COPYRIGHT BOARD OF CANADA

Access Copyright
Elementary and Secondary School Tariff
(2010-2012, 2013-2015)



LEGAL SUBMISSIONS

of the

OBJECTORS

In Response to the June 6, 2014 Notice of the Board



Wanda Noel
Jordan Snel
5496 Whitewood Ave.
Ottawa, ON K4M 1C7
Tel: 613-692-9232
Fax: 613-692-1735
wanda.noel@bell.net
jordan.snel@bell.net


and

J. Aidan ONeill
Ariel Thomas
Fasken Martineau DuMoulin LLP
55 Metcalfe St., Suite 1300
Ottawa, ON K1P 6L5
Tel: 613-236-3882
Fax: 613-230-6423
aoneill@fasken.com
athomas@fasken.com
Counsel to the Objectors
August 8, 2014

1. Fair dealing
1.1 - Please describe the impact on fair dealing in elementary and secondary schools of
the addition of education in s. 29 of the Copyright Act and of the Alberta v. Access
Copyright and SOCAN v. Bell Supreme Court of Canada decisions. To what extent do
these developments expand fair dealing in elementary and secondary schools? In
particular, explain what the Supreme Court of Canada meant in the Alberta v. Access
Copyright decision when it used the term short excerpt.
1. The Objectors interpret the Boards question 1.1 as containing two separate sub-
questions, which they will answer in turn:
i. To what extent do the addition of education to section 29 of the Copyright Act
and the Supreme Court of Canadas decisions in Alberta v. Access Copyright
(Alberta)
1
and Society of Composers, Authors and Music Publishers of Canada
v. Bell Canada (SOCAN v. Bell)
2
expand fair dealing in elementary and
secondary schools?
ii. What did the Supreme Court of Canada mean in the Alberta decision when it
used the term short excerpt?
i. To what extent do the addition of education to section 29 of the Copyright Act and
the Supreme Court of Canadas decisions in Alberta and SOCAN v. Bell expand fair
dealing in elementary and secondary schools?
2. The Supreme Court of Canadas decision in Alberta clarified the meaning of research
and private study in a classroom setting:
The teacher/copier therefore shares a symbiotic purpose with the student/user who is
engaging in research or private study. Instruction and research/private study are, in the
school context, tautological.
3

3. However, copies that were marked as being made only for the purpose of instruction
on the logging sticker in the 2005-2006 Survey were not categorized as having been
made for a fair dealing purpose by the parties in the previous K to 12 tariff proceeding.
4. The Supreme Courts reasoning above unambiguously means that this categorization
by the parties in the previous proceeding was far too restrictive. It is therefore almost

1
Alberta (Education) v. Canadian Copyright Licensing Agency (Access Copyright), 2012 SCC 37, [2012]
2 S.C.R 345
2
Society of Composers, Authors and Music Publishers of Canada v. Bell Canada, 2012 SCC 36, [2012] 2
S.C.R. 326
3
Alberta at para. 23
3

certain that a great deal of copying that was not the subject of the Supreme Court
appeal was incorrectly categorized as compensable in the previous tariff proceeding.
Had the Objectors had the benefit of the Supreme Courts guidance in advance, it is
likely that far more than the 17 million Category 4 copies would have been at issue in
that case.
5. Adding education itself as a fair dealing purpose serves to expand the already broad
application of fair dealing in K to12 education.
6. Within the context of evaluating whether a particular transaction in the 2005-2006
Survey data was conducted for a fair dealing purpose, the Objectors consider the
following stated purposes to be equivalent to the allowable fair dealing purposes in the
Copyright Act:

1. Research
2. Private study
3. Criticism or review
4. Student tests or examinations
5. Future reference
6. Projection in class
7. Student instruction, assignments and class work
4


7. Purposes 1, 2, and 3 are explicitly listed in the Copyright Act.
5
Purposes 4, 5, 6, and 7
are decisively part of the rubric of instruction. As such, they squarely fall within the
category of research and/or private study, based on the Supreme Courts reasoning in
Alberta. Additionally, certain of the purposes that teachers had handwritten on their
logging stickers were categorized individually by legal counsel as being equivalent to
one or more fair dealing purposes.
6

8. The Objectors submit that copies made for the purpose of administering an educational
institution and for the purpose of facilitating the proper functioning of an educational
institution also fall within the meaning of education in section 29 of the Copyright Act.
This is particularly so when section 29 is interpreted largely and liberally, as the
Supreme Court interpreted it in Alberta and SOCAN v. Bell. The Objectors categorized
the copies that were recorded as having been made for the purpose of administration
on the 2005-2006 Survey as having been done for a fair dealing purpose during the
second tariff period. This was done because the addition of education to the list of fair

