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Copyright Board makes controversial schools ruling

|Written By Paul Brent

The Copyright Board of Canada doesn’t make a huge number of decisions during any given year, so its June copyright tariff ruling for primary and secondary schools certainly got the attention of all involved.

In a decision that was two years in the making, the board decided to raise the fees on copied material to $5.16 per student, slightly more than double the amount that was previously paid by schools for using photocopies as substitutes for buying books.

With the decision, it essentially split the difference between the $2.43-per-student rate proposed by provincial ministers of education (other than Quebec) along with Ontario school boards and Access Copyright’s claim for $8.92 per student per year.

In claiming victory, Access Copyright stated that “the Copyright Board accepted Access Copyright’s position that governments were not paying a fair price for the hundreds of millions of photocopies used in schools as substitutes for buying the books.”

Copyright lawyer Howard Knopf, who had been following the case closely, described the decision as “bad news for Canadian educators, librarians, students, and taxpayers. The price of knowledge just went up a lot today in Canada.”

On the same day, Access Copyright said the new, higher tariff “represents less than .05 per cent of the cost of running Canada’s education system and can be absorbed without difficulty.”

Knopf, however, noted the Copyright Board “accepted Access [Copyright’s] argument, without supporting evidence, that more than 99 per cent of works reproduced by educational institutions are currently part of its repertoire.

That seems to be very counterintuitive, considering the vast number of publishers and authors from around the world who have never heard of Access Copyright and the iffy international payment system for reprographic rights.”

Knopf estimated taxpayers in English Canada will ultimately pay out $12 million more per year as a result of the decision.

Eight months later, Knopf is more than just an interested observer. He is now representing the Canadian Association of University Teachers in an appeal of the tariff decision launched by educators.

“My client was very concerned that the decision would have a significant adverse effect in the post-secondary world because, if you think fair dealing is important from [kindergarten] to Grade 12, and it is, it is a whole lot more important as you go upstairs in the hierarchy of the post-secondary world.

The association applied and was granted leave to intervene in the appeal, and since that time the three Canadian publishers’ associations have applied for leave to intervene.”

Knopf says his client’s action is unrelated to any efforts by the grade-school educators represented by the Council of Ministers of Education, Canada.

“Although both organizations are sympathetic to the notion of fair dealing, my client has been quite critical of how [the council] handled the case at the Copyright Board and indeed some of its arguments in the Court of Appeal,” he says.

Knopf contends the Copyright Board’s tariff ruling was a dramatic reversal from the landmark CCH Canadian Ltd. v. Law Society of Upper Canada decision that “clarified very clearly that users’ rights are just as important as copyright owners’ rights and should be given what the [Supreme Court] chief justice, Beverley McLachlin, said [was] ‘a large liberal interpretation.’” The June Copyright Board decision “retreated in the view of many from the CCH case,” he argues.

The appeal of the board’s decision will be closely followed by copyright law observers, says Samuel Trosow, an associate professor at the University of Western Ontario.

“What worries me about that case is that even though the educators, the K-12 group, did a very, very . . . poor job creating a good record in that case, there was language in the Copyright Board decision that could perhaps be taken out of context and not just limited to the particular facts in that case but interpolated out generally even further, perhaps even into the college and university environment.

“I don’t think that there is any basis for saying that if an instructor is using materials for teaching purposes and asks the class to read it, that that is necessarily outside of fair dealing,” Trosow says.

“One gets that idea from the Copyright Board decision, which is quite understandable perhaps based on the record that was there, but I wouldn’t say that as a matter of law.”

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