Alta. v. Cdn. Copyright Licensing Agency, 2010 FCA 198

• Judge: Blais, C.J., Noël and Trudel, JJ.A.
• Court: Federal Court of Appeal (Canada)
• Case Date: July 23, 2010
• Jurisdiction: Canada (Federal)
• Citations: 2010 FCA 198;(2010), 405 N.R. 354 (FCA)

Alta. v. Cdn. Copyright Licensing Agency (2010), 405 N.R. 354 (FCA)

MLB headnote and full text

Temp. Cite: [2010] N.R. TBEd. AU.005

The Province of Alberta as represented by The Minister of Education; the Province of British Columbia as represented by The Minister of Education; the Province of Manitoba as represented by The Minister of Education, Citizenship and Youth; the Province of New Brunswick as represented by The Minister of Education; the Province of Newfoundland and Labrador as represented by The Minister of Education; the Northwest Territories as represented by The Minister of Education, Culture and Employment; the Province of Nova Scotia as represented by The Minister of Education; the Territory of Nunavut as represented by The Minister of Education; the Province of Ontario as represented by The Minister of Education; the Province of Prince Edward Island as represented by The Minister of Education; the Province of Saskatchewan as represented by The Minister of Education; the Yukon Territory as represented by The Minister of Education; the Airy and Sabine District School Area Board; the Algoma District School Board; the Algonquin and Lakeshore Catholic District School Board; the Asquith-Garvey District School Area Board; the Atikokan Roman Catholic Separate School Board; the Avon Maitland District School Board; the Bloorview MacMillan School Authority; the Bluewater District School Board; the Brant Haldimand Norfolk Catholic District School Board; the Bruce-Grey Catholic District School Board; the Campbell Children's School Authority; the Caramat District School Area Board; the Catholic District School Board of Eastern Ontario; the Collins District School Area Board; the Connell and Ponsford District School Area Board; the Conseil des Écoles Catholiques du Centre-est de l'Ontario; the Conseil des Écoles publiques de l'est de l'Ontario; the Conseil des Écoles Séparées Catholiques de Dubreuilville; the Conseil des Écoles Séparées Catholiques de Foleyet; the Conseil Scolaire de District Catholique Centre-sud; the Conseil Scolaire de District Catholique de l'est Ontarien; the Conseil Scolaire de District Catholique des Aurores Boréales; the Conseil Scolaire de District Catholique des Grandes Rivières; the Conseil Scolaire de District Catholique du Nouvel-Ontario; the Conseil Scolaire de District Catholique Franco-nord; the Conseil Scolaire de District des Écoles Catholiques de Sud-ouest; the Conseil Scolaire de District du Centre Sud-ouest; the Conseil Scolaire de District du Grand Nord de l'Ontario; the Conseil Scolaire de District du Nord-est de l'Ontario; the District School Board of Niagara; the District School Board Ontario North East; the Dufferin-Peel Catholic District School Board; the Durham Catholic District School Board; the Durham District School Board; the Foleyet District School Area Board; the Gogama District School Area Board; the Gogama Roman Catholic Separate School Board; the Grand Erie District School Board; the Greater Essex County District School Board; the Halton Catholic District School Board; the Halton District School Board; the Hamilton-Wentworth Catholic District School Board; the Hamilton-Wentworth District School Board; the Hastings & Prince Edward District School Board; the Hornepayne Roman Catholic Separate School Board; the Huron Perth Catholic District School Board; the Huron-Superior Catholic District School Board; the James Bay Lowlands Secondary School Board; the Kawartha Pine Ridge District School Board; the Keewatin-Patricia District School Board; the Kenora Catholic District School Board; the Lakehead District School Board; the Lambton Kent District School Board; the Limestone District School Board; the Missarenda District School Area Board; the Moose Factory Island District School Area Board; the Moosonee District School Area Board; the Moosonee Roman Catholic Separate School Board; the Murchison and Lyell District School Area Board; the Nakina District School Area Board; the Near North District School Board; the Niagara Catholic District School Board; the Niagara Peninsula Children's Centre School Authority; the Nipissing-Parry Sound Catholic District School Board; the Northeastern Catholic District School Board; the Northern District School Area Board; the Northwest Catholic District School Board; the Ottawa Children's Treatment Centre School Authority; the Ottawa-Carleton Catholic District School Board; the Ottawa-Carleton District School Board; the Parry Sound Roman Catholic Separate School Board; the Peel District School Board; the Peterborough Victoria Northumberland and Clarington Catholic District School Board; the Rainbow District School Board; the Rainy River District School Board; the Red Lake Area Combined Roman Catholic Separate School Board; the Renfrew County Catholic District School Board; the Renfrew County District School Board; the Simcoe County District School Board; the Simcoe Muskoka Catholic District School Board; the St Clair Catholic District School Board; the Sudbury Catholic District School Board; the Superior North Catholic District School Board; the Superior-Greenstone District School Board; the Thames Valley District School Board; the Thunder Bay Catholic District School Board; the Toronto Catholic District School Board; the Toronto District School Board; the Trillium Lakelands District School Board; the Upper Canada District School Board; the Upper Grand District School Board; the Upsala District School Area Board; the Waterloo Catholic District School Board; the Waterloo Region District School Board; the Wellington Catholic District School Board; the Windsor-Essex Catholic District School Board; the York Catholic District School Board; and the York Region District School Board (applicants) v. The Canadian Copyright Licensing Agency operating as "Access Copyright" (respondent) and the Canadian Association of University Teachers (intervenor-1) and the Canadian Publishers' Council, the Association of Canadian Publishers and the Canadian Education Resources Council (intervenors-2)

(A-302-09; 2010 FCA 198)

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

Federal Court of Appeal

Blais, C.J., Noël and Trudel, JJ.A.