4
Exhibit Objectors-10 at para. 146
5
Copyright Act, R.S.C., 1985, c. C-42, s.29-29.2
6
Exhibit Objectors-10, Appendix H, SPSS Syntax File at pp. 39-48
4

dealing purposes in 2012 would expand the scope of fair dealing to include educational
purposes beyond the immediate student-teacher relationship.
9. Parliaments addition of education to the list of fair dealing purposes in section 29 of
the Copyright Act is clearly intended to have a meaningful impact on the fair dealing
rights of educational users and educational institutions in Canada. It cannot reasonably
be interpreted as a mere codification of the Supreme Courts reasoning in Alberta, but
only as an expansion of an already broad users right. Education should therefore be
read in a much broader sense than simply classroom instruction.
10. First, simply as a matter of fact, Bill C-11, containing the addition of education as an
enumerated fair dealing purpose, was passed by the Senate and received Royal Assent
on June 29, 2012,
7
before the Supreme Courts decision in Alberta was rendered on
July 12 of the same year.
11. Second, as a matter of statutory construction, language in a statute is generally
presumed not to be redundant or useless. As the Chief Justice Laskin stated: [t]he rule
of construction that is applied is that redundancy is not generally to be countenanced
when assessing parts of a statute or of a single section, and the various words must be
given subject matter.
8
Professor Ruth Sullivan also establishes the principle that
legislation must be interpreted according to the presumption that Parliament intended to
avoid superfluous or meaningless words.
9

12. The addition of education as a fair dealing purpose is also meaningful in terms of the
second-step CCH v. LSUC (CCH)
10
fairness analysis. The fairness factors should be
evaluated in terms of giving meaning to the fair dealing purpose that they are intended
to facilitate. Fairness should therefore be considered in light of Parliaments intent to
expand educational fair dealing. This will be further explored in response to the Boards
Question 1.2.
ii. What did the Supreme Court of Canada Mean in the Alberta Decision When it Used
the Term Short Excerpt?
13. An explanation of what the Supreme Court meant in its Alberta decision by the use of
the term short excerpt is discussed below in response to Question 4.

7
Bill C-11 Government of Canada Website
http://www.parl.gc.ca/LEGISInfo/BillDetails.aspx?Language=E&Mode=1&billId=5134851
8
Rosen v. R., [1980] 1 SCR 961, 1979 CanLII 59 (SCC) at p. 966 (in dissent)
9
Ruth Sullivan, Sullivan on the Construction of Statutes, 5th ed. (Markham: LexisNexis, 2008) at 210-14
cited in TLC The Land Conservancy of British Columbia (Re), 2014 BCSC 97 (CanLII) at para. 247
10
CCH Canadian Ltd. v. Law Society of Upper Canada, [2004] 1 S.C.R. 339, 2004 SCC 13
5

1.2 - Taking into consideration the jurisprudential and legislative developments referred
to above, analyze the document entitled Copyright Matters! and the Fair Dealing
Guidelines (exhibits Objectors 3B and 3C) in light of the fair dealing factors identified in
CCH.
In particular, please address whether,
(a) the reproduction of a single article for a class would constitute fair dealing in light of
CCH?
(b) the reproduction of one chapter, for a class, regardless of the number of pages
reproduced, would constitute fair dealing in light of CCH?
Are Copyright Matters! and the Fair Dealing Guidelines Fair Dealing, in Light of the
CCH Factors?
14. As the Board is well aware, the fair dealing analysis established by the Supreme Court
of Canada in CCH is a two-step process. First, the purpose must be for one of the
allowable fair dealing purposes listed in the Copyright Act. Second, the dealing must be
fair, according to an analysis of relevant factors.
15. The Objectors Fair Dealing Guidelines (which are identical to the guidelines in
Copyright Matters!) are designed to reflect what the Supreme Court decided in CCH
and Alberta, and what Parliament intended in adding education to the list of fair
dealing purposes.
16. In approving the Great Librarys fair dealing policy, the Supreme Courts decision in
CCH clearly established that there are two ways in which to determine whether fair
dealing applies to an institutions uses of copyright material. Each dealing may be
examined on an individual basis, or all of the institutions dealings may be fair if done
pursuant to a fair practice or policy. This is true even if there are individual dealings that
are unfair. The Fair Dealing Guidelines were designed to establish both a fair practice
and a fair policy.
11


17. The Objectors submit that copying behaviour in K to 12 schools is, in practice, generally
consistent with fair dealing, and that the Fair Dealing Guidelines provide schools with a
fair policy that renders the Objectors copying, as a whole, fair.



