cpc scc interveners memorandum

8/3/2019 CPC SCC Interveners Memorandum

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Court File No.: 33888

IN THE SUPREME COURT OF CANADA(ON APPEAL FROM THE FEDERAL COURT OF APPEAL)

B E T W E E N :

THE PROVINCE OF ALBERTA AS REPRESENTED BY THE MINISTER OFEDUCATION (AND OTHERS*)

Appellants (Appellants)

- and -

THE CANADIAN COPYRIGHT LICENSING AGENCY

Operating as ACCESS COPYRIGHTRespondent (Respondent)

- and -

CANADIAN PUBLISHERS' COUNCIL, ASSOCIATION OF CANADIANPUBLISHERS AND CANADIAN EDUCATIONAL RESOURCES COUNCIL,

CANADIAN ASSOCIATION OF UNIVERSITY TEACHERS AND CANADIANFEDERATION OF STUDENTS, ASSOCIATION OF UNIVERSITIES ANDCOLLEGES OF CANADA, ASSOCIATION OF CANADIAN COMMUNITY

COLLEGES, CMRRA-SODRAC INC., SAMUELSON-GLUSHKO CANADIAN

INTERNET POLICY AND PUBLIC INTEREST CLINIC, CANADIANAUTHORS ASSOCIATION, CANADIAN FREELANCE UNION, CANADIAN

SOCIETY OF CHILDREN'S AUTHORS, ILLUSTRATORS ANDPERFORMERS, LEAGUE OF CANADIAN POETS, LITERARY

TRANSLATORS' ASSOCIATION OF CANADA, PLAYWRIGHTS GUILD OFCANADA, PROFESSIONAL WRITERS ASSOCIATION OF CANADA ANDWRITERS UNION OF CANADA AND THE CENTRE FOR INNOVATION

LAW AND POLICY OF THE FACULTY OF LAW UNIVERSITY OFTORONTO

Interveners

MEMORANDUM OF ARGUMENT OF THE INTERVENERSTHE CANADIAN PUBLISHERS COUNCIL, THE ASSOCIATION OFCANADIAN PUBLISHERS, AND THE CANADIAN EDUCATIONAL

RESOURCES COUNCIL


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ORIGINAL TO: THE REGISTRAR

COPIES TO:

Party Counsel Agent

The Province ofAlberta asrepresented by theMinister ofEducation (andothers*),Appellants

Fasken MartineauDuMoulin LLP Suite 130055 Metcalfe StreetOttawa, ON K1P 6L5

J. Aidan ONeillAriel A. ThomasTel.: (613) 236-3882Fax: (613) [email protected]

Wanda M. Noel5496 Whitewood Ave.Ottawa, ON K4M 1C7

Tel.: (613) 794-1171Fax: (613) 692-1735

[email protected]

The CanadianCopyright LicensingAgency Operatingas AccessCopyright,Respondent

Norton Rose OR LLPSuite 25001 Place Ville MarieMontreal, Quebec H3B 1R1

Norton Rose OR LLPSuite 150045 OConnor StreetOttawa, Ontario K1P 1A4

Claude BrunetTel.: (514) 847-4539Fax.: (514) 286-5474

[email protected]

Sally A. GomeryTel.: (613) 780-8604Fax.: (613) 230-5459

[email protected]

McCarthy Ttrault LLPToronto Dominion Bank Tower66 Wellington Street, Suite5300Toronto, ON M5K 1E6


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Party Counsel Agent

Neil FinkelsteinTel.: (416) 601-7611Fax: (416) 868-0673

[email protected]

CanadianAssociation ofUniversity Teachersand CanadianFederation ofStudents

Torys LLP79 Wellington Street WestSuite 3000Toronto, ON

M5K 1N2

Osler, Hoskin &Harcourt LLP340 Albert StreetSuite 1900Ottawa, ON K1R 7Y6

Wendy MathesonAndrew BernsteinTel.: (416) 865-8133

Fax.: (416) [email protected]

Patricia J. WilsonTel.: (613) 787-1009Fax.: (613) 235-2867

[email protected]

Association ofUniversities andColleges of Canadaand Association ofCanadianCommunityColleges

Osler, Hoskin & HarcourtLLP340 Albert StreetSuite 1900Ottawa, ON K1R 7Y6

Osler, Hoskin &Harcourt LLP340 Albert StreetSuite 1900Ottawa, ON K1R 7Y6

Marcus A. Klee

Glen A. BloomTel.: (613) 787-1049Fax.: (613) [email protected]

Patricia J. WilsonTel.: (613) 787-1009Fax.: (613) [email protected]

CMRRA-SODRACInc.

Cassels Brock & BlackwellLLPScotia PlazaSuite 2100, 40 King Street

WestToronto, ON

M5H 3C2

McMillan LLP50 O'Connor StreetSuite 300Ottawa, ON K1P 6L2

Casey M. ChisickTimothy PinosJason BeitchmanTel.: (416) 869-5403

Eugene Meehan, Q.C.Tel.: (613) 232-7171Fax.: (613) 231-3191eugene.meehan@mcmilla


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Party Counsel Agent

Fax.: (416) [email protected]

n.ca

Samuelson-GlushkoCanadian InternetPolicy and PublicInterest Clinic

David FewerUniversit d'Ottawa Centrefor Law, Technology andinnovation (CIPPIC)57 Louis Pasteur St.Ottawa, ON K1N 6N5

Tel.: (613) 562-5800 Ext:2558Fax.: (613) [email protected]

Canadian AuthorsAssociation,Canadian FreelanceUnion, CanadianSociety ofChildren's Authors,Illustrators andPerformers, Leagueof Canadian Poets,LiteraryTranslators'Association of

Canada,Playwrights Guild ofCanada,Professional WritersAssociation ofCanada and WritersUnion of Canada

Hebb & Sheffer1535A Queen Street WestToronto, ON M6R 1A7

Marian HebbWarren ShefferTel.: (416) 556-8187Fax.: (866) [email protected]

