aucc and accc factum search able

8/3/2019 AUCC and ACCC Factum Search Able

http://slidepdf.com/reader/full/aucc-and-accc-factum-search-able 1/20



TO:

AND TO:

AND TO:

AND TO:

AND TO:

LEGAL_l:22118616.1

REGISTRAR

Wanda Noel

Barrister and Solicitor

5496 Whitewood Avenue

Ottawa, Ontario K4M I C7

Tel: (613) 794-117I

Fax: (613) 692-I735

E-mail: [email protected]

Fasken Martineau DuMoulin LLP

1300 - 55 Metcalfe Street

Ottawa, Ontario KIP 6L5

J. Aidan O'Neill

Ariel A. Thomas

Tel: (613) 236-3882

Fax: (613) 230-6423

Solicitors for the Appellants* (See Schedule "A")

Norton Rose ORLLP

Suite 2500, I Place Ville Marie

Montreal, Quebec H3B IRI

Neil Finkelstein (McCarthys)

Claude BrunetTel: (5I4) 847-4539

Fax: (5I4) 286-5474

Email: [email protected]

Solicitors for the Respondent,

Access Copyright

McCarthy Tetrault LLP

P.O. Box 48, Suite 4700

T-D Bank Tower

Toronto-Dominion CentreToronto, Ontario M5K IE6

Barry B. Sookman

Steven G. Mason

Daniel G. C. Glover

Tel: (4I6) 60I-7949

Fax: (4I6) 868-0673

Norton Rose OR LLP

Suite I500, 45 O'Connor Street

Ottawa, Ontario KIP IA4

Sally A. Gomery

Tel: (613) 780-8604Fax: (613) 230-5459


Agent for the Respondent, Access

Copyright

Cavanagh Williams Conway Baxter

LLPSuite 40I, IIII Prince ofWales Drive

Ottawa, Ontario K2C 3T2

Colin S. Baxter

Tel: (613) 569-8558

Fax: (613) 569-8668




AND TO:

AND TO:

LEGAL_I:22118616.1

Counsel for the Interveners,

Canadian Publishers' Council,

Association of Canadian Publishers

and Canadian Educational

Resources Council

Hebb & Sheffer

1535A Queen Street West

Toronto, Ontario M6R 1A7

MarianHebb

Warren Sheffer

Tel: (416) 556-8187

Fax: (866) 400-3215


Canadian Authors Association,Canadian Freelance Union,

Canadian Society of Children's

Authors, Illustrators and Performers,

League ofCanadian Poets, Literary

Translators' Association of Canada,

Playwrights Guild ofCanada


Professional Writers Association of

Canada and Writers Union of

Canada

Torys LLP

79 Wellington Street West,

Suite 3000, Box 270, TD Centre

Toronto, Ontairo M5K 1N2

Wendy Matheson

Andrew Bernstein

Tel: (416) 865.0040

Fax: (416) 865-7380



Canadian Association ofUniversity

Teachers and Canadian Federation

of Students

Agent for the Interveners, Canadian

Publishers' Council, Association of

Canadian Publishers and Canadian

Educational Resources Council

Michael J. Sobkin

90 blvd. de Lucerne, Unit #2

Gatineau, Quebec J9H 7K8

Tel: (819) 778-7794

Fax: (819) 778-1740


Agent for the Interveners, Canadian

Authors Association, Canadian FreelanceUnion, Canadian Society ofChildren's

Authors, Illustrators and Performers,

League ofCanadian Poets, Literary

Translators' Association of Canada,

Playwrights Guild of Canada

Agent for the Interveners, Professional

Writers Association ofCanada and

Writers Union ofCanada

Osler Hoskin & Harcourt LLP

Suite 1900, 340 Albert Street

Ottawa, Ontario K1R 7Y6

Patricia Wilson

Tel: (613) 787-1009

Fax: (613) 235-2867


Agent for the Interveners, CanadianAssociation ofUniversity Teachers and

Canadian Federation of Students



AND TO:

AND TO:

AND TO:

LEGAL_1:22118616.1

Cassels Brock & Blackwell LLP

Scotia Plaza, Suite 2100

40 King Street West

Toronto, Ontario M5H 3C2

Casey M. Chisick

Timothy Pinos

Jason Beitchman

Tel: (416) 869-5403

Fax: (416) 644-9326


Counsel for the Intervener,

CMRRA-SODRAC Inc.

