Date: 20100723
Docket: A-302-09
Citation: 2010 FCA 198
CORAM: BLAIS C.J.
NOËL J.A.
TRUDEL J.A.
BETWEEN:
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 DISTRIC 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
and
THE CANADIAN COPYRIGHT LICENSING AGENCY
Operating as “ACCESS COPYRIGHT”
Respondent
and
THE CANADIAN
ASSOCIATION OF UNIVERSITY TEACHERS
Intervener-1
and
THE CANADIAN PUBLISHERS’ COUNCIL,
THE ASSOCIATION OF CANADIAN PUBLISHERS
and
THE CANADIAN
EDUCATION RESOURCES COUNCIL
Interveners-2
Heard at Montréal, Quebec, on June 8, 2010.
Judgment delivered at Ottawa,
Ontario, on July 23, 2010.
REASONS FOR JUDGMENT BY: TRUDEL
J.A.
CONCURRED
IN BY:
BLAIS C.J.
NOËL J.A.
Date:
20100723
Docket: A-302-09
Citation: 2010 FCA 198
CORAM: BLAIS
C.J.
NOËL
J.A.
TRUDEL
J.A.
BETWEEN:
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 DISTRIC 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
and
THE CANADIAN COPYRIGHT LICENSING AGENCY
Operating as “ACCESS COPYRIGHT”
Respondent
and
THE CANADIAN
ASSOCIATION OF UNIVERSITY TEACHERS
Intervener-1
and
THE CANADIAN PUBLISHERS’ COUNCIL,
THE ASSOCIATION OF CANADIAN PUBLISHERS
and
THE CANADIAN
EDUCATION RESOURCES COUNCIL
Interveners-2
REASONS FOR JUDGMENT
TRUDEL J.A.
Introduction
[1]
Under the Copyright
Act, R.S.C. 1985, c. C-42 (the Act), people can make non-infringing use of
copyrighted material provided the use is made for an allowed enumerated purpose
and is fair. This practice is known as fair dealing.
[2]
The case
at bar relates to a tariff approved by the Copyright Board (the Board), which
included
as remunerable use the photocopying of excerpts from textbooks for use in
classroom instruction for students in kindergarten to grade 12. Specifically,
the parties accept that the copying at issue refers 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” (see table at paragraph [15]
below under Category 4).
[3]
The applicants
argue that this use constituted fair dealing under sections 29 and 29.1 of the
Act: the copies were made for an allowable purpose and the dealing was fair.
Both parties agree that the copies were made for an allowable purpose under the
Act. However, the applicants also argue they were made fairly, and that the
Board therefore erred by including the copies in the tariff calculation.
[4]
In the alternative,
the applicants argue that the copying was exempt under section 29.4 of the Act
as a “work or other subject-matter as required for a test or examination” where
the work is not “commercially
available in a medium that is appropriate for the purpose.”
[5]
At
its core, the
fair dealing issue comes down to a review of the Board’s ruling that the
dealing was unfair. This is a purely factual question. I see no reviewable
error in this finding and accordingly would not allow the application on that
ground.
[6]
With
respect to section 29.4, however, the Board failed to address an important part
of the test: whether the works were commercially available in a medium appropriate
for the purpose. The application record shows that this argument was
squarely before the Board. At paragraph 68 of their legal arguments, the
applicants asserted that:
(t)he
requirement that a work be "commercially available" is only a part of
the statutory test to be applied in determining whether a particular
reproduction falls within the exception in subsection 29.4(2), or within the
carve-out from the exception in subsection 29.4(3). The complete test is
whether the work or other subject-matter being reproduced in the test or
examination is "commercially available in a medium that is appropriate for
the purpose" of a test or examination (See application record, volume 3,
tab L, at page 654; also applicants’ memorandum of fact and law, at paragraph
101).
[7]
While the
Board considered whether the works were commercially available, it did not
determine the media in which the works were available and whether those media
were appropriate. Accordingly, I would allow the application on that ground and
remit the matter to the Board for the reasons appearing below at paragraphs [49] and following.
The facts
[8]
On 17 July
2009, the Copyright Board of Canada released the corrected version of its Decision
Statement of royalties to be collected by Access Copyright for the
reprographic reproduction, in Canada, of works in its repertoire, [2009]
C.B.C. No. 6 (the Decision). This is the decision of which the applicants now
seek judicial review.
[9]
The applicants
are the ministries of education of all Canadian provinces and territories
outside Quebec, as well as each of the Ontario school boards. The respondent,
originally known as CANCOPY, is a not-for-profit organization that represents
authors and publishers of copyrighted works. It acquires its repertoire by
signing affiliation agreements with copyright holders and administers the right
to authorize copying of its repertoire for all of Canada except Quebec.
[10]
The intervener-1
represents teachers, librarians, researchers and other academic professionals
and staff at Canadian universities. The interveners-2 represent the voice of
substantially all of the Canadian publishing industry. Their members market
their works directly to the entire educational sector in Canada including the primary,
secondary, college and university sectors.
[11]
Between
1991 and 1997, the respondent reached royalty agreements with all provinces and
territories other than Quebec with respect to the reproduction of its
repertoire for use in elementary and secondary schools in Canada. In 1999, the parties signed
a five year pan-Canadian agreement, providing for progressive royalty increases
up to 2004. To this point, however, the royalties were not calculated based on
the actual number of pages photocopied.
[12]
In 2004, the
parties were unable to reach a new agreement on a new pan-Canadian license as
they could not agree to the terms of a “volume study” to measure the actual
number of pages photocopied. The 1999 tariff was therefore extended on a
year-to-year basis pending a decision by the Board on a new tariff. Having
failed to reach an agreement, the respondent filed its own proposed tariff
(Elementary and Secondary School Tariff, 2005-2009) with the Board in
accordance with subsection 70.13(2) of the Act:
|
A collective society referred to in
subsection (1) in respect of which no tariff has been approved pursuant to
subsection 70.15(1) shall file with the Board its proposed tariff, in both
official languages, of all royalties to be collected by it for issuing
licences, on or before the March 31 immediately before its proposed effective
date
|
Lorsque les sociétés de gestion ne sont pas
régies par un tarif homologué au titre du paragraphe 70.15(1), le dépôt du
projet de tarif auprès de la Commission doit s’effectuer au plus tard le 31
mars précédant la date prévue pour sa prise d’effet.
|
[13]
The applicants
objected to the proposed tariff and sought review before the Board. During the
course of proceedings, the parties agreed to the terms of a volume study. It
was carried out between February 2005 and March 2006. Data for the volume study
were collected by stationing observers next to photocopiers in 894 schools
across the country for 10 days. Each time someone made a photocopy, the
observer filled out a logging sticker. The content of the logging sticker was
agreed upon by all parties. The sticker included the following questions and
available answers:
Who made the
copies? Please check only one:
A teacher
A librarian
Another staff
member
A student
Someone else
For whose use
were the copies made? Please check all that apply
The person
who made the copies
Staff
Student(s)
Others
If staff,
student(s), or others, were the copies made at their request?