Michael J. Sobkin90 blvd. de Lucerne, Unit#2Gatineau, Quebec J9H 7K8

Tel.: (819) 778-7794Fax.: (819) [email protected]

Centre forInnovation Law andPolicy of the

Faculty of LawUniversity ofToronto

Macera & Jarzyna427 Laurier Avenue WestSuite 1200

Ottawa, ON K1R 7Y2

Howard P. KnopfTel.: (613) 238-8173Fax: (613) 235-2508howard.knopf@macerajarzyn


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Party Counsel Agent

a.com


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*THE PROVINCE OF BRITISH COLUMBIA AS REPRESENTEDBY THE MINISTER OF EDUCATION;

THE PROVINCE OF MANITOBA AS REPRESENTEDBY THE MINISTER OF EDUCATION,

CITIZENSHIP AND YOUTH;THE PROVINCE OF NEW BRUNSWICK AS REPRESENTED

BY THE MINISTER OF EDUCATION;THE PROVINCE OF NEWFOUNDLAND AND LABRADORAS REPRESENTED BY THE MINISTER OF EDUCATION;

THE NORTHWEST TERRITORIES AS REPRESENTEDBY THE MINISTER OF EDUCATION,

CULTURE AND EMPLOYMENT;THE PROVINCE OF NOVA SCOTIA AS REPRESENTED

BY THE MINISTER OF EDUCATION;THE TERRITORY OF NUNAVUT AS REPRESENTED

BY THE MINISTER OF EDUCATION;THE PROVINCE OF ONTARIO AS REPRESENTED

BY THE MINISTER OF EDUCATION;THE PROVINCE OF PRINCE EDWARD ISLAND ASREPRESENTED BY THE MINISTER OF EDUCATION;

THE PROVINCE OF SASKATCHEWAN AS REPRESENTEDBY THE MINISTER OF EDUCATION;

THE YUKON TERRITORY AS REPRESENTEDBY THE MINISTER OF EDUCATION;

THE AIRY AND SABINE DISTRICT SCHOOL AREA BOARD;THE ALGOMA DISTRICT SCHOOL BOARD;

THE ALGONQUIN AND LAKESHORE CATHOLIC DISTRICT SCHOOL BOARD;THE ASQUITH-GARVEY DISTRICT SCHOOL AREA BOARD;

THE ATIKOKAN ROMAN CATHOLIC SEPARATE SCHOOL BOARD;THE AVON MAITLAND DISTRICT SCHOOL BOARD;

THE BLOORVIEW MACMILLAN SCHOOL AUTHORITY;THE BLUEWATER DISTRICT SCHOOL BOARD;

THE BRANT HALDIMAND NORFOLK CATHOLIC DISTRICT SCHOOL BOARD;THE BRUCE-GREY CATHOLIC DISTRICT SCHOOL BOARD;

THE CAMPBELL CHILDRENS SCHOOL AUTHORITY;THE CARAMAT DISTRICT SCHOOL AREA BOARD;

THE CATHOLIC DISTRICT SCHOOL BOARD OF EASTERN ONTARIO;THE COLLINS DISTRICT SCHOOL AREA BOARD;

THE CONNELL AND PONSFORD DISTRICT SCHOOL AREA BOARD;THE CONSEIL DES COLES CATHOLIQUES DU CENTRE-EST DE LONTARIO;

THE CONSEIL DES COLES PUBLIQUES DE LEST DE LONTARIO;THE CONSEIL DES COLES SPARES CATHOLIQUES DE DUBREUILVILLE;THE CONSEIL DES COLES SPARES CATHOLIQUES DE FOLEYET;THE CONSEIL SCOLAIRE DE DISTRICT CATHOLIQUE CENTRE-SUD;

THE CONSEIL SCOLAIRE DE DISTRICT CATHOLIQUE DE LEST ONTARIEN;THE CONSEIL SCOLAIRE DE DISTRICT CATHOLIQUE DES AURORES BORALES;THE CONSEIL SCOLAIRE DE DISTRICT CATHOLIQUE DES GRANDES RIVIRES;

THE CONSEIL SCOLAIRE DE DISTRICT CATHOLIQUE DU NOUVEL-ONTARIO;


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THE CONSEIL SCOLAIRE DE DISTRICT CATHOLIQUE FRANCO-NORD;THE CONSEIL SCOLAIRE DE DISTRICT DES COLES CATHOLIQUES DE SUD-

OUEST;THE CONSEIL SCOLAIRE DE DISTRICT DU CENTRE SUD-OUEST;

THE CONSEIL SCOLAIRE DE DISTRICT DU GRAND NORD DE LONTARIO;THE CONSEIL SCOLAIRE DE DISTRICT DU NORD-EST DE LONTARIO;

THE DISTRICT SCHOOL BOARD OF NIAGARA;THE DISTRICT SCHOOL BOARD ONTARIO NORTH EAST;

THE DUFFERIN-PEEL CATHOLIC DISTRICT SCHOOL BOARD;THE DURHAM CATHOLIC DISTRICT SCHOOL BOARD;

THE DURHAM DISTRICT SCHOOL BOARD;THE FOLEYET DISTRICT SCHOOL AREA BOARD;THE GOGAMA DISTRICT SCHOOL AREA BOARD;

THE GOGAMA ROMAN CATHOLIC SEPARATE SCHOOL BOARD;THE GRAND ERIE DISTRICT SCHOOL BOARD;

THE GREATER ESSEX COUNTY DISTRICT SCHOOL BOARD;THE HALTON CATHOLIC DISTRICT SCHOOL BOARD;

THE HALTON DISTRICT SCHOOL BOARD;THE HAMILTON-WENTWORTH CATHOLIC DISTRICT SCHOOL BOARD;THE HAMILTON-WENTWORTH DISTRICT SCHOOL BOARD;

THE HASTINGS & PRINCE EDWARD DISTRICT SCHOOL BOARD;THE HORNEPAYNE ROMAN CATHOLIC SEPARATE SCHOOL BOARD;