David Fewer

Universite d'Ottawa

Centre for Law, Technology and

innovation (CIPPIC)

57 Louis Pasteur St.

Ottawa, Ontario KIN 6N5

Tel: (613) 562-5800 Ext: 2558

Fax: (613) 562-5417

Counsel for the Intervener,Samuelson-Glushko Canadian

Internet Policy and Public Interest

Clinic

Macera & Jarzyna

Suite I200

427 Laurier Avenue West

Ottawa, Ontario KIR 7Y2

Howard P. Knopf

Tel: (613) 238-8I73Fax: (613) 235-2508

Email:

[email protected]

Counsel for the Intervener, Centre

for Innovation Law and Policy of the

Faculty ofLaw University of

Toronto

McMillan LLP

Suite 300, 50 O'Connor Street

Ottawa, Ontario KIP 6L2

Eugene Meehan, Q.C.

Tel: (613) 232-717I

Fax: (613) 23I-3I9I


Agent for the Intervener, CMRRA

SODRACinc.



SCHEDULE "A"

Province ofAlberta as represented by the Minister ofEducation

Province ofBritish Columbia as represented by the Minister of Education; Province ofManitoba

as represented by the Minister ofEducation, Citizenship and Youth; Province ofNew Brunswick

as represented by the Minister ofEducation

Province ofNewfoundland and Labrador as represented by the Minister ofEducation; Northwest

Territories as represented by the Minister of Education, Culture and Employment; Province of

Nova Scotia as represented by the Minister ofEducation

Territory ofNunavut as represented by the Minister ofEducation; Province ofOntario as

represented by the Minister ofEducation; Province ofPrince Edward Island as represented by

the Minister ofEducation

Province of Saskatchewan as represented by the Minister ofEducation; Yukon Territory as

represented by the Minister ofEducation; Airy and Sabine District School Area Board; AlgomaDistrict School Board

Atikokan Roman Catholic Separate School Board; A von Maitland District School Board;

Bloorview MacMillan School Authority; Bluewater District School Board; Brant Haldimand

Norfolk Catholic District School Board

Bruce-Grey Catholic District School Board; Campbell Children's School Authority; Caramat

District School Area Board; Catholic District School Board of Eastern Ontario; Collins District

School Area Board; Connell and Ponsford District School Area Board

Conseil des ecoles catholiques du Centre-Est de l'Ontario; Conseil des ecoles publiques de l'Estde l'Ontario; Conseil des ecoles separees catholiques de Dubreuilville; Conseil des ecoles

separees catholiques de Foleyet

Conseil scolaire de district catholique Centre-Sud; Conseil scolaire de district catholique de l'Est

Ontarien; Conseil scolaire de district catholique des Aurores Boreales; Conseil scolaire de

district catholique des Grandes Rivieres

Conseil scolaire de district du Grand Nord de l'Ontario; Conseil scolaire de district du Nord-Est

de l'Ontario; District School Board ofNiagara; District School Board Ontario North East;

Dufferin-Peel Catholic District School Board

Durham Catholic District School Board; Durham District School Board; Foleyet District SchoolArea Board; Gogama District School Area Board; Gogama Roman Catholic Separate School

Board; Grand Erie District School Board

Greater Essex County District School Board; Halton Catholic District School Board; Halton

District School Board; Hamilton-Wentworth Catholic District School Board; Hamilton

Wentworth District School Board; Hastings & Prince Edward District School Board

LEGAL_I:221!8616.1



Hornepayne Roman Catholic Separate School Board; Huron Perth Catholic District School

Board; Huron-Superior Catholic District School Board; James Bay Lowlands Secondary School

Board; Kawartha Pine Ridge District School Board

Keewatin-Patricia District School Board; Kenora Catholic District School Board; Lakehead

District School Board; Lambton Kent District School Board; Limestone District School Board;Missarenda District School Area Board

Moose Factory Island District School Area Board; Moosonee District School Area Board;

Moosonee Roman Catholic Separate School Board; Murchison and Lyell District School Area

Board; Nakina District School Area Board; Near North District School Board

Niagara Catholic District School Board; Niagara Peninsula Children's Centre School Authority;