Yes
No
Undetermined
If
student(s): Are students instructed to read the material?
Yes
No
Undetermined
For what
purpose(s) were the copies made? Please check all that apply
Administration
Criticism or
review
Entertainment
Future
reference
Student test
or examinations
Private study
Projection in
class
Research
Student
instruction, assignments and class work
Other
purposes, specify
Undetermined
purposes
[14]
The
parties agreed to accept the volume study results and logging sticker contents
as fact and that the decision on whether a copy constituted fair dealing was to
be based solely on the information contained on the logging stickers.
[15]
The
results of the study were as follows, as categorized by the Board:
VOLUME
OF FAIR DEALING EXCEPTION
|
Categories of
Photocopies
|
Volume
|
Cumulative Total
|
|
1.
Single copies made for use of the person making the copy
and single or multiple copies made for third parties at their request1
a.
solely for the purpose of private study and/or research
|
623,585
|
|
|
2.
Single copies made for use of the person making the copy
and single or multiple copies made for third parties at their request1
a.
solely for the purpose of criticism and/or review, or
b.
solely for the purpose of criticism and/or review AND private study
and/or
research
|
204,285
|
827,870
|
|
3.
Single copies made for use of the person making the copy
and single or multiple copies made for third parties at their request1
a.
for the purpose of private study and/or research and/or criticism
and/or
review
i.
for at least one purpose other than those allowable under the
fair
dealing exception
|
821,909
|
1,649,779
|
|
4.
Multiple copies made for use of the person making the
copies and single or multiple copies made for third parties without their
request
a.
for the purpose of private study and/or research and/or criticism
and/or
review
i.
for at least one purpose other than those allowable under the
fair
dealing exception
b.
solely for the purpose of private study and/or research and/or criticism
and/or review
|
16,861,583
|
18,511,362
|
1 Without instructions to read the material.
[16]
The
parties agreed that copies falling into categories 1, 2, and 3 constitute fair
dealing. However, the parties differed with respect to category 4, which
accounts for the overwhelming majority of copies. The applicants argued that
copies falling under category 4 constitute fair dealing, whereas the respondent
argued, and the Board agreed, they are not fair dealing and are accordingly
remunerable.
Fair Dealing
A. The law
[17]
The
relevant fair dealing provisions of the Act provide as follows:
|
29. Fair dealing
for the purpose of research or private study does not infringe copyright.
29.1 Fair dealing for the purpose of
criticism or review does not infringe copyright if the following are
mentioned:
(a)
the source; and
(b)
if given in the source, the name of the:
(i) author,
in the case of a work,
(ii)
performer, in the case of a performer’s performance,
(iii) maker,
in the case of a sound recording, or
(iv) broadcaster, in the case of a
communication signal.
|
29. L’utilisation
équitable d’une oeuvre ou de tout autre objet du droit d’auteur aux fins
d’étude privée ou de recherche ne constitue pas une violation du droit
d’auteur..
29.1 L’utilisation
équitable d’une oeuvre ou de tout autre objet du droit d’auteur aux fins de
critique ou de compte rendu ne constitue pas une violation du droit d’auteur
à la condition que soient mentionnés :
a) d’une
part, la source;
b) d’autre
part, si ces renseignements figurent dans la source:
(i) dans le cas d’une oeuvre, le nom de
l’auteur,
(ii) dans le cas d’une prestation, le
nom de l’artiste-interprète,
(iii) dans le cas d’un enregistrement
sonore, le nom du producteur,
(iv) dans le cas d’un signal de
communication, le nom du radiodiffuseur.
|
[18]
The
leading case
interpreting this provision is CCH Canadian Ltd. v. Law Society of
Upper Canada, 2004 SCC 13, [2004] 1 S.C.R. 339 [CCH]. That case
interpreted the law of fair dealing in the context of the custom photocopy
service offered by the Law Society of Upper Canada at the Great Library in Toronto. Under the custom
photocopy service, members could request legal materials, which library staff
would then photocopy and deliver in person, by mail, or by facsimile. The
Supreme Court ruled that this activity constituted fair dealing for the purpose
of research or private study.
[19]
In
its decision, the Supreme Court held that “the fair dealing exception, like
other exceptions in the Copyright Act, is a user’s right,” and so must
be given a large and liberal interpretation. “In order to maintain the proper
balance between the rights of a copyright owner and users’ interests, it must
not be interpreted restrictively” (CCH at paragraph 48). The Court then
set out a two step test to determine whether a given activity qualifies as fair
dealing: “In order to show that a dealing was
fair under section 29 of the Copyright Act, a defendant must prove: (1)
that the dealing was for the purpose of either research or private study and
(2) that it was fair” (CCH at paragraph 50).
[20]
The
second step, whether
the dealing is fair, “is a question of fact and depends on the facts of each
case” (CCH at paragraph 52). At paragraph 53, the Court laid out six
non-exhaustive factors to assist a Court’s fairness inquiry: “(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.”
[21]
I am also aware
that Bill C-32, An Act to amend the Copyright Act, 3rd Session,
40th Parliament, 59 Elizabeth II, 2010, section 21 would amend
section 29 to state that “Fair dealing for the purpose of research, private
study, education, parody or satire does not infringe copyright” (changes
underlined). However, this amendment serves only to create additional allowable
purposes; it does not affect the fairness analysis. As the parties agree that
the dealing in this case was for an allowable purpose, the proposed amendments
to the Act do not affect the outcome of this case and no more will be said
about Bill C-32.
B. Decision of the Board
(1) Were the copies made for
an allowable purpose?
[22]
The
Board accepted as
fact that a copy was made for an allowable purpose if the logging sticker so
indicated. Since the stickers on all copies falling into category 4 indicated
the copies were made for an allowable purpose, the Board therefore found that
copies falling into category 4 were made for an allowable purpose (Decision at
paragraph 87). The Board added, however, that where the logging sticker
indicated the purpose of the copy was “criticism or review,” it would
nevertheless define the purpose as “research or private study” (Decision at
paragraph 94). It explained that “a copy is not made for the purpose of
criticism unless it is incorporated into the criticism itself.” A copy made for
a person intending to engage in criticism is made for that person’s research,
not for criticism (Decision at paragraph 91).
[23]
The Board
also distinguished the purpose inquiry at the first step of the CCH case
from that at the second step at paragraph 88 of its reasons:
[I]n our opinion
CCH established a simple, clear-cut rule for this aspect of the
exception, leaving the finer assessment (establishing the predominant purpose)
to the analysis of what is or is not fair. Accordingly, as soon as the logging
sticker mentions that the dealing is for an allowable purpose, we must proceed
to the next step. Whether the predominant purpose is or is not an allowable
purpose is one of the factors that must be taken into account in deciding
whether or not the dealing is fair.