THE HURON PERTH CATHOLIC DISTRICT SCHOOL BOARD;THE HURON-SUPERIOR CATHOLIC DISTRICT SCHOOL BOARD;

THE JAMES BAY LOWLANDS SECONDARY SCHOOL BOARD;THE KAWARTHA PINE RIDGE DISTRICT SCHOOL BOARD;

THE KEEWATIN-PATRICIA DISTRICT SCHOOL BOARD;THE KENORA CATHOLIC DISTRICT SCHOOL BOARD;

THE LAKEHEAD DISTRICT SCHOOL BOARD;THE LAMBTON KENT DISTRICT SCHOOL BOARD;

THE LIMESTONE DISTRICT SCHOOL BOARD;THE MISSARENDA DISTRICT SCHOOL AREA BOARD;

THE MOOSE FACTORY ISLAND DISTRICT SCHOOL AREA BOARD;THE MOOSONEE DISTRICT SCHOOL AREA BOARD;

THE MOOSONEE ROMAN CATHOLIC SEPARATE SCHOOL BOARD;THE MURCHISON AND LYELL DISTRICT SCHOOL AREA BOARD;

THE NAKINA DISTRICT SCHOOL AREA BOARD;THE NEAR NORTH DISTRICT SCHOOL BOARD;

THE NIAGARA CATHOLIC DISTRICT SCHOOL BOARD;THE NIAGARA PENINSULA CHILDRENS CENTRE SCHOOL AUTHORITY;

THE NIPISSING-PARRY SOUND CATHOLIC DISTRICT SCHOOL BOARD;THE NORTHEASTERN CATHOLIC DISTRICT SCHOOL BOARD;THE NORTHERN DISTRICT SCHOOL AREA BOARD;

THE NORTHWEST CATHOLIC DISTRICT SCHOOL BOARD;THE OTTAWA CHILDRENS TREATMENT CENTRE SCHOOL AUTHORITY;

THE OTTAWA-CARLETON CATHOLIC DISTRICT SCHOOL BOARD;THE OTTAWA-CARLETON DISTRICT SCHOOL BOARD;

THE PARRY SOUND ROMAN CATHOLIC SEPARATE SCHOOL BOARD;


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THE PEEL DISTRICT SCHOOL BOARD;THE PETERBOROUGH VICTORIA NORTHUMBERLAND AND CLARINGTON

CATHOLIC DISTRIC SCHOOL BOARD;THE RAINBOW DISTRICT SCHOOL BOARD;

THE RAINY RIVER DISTRICT SCHOOL BOARD;THE RED LAKE AREA COMBINED ROMAN CATHOLIC SEPARATE SCHOOL BOARD;

THE RENFREW COUNTY CATHOLIC DISTRICT SCHOOL BOARD;THE RENFREW COUNTY DISTRICT SCHOOL BOARD;

THE SIMCOE COUNTY DISTRICT SCHOOL BOARD;THE SIMCOE MUSKOKA CATHOLIC DISTRICT SCHOOL BOARD;

THE ST CLAIR CATHOLIC DISTRICT SCHOOL BOARD;THE SUDBURY CATHOLIC DISTRICT SCHOOL BOARD;

THE SUPERIOR NORTH CATHOLIC DISTRICT SCHOOL BOARD;THE SUPERIOR-GREENSTONE DISTRICT SCHOOL BOARD;

THE THAMES VALLEY DISTRICT SCHOOL BOARD;THE THUNDER BAY CATHOLIC DISTRICT SCHOOL BOARD;

THE TORONTO CATHOLIC DISTRICT SCHOOL BOARD;

THE TORONTO DISTRICT SCHOOL BOARD;THE TRILLIUM LAKELANDS DISTRICT SCHOOL BOARD;THE UPPER CANADA DISTRICT SCHOOL BOARD;THE UPPER GRAND DISTRICT SCHOOL BOARD;THE UPSALA DISTRICT SCHOOL AREA BOARD;

THE WATERLOO CATHOLIC DISTRICT SCHOOL BOARD;THE WATERLOO REGION DISTRICT SCHOOL BOARD;

THE WELLINGTON CATHOLIC DISTRICT SCHOOL BOARD;THE WINDSOR-ESSEX CATHOLIC DISTRICT SCHOOL BOARD;

THE YORK CATHOLIC DISTRICT SCHOOL BOARD;and

THE YORK REGION DISTRICT SCHOOL BOARD


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TABLE OF CONTENTS

OVERVIEW.........................................................................................1

QUESTIONIN ISSUE................................................................................1

STATEMENTOF ARGUMENT........................................................................2

A.Fair Dealing and Education Have Always Been Distinct ................................................... 2B.Only the Purpose of the Copier Is Relevant to Questions of Fair Dealing ...................... . 4C.The Cumulative Effects of Copying Must Be Considered in Assessing the Fairness of aDealing 7D.The Ministers Overstate the Meaning of User Rights ................................................... 9

COSTS............................................................................................10

ORDER SOUGHT.................................................................................10

TABLEOF AUTHORITIES..........................................................................11

STATUTES RELIEDON............................................................................14

PROVISIONS IN ISSUE..................................................................15


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OVERVIEW

1. As this Court has recognized, the Copyright Act(the Act) embodies dual goals. On the

one hand, it is intended to promote the encouragement and dissemination of works of the arts and

intellect. On the other, it is intended to guarantee a just reward for the creator.

2. In this appeal, the Appellants seek to alter the copyright balance by expanding fair

dealing to permit mass uncompensated copying. They argue that the purpose of the copier, the

educational institution seeking to save money, is irrelevant in determining if a dealing is fair.

They invite this Court to disregard the cumulative economic effects of their copying on

publishers. They argue for a test that would not even permit courts to consider whether such

copying would undermine entire markets for educational works.