July 23, 2010.

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 for 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 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.

Copyright - Topic 4645

Defences - Fair dealing - The Federal Court of Appeal stated that to establish "fair dealing" under s. 29 of the Copyright Act, a defendant must prove that the dealing was for the purpose of either research or private study and that the dealing was fair - Whether the dealing was fair "is a question of fact and depends on the facts of each cases" - Six non-exhaustive factors in determining fairness included "(1) the purpose of the dealing; (2) the character of the dealing; (3) the amount of the dealing; (4) alternatives to the dealing; (5) the nature of the work; and (6) the effect of the dealing on the work." - See paragraphs 19 to 20.

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 decision that the copying did not constitute "fair dealing" was purely factual and 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 nature of the works were private, not matters in which there was a public interest in dissemination (e.g., like judicial opinions) - The Board found that the photocopying likely had an unfair effect on book sales - The court held that the Board's findings were reasonable - See paragraphs 17 to 48.

Copyright - Topic 4648

Defences - Educational institution copying of work not "commercially available in a medium that is appropriate for the purpose" - Section 29.4 of the Copyright Act gave education institutions an exemption for photocopying copyrighted works for educational purposes - However, s. 29.4(3) provided that "the exemption from copyright infringement ... does not apply if the work or other subject-matter is commercially available in a medium that is appropriate for the purpose" - The Copyright Board found that the s. 29.4 exemption did not apply to "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" (e.g., teachers photocopying portions of texts for all students rather than purchasing class sets) - The Federal Court of Appeal held that the Board erred in finding that the s. 29.4 exemption did not apply, because although the Board determined whether the copied works were "commercially available", it failed to determine, as s. 29.3 required, whether the copied works were available in "a medium that is appropriate for the purpose" - The court remitted that issue to the Board for determination - See paragraphs 49 to 71.

Cases Noticed:

CCH Canadian Ltd. et al. v. Law Society of Upper Canada, [2004] 1 S.C.R. 339; 317 N.R. 107; 2004 SCC 13, refd to. [para. 18].

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 to. [para. 27].

Society of Composers, Authors and Music Publishers of Canada v. Canadian Association of Internet Providers et al., [2004] 2 S.C.R. 427; 322 N.R. 306; 2004 SCC 45, refd to. [para. 30].

Society of Composers, Authors and Music Publishers of Canada v. Canadian Association of Internet Providers et al., [2002] 4 F.C. 3; 290 N.R. 131; 2002 FCA 166, refd to. [para. 31].

University of London Press Ltd. v. University Tutorial Press Ltd., [1916] 2 Ch. 601, refd to. [para. 39].

Pro Sieben Media AG v. Carlton UK Television Ltd., [1999] 1 W.L.R. 605, refd to. [para. 41].

Rubin v. Boston Magazine Co. (1981), 645 F.2d 80 (1st Cir. C.A.), refd to. [para. 43].

American Medical Colleges v. Mikaelian (1983), 571 F.Supp. 144 (Penn Dist. Ct.), affd. (1984), 734 F.2d 3 (3rd Cir.), refd to. [para. 44].

Copyright Licensing Ltd. v. University of Auckland, [2002] 3 N.Z.L.R. 76 (H.C.), refd to. [para. 45].

R. v. Proulx (J.K.D.), [2000] 1 S.C.R. 61; 249 N.R. 201; 142 Man.R.(2d) 161; 212 W.A.C. 161, refd to. [para. 59].

R. v. Zeolkowski, [1989] 1 S.C.R. 1378; 95 N.R. 149; 58 Man.R.(2d) 63, refd to. [para. 60].

Jabel Image Concepts Inc. et al. v. Minister of National Revenue (2000), 257 N.R. 193 (F.C.A.), refd to. [para. 60].

Peach Hill Management Ltd. v. Canada - see Jabel Image Concepts Inc. et al. v. Minister of National Revenue.

Statutes Noticed:

Copyright Act, R.S.C. 1985, c. C-42, sect. 29, sect. 29.1 [para. 17]; sect. 29.4 [para. 49]; sect. 70.13(2) [para. 12].

Authors and Works Noticed:

Sullivan, Ruth, Sullivan on the Construction of Statutes (5th Ed. 2008), p. 210 [para. 59].

Counsel:

J. Aidan O'Neil and Wanda Noel, for the applicant;

David R. Collier, for the respondent;

Howard P. Knopf, for the intervenor-1, Canadian Association of University Teachers;

Barry B. Sookman and Daniel G.C. Glover, for the intervenor-2, Canadian Publishers' Council, Association of Canadian Publishers and Canadian Educational Resources Council.

Solicitors of Record:

Fasken Martineau DuMoulin LLP, Ottawa, Ontario, for the applicant;

Ogilvy Renault LLP, Montreal, Quebec, for the respondent;

Macera & Jarzyna LLP, Ottawa, Ontario, for the intervenor-1, Canadian Association of University Teachers;

McCarthy Tétrault LLP, Toronto, Ontario, for the intervenor-2, Canadian Publishers' Council, Association of Canadian Publishers and Canadian Educational Resources Council.

This application was heard on June 8, 2010, at Montreal, Quebec, before Blais, C.J., Noël and Trudel, JJ.A., of the Federal Court of Appeal.

On July 23, 2010, Trudel, J.A., delivered the following judgment at Ottawa, Ontario, for the Court of Appeal.