Alberta (Education) v. Canadian Copyright Licensing Agency (Access Copyright)
Supreme Court of Canada
The judgment of McLachlin C.J. and LeBel, Abella, Moldaver and Karakatsanis JJ. was delivered by Abella J. –
 Many authors create textbooks and other literary works to sell to primary and secondary level educational institutions across Canada. Photocopying short excerpts of these works is a common practice in Canadian schools, and is often used as an important administrative and teaching tool by teachers. The issue in this appeal is whether photocopies made by teachers to distribute to students as part of class instruction can qualify as fair dealing under the Copyright Act, R.S.C. 1985, c. C-42.
 Access Copyright represents authors and publishers of literary and artistic works in printed materials which are subject to copying. It administers the reproduction of published materials by issuing licences and collecting and distributing royalties to affiliated copyright owners. When Access Copyright does not reach a licensing or royalty agreement with users who photocopy published works in its repertoire, it can apply to the Copyright Board to certify a royalty in the form of a tariff.
 At elementary and secondary schools across Canada, teachers often make photocopies of portions of textbooks or other published works which are part of Access Copyright’s repertoire. Between 1991 and 1997, Access Copyright reached royalty agreements with each of the provinces and territories (other than Quebec) with respect to the reproduction of its repertoire for use in these schools. In 1999, all the provincial parties and the Ontario School Boards (the “Coalition”) signed a five- year agreement, providing for royalty increases based on a per student calculation, not on the number of pages copied.
 When the time came to renew the royalty agreement in 2004, Access Copyright wanted the royalties revised to reflect the volume and content of what was being copied. The parties were unable to reach an agreement, based largely on the fact that they could not agree on how a “volume study” was to be conducted. Access Copyright therefore filed a proposed tariff with the Copyright Board in accordance with s. 70.13(2) of the Copyright Act.
 During the course of the proceedings before the Board, the parties eventually agreed to the terms of a volume study. It was carried out between February 2005 and March 2006. In accordance with the agreed-upon terms, information was recorded by observers on stickers posted next to each photocopier, including who made the copy, who would be using the copy, and the purpose of the copy.
 Based on information collected from the stickers, each incident of photocopying was divided into one of four categories. The first three dealt with copies made by teachers either for themselves or at the request of a student. All parties agreed that copies falling under these categories – about 1.7 million pages – constituted fair dealing.
 The fourth category (Category 4) dealt with copies of works made at the teachers’ initiative with instructions to students that they read the material. Teachers would photocopy short excerpts from textbooks and distribute those copies to students as a complement to the main textbook the students used.
 At a hearing before the Board, Access Copyright argued that the Category 4 copies did not meet the test for fair dealing identified by McLachlin C.J. in CCH Canadian Ltd. v. Law Society of Upper Canada,  1 S.C.R. 339. The Coalition countered with the argument that the approximately 16.9 million pages in Category 4 should be excluded from any tariff because the copies constituted fair dealing under ss. 29 or 29.1 of the Copyright Act.
 Based on the evidence from the stickers used in the volume study, the Board concluded that the Category 4 copies were made for the allowable purpose of “research or private study” under s. 29 of the Act, but found, applying the CCH fairness factors, that the Category 4 copies did not constitute fair dealing and were therefore subject to a royalty. The Board also rejected the Coalition’s argument that the Category 4 copies fell within the exception for educational institutions under s. 29.4 of the Act ( C.B.D. No 6 (QL)).
 On judicial review, the Federal Court of Appeal remitted the s. 29.4 issue back to the Board, stating that the Board failed to address an aspect of the “educational institutions” test. But the court found the Board’s conclusion that the Category 4 copies were not fair dealing to be reasonable (2010 FCA 198,  3 F.C.R. 223).
 The Coalition appealed only the fair dealing issue to this Court, maintaining that the Board’s conclusion was not in accordance with the CCH test and was therefore unreasonable. I agree and would therefore remit the matter to the Board for reconsideration in accordance with these reasons.
 As discussed in the companion appeal Society of Composers, Authors and Music Publishers of Canada v. Bell Canada, 2012 SCC 36 (SOCAN v. Bell) the concept of fair dealing allows users to engage in some activities that might otherwise amount to copyright infringement. The test for fair dealing was articulated in CCH as involving two steps. The first is to determine whether the dealing is for the allowable purpose of “research or private study” under s. 29, “criticism or review” under s. 29.1, or “news reporting” under s. 29.2 of the Copyright Act. The second step of CCH assesses whether the dealing is “fair”. The onus is on the person invoking “fair dealing” to satisfy all aspects of the test. To assist in determining whether the dealing is “fair”, this Court set out a number of fairness factors: the purpose, character, and amount of the dealing; the existence of any alternatives to the dealing; the nature of the work; and the effect of the dealing on the work.