3. If given effect to by this Court, these principles would radically rewrite copyright law and

its system of incentives. They would expand fair dealing to destroy any real expectation of

copyright in educational settings. They would weaken the ability of rights holders to license and

to be paid for their works. This would result in fewer investments by publishers in educational

materials to meet the diverse cultural needs of Canadians. In the long run, such a decision would

hurt publishers, school systems, students, and the public at large.

QUESTION IN ISSUE

4. The question before this Court is whether the Copyright Board (the Board) reasonablydecided that the dealings of K-12 schools in respect of Category 4 copies were unfair. The

Interveners submit that the Board came to a reasonable conclusion on this issue after conducting

a detailed assessment of the facts in accordance with the CCHfairness factors. On the facts, it

was perfectly reasonable for the Board to make the factual finding that when teachers make

copies of works for distribution to students in class with instructions to read them, the purpose of

the dealing is classroom instruction and not private study. It was also reasonable for the Board to

look at the overall impact of the copying and to make the factual determination that it was unfair.

5. The Appellants seek to circumvent the Boards factual findings by proposing new legal

presumptions. These presumptions are inconsistent with the Act, its legislative history, the CCH

decision, and international law, including Canadas international treaty obligations. In particular:


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(a) There is a clear and well-recognized distinction between copying for research,

private study, criticism or review purposes and copying for educational or teaching

purposes.

(b) Any assessment of the purpose of a dealing must be premised on the copiersobjective primary purpose, not the hypothetical purposes of other persons.

(c) In assessing the fairness of a dealing, the cumulative impacts of the dealing need

to be examined. A dealing cannot be fair if the overall effect of the dealing would conflict

with a normal exploitation of a work such as where it enters into economic competition

with it.

(d) The concept of user rights is an important metaphor for understanding the

importance of the statutory fair dealing defence. However, these user interests do not

trump exclusive rights in determining the copyright balance.

STATEMENT OF ARGUMENT

A. Fair Dealing and Education Have Always Been Distinct

6. The modern approach to statutory interpretation requires terms to be read in their entire

context and in their grammatical and ordinary sense harmoniously with the scheme of the Act,

the object of the Act, and the intention of Parliament. Legislative history and international treaty

commitments also guide interpretation.1 A careful review shows that from the outset, Parliament

has distinguished between listed fair dealing purposes on the one hand such as research and

private study, and educational purposes on the other.

7. Canadas fair dealing provisions have their source in the UKCopyright Act, 1911.

Section 2 of that Act categorized fair dealing and schools exceptions separately, the latter

imposing careful restrictions on copying for use in a school setting.2 Canada adopted both

1CCH Canadian Ltd. v. Law Society of Upper Canada (CCH), [2004] 1 S.C.R. 339at para. 9, IntervenersAuthorities (IA),Tab D;Thberge v. Galerie dArt du Petit Champlain inc., [2002] 2 S.C.R. 336 at para. 6 IA D;

Bishop v. Stevens (Bishop), [1990] 2 S.C.R. 467 at 473 IA D.2Copyright Act, 1911, s. 2 IA D; MacGillivray, Copyright Act 1911 Annotated, at 34-35 IA D.

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exceptions verbatim in 1921. As in the 1911 UK Act, Parliament categorized the exceptions

separately. The schools exception was limited in nature, and remains so.3

8. In 1997, Parliament added new exceptions to address what copies may be made by an

educational institution on its premises. These exceptions specify who can copy, where copies

may be made, and forwhatpurposes. For example, s. 29.4 is an exception for reproduction for

instruction. The only copies allowed are for overhead projection or handwritten display. The

only persons entitled to make them are an educational institution or a person acting under its

authority. Thesesingle copies are only non-infringing when made for the purposes of

education or training on the premises of an educational institution.

4

9. The history and structure of the Act, therefore, demonstrate that Parliament did not intend

copying by an educational institution for the purpose of education or training to be confused with

copying for private study or research purposes. It intended only the latter to be a purpose that

could be a fair dealing. This Court has recognized that the rights separately enumerated in s. 3(1)

of the Act are distinct in theory and in practice. So too should separately enumerated

exceptions be interpreted to achieve independent purposes.5

10. The dichotomy between copying for the listed fair dealing purposes and copying for

educational purposes has long been recognized in case law and legislation throughout the

Commonwealth. Applying this distinction, courts have routinely rejected efforts by institutional

or commercial copiers to brand their copying as fair dealing for research or private study.6

3

CCH Canadian Ltd. v. Law Society of Upper Canada, 2004 FCA 278 (CCH FCA) at paras. 129, 296 IA D;Copyright Act1921, ss. 16(1)(i), (iv) IA D. The short passages provision remains in s. 30 of the Act IA D.4Copyright Act, ss. 2 (educational institution, premises), 29.3, 29.4-29.9, 30.3-30.4, 32.2(3), 45(1) IA D.5Bishop at 477 IA D.6CCHFCA, paras. 129, 296 IA D; Sillitoe v McGraw-Hill Book Co Ltd, [1983] F.S.R. 545 at 558 IA D; Universityof London Press Ltd. v. University Tutorial Press Ltd., [1916] 2 Ch. 601 at 613-14 IA D;Hager v. ECW Press Ltd.(1999), 85 C.P.R. (3d) 289 at para. 53 IA D;Haines v. Copyright Agency Ltd., [1982] 64 FLR 184 at 191 (F.C.A.App.) IA D;Copyright Licensing Ltd v University of Auckland, [2002] 3 NZLR 76 at paras. 15-16, 31, 36, 51-53, 60(H.C.) IA D;Longman Group Ltd v Carrington Technical Institute Board of Governors,[1991] 2 NZLR 574 at 586,588-89 (H.C.) IA D; United Kingdom, Copyright, Designs andPatents Act 1988, ss. 29-30, 32-36A IAD;

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11. Last, it is worth noting that this Court has consistently exercised caution when asked to

insert into ambiguous language an exception already on Parliaments legislative agenda.7

B. Only the Purpose of the Copier Is Relevant to Questions of Fair

Dealing

12. The Appellants ask this Court to focus solely on the possible purposes of an individual

student rather than the purpose of the educational institution in assessing the fairness of a

dealing. But there is no basis in copyright to exclude from consideration the real purpose of the

copier and to thereby give the copier a defence where the copying is for someone else.8

Accepting this proposition would vastly alter the copyright balance by permitting intermediaries

to reap economic benefits from acts of copying without having allowable purposes of their own.