(2) Was the dealing fair?
[24]
At this
step, the Board considered the six factors suggested by the Court in CCH
to determine whether a copy for an allowable use is made fairly. The first such
factor is the purpose of the dealing. Here the Board took a more detailed look
at the copies, inquiring into “the real purpose or motive of the dealing.” The
Board then found that where more than one purpose is indicated on a logging
sticker, where copies are made at a student’s request, if at least one
of the purposes listed on the logging sticker was research or private study, it
would accept the predominant purpose of the copy to be research or private
study. However, with respect to copies made on a teacher’s initiative
for his or her students, the Board found that “most of the time, this real or
predominant purpose is instruction or ‘non-private’ study.” It held that “[a]
teacher, in deciding what to copy and for whom … is doing his or her job, which
is to instruct students. According to this criterion, the dealing therefore
tends to be unfair” (Decision at paragraph 98).
[25]
With respect
to the character of the dealing, the Board found that there were multiple
copies distributed to entire classes, and that copies were usually kept by
students in their binders for as long as students would ordinarily keep an
original, that is, the end of the year. The Board held that this weighed in
favour of unfair dealing (Decision at paragraph 100). Addressing the amount of
the dealing, the Board found that teachers generally limited themselves to
reproducing relatively short excerpts. At the same time, however, the Board
found it more than likely that class sets would be subject to numerous requests
for the same series of copies, thereby tending to make the dealing unfair
(Decision at paragraph 104). The Board also found that there was an alternative
to the dealing: schools could buy the originals (Decision at paragraph 107). In
terms of the nature of the work, the Board distinguished this case from CCH,
noting that in CCH the Supreme Court found a public interest in
disseminating judicial opinions, whereas in this case, the copies in question
were made of private material (Decision at paragraph 108). The Board also
examined the effect of the dealing on the work. It cited uncontradicted evidence
that textbook sales have shrunk over 30 percent in 20 years. Though it admitted
it could not define the exact reason for the decline in sales, it nevertheless
concluded that photocopying had had an unfair effect (Decision at paragraph
112).
[26]
Having addressed
the six factors, the Board then concluded at paragraph 118 of its reasons that
category 1, 2, and 3 copies constituted fair dealing, but category 4 copies
were unfair and therefore remunerable:
Even when
made solely for purposes allowed under the exception, a copy made by a teacher
with instructions to read the material, whether or not it was made at a
student’s request, and a copy made at the teacher’s initiative for a group of
students are simply not fair dealing. Their main purpose is instruction or
non-private study. These copies are kept year-round. The institution could
acquire the textbook rather than copy it, particularly since there is every
indication that photocopies in general (and particularly those of textbooks,
which represent 86 per cent of the activity for which Access claims
remuneration), compete with sales of these textbooks.
C. Analysis
(1) Standard of review
[27]
The standard of
review of the Board’s Decision on fair dealing is reasonableness. In Dunsmuir
v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 90 [Dunsmuir]
the Supreme Court ruled that “questions
of fact, discretion and policy as well as questions where the legal issues
cannot be easily separated from the factual issues generally attract a standard
of reasonableness” (at paragraph 51) that “[w]here the question is one of fact,
discretion or policy, deference will usually apply automatically” (Dunsmuir at
paragraph 53) and that “[d]eference will usually result where a tribunal is
interpreting its own statute or statutes closely connected to its function,
with which it will have particular familiarity” (Dunsmuir at paragraph
54).
[28]
With respect to the
first step of the CCH inquiry—whether the copies were made for an
allowable purpose—the parties are in agreement that the Board did not err. The
only question before the Court with respect to fair dealing is therefore
whether, having been made for an allowable purpose, the copies were made
fairly.
[29]
The
Supreme
Court clearly enunciated that whether something is fair “is a question of fact and depends on the
facts of each case” (CCH at paragraph 52).
[30]
The applicants argue
that the Decision should be reviewed on the standard of correctness, and cite Society
of Composers, Authors and Music Publishers of Canada v. Canadian
Association of Internet Providers, 2004 SCC 45, [2004] 2 S.C.R. 427 [SOCAN]
at paragraph 49 for support:
There is neither a
preclusive clause nor a statutory right of appeal from decisions of the
Copyright Board. While the Chair of the Board must be a current or retired judge,
the Board may hold a hearing without any legally trained member present. The Copyright
Act is an act of general application which usually is dealt with before
courts rather than tribunals. The questions at issue in this appeal are legal
questions. For example, the Board’s ruling that an infringement of copyright
does not occur in Canada when the place of transmission from which the
communication originates is outside Canada addresses a point of general legal
significance far beyond the working out of the details of an appropriate
royalty tariff, which lies within the core of the Board’s mandate.
[31]
The
intervener-1
cites the decision of this Court in Society of Composers, Authors and Music
Publishers of Canada v. Canadian Association of Internet Providers,
2002 FCA 166, [2002] 4 F.C. 3 at paragraph 105: “as a whole, the scheme
of the Copyright Act indicates that, on an application for judicial review, the
Court should apply a standard of correctness to the Board's interpretation of
those provisions of the Copyright Act that could also be the subject of
infringement proceedings in the courts.”
[32]
This
authority
does not sufficiently support the applicants’ or the intervener-1’s argument.
First, the SOCAN was decided prior to Dunsmuir, which put a
renewed emphasis on the importance of deference to administrative tribunals
when they interpret their own statute. Second, the dispute in the case at bar
lacks wide ranging legal significance. The judicial review turns on whether or
not a specific type of copying, as revealed in the volume study, qualifies as
fair dealing. This is a largely factual inquiry well within the competence of
the Board. Accordingly, the appropriate standard of review is reasonableness.
[33]
In
Dunsmuir at paragraph 47 the Supreme Court explained that there are two
elements to reasonableness: “In
judicial review, reasonableness is concerned mostly with the existence of
justification, transparency and intelligibility within the decision-making
process. But it is also concerned with whether the decision falls within a
range of possible, acceptable outcomes which are defensible in respect of the
facts and law.”
Therefore, this application can only be allowed if the Board’s reasons are not
transparent or intelligible, or do not fall within a range of acceptable
outcomes.
(2) Was the
dealing for an allowable purpose?
[34]
As
stated earlier, the parties agree that the copies were made for an allowable
purpose and that they therefore pass scrutiny at the first step of CCH.
The applicants do argue that the Board was wrong to state that a copy cannot be
made for the purpose of criticism unless it is incorporated into the criticism
itself. However, these remarks are obiter, as the Board simply accepted
as fact the purposes stated on the logging sticker at paragraph 87 of its reasons:
Since we
accept as fact, for the most part, that a copy was made for an allowable
purpose if the attached sticker so states, we could ignore most of the parties’
arguments on the subject. However, we do intend to make a few comments.
