Copyright and Canadian Schools

• Author: Margaret Ann Wilkinson
• Pages: 287-337

287

CHAPTER 10

Copyright and Canadian Schools

Margaret Ann Wilkinson

A. INTRODUCTION

Historically, copyright did not seem to have a direct eect upon those

who were teaching a nd administering (or, indeed, studying) in Canada’s

schools: books were provi ded through school libra ries and then loaned to

students, or textbooks were owned by school boards and loaned to stu-

dents for use in a given course or, in some cases, personal copies were

loaned to the cla ssroom or the students by the teac hers who owned them.

It was the publishers who were involved with copyright in the materials

contained in t he books, and in purchas ing from reputable publishers, d is-

tributors, or book stores in Canada, t he schools, the teachers, the s tudents,

and the school ad ministra tors could rely on all copy right concerns havi ng

been dealt with. They were, therefore, concerned not with copy right in

the material contained in the books, but with the private property inter-

ests in the book s themselves, the a rtifact s that contained t he informat ion:

Who owned this copy of t he book? Who had borrowed a given copy from

the owner?

All this changed with the introduction into schools of duplicating

machines su ch as the Gestetner and, subs equently,the photocopier: now

those working or st udying in schools could ma ke their own copies of ma-

terials. This capability brought Canadian schools, at least theoretically,

face to face with cop yright because copy ing is one of those acts, whic h, ab-

sent an applicable except ion under the Copyright Ac t,1 only the copyright

holder has the right to do. Nonetheless, Canadian schools, by and large,

1 RSC 1985, c C-42.

288 / Margaret Ann Wilkinson

felt little pressure from copyright holders in the early days of machine

copying. Music teachers were among those who felt the eects of copy-

right: when orchestral, band, or choral scores were borrowed (or rented)

from music dist ributors, the distrib utors specied that all pa rts received

(whether for sopranos or tenors, violins or violas, utes, or percussion)

had to be retur ned (and, typical ly, all notes made on the scores by budd ing

musicians had to be erased). As other technology was developed, those

acquirin g audiovisual mater ials for use in schools b ecame accustomed to

distributors placing limitations that specied who would be allowed to

watch the lm, for example, and where it could be shown (for example,

only in clas srooms). This, too, was copyright i n action. As the digital a ge

of telecommunications advanced, educators continued to reveal them-

selves as early tec hnology adopters, and each tech nology advance and its

adoption has brought the school community more in contact with copy-

ri ght l aw.

Canada’s copyright l aw is the sole responsibility of t he federal govern-

ment,2 which ha s chosen to legislate vi rtually a ll law governing copy right

within one statute: the Copy right Act.3 The concept of copyright is an old

one, in existence s ince the eighteenth cent ury and aect ing Canada since

it was colonized. However, in light of continuous technological change

since the eighteenth century, the concepts included in the Copyright Act

have been continuously evolving and expanding. Since the nineteenth

century, Canada has been involved in international treaties designed to

create lin ks between nation states a nd common approaches among mem-

ber states to providing protection under the copyright legislation of the

various st ates.

Indeed, in 1948, just l ike education,4 copy right was ins tantiated by t he

United Nations in t he Universal Declaration of Human Rights, which stated,

“Everyone has the right to the protection of the moral and material inter-

ests result ing from any scientic, liter ary or artistic pro duction of which

he is the author.”5 And, in 2013, Canada’s Supreme Court conrmed, in a

2 Constitution Act, 1867 (UK), 30 & 31 Vict, c 3, s 91(23), repri nted in RSC 1985, App II,

No 5 (copyright s).

3 Above note 1, s 89.

4 See, most part icularly, the Univer sal Declaration of Human Rights, GA Res 2 17(III),

UNGAOR, 3d Sess, Supp No 13, U N Doc A/810 (1948), art 26, which add resses edu-

cation.

5 Ibid,art 27(2). The World Intellec tual Prope rty Organ ization (WIP O) is now the

home of the origi nal eightee nth-centur y copyright t reaty (the Bern e Convention),

Copyright and Canadian Schools / 289

case involvi ng a creator’s copyright interest in a c artoon, that copyrig hts

have status a s human rights:

[c]opyright infringement is a violation of s. 6 of the [Québec] Charter,

which provide s that “[e]very person h as a right to t he peaceful e njoyment

and free d isposition of proper ty, except to the exte nt provided by law” . . . .

Additiona lly, the infringem ent of copyright in th is case interfered w ith

Robinson’s personal r ights to inviolabi lity and to dig nity, recognized by

ss. 1 and 4 of the [Québec] Charter.6

In the late twe ntieth century, copyri ght, as well as remai ning the sub-

ject of a number of public international law treaties, became the subject

of an increasing number of international trade agreements: the largest

and chief of thes e is the Trade-Related Aspects of Intellectual Propert y Rights

Agreement, or TRIPSAgreement.7 Since 1967, a new approach has become

entrenched among nations when mak ing changes to their nation al copy-

right law: the “t hree-step test ”8 requires a countr y defending a prov ision in

its own copyr ight legislation (agai nst a challenge f rom another nation in a

given international trade situation) to show that any exception provided

in the defendi ng country’s legislat ion to the rights of copyrig ht holders is

(1) a special case, (2) a case whic h does not conict with the r ights holders’

normal exploitation of the work, and (3) a case which does not unreason-

ably prejudice the legit imate interest of the rig hts holders.

In light of these i nternational expression s of protection for copyr ight,

Canada’s federal govern ment is not free to do as it l ikes, having rega rd only

to the Canadian political landscape, in terms of legislating in the area of

copyright: it need s to have regard for its inte rnational tr eaty commitment s.

Nor can any provi nce try to use any area of provi ncial constitutiona l com-

petence (e.g., education) to legislate anything that constitutionally falls

as well as s ubsequent public int ernationa l legal treaties i nvolving copy right; it is

now a UN body.

6 Cinar Corp v Robinso n,2013 SCC 73 at para 114 [Robinson].

7 33 ILM 1197 (1994) [TRI PS Agreement].

8 The three -step test was r st introduced i n connection wi th the reproduct ion

right in cop yright in t he 1967 revision of the Ber ne Convention. It now gover ns

copyrig ht exceptions gener ally, appeari ng not only in the Be rne Convention but

also in t he WIPO Copyr ight Treaty and the W IPO Perfor mances and Phonograms

Treaty. In addit ion, on the intern ational trad e side, it appears in b oth the North

American Fre e Trade Agreement, 32 ILM 289 (1993), and in t he TRIPS Agree ment,

above note 7.