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The Supreme Court's "copyright quintet" and #cdnpse

[Note: this wiki reproduces a blog entry originally posted 22 Oct. 2012. That entry has become such a magnet for spam comments that I have deleted it and transferred the content here, in the hope that a different URL will shake the spam.]

On October 11, AU's president sent an e-mail to all staff about five copyright cases decided by the Supreme Court this summer, and their implications for Canadian higher education, given the ongoing controversy with Access Copyright. As a supplement to that update, here is a more detailed discussion of the Supreme Court's "copyright quintet," with links to further reading if you're interested.

So what happened?

In July, the Supreme Court of Canada issued decisions in five copyright cases concerning collecting societies and fair dealing. In some cases, collecting societies pursued actions against various businesses and institutions as attempts to curb - if not redefine - “fair dealing”: the flexible exemption in copyright law that lets users copy modest portions of copyrighted works. In other cases, targeted institutions pursued actions against the collecting societies: Alberta (Education) et al v. Access Copyright saw every province and territory (except Quebec) take on Access Copyright (AC) for a K-12 educational copying tariff. In all five cases, far from curbing fair dealing, the Supreme Court decided emphatically in favour of fair dealing as a user’s right, “reaffirm[ing],” as CAUT says, “the right to copy portions of materials without permission or payment for non-commercial research and education purposes.” This year’s “quintet” of decisions reinforce a large and liberal interpretation of study and research, as well as fair dealing itself; in addition, they introduce the principle of technological neutrality in copyright (meaning no differences among media, e.g. between print and digital, should apply in copyright law).

Fair Dealing: Now a User's Right

The Supreme Court’s 2004 CCH v. LSUC case introduced the principle of fair dealing as a user’s statutory “right,” not just a defence to be used in deciding specific infringement cases. This year’s decisions, especially that of Alberta v. AC, emphasized and expanded this principle. The decisions entrench a large and liberal definition both of private study (one of fair dealing’s enumerated purposes), such that it now encompasses classroom instruction (e.g. copying by teachers for students), and of research:

Since ’research’ and ’private study’ both qualify as fair dealing purposes under s. 29, we should not interpret the term ’research’ more restrictively than ’private study’. Limiting research to creative purposes would also run counter to the ordinary meaning of ’research’, which can include many activities that do not demand the establishment of new facts or conclusions. It can be piecemeal, informal, exploratory, or confirmatory. It can in fact be undertaken for no purpose except personal interest. It is true that research can be for the purpose of reaching new conclusions, but this should be seen as only one, not the primary component of the definitional framework. (Alberta v. AC)

The Supreme Court’s emphasis on and expansion of fair dealing - for private study, research, and teaching especially - anticipate Bill C-11's explicit protections for educational fair dealing; moreover, they stand to do nothing less than “eviscerate AC’s business model” (as Michael Geist rather gruesomely puts it).

Technological Neutrality: This Is Huge

In deciding Electronic Software Association of Canada v. SOCAN, the Supreme Court provided important new language on technological neutrality as a principle of copyright law: that is, the irrelevance of a given medium to questions of copyright infringement. ESAC v. SOCAN and several others among the five cases concerned collecting societies’ proposed tariffs for digital copying and reproduction practices; this case involved “Whether transmission of musical works contained in a video game through an Internet download is a communication to the public” - and whether a new tariff, certified by the Copyright Board, could be imposed on said music transmission. The Supreme Court decided against the tariff:

the Board's conclusion that a separate, ’communication’ tariff applied to downloads of musical works violates the principle of technological neutrality, which requires that the Copyright Act apply equally between traditional and more technologically advanced forms of the same media ... The principle of technological neutrality is reflected in s. 3(1) of the Act, which describes a right to produce or reproduce a work ’in any material form whatever’. In our view, there is no practical difference between buying a durable copy of the work in a store, receiving a copy in the mail, or downloading an identical copy using the Internet. The Internet is simply a technological taxi that delivers a durable copy of the same work to the end user. (ESAC v. SOCAN)

The ramifications of the technological neutrality principle for Canadian copyright law could be dramatic, especially for C-11's controversial “anti-circumvention” provisions to protect the “digital locks” (like DRM) placed on devices and content. As Geist notes, these provisions are decidedly “non-neutral” and could face a “rough ride” if challenged in court. The Supreme Court’s new emphasis on technological neutrality makes Canadian copyright law more robust and “future-proof,” in light of the constant introduction of new and unforseen recording and reproduction technologies. Technological neutrality is particularly welcome to Athabasca University, as this principle may also have implications for the cumbersome restrictions that C-11 places on digital and distance-delivery teaching materials.

Going Forward

The whole “quintet” of cases and Alberta v. AC in particular vindicate Athabasca University’s principled decision to opt out of the AUCC-Access Copyright model license that became so controversial in the spring. As Geist writes,

The cumulative effect is clear: schools can rely more heavily on fair dealing for the copying that takes place on campus and in the classroom. This includes copies made by teachers for students for instructional purposes, copies that previously formed a core part of Access Copyright's claim of the necessity of a licence. Indeed, it will be very difficult for educational institutions to justify the Access Copyright licence in light of this decision.

However, while the Supreme Court has sent a strong and clear message in Alberta v. AC, it has done so as a narrow majority (5 to 4), and its decision does not actually do away with AC’s tariffs and licenses; its ruling ultimately sends the question back to the Copyright Board for “reconsideration" of its certification of AC’s tariffs and licenses. The Copyright Board is essentially AC's enforcer - a body that has thoroughly succumbed to “regulatory capture” - so the Copyright Board's "reconsideration" will need to be closely watched by all Canadian educational institutions. In addition, some IP law experts, like U of Toronto’s Ariel Katz, argue that C-11 harbours provisions for collecting societies that could still legitimize a “big copyright grab” by Access Copyright, a detail of the legislation that warrants further analysis and discussion among law experts and Canadian educators.

Nevertheless, the Supreme Court rulings go far to restore balance between users and creators’ rights in Canadian copyright law that bode extremely well for all Canadian educators, whom Geist exhorts to “reexamine their copyright practices with the view to adopting a far more aggressive, user-oriented approach.” In closing on this point, though, I want to emphasize that the Supreme Court rulings neither open the floodgates to a copying “free-for-all” nor compromise the livelihoods of creators. SOCAN v. Bell demonstrates that certain kinds of copying serve not as piracy to depress sales but as promotion to drive sales. Similarly, Alberta v. AC challenged AC to produce evidence that classroom copying hurts textbook sales; the collecting society could not produce any such evidence. This summer’s rulings and the anticipated affordances of C-11 stand to make teaching and its logistics much easier and more flexible for educators, but not at the expense of creators. More likely at the expense of the collecting societies, which have spent a lot of money and demanded a lot of people’s time in attempting to persuade the public of their continued relevance - which no less a body than the nation’s top court has cast into grave doubt.

References and Further Reading:

CAUT. “Supreme Court copyright decisions uphold fair dealing rights, marking big victory for education and research.”

Geist, Michael. “Beyond users rights: Supreme Court entrenches technological neutrality as new copyright principle.”

---. “How the Supreme Court doubled down on users rights in copyright.”

---. “Why the Supreme Court’s copyright decisions eviscerate Access Copyright’s business model.”

Katz, Ariel. “Bill C-11 and the Big Access Copyright grab.”

Knopf, Howard. “A proud and progressive day for Canadian copyright law.”

Trosow, Sam. “Reactions to Supreme Court’s copyright pentalogy: news and commentary”