Nipissing-Parry Sound Catholic District School Board; Northeastern Catholic District School

Board; Northern District School Area Board

Northwest Catholic District School Board; Ottawa Children's Treatment Centre School

Authority; Ottawa-Carleton Catholic District School Board; Ottawa-Carleton District School

Board; Parry Sound Roman Catholic Separate School Board

Peel District School Board; Peterborough Victoria Northumberland and Clarington Catholic

District School Board; Rainbow District School Board; Rainy River District School Board; Red

Lake Area Combined Roman Catholic Separate School Board

Renfrew County Catholic District School Board; Renfrew County District School Board; Simcoe

County District School Board; Simcoe Muskoka Catholic District School Board; St Clair

Catholic District School Board; Sudbury Catholic District School Board

Superior North Catholic District School Board; Superior-Greenstone District School Board;Thames Valley District School Board; Thunder Bay Catholic District School Board; Toronto

Catholic District School Board; Toronto District School Board

Trillium Lakelands District School Board; Upper Canada District School Board; Upper Grand

District School Board; Upsala District School Area Board; Waterloo Catholic District School

Board; Waterloo Region District School Board

Wellington Catholic District School Board; Windsor-Essex Catholic District School Board; York

Catholic District School Board; and York Region District School Board

Algonquin and Lakeshore Catholic District School Board; Asquith-Garvey District School Board

Conseil scolaire de district catholique du Nouvel-Ontario; Conseil scolaire de district catholique

Franco-Nord; Conseil scolaire de district des ecoles catholiques de Sud-Ouest; Conseil scolaire

de district du Centre Sud-Ouest

LEGAL_I:22118616.1



iTABLE OF CONTENTS

Page

PART I STATEMENT OF FACTS 1

A Overview 1

B The Decision of the Court and the Board Below 2PART II POINTS IN ISSUE 3

PART III STATEMENT OF ARGUMENT 3

A The Standard ofReview is Correctness 3

B Fair Dealing Should be Technologically Neutral 4

c Private Study Does Not Mean Undirected Study 5

D Is the Non-Commercial Context Largely Irrelevant? 6

Conclusion 10

PART IV SUBMISSIONS ON COSTS 10

PARTY ORDER REQUESTED 10

PART VI TABLE OF AUTHORITIES 11

PART VII STATUTES RELIED ON 13



-1-

PART I- STATEMENT OF FACTS

A Overview

1. This Court in CCH described the fair dealing exception in Section 29 of the Copyright

Act as an important user's right which must not be interpreted restrictively. The Copyright

Board ofCanada (the "Board") gave the fair dealing exception a restrictive interpretation in the

decision under review. It held that when a teacher copies four and a half pages, per student, per

year, for use by students, the dealing is necessarily unfair despite the fact that the dealing by the

student "is research-based and fair". It did so on the basis that the use of the copyright work was

under the instruction of a teacher:

... he teacher-student relationship is not the same as that between the

Great Library and lawyers. The Great Library is simply an extension of a

lawyer's will. A teacher does not merely act on behalf of a student, giventhat, to a large extent, it is the teacher who instructs the student what to

do with the material copied.

CCH Canadian Ltd v. Law Society ofUpper Canada, 2004 SCC 13, [2004] 1 SCR

339 ("CCH") at para 48, Appellant's Book of Authorities ("ABA") Tab 1.

Statement of Royalties to be Collected by Access Copyright for the Reprographic

Reproduction, in Canada, of Works in its Repertoire (Educational Institutions-

2005-2009) Decision of the Copyright board, June 26,2009 corrected version July

17, 2009 ("Board Decision"), para 113, Appellants' Record ("AR"), Vol. 1, pg. 51.

2. The interpretation of fair dealing adopted by the Board, as upheld by the Federal Court of

Appeal, will have a deleterious effect on the education of Canadians, which is of the highest

national importance. As Justice La Forest observed:

No proof is required to show the importance of education in our society

or its significance to government. The legitimate, indeed compelling,

interest of the state in the education of the young is known and

understood by all informed citizens.

