Alberta (Minister of Education) et al. v. Canadian Copyright Licensing Agency et al., (2012) 432 N.R. 134 (SCC)

• Judge: McLachlin, C.J.C., LeBel, Deschamps, Fish, Abella, Rothstein, Cromwell, Moldaver and Karakatsanis, JJ.
• Court: Supreme Court (Canada)
• Case Date: July 12, 2012
• Jurisdiction: Canada (Federal)
• Citations: (2012), 432 N.R. 134 (SCC);2012 SCC 37;432 NR 134;[2012] 2 SCR 345;AZ-50872654

Alta. v. Cdn. Copyright Licensing Agency (2012), 432 N.R. 134 (SCC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2012] N.R. TBEd. JL.024

Province of Alberta as represented by the Minister of Education et al. (appellants) v. Canadian Copyright Licensing Agency operating as "Access Copyright" (respondent) and Canadian Publishers' Council, Association of Canadian Publishers, Canadian Educational Resources Council, Canadian Association of University Teachers, Canadian Federation of Students, Association of Universities and Colleges of Canada, Association of Canadian Community Colleges, CMRRA-SODRAC Inc., Samuelson-Glushko Canadian Internet Policy and Public Interest Clinic, Canadian Authors Association, Canadian Freelance Union, Canadian Society of Children's Authors, Illustrators and Performers, League of Canadian Poets, Literary Translators' Association of Canada, Playwrights Guild of Canada, Professional Writers Association of Canada, Writers' Union of Canada and Centre for Innovation Law and Policy of the Faculty of Law University of Toronto (intervenors)

(33888; 2012 SCC 37; 2012 CSC 37)

Indexed As: Alberta (Minister of Education) et al. v. Canadian Copyright Licensing Agency et al.

Supreme Court of Canada

McLachlin, C.J.C., LeBel, Deschamps, Fish, Abella, Rothstein, Cromwell, Moldaver and Karakatsanis, JJ.

July 12, 2012.

Summary:

The Copyright Board approved a tariff which provided for royalties for photocopying excerpts from textbooks used in classroom instruction for students in kindergarten to grade 12. All parties agreed that three categories of copying constituted "fair dealing" under s. 29 of the Copyright Act. At issue was a fourth category consisting of "multiple copies made for the use of the person making the copies and single or multiple copies made for third parties without their request for the purpose of private study and/or research and/or criticism and/or review". The Copyright Board held that the fourth category did not constitute "fair dealing" and those copies were included in the tariff calculation. The applicants sought judicial review, arguing that the Board erred in rejecting the copying as "fair dealing". Alternatively, the applicants argued that the copying was exempt under s. 29.4 of the Act as a "work or other subject-matter as required for a test or examination" where the work was not "commercially available in a medium that is appropriate for the purpose".

The Federal Court of Appeal, in a judgment reported (2010), 405 N.R. 354, allowed the application in part. The Board's decision that the copying did not constitute "fair dealing" was a purely factual question and the Board committed no reviewable error. However, in dealing with the s. 29.4 exemption, the Board failed to address an important part of the test, that being whether the works were commercially available "in a medium that is appropriate for the purpose". The court remitted the matter to the Board to determine the meaning of "in a medium that is appropriate for the purpose" and whether the fourth category copies fell within the s. 29.4 exemption. The applicants appealed, arguing that the Board's finding that fourth category copies did not constitute "fair dealing" was unreasonable.

The Supreme Court of Canada, Rothstein, Deschamps, Fish and Cromwell, JJ., dissenting, allowed the appeal and remitted the matter for reconsideration. Contrary to what the Court of Appeal found, the Board's decision did not accord with the CCH Canadian test and was, accordingly, unreasonable.

Copyright - Topic 4645

Defences - Fair dealing - The Copyright Board approved a tariff which provided for royalties for photocopying excerpts from textbooks used in classroom instruction for students in kindergarten to grade 12 - Although the Board found that three categories of photocopying constituted "fair dealing", a fourth category, being "multiple copies made for the use of the person making the copies and single or multiple copies made for third parties without their request for the purpose of private study and/or research and/or criticism and/or review", did not constitute "fair dealing" under s. 29 of the Copyright Act and was, accordingly, not excluded from the tariff calculation - The Federal Court of Appeal held that the Board's purely factual decision that the copying did not constitute "fair dealing" was reasonable - The Board determined that in making copies for all students (rather than having class sets of textbooks) the predominant purpose was not research or private study, but instruction or non-private study - Where students did not request copies and all students received copies, that negated a finding that the copying was for the purpose of "private" study - Schools had an alternative to photocopying; they could buy class sets - The Board found that the photocopying likely had an unfair effect on book sales - The Supreme Court of Canada held that the Board misapplied some of the CCH Canadian factors, which rendered its finding of no "fair dealing" unreasonable - Copying done by teachers without a student request did not negate a finding of copying for the purpose of research or private study - Teachers could not be characterized as having the completely separate purpose of "instruction" - They were there to facilitate a student's research and private study - The copies made by teachers for the entire class were not for "non-private" study simply because they were used by students as a group rather than "privately" - The court stated that "the word 'private' in 'private study' should not be understood as requiring users to view copyrighted works in splendid isolation" - The teachers made multiple copies for the students, not their own use - The "amount of copying" was not a "quantitative assessment based on aggregate use, it is an examination of the proportion between the excerpted copy and the entire work, not the overall quantity of what is disseminated" - Buying class sets was not a realistic alternative to teachers copying short excerpts to supplement student textbooks and a teacher copying of short excerpts from textbooks did not compete with the market for textbooks - The "fair dealing" matter was remitted to the Board to be reconsidered based a proper application of the CCH Canadian factors.