13. The structure of the Act shows that fair dealing is a defence to the defendants own

dealings with a work, not a defence to a dealing for someone else. Where Parliament intended to

depart from this normal rule and create exceptions that would extend to copying for the purposes

of others, it did so expressly.9

Australia, Copyright Act 1968, ss. 10, 40-41, 44, 83 IA D; New Zealand, Copyright Act 1994, ss. 42-49 IA D;Boudreau v. Lin (1997), 75 C.P.R. (3d) 1 at 12 IAD;Robic-Legerat 29.4 IA D;Fox at 23-10 and 23-11 IA D.7 Bill C-60, s. 18 IA D; Bill C-61, s. 18 IA 45; Bill C-32, ss. 21, 23-27 IA D; Bill C-11, ss. 21, 23-27 IA D. Also see

Bishop at 483-84 IA D, where this Court refused to read into the Act an ephemeral exception for broadcasters:Given the policy issues raised and the repeated consideration of the matter by Parliament and its legislative

adjuncts, it is my view that it would be inappropriate for this Court to interfere.8 Copinger on Copyrightat 565 IA D; Tamaro, 2011 Copyright Actat 552-53 IA D;Productions Avanti Cin-Vido

Inc. v. Favreau (1999), 1 C.P.R. (4th) 129 at 149-50 (Q.C.A.) IA D.9CCH, para. 48 IA D;Copyright Act, ss. 30.2(1), (2), (5) IA D.

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14. In determining the purpose of a dealing at both the first10and second steps11 of the fair

dealing analysis, the courts have always sought to make an objective assessment of the users

real purpose or motive in using the copyright work. This focus has always been on the person

who causes the copy to be made, not those of other persons who might eventually read it or use

it.12 For example, inLongman, the High Court of New Zealand rejected an attempt to classify

reproductions by a tutor of copyrighted drawings and text for classroom instruction as being for

the purpose of private study of students.13InAuckland, the High Court of New Zealand rejected

the claim that a universitys practice of copying materials into class sets for use by students was

a fair dealing for criticism or review. It held that, absent a specific request by a student, the

obvious purpose of the copying is [] to provide students with source material for the course

being undertaken.14 In Sillitoe, the UK High Court of Justice rejected the argument that the

publisher ofColes Notes could claim it was engaged in research or private study because the end

user readers might use them for such purposes.15

15. CCHdid not depart from this well-accepted analytical framework. In CCH, this Court

applied an objective testto determine the primary purpose of the Great Library. On the facts, the

Great Library never acted until after legal researchers requested single copies of works for

10CCHat paras. 48, 54 IA D;Ashdown v Telegraph Group Ltd, [2001] EWCA Civ 1142 at para. 61 (C.A.) IA D;De Garis v Neville Jeffress Pidler Pty Ltd(1990), 37 F.C.R. 99 at 105 (F.C. Austl.) IA D;Hyde Park Residence Ltdv. Yelland, [2000] EWCA Civ 37at para. 21-22, 32 (Eng. C.A.) IA D. The Board incorrectly stated in obiterat para.88 that if a use has mixed purposes, and the predominant purpose is not an allowable purpose, the dealing should

nonetheless be considered an allowable purpose (Appellants Record (AR), Tab 3). This approach isinconsistent with CCHand could result in (a) a trace or ancillary presence of an allowable purpose curing a clearly

forbidden purpose, putting undue weight on the second stage, and (b) nullifying the threshold test and transformingit into an open-ended, unstructured evaluation of fairness factors, resulting in considerable uncertainty for creators

and users alike.11CCHat para. 54 IA D;Zamacois at 301 IA D;Favreau at 149-50 IA D;Hyde Parkat para. 37 IA D.12Sillitoe at 558, IAD;London at 613-14 IA D;De Garis at 105 IA D.13 Longman at 588 IA D; also seeBoudreau at 12, IAD.14Aucklandat paras. 34-36, 48-54, IA D;Universities UK Ltd v Copyright Licensing Agency Ltd, [2002] E.M.L.R.35 at paras. 31-35, 39 IA D.15Sillitoe at 558, IAD;Boudreau at 12, IAD;London at 613 IA D;Blackwell Publishing Inc. v. Excel ResearchGroup LLC, 92 USPQ2d 1743 at 1748 (E.D. Mich. 2009) IA D.

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specific purposes, identified in advance. The Great Library had no independently identifiable

purpose. It made no copies at its own discretion. It did not perform this task for its own

economic benefit. As this Court recognized, [t]here is no other purpose for the copying.16

16. Applying the objective approach mandated in CCH, a completely different result is

dictated on the facts for the Category 4 works. The Appellants set the curriculum and select the

textbooks used for instructions. They exclusively decide what to copy. The only purpose at the

time of the copying is that of the maker, the teacher/educational institution. At the time the

copies are made, the eventual student readers are unaware of their existence. The copies are also

substitutes for the texts which are available for purchase in the market. The Appellants seek to

copy them for free to achieve their other intended purpose, which is to reduce costs by

purchasing fewer books. Their copying is for their own economic benefit as they profit from the

exploitation of the copyright works by not paying the customary price for them.17

17. Accepting the test proposed by the Appellants that their purposes are the purposes of their

students would hollow out the intended closed categories of allowable purposes in the Act. It

would subject all unauthorized copying for others that might be for their research, private study,

criticism, review or news reporting purposes into an allowable purpose for the copier, greatly

expanding the scope of the fair dealing exception. It would require courts to ignore a copiers

actual purposes and pay regard only to the possible allowable purposes of another person. Thus

the fair dealing provision would shelter intermediaries who act on their own initiative and do not

themselves have an allowable purpose. In digital environments where works can easily be copied

and made available for mass distribution over internal or external networks like the Internet by

16CCHat paras. 1, 61, 64 IA D; CCH FCA at paras. 132, 143 IA D (explaining that, on the facts, the Law Societycan vicariously claim an individual end user's fair dealing exemption, and to step into the shoes of its patron).17Harper & Rowv. Nation Enterprises, 471 U.S. 539, 562 (1985) IA D; Testimony of Pilon and de la Chenelire,

pp. 63, 79-80 AR10; Testimony of Hammond, MacDonald, Lambert and Hatcher pp. 109-13, 130 AR 11.

