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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: wanda.noel@sympatico.ca
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: david.collier@nortonrose.ca
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
Email: sally.gomery@nortonrose.ca
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
E-mail: cbaxter@cwcb-law.com
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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
Counsel for the Interveners,
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
Counsel for the Interveners,
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
E-mail: abernstein@torys.com
Counsel for the Interveners,
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
Email: msobkin@sympatico.ca
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
Email: pwilson@osler.com
Agent for the Interveners, CanadianAssociation ofUniversity Teachers and
Canadian Federation of Students
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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
Email: cchisick@casselsbrock.com
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:
howard.knopf@macerajarzyna.com
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
Email: eugene.meehan@mcmillan.ca
Agent for the Intervener, CMRRA
SODRACinc.
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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
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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
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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
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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
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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
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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
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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.
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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.
Board Decision, para 98, AR, Vol. 1, pg. 46.
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".
Board Decision, para 90, AR, Vol. 1, pg. 43.
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.
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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.
Board Decision, para 98, AR, Vol. 1, pg. 46.
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
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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
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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.
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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.
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Haines v Copyright Agency Ltd., [1982] 42 ALR 549 (FCA) at pg. 555-556, RBA,
Tab 17.
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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: mklee@osler.com
Counsel for the Interveners,
AUCC and ACCC
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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
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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
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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.
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