R. v. Jones, [1986] 2 S.C.R. 284, at pg. 299, AUCC/ACCC Book of Authorities

("AIABA"), Tab 4

3. A broad and liberal interpretation of fair dealing in an educational environment will

foster the dissemination ofknowledge, facilitate creativity and enhance the ability of citizens to

reason and learn. This Court has observed that:

LEGAL_1 :22118616.1

A school is a communication centre for a whole range of values and

aspirations of a society. In large part, it defines the values that transcend

society through the educational medium.

Ross v. Brunswick School District No. 15, [1996] 1 S.C.R. 825, at pg. 856-857,A/ABATab6



-2-

4. The Association of Universities and Colleges of Canada ("AUCC") and the Association

of Canadian Community Colleges ("ACCC") represent public and private not-for-profit post

secondary educational institutions. Canadian colleges are found in 1,000 urban, rural and remote

communities across every province and territory in Canada, and are attended by 1.5 million

students from all backgrounds who are acquiring the advanced skills essential to Canada's

economic growth and productivity. Universities are vital centres of research, learning and

discovery that attract students from all walks of life to develop their critical thinking, research

and creative skills. As Madam Justice Wilson observed:

The state readily acknowledges the important role universities play not

only in the education of our young people but also more generally in the

advancement and free exchange of ideas in our society . . .

Mckinney v. University ofGuelph, [1990]3 SCR 229 at pg. 379, per Wilson J.

(dissenting), AIABA, Tab 3

5. AUCC and ACCC intervene in this appeal to urge this Court to interpret the fair dealing

provision in the Copyright Act liberally and generously in the context of non-profit educational

institutions, and to ensure that the criteria for determining what constitutes "fair" for the

purposes of fair dealing, are attentive to both the learning and teaching process and are

technologically neutral.

6. AUCC and ACCC are concerned that the Board's decision, if allowed to stand, wouldimpede the learning and teaching process in Canada's universities and colleges. AUCC and

ACCC therefore urge this Court to place significant weight on the learning dimension in any

assessment of the purpose, scope, nature, and means of a dealing in an educational context, when

determining whether or not the dealing is fair. This will help to ensure the continued vitality of

Canada 's universities and colleges.

B The Decision of the Court and the Board below

7. The Board below approved a tariff for the photocopying of short excerpts from textbooks,

newspapers and other copyright material, given to students in kindergarten to grade 12. The

Board held that, although the parties agreed that copies were made for an enumerated purpose

under section 29 of the Copyright Act, they were nonetheless unfair upon a consideration of the

six factors set out by this Court in CCH. The Board focussed its attention on "the real purpose or

motive of the dealing," under the first factor in CCH and concluded that, even when copies were

LEGAL_l:22ll8616.l



-3-

made "solely" for a permitted purpose, the predominant purpose of the copy was "instruction or

'non-private' study." The Board concluded:

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. [emphasis

added]

Board Decision, para 118, AR, Vol. 1, pg. 53.

8. The Court of Appeal upheld the decision of the Board on a fairness standard of review,

and placed significant weight on the purported distinction between instruction and private study.

Alberta (Minister o fEducation) v. Canadian Copyright Licensing Agency (c.o.b.

Access Copyright), 2010 FCA 198 ("Appeal Decision"), para 46, Vol. 1, AR, pg.121.

PART II - POINTS IN ISSUE

9. AUCC and ACCC will address four issues in this appeal:

(a) What is the standard of review?

(b) Is fair dealing technologically neutral?

(c) Were the fair dealing purposes construed restrictively?

(d) Is the non-commercial nature ofthe dealing "practically irrelevant" when

evaluating the fairness of the dealing?

PART III- STATEMENT OF ARGUMENT

A The Standard of Review is Correctness

10. In Dunsmuir, this Court stated that a correctness standard is appropriate where there is a

question of"generallaw that is both of central importance to the legal system as a whole and

outside the adjudicator's specialized area of expertise". The construction of the fair dealing

exception is of central importance to the legal system as a whole and outside the adjudicator's

specialized area of expertise. The meaning of"private study" and the Board's ruling that a copy

made by a teacher with instructions to read the material, whether or not it was made at a

student's request, cannot be fair dealing, addresses a point of general legal significance far

beyond the working out of the details of an appropriate tariff. The proper construction of the

LEGAL_l:22118616.1



-4-

meaning of "private study" and how one determines the "true purpose" of a use in an educational

context has far reaching implications affecting millions ofCanadians. The standard of review

should be correctness. This Court has already made this assessment in similar circumstances:

The Copyright Act is an act of general application which usually is dealtwith 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.