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educational institutions, commercial entities and anyone else, this expansion of fair dealing

would severely curtail exclusive rights and make enforcement of copyright uncertain, expensive

and extremely difficult.18

18. In the educational sector, it would lead to extensive uncompensated copying over digital

networks, as institutions would claim practically all of their copying was for a listed exception

and was fair. Moreover, if institutions could rely on their students purposes to claim the

exception, then even if many student uses turn out not to be for a listed purpose, the institutions

would still claim a defense by arguing that their practices or systems were for those purposes

and were fair.

19

This would result in even more significant uncompensated copying even in

circumstances in which neither the student nor the institution engage in an allowable activity.

C. The Cumulative Effects of Copying Must Be Considered inAssessing the Fairness of a Dealing

19. The Appellants seek to obscure the real impacts of their copying by proposing another

legal test that would turn copyright law upside down. Building upon their proposition that they

can rely on anothers purpose when they copy, they argue that each act of copying should be

separately assessed for the purpose of determining their liability. This test masks the economic

significance and overall aggregate impacts of their copying and risks putting publishers to death

by a million cuts.

20. This approach has been consistently rejected by courts, which focus on the real impacts

of the copying on the work. In the U.S., courts examine not only the market harm caused by the

particular actions of the alleged infringer, but also whether the challenged use would adversely

impact the potential market if it became widespread. The courts recognize that Isolated

18 Sookman and Glover, Why Canada Should Not Adopt Fair Use (2009), 2 Osgoode Hall Rev.L.Pol'y 139 IA D.19 The Board Decision at para. 84 rejected that educational institutions had a fair practice or system AR 3; CCHat

para. 63 IA D.

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instances of minor infringements, when multiplied many times, become in the aggregate a major

inroad on copyright that must be prevented. The courts have thus rejected fair use defences that

would have the effect of supplanting the copyright holders commercially valuable right.20

21. In this case, the Appellants seek to undermine the effect of the dealing on the work

factor. They do so even though the Board found as a fact that the Appellants copying was

sufficiently important to compete with the original to an extent that makes the dealing unfair

and a practice that conflict[s] with the normal exploitation of the work or unreasonably

prejudice[s] the legitimate interests of rights holders.21

22. In the USA, the Supreme Court has called the effect on the market factor undoubtedly

the single most important element of fair use. Fair use cannot apply to copying which materially

impairs the marketability of the work which is copied.22In the UK, by far the most important

factor is whether the alleged fair dealing is in fact commercially competing with the proprietors

exploitation of the copyright work, a substitute for the probable purchase of authorized copies,

and the like. If it is, the fair dealing defense will almost certainly fail.23

23. In Canada, all exceptions, including fair dealing, must meet Canadas obligations under

theBerne Convention and the Agreement on Trade-Related Aspects of Intellectual Property

Rights (TRIPs). This includes consistency with the Three-Step Test. Accordingly, a dealing

cannot be fair if the effect of the dealing on the work rises to a level where it would conflict

20CCHat para. 68 IA D;Boudreau at 12, IAD;Breen v. Hancock House Publishers (1985), 6 C.P.R. (3d) 433 at

436-37 (F.C.T.D.) IA D; Tamaro at 554-55 IA D;Ashdown at para. 70 IA D; Sillitoe at 564, IAD;Harper & Rowat 562, 568-69 IA D;Campbellv. Acuff-Rose Music, 510 U.S. 569 at 590-94 (1994) IA D;Sony Corp. v UniversalCity Studios 464 U.S. 417 at 451, 482 (1984) IA D;Basic Books Inc. v. Kinko's Graphics Corp., 18 USPQ2d 1437at 1443-44 (S.D.N.Y. 1991) IA D;Mulcahy v. Cheetah Learning LLC, 72 USPQ2d 1814 at 1818 (8th Cir. 2004) IAD;National Association of Boards of Pharmacy v. University of Georgia, 86 USPQ2d 1683 at 1703-4 (M.D.Ga.2008) IA D.21 Board Decision, paras. 111, 113-114 AR 3; Testimony of Pilon and de la Chenelire, AR 10-11,pp. 56, 58, 63,67, 79-80; Testimony of Hammond, MacDonald, Lambert and Hatcher pp. 109-13, 130.22Harper & Row at 566-69 IA D;Nimmer on Copyright, Vol. 4, 13.05[A][4] IA D.23Ashdown at para. 70 IA D.

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with a normal exploitation of the work or unreasonably prejudice the legitimate interests of

rights holders. A dealing rises to this level, inter alia, if it enters into economic competition with

the exercise of the right of reproduction by the rights owner.24 Given the Boards clear findings,

it would have been correct to find the dealing unfair on this ground alone.

24. In CCH, this Court stated that if the reproduced work is likely to compete with the

market for the original work, this may suggest that the dealing is not fair. It also stated that the

effect of the dealing on the work is not the most important fair dealing factor. This may

apply where the overall economic impacts of the dealing are de minimis. But in a case like this,

where copying enters into economic competition with rights holders, the harm rises to a level

where it conflicts with a normal exploitation of the work and the dealing must be regarded as

unfair. To hold otherwise would place Canada at risk of violating the Three-Step Test.25

D. The Ministers Overstate the Meaning of User Rights

25. The Appellants and other Interveners rely extensively on the concept of users rights to

promote a view of fair dealing that would substantially curtail copyright holders rights and

permit extensive copying on behalf of others. Their use of the term to justify this severe

curtailment of exclusive rights illustrates the dangers of treating the word user rights literally,

rather than as a metaphor to express the importance ofuser interests.