[35]
Accordingly,
as
there is no dispute over the first step of the CCH test, I turn to the
second step: the assessment of whether the dealing was fair.
(3) Was the
dealing fair?
[36]
The
Board’s
Decision that category 4 copies do not qualify as fair dealing was reasonable
for the following reasons.
(a)
The purpose of the dealing
[37]
The
applicants
argue primarily that the Board interpreted the Act overly restrictively,
contrary to the requirements of CCH cited at [18] above, especially
with respect to the purpose of the dealing. I disagree. The essence of the
Board’s Decision was that when a teacher photocopies copyrighted material for
his or her class, that use cannot be private study. As the respondent notes,
the applicants’ submissions effectively ask the Court to read the word
“private” out of “private study.”
[38]
The
applicants
argue that the adjective “private” is intended to exclude from fair dealing the
commercial use of copyright protected material that has no educational value. I
fail to see how the word “private” should be equated with “non-commercial.”
“Private study” presumably means just that: study by oneself. If Parliament had
wished to exclude only commercial exploitation it could have used words to the
effect of “non-commercial” or “not for profit.” A large and liberal
interpretation means that the provisions are given a generous scope. It does
not mean that the text of a statute should be given a meaning it cannot
ordinarily bear. When students study material with their class as a whole, they
engage not in “private” study but perhaps just “study.” Therefore, I believe
the Board’s Decision was reasonable.
[39]
The
applicants argue that their point is assisted by University of London Press,
Ltd. v. University
Tutorial Press, Ltd.,
[1916] 2 Ch. 601 [ULP]. In that case, the University of London Press held the copyright on
examinations given to students. The University Tutorial Press republished
portions of these examinations for sale in booklets intended to help students.
Justice Peterson found this was not private study and therefore not fair
dealing because the publications were “intended for educational purposes and
for the use of students” as opposed to private study (ULP at page 614).
The applicants are correct to state that, unlike the teachers in the case at
bar, the University Tutorial Press was clearly using the examinations for
commercial purposes. However, this is a largely irrelevant distinction. ULP does
not mention the commercial motives of the users as a relevant factor: it states
only that the dealing was unfair because it was for educational purposes,
rather than private study. In fact, it is unclear that profit factors into the
determination of whether or not a use was “private study” at all. After all,
the Supreme Court made clear in CCH that research for profit can still
qualify as fair dealing (CCH at paragraph 54). In short, there is no
reason to believe that the absence of profit renders the applicants’ dealing
fair.
[40]
In making this
finding, the Board was entitled to look beyond the fact that the logging
sticker might have stated that the copies were made for research or private
study. Indeed, CCH requires the Board to “make an objective assessment
of the user/defendant’s real purpose or motive in using the copyrighted work” (CCH
at paragraph 54). The Board was not precluded from finding a different
objective purpose at step 2 from the purpose it accepted as fact at step 1. The
Board’s step 1 inquiry merely checked whether the stated purpose of the applicants
was an acceptable one under the Act; it did not purport to ascertain the
objective purpose of the dealing.
[41]
This
approach
is consistent with the law in other jurisdictions as well, where this issue has
been squarely put before the courts. Though most foreign jurisprudence on the
matter relates to whether dealings fall under an allowable purpose—effectively
step 1 of the CCH test—they nevertheless support the proposition also
enunciated in CCH that courts must inquire into the true purpose of the
dealing. The intentions and motives of the user of another’s copyright
material are "most highly relevant on the issue of fair dealing, so far
as it can be treated as a discrete issue from the statutory purpose" (Pro
Sieben Media AG v. Carlton UK Television Ltd., [1999] 1 WLR 605 [Pro
Sieben].
[42]
In
Pro
Sieben,
the English Court of Appeal took this approach in the context of fair dealing
for news reporting:
It is not
necessary for the Court to put itself in the shoes of the infringer of the
copyright in order to decide whether the offending piece was published 'for the
purposes of criticism or review'. This court should not in my view give any
encouragement to the notion that all that is required is for the user to have
the sincere belief, however misguided, that he or she is criticising a work or
reporting current affairs. To do so would provide an undesirable incentive for
journalists, for whom facts should be sacred, to give implausible evidence as
to their intentions.
[43]
There
is
also ample jurisprudence on the point from United States courts. For
example, in Rubin v. Boston
Magazine Co.,
645 F. 2d 80 – Court of Appeals, 1st Circuit 1981 at 84, a writer
for a magazine claimed his use of charts from a scholarly work constituted fair
dealing for the purpose of research. The U.S. Court of Appeals for First
Circuit disagreed:
The defendants' claim that their purpose "was to acquaint
the community with research" is belied by the format and the contents of
the alleged infringing publication. They irrefutably showed that the
copyrighted material was used as a quiz to entertain readers of a magazine of
general circulation.
[44]
Similarly,
in American
Medical Colleges v. Mikaelian, 571 F. Supp. 144 – Dist. Court, ED Pennsylvania, 1983 at 152,
aff’d 734 F. 2d 3 (3d. Cir. 1984) the U.S. District Court for the Eastern
District of Pennsylvania ruled that the use of copyrighted material in medical
school standardized test preparation materials is not fair use for the purpose
of “teaching, scholarship or research”:
The defendants
have merely asserted that they are engaged in "teaching".
This naked averment does not suffice to show the applicability of [the fair use
provisions in]17 U.S.C. §
107. To be sure, Mikaelian and Multiprep give test preparation
courses, and provide instruction in test preparation as part of these courses.
However, Multiprep students do not receive a degree,
do not become qualified or certified in anything after taking the course, and
may not use the course as a prerequisite for further education and training in
any educational or vocational endeavor. It is thus at best unclear whether
Multiprep's cram course is the type of activity protected by 17 U.S.C.
§ 107.
[45]
The High Court of
New Zealand has taken such an approach as well. In Copyright Licensing Ltd.
v. University
of Auckland [2002] 3
N.Z.L.R. 76 at paragraph 35, Justice Salmon stated that “[t]he
question of purpose in any particular case is one of fact, but I emphasise the
need to consider the real purpose of the copying in the context of a fair
dealing section. Bona fides must be of crucial importance.” International
jurisprudence is therefore consistent with the view that the purpose must be
examined objectively.
[46]
Finally, the Board was also reasonable to take into consideration
whether a student requested the copies him or herself or whether the teacher
made the copies at his or her own initiative. Contrary to the applicants’
submissions, the Board did not require that the person requesting the copy be
the person undertaking the private study. Instead, the Board found that since
the students in question did not request the photocopies themselves, given the
instructional setting, it is likely that the purpose of the photocopying was
for the instruction of the students, not for private study. That is an entirely
legitimate conclusion based on the facts of the case and does not add any
additional requirement. Similarly, the Board was entitled to find that when a
student is instructed to read the material, it is likely that the purpose of
the copying was for classroom instruction rather than the student’s private
study.
