decision “has no impact on the requirement that royalties continue to be paid on the hundreds of millions of pages of student texts that are copied for use in K-12 classrooms every year.” Yeah, right.
Here’s the Board’s full ruling:
RULING OF THE BOARD
On July 20, 2012, the Board asked the parties to the above-referenced file how it should proceed to comply with the decisions of the Federal Court of Appeal and of the Supreme Court of Canada that ordered the Board to reconsider certain aspects of the tariff. Specifically, the Board asked the parties to answer the following questions:
a) What issues must be addressed by the Board to comply with the decisions of the Federal Court of Appeal and of the Supreme Court of Canada?
b) Can these issues be determined on the basis of the existing record? Will it be necessary for the parties to file argument or additional evidence?
c) If the parties require an opportunity to file additional argument or evidence, how can this be achieved most efficiently? A proposed timetable would be welcome.
d) Are the instructions of the Federal Court of Appeal sufficiently precise or should the parties ask the Court for further directions?
With respect to the decision of the Federal Court of Appeal, the parties agree that the Board should decide, on the basis of the existing record, whether photocopied pages for ministry examinations are “in a medium appropriate for the purpose”, as found in subsection 29.4(3) of the Copyright Act. The parties also agree that even though the order of the Court contains a clerical error, there is no need to seek further directions as everyone agrees on what are the copies properly the subject of the ordered reconsideration. Consequently, parties shall file their submissions no later than on Friday, October 26, 2012 and their responses no later than on Friday, November 9, 2012. There shall be no reply without leave from the Board.
With respect to the decision of the Supreme Court of Canada, the parties do not agree on what is at issue. Access Copyright submits that the Court did not conclude that Category 4 copies constituted fair dealing. What is or not fair is a matter of fact, which only the tribunal of fact can decide; the Board should reassess whether Category 4 copies are fair, based on the principles outlined by the Supreme Court. The objectors submit that the Board should only determine the impact of removing the Category 4 copies, which the Court has ruled to be fair, from the calculation of the $5.16 FTE rate; the decision of the Court allows for no other course of action.
We agree with the objectors. The decision of the Supreme Court is clear and leaves no room for interpretations: based on the record before the Board and the findings of fact of the Supreme Court, Category 4 copies constitute fair dealing for an allowable purpose and as such, are non-compensable. The FTE rate must be reduced accordingly.
The parties agree on the figures to be used to calculate the reduction but not on the result. The objectors propose $0.36, Access suggests $0.3539. No later than on Friday, October 26, 2012, the objectors shall file any comment they may have with respect to the calculations of Access. If needed, Access may respond to these comments no later than on Friday, November 9, 2012.
Secretary General | Secrétaire général
Copyright Board of Canada | Commission du droit d’auteur du Canada
56 Sparks, Suite| Bureau 800
Ottawa ON K1A 0C9
Telephone | Téléphone 613.952.8624