Federal Appeal

Intellectual Property



Board erred in ignoring expert evidence

Copyright Board of Canada certified royalty rates to be collected by Canadian Copyright Licensing Agency for reproduction of works in its repertoire by school institutions during two tariff periods. Board applied “volume times value” methodology, pursuant to which volume of compensable copying was multiplied by estimated value of each page of copied work for one of four genres included in agency’s repertoire: books, periodicals, newspapers and consumables. Agency brought application for judicial review. Application granted in part. Only reviewable error concerned coding errors on repertoire; this matter was to be remitted for reconsideration. Board erred in ignoring expert evidence provided by agency to correct and clarify breadth of repertoire as described in volume study. In circumstances of this case, it was not unreasonable for board to infer that copying of one or two pages of book did not constitute reproduction of “substantial part of work” within meaning of s. 3 of Copyright Act. Board did not disregard burden of proof. Board’s purpose was to come to its own “impression” of what was fair in best manner possible considering that both parties had agreed to use aggregate data to establish volume of copying during relevant period. Board did not breach its duty to act fairly. Board used methodology that was simply practical and mathematical way of reflecting relative weight given by board to various factors used to form its “impression.” Board’s overall determination that large portion of exposures were fair was not unreasonable. Board followed previous cases where only quantitative proportion of work was considered, and there was no error in board’s reasoning in this respect. Board did not err with respect to character of dealing, in fair dealing analysis. In explaining why looking at aggregate volume of copies was not helpful to its assessment of whether copies were widely distributed, board reasonably applied Supreme Court of Canada’s teachings in particular cases. Board did not err with respect to effect of dealing. In terms of realistic alternatives, this factor did not support finding of unfairness given that agency’s evidence on this point was greatly limited in scope and detail. Agency did not establish board’s assessment of amount of exposures that should be excluded for compensability on basis of fair dealing pursuant to s. 29 of Act was unreasonable.

Canadian Copyright Licensing Agency v. British Columbia (Ministry of Education) (2017), 2017 CarswellNat 163, 2017 FCA 16, M. Nadon J.A., Eleanor R. Dawson J.A., and Johanne Gauthier J.A. (F.C.A.).

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