(b)
The other CCH factor
[47]
The
Board’s findings with respect to the other CCH factors are also
reasonable. In terms of the character of the dealing, the applicants point to
testimony that students normally destroy or lose photocopies; however, the
Board made a finding of fact that students often keep their copies in binders
for an entire school year. In terms of the effect of the dealing, the Board
found on the evidence that it was likely that the dealing hurt textbook sales.
While the Board admitted there was no conclusive evidence to this effect, it did
not act unreasonably in considering the overall decline in sales when
conducting its fairness analysis.
(4) Conclusion
[48]
I
see no reviewable error in the Board’s finding that the dealing with Category 4
copies was unfair under the Act and the CCH test. It is important to
restate that the step 2 fairness inquiry is a factual one and therefore merits
a high degree of deference. Furthermore, the six factors outlined by the
Supreme Court do not comprise a checklist or necessary or sufficient
conditions; they are a non-exhaustive guideline. Therefore, the reasonableness
of the Board’s fairness Decision must be assessed based on the Board’s reasons
as a whole. From this point of view, it is clear that the Board came to the
conclusion that the applicants’ dealing was unfair as it did not properly
qualify as “research and private study.” This is a legitimate conclusion that
was open to the Board based on the evidence before it. The Board’s reasons are
also comprehensible and transparent, and therefore reasonable.
Section 29.4
A. The law
[49]
Section
29.4 of the
Act provides a separate exception that allows the reproduction of copyrighted
work for educational purposes. This exception does not fall under the category
of “fair dealing.” Rather, it stands on its own as a separate provision.
|
29.4 (1) It is not an
infringement of copyright for an educational institution or a person acting
under its authority
(a) to make a manual reproduction of a work onto a dry-erase
board, flip chart or other similar surface intended for displaying
handwritten material, or
(b) to make a copy of a work to be used to project an image of
that copy using an overhead projector or similar device
for the purposes of education or training on the premises of an
educational institution.
Reproduction for
examinations, etc.
(2) It is not an
infringement of copyright for an educational institution or a person acting
under its authority to
(a)
reproduce, translate or perform in public on the premises of the educational
institution, or
(b)
communicate by telecommunication to the public situated on the premises of
the educational institution a work or other subject-matter as required for a
test or examination.
Where work
commercially available
(3) Except in the case of manual reproduction, the exemption
from copyright infringement provided by paragraph (1)(b) and
subsection (2) does not apply if the work or other subject-matter is
commercially available in a medium that is appropriate for the purpose
referred to in that paragraph or subsection, as the case may be.
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29.4 (1)
Ne constitue pas une violation du droit d’auteur le fait, pour un
établissement d’enseignement ou une personne agissant sous l’autorité de
celui-ci, à des fins pédagogiques et dans les locaux de l’établissement :
a)
de faire une reproduction manuscrite d’une oeuvre sur un tableau, un bloc de
conférence ou une autre surface similaire destinée à recevoir des
inscriptions manuscrites;
b)
de reproduire une oeuvre pour projeter une image de la reproduction au moyen
d’un rétroprojecteur ou d’un dispositif similaire.
Questions d’examen
(2) Ne
constituent pas des violations du droit d’auteur, si elles sont faites par un
établissement d’enseignement ou une personne agissant sous l’autorité de
celui-ci dans le cadre d’un examen ou d’un contrôle :
a)
la reproduction, la traduction ou l’exécution en public d’une oeuvre ou de
tout autre objet du droit d’auteur dans les locaux de l’établissement;
b)
la communication par télécommunication d’une oeuvre ou de tout autre objet du
droit d’auteur au public se trouvant dans les locaux de l’établissement.
Accessibilité sur le marché
(3) Sauf cas de reproduction
manuscrite, les exceptions prévues à l’alinéa (1)b) et au paragraphe
(2) ne s’appliquent pas si l’oeuvre ou l’autre objet du droit d’auteur sont
accessibles sur le marché et sont sur un support approprié, aux fins visées
par ces dispositions.
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B. Decision of the Board
[50]
The
Board found that the section 29.4 exception does not apply to category 4
copies. In the interest of thoroughness, I reproduce its reasons on this point
in full:
[123]
The relevant provisions of the Act read as follows:
2 [...]
"commercially available" means, in relation to a work or other
subject-matter,
(a) available on the Canadian market within a reasonable time and
for a
reasonable price and may be located with reasonable effort, or
(b) for which a licence to reproduce, perform in public or
communicate to the public by telecommunication is available from a collective
society
within a reasonable time and for a reasonable price and may be located
with reasonable effort;
[...]
29.4(2) It is not an infringement of copyright for an educational
institution or a
person acting under its authority to
(a) reproduce [...] on the premises of the
educational institution
[...]
a work or other subject-matter as required for a test or
examination.
(3) Except in the case of manual reproduction, the
exemption from copyright
infringement provided by [...] subsection (2) does not
apply if the work or other
subject-matter is commercially available in a medium that
is appropriate for the
purpose referred to in that paragraph or subsection, as the
case may be.
[124] Access submits that copies made for examinations trigger
remuneration and should be subject to the tariff. A work is "commercially
available" if a licence is available "within a reasonable time and
for a reasonable price and may be located with reasonable effort". The
certification of a tariff fulfils these three requirements. The price, which is
set by the Board, is necessarily reasonable. The time and effort required to
claim the benefit of the tariff are insignificant.
[125] The Objectors argue that, on the contrary, subsection
29.4(3) of the Act concerns solely examinations that are published by
publishing houses for sale to educational institutions. In their submission, to
find otherwise would render the exception nugatory. If the intention had been
to not extend the exception to works for which a licence is available, it would
have been stipulated, as was done in subsections 30.8(8) and 30.9(6) of the Act,
that the exception "does not apply [if/where] a licence is available from
a collective society [...]".
[126] "Commercially available" must necessarily have
the meaning Access ascribes to the expression. It is used only three times,
namely, in the provision under examination and in the following provisions:
30.1(1) It is not an infringement of copyright for a
library, archive or museum
[...] to make, for the maintenance or management of its
permanent collection [...],
a copy of a work [...]
(a) if the original is rare or unpublished and is
(i) deteriorating, damaged or lost, or
(ii) at risk of deterioration or becoming damaged or lost;
(b) for the purposes of on-site consultation if the original cannot
be viewed, handled or listened to because of its condition or because of the
atmospheric conditions in which it must be kept;
(c) in an alternative format if the original is
currently in an obsolete format
or the technology required to use the original is
unavailable;
[...]
(2) Paragraphs (1)(a) to (c) do not apply where an
appropriate copy is commercially available in a medium and of a quality that is
appropriate for the purposes of subsection (1).
[...]