Cases Noticed:

CCH Canadian Ltd. et al. v. Law Society of Upper Canada, [2004] 1 S.C.R. 339; 317 N.R. 107, refd to. [para. 8].

Society of Composers, Authors and Music Publishers of Canada v. Bell Canada et al. (2012), 432 N.R. 103; 2012 SCC 36, refd to. [para. 12].

Sillitoe v. McGraw-Hill Co. (U.K.) Ltd., [1983] F.S.R. 545 (Ch. Div.), dist. [para. 16].

University of London Press Ltd. v. University Tutorial Press Ltd., [1916] 2 Ch. 601, dist. [para. 17].

Copyright Licensing Ltd. v. University of Auckland, [2002] 3 N.Z.L.R. 76 (H.C.), dist. [para. 18].

CCH Canadian Ltd. et al. v. Law Society of Upper Canada, [2002] 4 F.C. 213; 289 N.R. 1 (F.C.A.), refd to. [para. 20].

Hubbard v. Vosper, [1972] 1 All E.R. 1034 (C.A.), refd to. [para. 37].

JTI-Macdonald Corp. et al. v. Canada (Attorney General), [2007] 2 S.C.R. 610; 364 N.R. 89; 2007 SCC 30, refd to. [para. 47].

Canada (Attorney General) v. Mowat, [2011] 3 S.C.R. 471; 422 N.R. 248; 2011 SCC 53, refd to. [para. 59].

New Brunswick (Board of Management) v. Dunsmuir, [2008] 1 S.C.R. 190; 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, refd. [para. 60].

Authors and Works Noticed:

D'Agostino, Giuseppina, Healing Fair Dealing? A Comparative Copyright Analysis of Canada's Fair Dealing to U.K. Fair Dealing and U.S. Fair Use (2008), 53 McGill L.J. 309, p. 319 [para. 19].

Counsel:

Wanda Noel, James Aidan O'Neill and Ariel A. Thomas, for the appellants;

Neil Finkelstein and Claude Brunet, for the respondent;

Barry B. Sookman and Daniel G.C. Glover, for the intervenors, the Canadian Publishers' Council, the Association of Canadian Publishers and the Canadian Educational Resources Council;

Written submissions only by Wendy Matheson, Andrew Bernstein and Alexandra Peterson, for the intervenors, the Canadian Association of University Teachers and the Canadian Federation of Students;

Marcus A. Klee, for the intervenors, the Association of Universities and Colleges of Canada and the Association of Canadian Community Colleges;

Timothy Pinos, Casey M. Chisick and Jason Beitchman, for the intervenor, CMRRA- SODRAC Inc;

Written submissions only by David Fewer and Jeremy de Beer, for the intervenor, the Samuelson-Glushko Canadian Internet Policy and Public Interest Clinic;

Written submissions only by Marian Hebb, Warren Sheffer and Brendan van Niejenhuis, for the intervenors, the Canadian Authors Association, the Canadian Freelance Union, the Canadian Society of Children's Authors, Illustrators and Performers, the League of Canadian Poets, the Literary Translators' Association of Canada, the Playwrights Guild of Canada, the Professional Writers Association of Canada and the Writers' Union of Canada;

Written submissions only by Howard P. Knopf and Ariel Katz, for the intervenor, the Centre for Innovation Law and Policy of the Faculty of Law University of Toronto.

Solicitors of Record:

Wanda Noel, Ottawa, Ontario; Fasken Martineau DuMoulin, Ottawa, Ontario, for the appellants;

McCarthy Tétrault, Toronto, Ontario; Norton Rose Canada, Montreal, Quebec, for the respondent;

McCarthy Tétrault, Toronto, Ontario, for the intervenors, the Canadian Publishers' Council, the Association of Canadian Publishers and the Canadian Educational Resources Council;

Torys, Toronto, Ontario, for the intervenors, the Canadian Association of University Teachers and the Canadian Federation of Students;

Osler, Hoskin & Harcourt, Ottawa, Ontario, for the intervenors, the Association of Universities and Colleges of Canada and the Association of Canadian Community Colleges;

Cassels Brock & Blackwell, Toronto, Ontario, for the intervenor, CMRRA-SODRAC Inc.;

University of Ottawa, Ottawa, Ontario, for the intervenor, the Samuelson-Glushko Canadian Internet Policy and Public Interest Clinic;

Hebb & Sheffer, Toronto, Ontario; Stockwoods, Toronto, Ontario, for the intervenors, the Canadian Authors Association, the Canadian Freelance Union, the Canadian Society of Children's Authors, Illustrators and Performers, the League of Canadian Poets, the Literary Translators' Association of Canada, the Playwrights Guild of Canada, the Professional Writers Association of Canada and the Writers' Union of Canada;

Macera & Jarzyna, Ottawa, Ontario, for the intervenor, the Centre for Innovation Law and Policy of the Faculty of Law University of Toronto.

This appeal was heard on December 7, 2011, before McLachlin, C.J.C., LeBel, Deschamps, Fish, Abella, Rothstein, Cromwell, Moldaver and Karakatsanis, JJ., of the Supreme Court of Canada.

On July 12, 2012, the judgment of the Court was delivered in both official languages and the following opinions were filed:

Abella, J. (McLachlin, C.J.C., LeBel, Moldaver and Karakatsanis, JJ., concurring) - see paragraphs 1 to 38;

Rothstein, J. (Deschamps, Fish and Cromwell, JJ., concurring), dissenting - see paragraphs 39 to 60.