11
CCH at para. 63
6

Fair Dealing Purpose
18. The Fair Dealing Guidelines allow copying for the purposes of research, private study,
criticism, review, news reporting, education, satire, and parody in K to 12 schools.
19. These are the exact purposes listed in sections 29, 29.1, and 29.2 of the Copyright Act.
In this respect, there should be no issue as to whether the Guidelines accurately reflect
the law.
20. The exact methodology with which the Objectors applied these purposes to the 2005-
2006 Survey data is explained in brief above in answer to Question 1.1, and in greater
detail in the report of Drs. Wilk and Whitehead.
12

21. The Objectors submit that the vast majority of copying in K to 12 schools will be for one
of these purposes, especially the purpose of education.
First Factor: Purpose of the Dealing
22. This factor was described by the Supreme Court in CCH as evaluating a users real
purpose or motive in using the copyrighted work.
13

23. The Fair Dealing Guidelines, again, only allow for the fair dealing purposes that are
specifically listed in the Copyright Act. As a policy, the Guidelines are therefore clearly
fair within the purpose of the dealing factor.
24. As above, most of the copies at issue in this proceeding fall within the ambit of the
Supreme Courts decision in Alberta: The teacher/copier therefore shares a symbiotic
purpose with the student/user who is engaging in research or private study. Instruction
and research/private study are, in the school context, tautological.
25. Copies made for instructional purposes are therefore fair pursuant to this factor. A
fortiori, copies made for the purpose of education are fair under this factor in the second
tariff period. The Objectors reasoning in applying this to the 2005-2006 Survey data
and for including the purpose of administration within the meaning of education for
the second tariff period is explained in response to Question 1.1.
Second Factor: Character of the Dealing
26. The CCH decision described this factor as follows:

12
Exhibit Objectors-10
13
CCH at para. 54
7

If multiple copies of works are being widely distributed, this will tend to be unfair. If,
however, a single copy of a work is used for a specific legitimate purpose, then it may be
easier to conclude that it was a fair dealing. If the copy of the work is destroyed after it is
used for its specific intended purpose, this may also favour a finding of fairness. It may
be relevant to consider the custom or practice in a particular trade or industry to
determine whether or not the character of the dealing is fair.
14

27. The Fair Dealing Guidelines limit the distribution of copies to a single copy for each
student enrolled in a class or course.
15
As the Supreme Court found in Alberta, the
relevant perspective for evaluating fairness is that of the user of a copy, not the copier,
unless the copier is hiding behind some ulterior motive.
16
However, in K to 12
education, as the Supreme Court stated, there is no such separate purpose on the part
of the teacherThe teacher/copier therefore shares a symbiotic purpose with the
student/user.
17

28. The Supreme Court found in SOCAN v. Bell that the primary perspective from which
fairness needed to be analyzed in that case was the users perspective, as the purpose
of providing [music download] previews is primarily to facilitate the research purposes of
the consumers.
18
Just as in that case, the primary purpose in this case is to provide
short excerpts of literary works is to educate students. The primary perspective from
which fairness should be analyzed in this case, therefore, is the perspective of the
individual student.

29. From the perspective of the user, therefore, the distribution of a copy made under the
Guidelines is therefore narrow. The Objectors submit that the distribution would still be
narrow from the perspective of the teacher as well, who would normally make copies
for, at most, a class of students.
30. This type of distribution is also within the normal custom or practice of teachers, as
described in CCH.
19
The character of the dealing factor, under the Fair Dealing
Guidelines, therefore tends strongly towards fairness.
31. The Objectors further submit that the distribution of most transactions in the 2005-2006
Survey data is narrow. It was not possible to evaluate exactly how copies were
distributed based on the limited information gathered in the survey. Most copies were
marked in the survey as being for the use of staff, teachers, librarians, or
students. From the perspective of these end users, the distribution is narrow. These

14
CCH at para. 55
15
Exhibit Objectors-3C, s. 3
16
Alberta at para. 22
17
Alberta at para. 23
18
SOCAN v. Bell at para. 34
19
CCH at para. 55
8

transactions should therefore be considered as tending towards fairness. Where the
copying was marked as being for the use of others, the Objectors considered this
factor to lean against fairness.
32. Access Copyright will undoubtedly argue how the character of the dealing factor
allows consideration of copying in the aggregate, as set out in Alberta and SOCAN v.
Bell. However, there are two major problems with trying to analyze the copying
transactions at issue in this way.
33. First, as fair dealing is a personal right of the end user, the only correct aggregate to
consider would be that of one work being copied and distributed to a single student, not
all works copied in every transaction conducted by whatever large group Access
Copyright chooses to target. A particular students right to deal fairly with one particular
work for his/her own instruction cannot be cut short by the existence of a different
teacher copying a different work for a different student at a different school, no matter
how many pages these separate transactions may collectively add up to. The amount
of the dealing factor is an examination of the proportion between the excerpted copy
and the entire work, not the overall quantity of what is disseminated.
20
Conversely, the
character of the dealing is the quantification of the total number of pages copied
21