Society ofComposers, Authors andMusic Publishers ofCanada v. Canadian

Association of nternet Providers, 2004 SCC 45, para 49, ABA, Tab 6.

Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 SCR 190, paras. 58-61, A/ABA,

Tab2

B Fair Dealing Should be Technologically Neutral

11. Universities and colleges have embraced technological innovation. Published works are

now accessed and used in electronic form. The lecture hall has extended into the virtual

environment of course websites made available through electronic learning management

systems. Professors increasingly research and teach in an electronic environment. Students,

even more so, rely on computers and mobile devices to study, conduct research and participate in

university and college courses.

12. A basic tenant of copyright law in Canada is that the Copyright Act is technologically

neutral. The provisions of the Act, including the fair dealing exception, are technologically

neutral. If it is fair dealing for a student to make a photocopy of a periodical article from a

volume in the library to read and study in the library, it must also be fair dealing for the student

to scan the periodical article from the library book to read and study at home on his or her

computer.

Robertson v. Thomson Corp., [2006] 2 S.C.R. 363, [2006] S.C.J. No. 43, para 49,A/ABA, Tab 5

Canadian Assn. ofBroadcasters v. Society ofComposers, Aut/tors andMusic

Publishers ofCanada [1994] F.C.J. No. 1540 (F.C.A.), para 23, A/ABA, Tab 1

13. AUCC and ACCC submit that this Court should construe the fair dealing exception,

including the fairness criteria, without regards to the technology used in the dealing. The fair

dealing exception cannot be frozen in a technology which over time becomes antiquated, thereby

negating the exception as a user 's rights.

LEGAL_l:22118616.1



-5-

C Private Study Does Not Mean Undirected Study

14. The Respondent's case is based in large part on establishing a sharp distinction, or

dichotomy, between teaching and learning or between instruction and private study. It argues

here, as it did before the Board, that "copies of excerpts made on the teacher's initiative for his or

her students or at the student's request with instructions to read them," for the purpose of

research, private study, criticism or review, is necessarily unfair because the copy is made for

educational purposes (instruction) rather than private study or research (learning).

Respondent's Factum, para 40.


15. The Board, and especially the Court of Appeal, largely limited the consideration of the

research, private study, criticism and review conducted by a student in an educational

environment to an analysis of the meaning of "private study":

.. . "Private study" presumably means just that: study by oneself ...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." ... [emphasis added]

Appeal Decision, para 38, AR, Vol. 1, pg. 118.

16. As a result, the Board, citing the Federal Court of Appeal in CCH, stated in effect that

educational use could never amount to fair dealing:

"[ .. ] if a law professor requests a copy of a work for the purpose of

distributing it among his or her students, such a request would not be for

the purpose of private study".


17. While it is not in dispute that learning involves research, private study, criticism and

review, these activities somehow become unfair when a teacher provides guidance on what

should be used for that purpose. Nowhere in this Court's decision in CCH, or the Copyright Act,

is it stated that fair dealing activities, such as research or private study, must be self-directed, let

alone conducted in isolation from others. In addition, while teaching may have public

dimensions, the act ofleaming is a personal and private endeavour, aimed at individual

development. This remains true even when learning is undertaken in the presence of others, or in

an organized learning environment. Homework, for example, is no less private study simply

because thirty other students are at home studying the same extract of a copyright work.

LEGAL_l:22118616.1



-6-

18. By holding that fair dealing activities must be self-directed, the Court below has

restrictively interpreted the fair dealing exception. Whenever a teacher encourages or directs a

student to read material for the purpose of research, private study, criticism and review, it will be

only the teacher 's purpose as educator that is considered, and not the purpose of the student. This

would apply even when the student requests that the copy be made by the teacher, and by

necessary implication, even when the student makes the copy of the short extract for themselves

based on guidance from the teacher. This cannot be correct.


D Is the Non-Commercial Context Largely Irrelevant?