26. Fair dealing falls within Part III of the Act under the heading Exceptions. Exceptions

create no rights. Exceptions simply provide that if the relevant acts are a fair dealing, they will

24Thberge at para. 6 IA D;Bishop at 473 IA D; Taking Forward the Gowers Review at 9 IA D;Berne Convention,Art. 9(2) IA D; TRIPs Agreement, Art. 13 IA D; WIPO Guide at BC-9.21 to 9.29 IA D; Ficsor at 284-87 IA D;WTO Panel Report at para. 6.229 IA D.25 The Court may wish to clarify its two comments about the effect of the dealing on the work factor. ThePro

Sieben case cited states only at 613 IA Dthat this factor is a very important consideration, but not the onlyconsideration. To be consistent with the Three Step Test, a dealing must be unfair where it competes with the

original or would otherwise conflict with a normal exploitation of the work or unreasonably prejudice the legitimate

interests of rights holders. Board Decision, para. 113 AR 3, Ficsor at 91-92, IA D; Ricketson at 13.11-13.25 IA D;Daniel Gervais, The Purpose of Copyright Law in Canada (2005), 2 UOLTJ 315 at 322-23 IA D.

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not infringe copyright. In order to maintain the proper balance in copyright between the rights

of a copyright owner and users interests, it must not be interpreted restrictively.26

27. When considering the objects of the Act, this Court should not accept submissions that focus

solely on interpreting the fair dealing exceptions liberally to enable institutional users to

avoid obligations to pay for making copies of books and other works simply because it

happens in an educational setting.27Vastly extending fair dealing in this manner would

unfairly force publishers to subsidize the costs of education.28 Copyright policy should not

underestimate the importance of exclusive rights because of the critical role they play in

creating incentives to invest in and produce new works, stimulate creative activity, and

promote competition in the public interest.29

28. This is a critically important case to the long-term health of Canadian publishing and the

education system. It will be applied beyond the K-12 setting. This Court should ensure that the

short-term interests of certain users do not outweigh the long-term interests of society as a

whole.30

COSTS

29. The Interveners do not seek costs and ask that no costs be awarded against them.

ORDER SOUGHT

30. The Interveners respectfully request that this appeal be dismissed.

26CCHat para. 48 (emphasis added) IA D.27Aucklandat para. 24 IA D; Universities UKat para. 39 IA D;Longman at 586 IAD;Campbellat 584 IA D (themere fact that a use is educational and not for profit does not insulate it from a finding of infringement).28

Sony Corp. at 478 IA D.29BMG Canada Inc. v. Doe, 2005 FCA 193 at para. 40 IA D (Copyright law provides incentives for innovators artists, musicians, inventors, writers, performers and marketers to create ...);Eldred v. Ashcroft, 123 S.Ct. 769,785n.18 (2003) IA D(individual effort by personal gain is the best way to advance public welfare through thetalents of authors and inventors).30Universities UKat paras. 39-40 IA D (In declining to create a wide generalised defence for educationalestablishments the legislature has struck a balance between the interests of copyright owners on the one hand, and

the interests of education and scholarship on the other. A healthy publishing industry is important in general, but of

particular importance to those in education. Wholesale exemption from the copyright laws for educational

establishments would be damaging to the publishing industry, and in consequence damaging to education.)

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ALL OF WHICH IS RESPECTFULLY SUBMITTED THIS 21st DAY OF

NOVEMBER, 2011

McCarthy Ttrault LLPSolicitors for the Interveners

the Canadian Publishers Council,

the Association of Canadian Publishers, and the

Canadian Educational Resources Council

10862665

TABLE OF AUTHORITIES

No. Authority Paras. Cited

1. Ashdown v Telegraph Group Ltd, [2001] EWCA Civ 1142 (C.A.) B,C,C

2. Basic Books Inc. v. Kinko's Graphics Corp., 18 USPQ2d 1437 (S.D.N.Y.

1991)

C

3. Bishop v. Stevens, [1990] 2 S.C.R. 467 A, A, A, C

4. Blackwell Publishing Inc. v. Excel Research Group LLC, 92 USPQ2d 1743

(E.D. Mich. 2009)

B

5. BMG Canada Inc. v. Doe, 2005 FCA 19 D

6. Boudreau v. Lin (1997), 75 C.P.R. (3d) 1 (Ont. S.C.) A, B, C

7. Breen v. Hancock House Publishers et al., (1985), 6 C.P.R. (3d) 433

(F.C.T.D.)

C

8. Campbell v. Acuff-Rose Music, 510 U.S. 569 (1994) C,D

9. CCH Canadian Ltd. v. Law Society of Upper Canada, [2004] 1 S.C.R. 339 A, B, B, B,

C,C,D

10. CCH Canadian Ltd. v. Law Society of Upper Canada, 2004 FCA 278 A, A, B

11. Copyright Licensing Ltd v University of Auckland and Others, [2002] 3NZLR 76 (H.C.) A, B, D

12. De Garis v Neville Jeffress Pidler Pty Ltd(1990), 37 F.C.R. 99 (F.C.

Austl.)

B

13. Eldred v. Ashcroft, 123 S.Ct. 769 (2003) D

14. Hager v. ECW Press Ltd. (1999), 85 C.P.R. (3d) 289 (F.C.) A

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15. Haines v. Copyright Agency Ltd., [1982] 64 FLR 184 (F.C.A. App.) A

16. Harper & Row v. Nation Enterprises, 471 U.S. 539 (1985) B,C,C

17. Hyde Park Residence Ltd v. Yelland, [2000] EWCA Civ 37(Eng. C.A.) B

18. Longman Group Ltd v Carrington Technical Institute Board of Governors ,[1991] 2 NZLR 574 (H.C.)

A, B, D

19. Mulcahy v. Cheetah Learning LLC, 72 USPQ2d 1814 (8th Cir. 2004) C

20. National Association of Boards of Pharmacy v. University of Georgia, 86

USPQ2d 1683 (M.D. Ga. 2008)

C

21. Productions Avanti Cin-Vido Inc. v. Favreau (1999), 1 C.P.R. (4th) 129(Q.C.A.)

B

22. Pro Sieben Media AG v Carlton UK Television Ltd, [1999] 1 W.L.R. 605

(C.A.)

