Copyright and Canadian Schools

AuthorMargaret Ann Wilkinson
Copyright and Canadian Schools
Margaret Ann Wilkinson
Historica lly, copyright did not seem to have a direc t eect upon those
who were teaching a nd administerin g (or, indeed, studyi ng) in Canada’s
schools: books were provi ded through school libra ries and then loaned to
students, or tex tbooks were owned by s chool boards and loa ned to stu-
dents for use in a gi ven 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 publisher s who were involved with cop yright in t he materia ls
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 wit h. They were, theref ore, concerned not with copy right in
the mater ial contai ned in the books, but w ith the private property i nter-
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 th is changed w ith the intr oduction into school s 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. T his capabil ity brought Ca nadian sc hools, at least theore tically,
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 rig ht to do. Nonetheless, Cana dian schools , by and large,
1 RSC 1985, c C-42.
288 / Margaret Ann Wilkinson
felt little pressure from copyr ight holders in t he early days of mach ine
copying. Music teacher s were among those who felt t he eects of copy-
right: when orchest ral, 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, v iolins or viola s, utes, or percussion)
had to be retur ned (and, typical ly, all notes made on the scores by budd ing
musicians ha d to be erased). As other tec hnology was deve loped, those
acquirin g audiovisual mater ials for use in schools b ecame accustomed to
distri butors placing li mitations t hat specied who wou ld be allowed to
watch the l m, for example, and where it could be shown (for exa mple,
only in clas srooms). This, too, was copyright i n action. As the digital a ge
of telecommunicat ions advanced, educ ators continued to revea l them-
selves as early tec hnology adopters, and each tech nology advance and its
adoption has brought t he school communit y more in contact w ith 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 s tatute: the Copy right Act.3 The concept of copyright i s an old
one, in existence s ince the eighteenth cent ury and aect ing Canada since
it was colonized. Howeve r, in light of continuou s technological c hange
since the eightee nth centur y, the concepts included in t he Copyr ight Act
have been continuously evolving and e xpanding. Si nce the nineteent h
century, Cana da has been involved in internat ional treat ies designed to
create lin ks between nation states a nd common approaches among mem-
ber states to providing protect ion under the copyr ight legislat ion 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 t he right to the protec tion of the moral a nd material i nter-
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rme d, 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-
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 inf ringeme nt is a violation of s. 6 of t he [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] Char ter.6
In the late twe ntieth century, copyri ght, as well as remai ning the sub-
ject of a number of public internationa l law treaties, bec ame the subject
of an increasi ng number of inter national t rade agreements: t he largest
and chief of thes e is the Trade-Related Aspects of Intellectual Propert y Rights
Agreement, or TR IPS Agreement.7 Since 1967, a new approach has become
entrenched among n ations 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 intern ational trade situation) to show th at any exception prov ided
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 exploita tion of the work, and (3) a case whic h does not unreas on-
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 Canad ian politica l landscape, i n terms of legis lating in t he 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 any thing t hat con stitut ional ly fal ls
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
Treat y. 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.

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