32(1) It is not an infringement of copyright for a person,
at the request of a
person with a perceptual disability, or for a non-profit
organization acting for his
or her benefit, to
(a) make a copy or sound recording of a literary,
musical, artistic or
dramatic work, other than a cinematographic work, in a
format specially
designed for persons with a perceptual disability;
(b) translate, adapt or reproduce in sign language a
literary or dramatic
work, other than a cinematographic work, in a format
specially designed
for persons with a perceptual disability; or
(c) perform in public a literary or dramatic work,
other than a
cinematographic work, in sign language, either live or in a
format specially
designed for persons with a perceptual disability.
[...]
(3) Subsection (1) does not apply where the work or sound
recording is
commercially available in a format specially designed to
meet the needs of any
person referred to in that subsection, within the meaning
of paragraph (a) of the
definition "commercially available".
[127] There are two components to the definition of
"commercially available". Paragraph (a) refers to the
acquisition of copies. Paragraph (b) refers to the acquisition of
licences. The relevant parts of the wording of subsections 29.4(3) and 30.1(2)
of the Act are identical; they must be interpreted in the same manner.
Subsection 32(3) specifically excludes access to a licence. To interpret
subsection 29.4(3), and thus, by extension, subsection 30.1(2), as suggested by
the Objectors, would render paragraph (b) of the definition meaningless.
[128] Moreover, the Objectors mistakenly rely on the comment in CCH
that the availability of a licence is not relevant. This comment concerns
only fair dealing. The exception for copies made by educational institutions
for examinations is a distinct exception. Furthermore, applying this proposal
in this context would contradict the very wording of paragraph (b) of
the definition.
[129]
The interpretation that we adopt does not make the
exception nugatory. The exception will be available to institutions not only
for the use of works that are not part of Access Copyright's repertoire, but
also for dealings for which Access offers no licence authorizing use of the
work in the appropriate format, such as examinations that must be taken
electronically.
C. Analysis
[51]
There
are two key phrases in section 29.4 that are relevant to this application: “on
the premises” and “in a medium that is appropriate for the purpose.”
(1) Standard of
review
[52]
The
parties submit that the standard of review of the Board’s Decision on section
29.4 is correctness. I agree.
(2) “On the
premises”
[53]
The
applicants argue that the phrase “on the premises” in paragraph 29.4(2)(a)
is intended to ensure that commercial publishers—for example, companies
producing preparatory materials for standardized tests—cannot benefit from the
section 29.4 exception, but that the exception is not meant to exclude teachers
(applicants’ memorandum of fact and law, at paragraph 107). I fail to see how
this proposition supports the applicants’ argument, as all parties agree that
paragraph 29.4(2)(a) is triggered. The question is whether the exemption
in paragraph 29.4(2)(a) is negated by subsection 29.4(3).
(3) “In a medium
that is appropriate for the purpose”
[54]
With
respect to subsection 29.4(3), the applicants argue that, while the copied
works were commercially available, the Board failed to consider whether they
were available in “a medium that is appropriate for the purpose.” In this case,
the applicants assert that the copied works were not available in an
appropriate medium. For example, if a teacher wanted to reproduce a portion of
a novel as part of a test, the only appropriate medium would be to photocopy
the passage onto the test. According to the applicants, the entire printed book
would not be an appropriate medium for the purpose (Ibidem, at paragraph
105).
[55]
The
respondent argues that the applicants confuse the words “medium” and “format.”
It argues that “medium” in this case refers to the broader category of “printed
matter.” The smaller category of “textbook” refers to a format, not a medium.
Accordingly, a textbook and a photocopy made from it would both be of the same
medium, albeit likely of different formats.
[56]
Adopting
either of these perspectives wholesale leads to absurd consequences. If a
photocopy is always the same medium as a book, schools will have to pay for a licence each time a
teacher wants to photocopy a three line quotation from an 800 page book. In
turn, under paragraph 29.4(1)(a) if the teacher instead wants to
write the quotation on a chalkboard, the school will not have to acquire a licence. On the other
hand, if a photocopy and a book are always different media, then that same
teacher can photocopy the first 799 pages of an 800 page book and claim the
exemption. Clearly, the determination of whether two works are of the same
medium requires a contextual determination on the facts of a given case.
[57]
I
take no position on whether the category 4 copies were indeed available in a
medium appropriate for the purpose, and intend to demonstrate only that the
Board’s reasons are flawed because they are silent on the meaning to be given
to the words "in a format appropriate for the purpose” and on the
application of that meaning to the facts of this case.
[58]
The
Board’s reasons can be interpreted in two ways, neither of which is
sufficient to ground its Decision.
Interpretation 1: The Board does not address whether the
works were available in a “medium appropriate for the purpose”
[59]
On
their face, the Board’s reasons simply do not address whether or not the works
were available in an appropriate medium; they only address whether the works
were “commercially available.” The rules of statutory interpretation create a
presumption against tautology: every word in a statute must be given meaning (see
Ruth Sullivan, Sullivan on the Construction of Statutes, 5th
ed. (Markham,
Ontario:
LexisNexis Canada Inc., 2008 at 210, citing R. v. Proulx, [2000]
1 S.C.R. 61 at paragraph 28). Therefore, “commercially available” cannot be
interpreted to mean “commercially available in a medium that is appropriate for
the purpose.”
[60]
The
Board’s limited finding at paragraph 129 of its reasons, cited at paragraph [50] above, that “The
exception will be available … for dealings for which Access offers no licence
authorizing use of the work in the appropriate format” (emphasis
added) cannot be interpreted as a finding that the works were available in a medium
appropriate for the purpose. Accepted rules of statutory interpretation dictate that a word must
be presumed to have the same meaning throughout an act and that different words
must be presumed to have different meanings (R. v. Zeolowski,
[1989] 1 S.C.R. 1378 at 732; Peach Hill Management Ltd. v. Canada [2000]
257 N.R. 193 at paragraph 12 (F.C.A.)). In this case, the Act uses both the
words format and medium.
[61]
The
word format appears on its own in the following provisions:
|
2 […]“perceptual disability” means a disability that
prevents or inhibits a person from reading or hearing a literary, musical,
dramatic or artistic work in its original format, and
includes such a disability resulting from:
(a)
severe or total impairment of sight or hearing or the inability to focus or
move one’s eyes,
(b)
the inability to hold or manipulate a book, or
(c)
an impairment relating to comprehension;
32. (1) It is not an infringement of copyright for a
person, at the request of a person with a perceptual disability, or for a
non-profit organization acting for his or her benefit, to
(a)
make a copy or sound recording of a literary, musical, artistic or dramatic
work, other than a cinematographic work, in a format specially
designed for persons with a perceptual disability;
(b)
translate, adapt or reproduce in sign language a literary or dramatic work,
other than a cinematographic work, in a format specially designed
for persons with a perceptual disability; or
(c)
perform in public a literary or dramatic work, other than a cinematographic
work, in sign language, either live or in a format specially
designed for persons with a perceptual disability.