 The Board accepted that where the photocopier stickers indicated that the copying was for an allowable purpose – “research” or “private study” – no further inquiry under the first step of the CCH test was required. The Board also found that where the sticker indicated that the purpose of the copy was “criticism or review”, the purpose was also to be treated as “research or private study”.
 Before this Court, there was generally no dispute that the first step in CCH was met and that the dealing – photocopying – was for the allowable purpose of research or private study. The dispute essentially centred on the second step of the test: whether the Category 4 copies were “fair” in accordance with the CCH factors. I have concerns over how the Board applied several of those factors.
 In my view, the key problem is in the way the Board approached the “purpose of the dealing” factor. The Board concluded that since the Category 4 copies were not made as a result of a student request, they were no longer for the purpose of research or private study at the second stage. This was based on its observation that in CCH,the Great Library was making copies at the request of lawyers. Because there was no such request for Category 4 copies, the Board concluded that the predominant purpose was that of the teacher, namely, “instruction” or “non-private study”. The Board therefore found that this factor tended to make the Category 4 copies unfair. The Federal Court of Appeal, agreeing with the Board, stated that the real purpose or motive behind the copies was instruction, not private study.
 Access Copyright argued that the purpose of the dealing should be seen, as it was by the Board and the Federal Court of Appeal, from the copier’s, or teacher’s perspective. It relied particularly on three key Commonwealth cases which found the copier’s purpose in reproducing the work to be determinative. In Sillitoe v. McGraw-Hill Book Company (U.K.) Ltd.,  F.S.R. 545 (Ch. D.), an importer and seller of “study notes” which reproduced a substantial part of a literary work, argued that the notes were intended as a supplementary aid for students engaging in research and private study. The court held that the seller was unable to invoke the fair dealing exception since it was not itself engaged in private study or research, but was merely facilitating this activity for others (p. 558).
 The court in Sillitoe relied on University of London Press, Ltd. v. University Tutorial Press, Ltd.,  2 Ch. 601, where a publisher issued a publication reproducing old exams and sold it to students who were preparing for their own exams. The publisher argued that the publication amounted to fair dealing “for the purposes of private study” by university students preparing for exams. The court held that the company could not bring itself within the fair dealing exception, rejecting the argument that the purpose of the publication was “private study”:
It could not be contended that the mere republication of a copyright work was a “fair dealing” because it was intended for purposes of private study; nor, if an author produced a book of questions for the use of students, could another person with impunity republish the book with the answers to the questions. Neither case would, in my judgment, come within the description of “fair dealing.” [p. 613]
 In the New Zealand case Copyright Licensing Ltd. v. University of Auckland,  3 N.Z.L.R. 76 (H.C.), several universities provided copies of copyrighted works to students as part of course packs, and charged the students for these materials through various school fees. The universities argued that the copying constituted fair dealing for the purposes of research or private study. The court held that the “purpose” must be that of the person “doing the copying” (paras. 43 and 52). Since the copiers – the universities – were not themselves dealing with the work for the purposes of research or private study, the copying did not amount to fair dealing.
 With respect, I do not find these authorities particularly helpful. Firstly, courts in the U.K. have tended to take a more restrictive approach to determining the “purpose” of the dealing than does CCH. Based on s. 178 of the Copyright, Designs and Patents Act 1988 (U.K.), 1988, c. 48, for example, which defines “private study” to exclude “a commercial purpose”, courts in the U.K. have asserted that both research and private study must be for a non-commercial purpose: see G. D’Agostino, “Healing Fair Dealing? A Comparative Copyright Analysis of Canada’s Fair Dealing to U.K. Fair Dealing and U.S. Fair Use” (2008), 53 McGill L.J. 309, at p. 339. This expressly contradicts the statement in CCH that the allowable purposes must be given a “large and liberal interpretation”, and that “research” is not limited to non-commercial or private contexts (para. 51).
 More importantly, as noted by Linden J.A. of the Federal Court of Appeal in CCH, 2002 FCA 187,  4 F.C. 213, at para. 132 (reversed on other grounds), these “course pack” cases involved copiers with demonstrably ulterior – i.e. commercial – motives. They invoked the allowable purposes of “research” or “private study”, in effect, in order to appropriate their customers’ or students’ purposes as their own and escape liability for copyright infringement.
 These cases, then, to the extent that they are germane, do not stand for the proposition that “research” and “private study” are inconsistent with instructional purposes, but for the principle that copiers cannot camouflage their own distinct purpose by purporting to conflate it with the research or study purposes of the ultimate user.
