Setting the Record Straight on the K-12 2005-09 Tariff Supreme Court Ruling
On July 12, the Supreme Court of Canada ruled in the Council of Ministers of Education's appeal of Access Copyright's Elementary and Secondary School.
Several groups have wasted no time to embrace a "copy-free" interpretation of the ruling by incorrectly asserting that educational institutions no longer need licences to copy.
This is not the case.
Educational institutions still need a licence for most of the copies they make from published materials.
At issue before the Supreme Court was whether seven percent of the total volume of copying found by the Copyright Board to require a royalty payment was fair dealing. The seven percent involved copies made at the teachers' initiative with instructions to students that they read the material. The Copyright Board concluded that the copies were not fair and were therefore subject to a royalty. The Ministers of Education in Canada and the Ontario schools boards ultimately appealed the decision to the Supreme Court of Canada.
The ruling by the Supreme Court identified some errors made by the Copyright Board in its application of the law of fair dealing, and remitted the case back to the Copyright Board to reconsider its decision. Even after the Supreme Court of Canada decision, we still do not have a final determination as to whether these uses are fair. The Copyright Board will consider the Supreme Court of Canada's guidance and re-issue its decision within the next few months.
As it stands, post-secondary faculty can copy from published material under a licence or tariff or as authorized by the Copyright Act. The AUCC Model Licence and Post-Secondary Tariff allow educators to copy up to 20% of a published work. The Copyright Act allows them to make copies of published works as long as the copies are for a permitted fair dealing purpose (research, private study, criticism review or news reporting) and the dealing is fair. Fairness is accessed on a case-by-case basis. Whether a dealing is fair will depend on the circumstances of each case.
It is simply not fair, however, to copy as much and as often as one wants from publishers' materials. It is equally unfair to copy from published works in order to avoid having to buy learning resources or to copy repeatedly from the same work.
The case before the Supreme Court involved only a small proportion of what gets copied by teachers on behalf of students in the K-12 sector. In the aggregate, Canada's primary and secondary schools photocopy more than 250 million copyright protected pages annually. The assertion that Access Copyright licences are no longer needed presumes that half a billion uncompensated pages would be considered fair. That case has NOT gone before the courts. If such a case was before the courts, the courts would surely consider such massive uncompensated uses as unfair.
Authors and publishers operate in an industry with slim margins where any drop in revenue hurts. Nancy Gerrish, President, School Division of McGraw-Hill Ryerson and co-chair of the Access Copyright Board of Directors, elaborated on this point in an opinion piece published by the Financial Post: "Education publishers produce the Canadian-made learning resources that play an important role in supporting students and teachers [to] achieve results that are among the highest in international rankings. While Canadian-made textbooks are an essential resource, the market for them is small and fragmented, with each province developing its own curriculum." Gerrish also wrote: "Thanks to copying, fewer and fewer textbooks have been purchased by schools in recent years. Royalties on copying help keep the industry sustainable."
In an opinion piece in the Globe and Mail, John Degen, a writer, poet and Access Copyright affiliate, sees these concerns as requiring writers and publishers to assert their ownership of their works. "The bottom line is that copyright-protected material remains the property of those who create and publish it. Use without permission or compensation, outside of a still confusing and ill-defined concept of "fair dealing" is illegal."