19. A reason for the error of the Court below in disregarding or diminishing the purpose of

the student, lies in its failure to consider the non-commercial context of education in K-12

schools. The Court of Appeal held that under the first of the six CCH factors, the non

commercial context was "largely irrelevant" to detennining the purpose of the dealing:

The applicants are correct to state that, unlike the teachers in the

case at bar, the University Tutorial Press was clearly using the

examinations fo r 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 ornot 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.

Appeal Decision, para 39, AR, Vol. 1, pg. 118-119.

20. While this Court in CCH did find that research for commercial purposes could qualify as

fair dealing under section 29, it also cautioned that when copying is conducted for commercial

purposes it may be less fair than when the copying is done for charitable purposes. The Federal

Court of Appeal therefore erred in finding that the non-commercial nature of the copies at issue

was "largely irrelevant" to the fairness analysis simply because some commercial activities in

other contexts could nonetheless qualify as fair dealing.

CCH, para 54, Respondent's Book of Authorities ("RBA"), Tab 1.

21. Indeed, the commercial nature of the copying of copyright work has figured prominently

in the jurisprudence. University ofLondon Press v. University Tutorial Press, which was relied

LEGAL_I:22II8616.1



-7-

upon by both the Board and the Federal Court ofAppeal, involved a book which contained

copyright examination papers with criticisms and answers to some of the questions which was

sold to students who had to take the examinations. The defendants argued that because the

publication of the examination papers enabled prospective candidates to prepare for

examinations i t was "private study" and thus fair dealing, and that the profit made was irrelevant.

The court held that the student's purpose ofprivate study did not render the defendant's

publishing for profit a fair dealing.

Board Decision, para 90, AR, Vol. I, pg. 43.

University ofLondon Press, Ltd. v. University Tutorial Press, Ltd., [1916] 2 Ch. 601[ULP] at 613,607, and 613 ("London Press"), A/ABA Tab 7

22. Indeed, almost all of the non-Canadian cases cited by Access Copyright, starting at

paragraph 91 of its factum, involve a consideration of the presence, or absence, of a commercial

purpose as part of the determination as to whether or not a dealing was fair, while others do not

support the proposition for which they are cited. For example, the Court in Associated

Newspapers Group PLC held that the dealing was not fair because the newspaper published the

private love letters sent between royalty "in order to attract readers". This commercial purpose

was crucial to the Court's holding that the dealing was not fair. As the Court observed, the

"question of fairness must at bottom depend upon the motive with which the material has been

copied." The motive in this case was profit through increased readership.

Associa ted Newspapers GroupPLC v News Group Newspapers Limited, [1986] RPC

515 (Ch Pat), pg. 518, RBA, Tab 7.

23. Sillitoe v. McGraw-Hill Book Company involved the importation of"Coles Notes",

which were notes on the published works ofwell-known authors sold to students studying for

literature examinations. In an action for infringement of copyright brought against the U.K.

distributor of the notes, the distributor claimed fair dealing for the purpose ofprivate study

because this was the purpose of students who purchased and read the notes. The commercial

purpose of the dealer, however, rendered the student's purpose far less relevant in the fair

dealing analysis:

The defendants are enriching themselves by making use of the plaintiffs

work ... There are large sales of the Notes over a wide territory.

Sillitoe v McGraw-Hill Book Co., [1983] Fleet Street Reports 545 (Ch), pg. 564,

RBA, Tab 11.

24. The defendant in De Garis v Nevill Jeffress Pidler sold news clipping for profit to clients

who requested information on particular subjects. The Court held that this use did not constitute

LEGAL_l:22118616.1



-8-

fair dealing because the company was in the business ofproviding materials for research. As a

result, even though a client would use the purchased materials for research, the dealing was not

fair. The Federal Court ofAustralia clearly indicated that such a commercial purpose was

critical to its finding:

Its purpose, which is purely commercial, is to supply a photocopy of

material already published in return for a fee. This is an activity engaged

in by Jeffress in the ordinary course of trade, which, in my view, is in the

nature of an information audit and should be distinguished from research

activity of the kind contemplated by s 40 ...

DeGaris v Neville Jeffress Pidler PTY, [1990] IPR 292, at pg. 298, RBA, Tab 16.