Limitation
(2) Subsection (1) does not authorize the
making of a large print book.
Limitation
(3) Subsection (1) does not apply where the
work or sound recording is commercially available in a format
specially designed to meet the needs of any person referred to in
that subsection, within the meaning of paragraph (a) of the definition
“commercially available”.
30.9 (1) It is not an infringement of copyright
for a broadcasting undertaking to reproduce in accordance with this section a
sound recording, or a performer’s performance or work that is embodied in a
sound recording, solely for the purpose of transferring it to a
format appropriate for broadcasting, if the undertaking
(a)
owns the copy of the sound recording, performer’s performance or work and
that copy is authorized by the owner of the copyright;
(b)
is authorized to communicate the sound recording, performer’s performance or
work to the public by telecommunication;
(c)
makes the reproduction itself, for its own broadcasts;
(d)
does not synchronize the reproduction with all or part of another recording,
performer’s performance or work; and
(e) does not cause the
reproduction to be used in an advertisement intended to sell or promote, as
the case may be, a product, service, cause or institution.
|
2
[…] « déficience perceptuelle » Déficience qui empêche la lecture
ou l’écoute d’une oeuvre littéraire, dramatique, musicale ou artistique sur
le support original ou la rend difficile, en raison notamment:
a)
de la privation en tout ou en grande partie du sens de l’ouïe ou de la vue ou
de l’incapacité d’orienter le regard;
b)
de l’incapacité de tenir ou de manipuler un livre;
c)
d’une insuffisance relative à la compréhension.
32. (1) Ne
constitue pas une violation du droit d’auteur le fait pour une personne
agissant à la demande d’une personne ayant une déficience perceptuelle, ou
pour un organisme sans but lucratif agissant dans l’intérêt de cette
dernière, de se livrer à l’une des activités suivantes :
a)
la production d’un exemplaire ou d’un enregistrement sonore d’une oeuvre littéraire,
dramatique — sauf cinématographique —, musicale ou artistique sur un
support destiné aux personnes ayant une déficience perceptuelle;
b)
la traduction, l’adaptation ou la reproduction en langage gestuel d’une
oeuvre littéraire ou dramatique — sauf cinématographique — fixée sur
un support pouvant servir aux personnes ayant une déficience perceptuelle;
c)
l’exécution en public en langage gestuel d’une oeuvre littéraire, dramatique
— sauf cinématographique — ou l’exécution en public d’une telle oeuvre fixée
sur un support pouvant servir aux personnes ayant une déficience
perceptuelle.
Exception
(2) Le paragraphe (1) n’a
pas pour effet de permettre la production d’un livre imprimé en gros
caractères.
Existence d’exemplaires sur le marché
(3) Le paragraphe (1) ne
s’applique pas si l’oeuvre ou l’enregistrement sonore de l’oeuvre est
accessible sur le marché sur un tel support, selon l’alinéa a) de la
définition « accessible sur le marché ».
30.9 (1)
Ne constitue pas une violation du droit d’auteur le fait pour une entreprise
de radiodiffusion de reproduire, en conformité avec les autres dispositions
du présent article, un enregistrement sonore ou une prestation ou oeuvre
fixée au moyen d’un enregistrement sonore aux seules fins de les
transposer sur un support en vue de leur radiodiffusion, pourvu que :
a)
elle en soit le propriétaire et qu’il s’agisse d’exemplaires autorisés par le
titulaire du droit d’auteur;
b)
elle ait le droit de les communiquer au public par télécommunication;
c)
elle réalise la reproduction par ses propres moyens et pour sa propre
diffusion;
d)
la reproduction ne soit pas synchronisée avec tout ou partie d’une autre
oeuvre ou prestation ou d’un autre enregistrement sonore;
e) elle ne soit pas utilisée
dans une annonce qui vise à vendre ou promouvoir, selon le cas, un produit,
une cause, un service ou une institution.
|
[62]
The
word medium appears on its own in the following provisions:
|
13. (1) Subject to this Act, the author of a work
shall be the first owner of the copyright therein.
[…]
(4) The owner of the copyright in any work may
assign the right, either wholly or partially, and either generally or subject
to limitations relating to territory, medium or sector of the
market or other limitations relating to the scope of the assignment, and
either for the whole term of the copyright or for any other part thereof, and
may grant any interest in the right by licence, but no assignment or grant is
valid unless it is in writing signed by the owner of the right in respect of
which the assignment or grant is made, or by the owner’s duly authorized
agent.
38.1 (1) Subject to this section, a copyright
owner may elect, at any time before final judgment is rendered, to recover,
instead of damages and profits referred to in subsection 35(1), an award of
statutory damages for all infringements involved in the proceedings, with
respect to any one work or other subject-matter, for which any one infringer
is liable individually, or for which any two or more infringers are liable
jointly and severally, in a sum of not less than $500 or more than $20,000 as
the court considers just.
[…]
Special
case
(3) Where
(a) there is more than one work or
other subject-matter in a single medium, and
(b) the awarding of even the minimum amount
referred to in subsection (1) or (2) would result in a total award that, in
the court’s opinion, is grossly out of proportion to the infringement, the
court may award, with respect to each work or other subject-matter, such lower
amount than $500 or $200, as the case may be, as the court considers just.
79. In this Part,
“audio recording medium” means a recording medium, regardless of its
material form, onto which a sound recording may be reproduced and that is of
a kind ordinarily used by individual consumers for that purpose, excluding
any prescribed kind of recording medium;
“blank audio recording medium” means
(a) an audio recording medium onto which no
sounds have ever been fixed, and
(b) any other prescribed audio recording
medium;
80. (1) Subject to subsection (2), the act of
reproducing all or any substantial part of
(a) a musical work embodied in a sound
recording,
(b) a performer’s performance of a musical
work embodied in a sound recording,
or
(c) a sound recording in which a musical work, or a
performer’s performance of a musical work, is embodied onto an audio
recording medium for the private use of the person who makes the
copy does not constitute an infringement of the copyright in the musical
work, the performer’s performance or the sound recording.
|
13. (1) Sous réserve
des autres dispositions de la présente loi, l’auteur d’une oeuvre est le
premier titulaire du droit d’auteur sur cette oeuvre.
[…]
(4) Le titulaire du
droit d’auteur sur une oeuvre peut céder ce droit, en totalité ou en partie,
d’une façon générale ou avec des restrictions relatives au
territoire, au support matériel, au secteur du marché ou à la portée de la
cession, pour la durée complète ou partielle de la protection; il
peut également concéder, par une licence, un intérêt quelconque dans ce
droit; mais la cession ou la concession n’est valable que si elle est rédigée
par écrit et signée par le titulaire du droit qui en fait l’objet, ou par son
agent dûment autorisé.