 As noted in the companion appeal SOCAN v. Bell, fair dealing is a “user’s right”, and the relevant perspective when considering whether the dealing is for an allowable purpose under the first stage of CCH is that of the user (CCH, at paras. 48 and 64). This does not mean, however, that the copier’s purpose is irrelevant at the fairness stage. If, as in the “course pack” cases, the copier hides behind the shield of the user’s allowable purpose in order to engage in a separate purpose that tends to make the dealing unfair, that separate purpose will also be relevant to the fairness analysis.
 In the case before us, however, there is no such separate purpose on the part of the teacher. Teachers have no ulterior motive when providing copies to students. Nor can teachers be characterized as having the completely separate purpose of “instruction”; they are there to facilitate the students’ research and private study. It seems to me to be axiomatic that most students lack the expertise to find or request the materials required for their own research and private study, and rely on the guidance of their teachers. They study what they are told to study, and the teacher’s purpose in providing copies is to enable the students to have the material they need for the purpose of studying. The teacher/copier therefore shares a symbiotic purpose with the student/user who is engaging in research or private study. Instruction and research/private study are, in the school context, tautological.
 The Board’s approach, on the other hand, drives an artificial wedge into these unified purposes by drawing a distinction between copies made by the teacher at the request of a student (Categories 1-3), and copies made by the teacher without a prior request from a student (Category 4). Nowhere in CCH did the Court suggest that the lawyer had to “request” the photocopies of legal works from the Great Library before those copies could be said to be for the purpose of “research”. On the contrary, what the Court found was that the copies of legal works were “necessary conditions of research and thus part of the research process”:
The reproduction of legal works is for the purpose of research in that it is an essential element of the legal research process… . Put simply, [the Great Library’s] custom photocopy service helps to ensure that legal professionals in Ontario can access the materials necessary to conduct the research required to carry on the practice of law. [Emphasis added; para. 64.]
 Similarly, photocopies made by a teacher and provided to primary and secondary school students are an essential element in the research and private study undertaken by those students. The fact that some copies were provided on request and others were not, did not change the significance of those copies for students engaged in research and private study.
 Nor, with respect, do I accept the statement made by the Board and endorsed by the Federal Court of Appeal, relying on University of London Press, that the photocopies made by teachers were made for an unfair purpose – “non-private study” – since they were used by students as a group in class, and not “privately”. As discussed above, the holding was simply that the publisher could not hide behind the students’ research or private study purposes to disguise a separate unfair purpose – in that case, a commercial one. The court did not hold that students in a classroom setting could never be said to be engaged in “private study”.
 With respect, the word “private” in “private study” should not be understood as requiring users to view copyrighted works in splendid isolation. Studying and learning are essentially personal endeavours, whether they are engaged in with others or in solitude. By focusing on the geography of classroom instruction rather than on the concept of studying, the Board again artificially separated the teachers’ instruction from the students’ studying.
 The Board’s skewed characterization of the teachers’ role as being independent and differently motivated from that of the student users, also led to a problematic approach to the “amount of the dealing” factor. In considering this factor, the Board accepted that teachers generally limit themselves to reproducing relatively short excerpts of each textbook. Having found that the teachers only copied “short excerpts”, the Board was required to determine whether the proportion of each of the short excerpts in relation to the whole work was fair. Instead, it then cited a passage from CCH, at para. 68, that said “if a specific patron … submitted numerous requests for multiple reported judicial decisions from the same reported series over a short period of time”, the dealing might not be fair. Relying on this quote, the Board concluded that a teacher was analogous to a specific patron, and that the repeated copying of the same “class set” of books – that is, a set shared by more than one class or by many students in the same class – tended to make the dealing unfair.
 This, with respect, was a flawed approach. First, unlike the single patron in CCH, teachers do not make multiple copies of the class set for their own use, they make them for the use of the students. Moreover, as discussed in the companion case SOCAN v. Bell, the “amount” factor is not a quantitative assessment based on aggregate use, it is an examination ofthe proportion betweenthe excerpted copy and the entire work, not the overall quantity of what is disseminated. The quantification of the total number of pages copied, as the Court noted in CCH, is considered under a different factor: the “character of the dealing”.
 The Board had, in fact, already considered the quantification of the dissemination when it assessed the character of the dealing, finding that multiple copies of the texts were distributed to entire classes. In reapplying this same quantitative concern when assessing the “amount of the dealing”, it conflated the two factors, which had the effect of erasing proportionality from the fairness analysis.
 I also have difficulty with how the Board approached the “alternatives to the dealing” factor. A dealing may be found to be less fair if there is a non-copyrighted equivalent of the work that could have been used, or if the dealing was not reasonably necessary to achieve the ultimate purpose (CCH, at para. 57). The Board found that, while students were not expected to use only works in the public domain, the educational institutions had an alternative to photocopying textbooks: they could simply buy the original texts to distribute to each student or to place in the library for consultation.