25. In Los Angeles News Service the Court similarly held that a news service was not dealing

fairly with broadcast works which it copied and sold to its customers. The Court emphasized the

commercial purposes of the transactions, holding that fair use did not apply because the

defendants "purposes are 'unabashedly commercial"' and "profit is its primary motive". The

Court repeated that if a use is "for a commercial or profit-making purpose, that use 'would be

presumptively unfair." '

Los Angeles News Service v Tullo, 973 F.2d 791 (9th Cir. 1992) at pg. 797-798,

RBA, Tab20.

26. Princeton University Press involved a copy shop, unaffiliated with any educational

institution, that sold illegally copied materials to students. The Court noted that "the defendants

have continued for an extensive period of time to take and use the property of others for their

own personal gain," and concluded that the fact that a publication was commercial as opposed to

non-profit "tends to weight against a finding of fair use".

Princeton University Press MacMillan, Inc. v. Michigan Do cumen t Services, Inc.,

855 F. Supp. 905 (U.S. Dist. 1994) at pg. 908,909, RBA, Tab 21.

27. In Zomba Enterprises the fact that the defendant's sale of its karaoke packages "was

performed on a profit-making basis by a commercial enterprise" was critical in holding that the

use was not fair. Similarly reasoning animated the Court in Leadsinger. which held:

LEGAL_l:22118616.!

('[T]he end-user's utilization of the product is largely irrelevant.. . ')

Leadsinger' s basic purpose remains a commercial one--to sell its karaoke

device for profit. And commercial use of copyrighted material is

'presumptively an unfair exploitation ofthe monopoly privilege that

belongs to the owner of the copyright.'

Leadsinger, Inc. vBMGMusic Publishing Opinion, Inc., 512 F.3d 522 (9th Cir.

2008) at pg. 530, RBA, Tab 19.



-9-

Zomba Enterprises, Inc. v Panorama Records, Inc., 491 F.3d 574 (6th Cir. 2007) at

pg. 582-583, RBA, Tab 22.

28. Profit was also considered in Time Warner Entertainments although the dealing was

ultimately held to be fair. The Court distinguished this case from one where the predominant

purpose was profit and asked:

is the program incorporating the infringing material a genuine piece of

criticism or review, or is it something else, such as an attempt to dress up

the infringement of another 's copyright in the guise of criticism, and so

profit unfairly from another's work?

Time Warner Entertainments Company LP v Channel Four Television Corporation

PLC, [1993] 28 IPR 459 (CA) at pg. 468, RBA, Tab 12.

29. A similar result followed in Pro Sieben Media A G which involved a broadcast of a

portion of a copyright interview with a woman pregnant with octuplets as part of a television

show on "checkbook journalism". The Court ofAppeal, upon reversing the trial judge, found

that the true purpose for using the material was criticism, and observed that attention should have

been directed to "the likely impact on the audience". The presence or absence of a commercial

motive or purpose should be given significant weight in an analysis of fair dealing under

Canadian law in an educational context.

Pro Sieben Media AG v Carlton UK Television, [1999] 1 WLR 605 (CA) at pg. 616,

RBA, Tab 10.

30. Finally, Haines v. Copyright Agency Ltd does not stand for the proposition that in a fair

dealing analysis courts must distinguish between the institution making copies and the activities

of students. The Federal Court ofAustralia was interpreting the application ofprovision in the

Australian Copyright Act. Section 40 sets out fair dealing for the purpose of"research or study,"

whereas section 53B provides a separate copying exemption for educational institutions. The

copying in question clearly fell under one of the two exemptions, and the Court was

distinguishing between the two provisions because each imposes unique reporting requirements

on the institution. The portion of the decision that Access Copyright references states "i t is

important to the proper working of the sections that a distinction be recognized" [emphasis

added]. This case provides no guidance on whether a sharp distinction should be drawn between

the purposes of the educational institution and the purposes of students in assessing the fairness

of a dealing.

LEGAL_l:22118616.1

Haines v Copyright Agency Ltd., [1982] 42 ALR 549 (FCA) at pg. 555-556, RBA,

Tab 17.



- 10-

Conclusion

31. The Court ofAppeal has made it very difficult to sustain a fair dealing user's right in an

educational context because the "true purpose" of the copying will frequently involve

instruction. "Private study" must be given a broader interpretationso

as to include study in aneducational context when directed by a teacher. In addition, the non-commercial and educational

reasons for the copying should be considered under the first of the six CCH factors. This does

not mean that all educational uses of copyright material will be fair. It simply means that the

balancing of factors under the CCH test in an educational context must take into account, and

give significant weight to, the purpose of the student in using the copyright material.