38.1 (1) Sous
réserve du présent article, le titulaire du droit d’auteur, en sa qualité de
demandeur, peut, avant le jugement ou l’ordonnance qui met fin au litige,
choisir de recouvrer, au lieu des dommages-intérêts et des profits visés au
paragraphe 35(1), des dommages-intérêts préétablis dont le montant, d’au
moins 500 $ et d’au plus 20 000 $, est déterminé selon ce que le tribunal
estime équitable en l’occurrence, pour toutes les violations — relatives à
une oeuvre donnée ou à un autre objet donné du droit d’auteur — reprochées en
l’instance à un même défendeur ou à plusieurs défendeurs solidairement
responsables.
[…]
Cas particuliers
(3) Dans les cas où
plus d’une oeuvre ou d’un autre objet du droit d’auteur sont incorporés dans
un même support matériel, le tribunal peut, selon ce qu’il estime
équitable en l’occurrence, réduire, à l’égard de chaque oeuvre ou autre objet
du droit d’auteur, le montant minimal visé au paragraphe (1) ou (2), selon le
cas, s’il est d’avis que même s’il accordait le montant minimal de
dommages-intérêts préétablis le montant total de ces dommages-intérêts serait
extrêmement disproportionné à la violation.
79. Les
définitions qui suivent s’appliquent à la présente partie.
« support audio »
« support audio » Tout support
audio habituellement utilisé par les consommateurs pour reproduire des
enregistrements sonores, à l’exception toutefois de ceux exclus par
règlement.
« support audio vierge »
« support audio vierge » Tout
support audio sur lequel aucun son n’a encore été fixé et tout autre support
audio précisé par règlement.
80. (1) Sous
réserve du paragraphe (2), ne constitue pas une violation du droit d’auteur
protégeant tant l’enregistrement sonore que l’oeuvre musicale ou la
prestation d’une oeuvre musicale qui le constituent, le fait de
reproduire pour usage privé l’intégralité ou toute partie importante de cet
enregistrement sonore, de cette oeuvre ou de cette prestation sur un support
audio.
|
[63]
Finally,
the words medium and format both appear in section 30.1:
|
30.1
(1) It is not an infringement of copyright for a library,
archive or museum or a person acting under the authority of a library,
archive or museum to make, for the maintenance or management of its permanent
collection or the permanent collection of another library, archive or museum,
a copy of a work or other subject-matter, whether published or unpublished,
in its permanent collection
(a)
if the original is rare or unpublished and is
(i) deteriorating, damaged or lost, or
(ii) at risk of deterioration or becoming damaged or lost;
(b)
for the purposes of on-site consultation if the original cannot be viewed,
handled or listened to because of its condition or because of the atmospheric
conditions in which it must be kept;
(c) in an alternative format if the original is currently in an
obsolete format or the technology required to use the original is unavailable;
(d)
for the purposes of internal record-keeping and cataloguing;
(e)
for insurance purposes or police investigations; or
(f)
if necessary for restoration.
Limitation
(2) Paragraphs (1)(a) to (c) do not apply where an appropriate
copy is commercially available in a medium and of a quality that is
appropriate for the purposes of subsection (1).
|
30.1 (1) Ne
constituent pas des violations du droit d’auteur les cas ci-après de
reproduction, par une bibliothèque, un musée ou un service d’archives ou une
personne agissant sous l’autorité de ceux-ci, d’une oeuvre ou de tout autre
objet du droit d’auteur, publiés ou non, en vue de la gestion ou de la
conservation de leurs collections permanentes ou des collections permanentes
d’autres bibliothèques, musées ou services d’archives :
a)
reproduction dans les cas où l’original, qui est rare ou non publié, se
détériore, s’est abîmé ou a été perdu ou risque de se détériorer, de s’abîmer
ou d’être perdu;
b)
reproduction, pour consultation sur place, dans les cas où l’original ne peut
être regardé, écouté ou manipulé en raison de son état, ou doit être conservé
dans des conditions atmosphériques particulières;
c)
reproduction sur un autre support, le support original étant désuet ou
faisant appel à une technique non disponible;
d)
reproduction à des fins internes liées à la tenue de dossier ou au
catalogage;
e)
reproduction aux fins d’assurance ou d’enquêtes policières;
f) reproduction
nécessaire à la restauration.
Existence d’exemplaires sur le marché
(2) Les alinéas (1)a)
à c) ne s’appliquent pas si des exemplaires de l’oeuvre ou de l’autre objet
du droit d’auteur sont accessibles sur le marché et sont sur un support et
d’une qualité appropriés aux fins visées au paragraphe (1).
|
[64]
Since
the Act uses both
the words format and medium, they cannot have the same meaning. Accordingly,
even if one interprets the Board’s reasons as finding that the works were
available in an appropriate format, they nevertheless cannot be
understood as a finding that the works were available in an appropriate medium.
Interpretation 2: When the Board wrote
format it meant medium
[65]
It
could be the case that when the Board wrote format, it meant medium. This
interpretation is bolstered by the fact that the French version of the statute
does not distinguish between medium and format. In both cases, it uses the word
«support».
The French and English versions of legislation are equally authoritative.
[66]
However,
even assuming that the Board meant medium when it wrote format, it does not
discuss what is and what is not appropriate, nor does it make any
factual findings based on the evidence before it. It does not discuss the
nature of any of the photocopies made from textbooks or discuss how many of
them were made for the purposes of examination. It does not refer to the
evidence before it regarding the photocopies at all. Simply put, the Board uses
the word “format” but does not actually discuss whether or not the works were
actually available in an acceptable format.
[67]
A weak
reference to an appropriate format simply cannot justify a finding under
section 29.4 that the works were available in a medium appropriate for the
purpose, even if “medium” is interpreted to mean “format.”
Conclusion
[68]
In this
case, the
Board was required to determine whether the category 4 copies qualified as fair
dealing and whether they qualified under the exception in section 29.4 of the
Act. With respect to fair dealing, the Board laid out the appropriate test from
CCH and, through clear and comprehensible reasons, came to a justifiable
conclusion. I see no reviewable error in respect of this issue.
[69]
However, with respect to
the section 29.4 exception, the
Board failed to address an issue that was essential to the disposition of the
matter before it. The issue required that the words "in a medium
appropriate for the purpose" be defined and applied to the facts of this
case.
[70]
This
Court could endeavour to fulfill this task. However, it is for the Board, in
first instance, to interpret its own statute, with which it has particular
familiarity, and to make the appropriate findings of fact.
[71]
I would therefore
allow the application and remit the Decision to the Copyright Board (a) to
determine the meaning of the words "in a medium appropriate for the
purpose", as found in subsection 29.4(3); and (b) to assess whether
category 4 copies come within the meaning of these words.
[72]
In light of the
mixed success of the application, I would award no costs.
“Johanne
Trudel”
“I
agree.
Pierre Blais, C.J.”
“I
agree.
Marc
Noël”
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