 In my view, buying books for each student is not a realistic alternative to teachers copying short excerpts to supplement student textbooks. First, the schools have already purchased originals that are kept in the class or library, from which the teachers make copies. The teacher merely facilitates wider access to this limited number of texts by making copies available to all students who need them. In addition, purchasing a greater number of original textbooks to distribute to students is unreasonable in light of the Board’s finding that teachers only photocopy short excerpts to complement existing textbooks. Under the Board’s approach, schools would be required to buy sufficient copies for every student of every text, magazine and newspaper in Access Copyright’s repertoire that is relied on by a teacher. This is a demonstrably unrealistic outcome. Copying short excerpts, as a result, is reasonably necessary to achieve the ultimate purpose of the students’ research and private study.
 The final problematic application of a fairness factor by the Board was its approach to the “effect of the dealing on the work”, which assesses whether the dealing adversely affects or competes with the original work. Access Copyright pointed out that textbook sales had shrunk over 30 percent in 20 years. However, as noted by the Coalition, there was no evidence that this decline was linked to photocopying done by teachers. Moreover, it noted that there were several other factors that were likely to have contributed to the decline in sales, such as the adoption of semester teaching, a decrease in registrations, the longer lifespan of textbooks, increased use of the Internet and other electronic tools, and more resource-based learning.
 Despite this evidentiary vacuum, the Board nonetheless concluded that the impact of photocopies, though impossible to quantify, was “sufficiently important” to compete with the original texts to an extent that made the dealing unfair. The Board supported its conclusion with the finding that the schools copy “more than a quarter of a billion textbook pages each year”, even though this total number included the pages for which the schools already pay a tariff. The Category 4 copies in dispute account for under 7% of those pages.
 In CCH, the Court concluded that since no evidence had been tendered by the publishers of legal works to show that the market for the works had decreased as a result of the copies made by the Great Library, the detrimental impact had not been demonstrated. Similarly, other than the bald fact of a decline in sales over 20 years, there is no evidence from Access Copyright demonstrating any link between photocopying short excerpts and the decline in textbook sales.
 In addition, it is difficult to see how the teachers’ copying competes with the market for textbooks, given the Board’s finding that the teachers’ copying was limited to short excerpts of complementary texts. If such photocopying did not take place, it is more likely that students would simply go without the supplementary information, or be forced to consult the single copy already owned by the school.
 This Court in CCH stated that whether something is “fair” is a question of fact and “a matter of impression” (para. 52, citing Hubbard v. Vosper,  1 All E.R. 1023 (C.A.), at p. 1027). As a result, the Board’s decision as to whether the photocopies amount to fair dealing is to be reviewed, as it was by the Federal Court of Appeal, on a reasonableness standard. Because the Board’s finding of unfairness was based on what was, in my respectful view, a misapplication of the CCH factors, its outcome was rendered unreasonable.
 I would therefore allow the appeal with costs and remit the matter to the Board for reconsideration based on these reasons.
Show Dissenting Reasons by Rothstein J. (Deschamps, Fish and Cromwell JJ. concurring)
Appeal allowed with costs, Deschamps, Fish, Rothstein and Cromwell JJ. dissenting.
Solicitors for the appellants: Wanda Noel, Ottawa; Fasken Martineau DuMoulin, Ottawa.
Solicitors for the respondent: McCarthy Tétrault, Toronto; Norton Rose Canada, Montréal.
Solicitors for the interveners the Canadian Publishers’ Council, the Association of Canadian Publishers and the Canadian Educational Resources Council: McCarthy Tétrault, Toronto.
Solicitors for the interveners the Canadian Association of University Teachers and the Canadian Federation of Students: Torys, Toronto.
Solicitors for the interveners the Association of Universities and Colleges of Canada and the Association of Canadian Community Colleges: Osler, Hoskin & Harcourt, Ottawa.
Solicitors for the intervener CMRRA-SODRAC Inc.: Cassels Brock & Blackwell, Toronto.
Solicitor for the intervener the Samuelson-Glushko Canadian Internet Policy and Public Interest Clinic: University of Ottawa, Ottawa.
Solicitors for the interveners the Canadian Authors Association, the Canadian Freelance Union, the Canadian Society of Children’s Authors, Illustrators and Performers, the League of Canadian Poets, the Literary Translators’ Association of Canada, the Playwrights Guild of Canada, the Professional Writers Association of Canada and the Writers’ Union of Canada: Hebb & Sheffer, Toronto; Stockwoods, Toronto.
Solicitors for the intervener the Centre for Innovation Law and Policy of the Faculty of Law University of Toronto: Macera & Jarzyna, Ottawa.
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