C

23. Sillitoe v McGraw-Hill Book Co Ltd, [1983] F.S.R. 545 (Ch.) A, B, C

24. Sony Corp. v. Universal City Studios, 464 U.S. 417 (1984) C,D

25. Thberge v. Galerie dArt du Petit Champlain inc., [2002] 2 S.C.R. 336 A, C

26. Universities UK Ltd v Copyright Licensing Agency Ltd, [2002] E.M.L.R.35 (Copyright Trib.)

B,D, 28

27. University of London Press Ltd. v. University Tutorial Press Ltd., [1916] 2

Ch. 601 (Ch.D.)

A, B

28. World Trade Organization, Report of the Panel, United States Section

110(5) of the US Copyright Act

C

29. Zamacois v. Douville (1943), 2 C.P.R. 270 (Ex. Ct.) B

30. Garnett, Davies and Harbottle, Copinger and Skone-James on Copyright,

16th Ed. London: Sweet & Maxwell, 2011 at 565B

31. Mihly Ficsor, The Law of Copyright and the Internet(Oxford: Oxford

University Press, 2002)

C,C

32. Daniel Gervais, The Purpose of Copyright Law in Canada (2005), 2UOLTJ 315 C

33. E.J. MacGillivray, The Copyright Act, 1911, Annotated(London: Stevensand Sons, 1912)

A

34. John McKeown, Fox on the Law of Copyright and Industrial Design

(Toronto: Carswell, looseleaf, 2011)

A

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35. Melville and David Nimmer,Nimmer on Copyright(Newark: LexisNexis,

looseleaf, 2007)

C

36. Sam Ricketson and Jane C. Ginsburg,International Copyright and

Neighbouring Rights. (Oxford: Oxford University Press, 2006)C

37. Robic-Leger, Canadian Copyright Act Annotated. (Toronto: Thomson

Carswell, looseleaf, 2011)

A

38. Barry Sookman and Daniel Glover, Why Canada Should Not Adopt Fair

Use (2009), 2 Osgoode Hall Rev.L.Pol'y 139

B

39. Normand Tamaro, 2011 Annotated Copyright Act(Toronto: Carswell,2010)

B,C

40. UK Intellectual Property Office, Taking Forward the Gowers Review ofIntellectual Property: Proposed Changes to Copyright Exceptions

(Newport: Concept House, 2008)

C

41. World Intellectual Property Organization, Guide to the Copyright andRelated Rights Treaties Administered by WIPO. (Geneva: WIPO, 2003)

C

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STATUTES RELIED ON

No. Authority Paras. Cited

42. Canada, Copyright Act, c. C-42 A, A, A, B

43. Canada, Copyright Act, 1921, 11-12 Geo. 5 A

44. Canada, Bill C-60, An Act to amend the Copyright Act (first reading), 53-

54 Elizabeth II, 2004-2005

A

45. Canada, Bill C-61, An Act to amend the Copyright Act (first reading), 56-

57 Elizabeth II, 2007-2008

A

46. Canada, Bill C-32, An Act to amend the Copyright Act (first reading), 59Elizabeth II, 2010

A

47. Canada, Bill C-11, An Act to amend the Copyright Act (first reading), 60

Elizabeth II, 2011

A

48. Australia, Copyright Act 1968, Act. No. 63 of 1968 A

49. New Zealand, Copyright Act 1994, 1994 No. 143 A

50. United Kingdom, Copyright Act, 1911, l & 2 Geo. 5. c. 46 A

51. United Kingdom, Copyright, Designs andPatents Act 1988, ch. 48 A

52. Berne Convention for the Protection of Literary and Artistic Works (ParisAct, 1971)

C

53. Agreement on Trade-Related Aspects of Intellectual Property Rights

(Annex 1C to the Agreement Establishing the World Trade Organization,

1994)

C

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PROVISIONS IN ISSUE

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Court File No. 33888

IN THE SUPREME COURT OF CANADA(ON APPEAL FROM THE FEDERAL COURT OF APPEAL)

B E T W E E N

THE PROVINCE OF ALBERTA AS REPRESENTED BY THE MINISTER OFEDUCATION (AND OTHERS*)

Appellants (Appellants)

- and -

THE CANADIAN COPYRIGHT LICENSING AGENCYOperating as ACCESS COPYRIGHT

Respondent (Respondent)

- and -

CANADIAN PUBLISHERS' COUNCIL, ASSOCIATION OF CANADIANPUBLISHERS AND CANADIAN EDUCATIONAL RESOURCES

COUNCIL (AND OTHERS)

Interveners

MEMORANDUM OF ARGUMENT OF THE INTERVENERSTHE CANADIAN PUBLISHERS COUNCIL, THE ASSOCIATION OFCANADIAN PUBLISHERS, AND THE CANADIAN EDUCATIONAL

RESOURCES COUNCIL(Pursuant to Rule 37of theRules of the Supreme Court of Canada)

McCarthy Ttrault LLPBox 48, Suite 5300

Toronto Dominion Bank Tower

Toronto, ON M5K 1E6

Barry B. Sookman / Daniel G.C. GloverTel: (416) 601-7949

Fax: (416) 868-0673

Solicitors for the Interveners

******************************

Cavanagh Williams Conway Baxter LLPBarristers and Solicitors

401 111 Prince of Wales Drive

Ottawa, ON K2C 3T2Colin S. Baxter

Tel: (613) 780-2012Fax: (613) 569-8668

Email: [email protected]

Agent for the Appellants

#10862665

cpc scc interveners memorandum

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