PART IV -SUBMISSIONS ON COSTS

32. AUCC and ACCC do not seek their costs on this appeal.

PART V- ORDER REQUESTED

33. AUCC and ACCC respectfully request that they be permitted to present oral argument at

the hearing.

ALL OF WHICH IS RESPECTFULLY SUBMITTED, this 21st day of November, 2011.

OSLER, HOSKIN & HARCOURT LLP

Suite 1900, 340 Albert Street

Ottawa, ON K1R 7Y6

Marcus Klee

Tel: (613) 235-7234Fax: (613) 235-2867

email: [email protected]


AUCC and ACCC



-11-

PART VI -TABLE OF AUTHORITIES

Authority Paragraphs

Case Law

1. Alberta (Minister of Education) v. Canadian Copyright 8, 15, 19Licensing Agency (c.o.b. Access Copyright), 2010 FCA 198

2. Associated Newspapers Group PLC v News Group Newspapers 22

Limited, [1986] RPC 515 (Ch Pat)

3. Canadian Assn. of Broadcasters v. Society of Composers, 12

Authors and Music Publishers ofCanada [1994] F.C.J. No. 1540

(F.C.A.)

4. CCH Canadian Ltd v. Law Society ofUpper Canada, 2004 SCC 1, 20

13, [2004] 1 SCR 339

5. DeGaris v Neville Jeffress Pidler PTY, [1990] IPR 292 24

6. Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 SCR 190 10

7. Haines v Copyright Agency Ltd., [1982] 42 ALR 549 (FCA) 30

8. Leadsinger, Inc. v BMG Music Publishing Opinion, Inc., 512 27F.3d 522 (9th Cir. 2008)

9. Los Angeles News Service v Tullo, 973 F.2d 791 (9th Cir. 1992) 25

10. Mckinney v. University ofGuelph, [1990] 3 SCR 229 4

11. Princeton University Press MacMillan, Inc. v. Michigan 26

Document Services, Inc., 855 F. Supp. 905 (U.S. Dist. 1994)

12. Pro Sieben Media AG v Carlton UK Television, [1999] 1 WLR 29

605 (CA)

13. R. v. Jones, [1986] 2 S.C.R. 284 214. Robertson v. Thomson Corp., [2006] 2 S.C.R. 363, [2006] S.C.J. 12

No. 43

15. Ross v. Brunswick School District No. 15, [1996] 1 S.C.R. 825 3

16. Sillitoe v McGraw-Hill Book Co., [1983] Fleet Street Reports 23

545 (Ch)

17. Society ofComposers, Authors and Music Publishers ofCanada 10

v. Canadian Association of nternet Providers, 2004 SCC 45

LEGAL_! :22118616.1



-12-

18. Statement ofRoyalties to be Collected by Access Copyright for 1, 7, 14, 16, 18, 21

the Reprographic Reproduction, in Canada, of Works in its

Repertoire (Educational Institutions - 2005-2009) Decision of

the Copyright board, June 26, 2009 corrected version July 17,

2009

19. Time Warner Entertainments Company LP v Channel Four 28

Television Corporation PLC, [1993] 28 IPR 459 (CA)

20. University of London Press, Ltd. v. University Tutorial Press, 21

Ltd., [1916] 2 Ch. 601 [ULP] ("London Press")

21. Zomba Enterprises, Inc. v Panorama Records, Inc., 491 F.3d 27

574 (6th Cir. 2007)

Legislation

22. An Act to Amend the Copyright Act, S.C. 1997, c. 24, s. 29 1, 7,20

LEGAL_l:22118616.1



-13-

PART VII -STATUTES RELIED ON

Legislation

An Act to Amend the Copyright Act, S.C. 1997, c. 24

Section 29

Fair Dealing

Research or private study

29. Fair dealing for the purpose of researchor private study does not infringe copyright.

Utilisation equitable

Etude privee ou recherche

29. L'utilisation equitable d'une oeuvre ou

de tout autre objet du droit d'auteur auxfins d' etude privee ou de recherche ne

constitue pas une violation du droit

d'auteur.

aucc and accc factum search able

Documents