and distributed of a particular work. In other words, the character of the dealing factor
looks at the size of a particular transaction or a set of transactions involving the same
work. A transaction that was fair dealing when it was conducted cannot subsequently
become unfair dealing when other transactions occur later.
34. The second (and related) inherent problem in considering the aggregate to be, simply,
all copies made at all schools, is that this is an arbitrary and nonsensical way to group
copying transactions. Why should one teachers copying behaviour affect the fair
dealing rights of another teacher's students, let alone another school or school boards
rights? The Objectors may be collectively represented in this proceeding, but in most
ways, the school boards and ministries they represent are completely distinct legal
entities.
35. It makes no sense to consider all teachers and students behaviour collectively in terms
of evaluating fairness. There would further be no rational way for the Objectors to have
a fair dealing policy in place that could address this type of aggregate copying. The Fair
Dealing Guidelines are intended for individual teachers and students, since this is how
the users right of fair dealing is provided in the Copyright Act.


20
Alberta at para. 29
21
Alberta at para. 29
9

Third Factor: Amount of the Dealing
36. The Objectors submit that the definition of short excerpt found in the Fair Dealing
Guidelines represents a fair portion of a work to copy and that, consequently, this factor
tends towards fairness in circumstances in which the limits in the Guidelines were
respected. As noted above, to avoid unnecessary duplication of argument, the
Objectors position on the definition of a short excerpt is set out fully in their answer to
Question 4.
37. Specifically with respect to copying an article, the Objectors submit that this is a fair
amount to copy regardless of whether the relevant work is considered to be the entire
periodical or newspaper, or the individual article (see the Objectors response to
Question 1.5).
38. With respect to copying an entire chapter, regardless of length, the Objectors submit
that this is in line with the international precedents set out in response to Question 4.
Moreover, the Objectors note that it is likely rare for a book to have so few chapters that
each chapter would be substantially more than 10% of the books length.
39. Access Copyrights only submission on this point was a single book titled Science Links
9,
22
which, according to counsel for Access Copyright when questioning Ms. Shannon
Delbridge, has four chapters.
23
However, these so-called chapters are actually
called units within the table of contents, each with numerous sub-units called Topics
that would more properly be described as the chapters of the book. The contents also
include distinct sections for summaries, projects, and reviews. A total of 24 Topic
chapters are in the book, making the chapter length likely a much more restrictive
maximum than the Guidelines 10% limit.
Fourth Factor: Alternatives to the Dealing
40. The Supreme Court explained in Alberta that:
[B]uying books for each student is not a realistic alternative to teachers copying short
excerpts to supplement student textbooks. First, the schools have already purchased
originals that are kept in the class or library, from which the teachers make copies. The
teacher merely facilitates wider access to this limited number of texts by making copies
available to all students who need them. In addition, purchasing a greater number of
original textbooks to distribute to students is unreasonable in light of the Boards finding
that teachers only photocopy short excerpts to complement existing textbooks. Under
the Boards approach, schools would be required to buy sufficient copies for every

22
Exhibit AC-85 (note: as this exhibit was not provided to the Objectors, it does not appear in the Book of
Authorities)
23
Hearing Transcript Volume 5, p. 895, line 23
10

student of every text, magazine and newspaper in Access Copyrights repertoire that is
relied on by a teacher. This is a demonstrably unrealistic outcome. Copying short
excerpts, as a result, is reasonably necessary to achieve the ultimate purpose of the
students research and private study.
24

41. This reasoning is equally applicable in this proceeding. Since the Fair Dealing
Guidelines limit copying to short excerpts, it would be an entirely unrealistic alternative
for a teacher to purchase a copy of an entire book, magazine, or newspaper when the
teacher intends to use only a short excerpt to instruct his or her students. As there are
no realistic alternatives to the dealing, this factor under the Guidelines tends towards
fairness.
Fifth Factor: Nature of the Work
42. This factor examines whether the work is one which should be widely disseminated.
25

It is in the nature of works intended for educational use to be widely shared and
disseminated.

The goal of education is the advancement of knowledge and the dissemination of truth - John F.
Kennedy
26


If Virtue and Knowledge are diffused among the People, they will never be enslav'd. This will be
their great Security Samuel Adams
27


The foundation of every state is the education of its youth - Diogenes
28


43. The Fair Dealing Guidelines are expressly written to further educational goals and to
share short excerpts from works for educational purposes. The works copied and
shared under the Guidelines are therefore works with educational value that benefit
from being widely shared. It is in the nature of most educational works to seek the
largest audience (of appropriate age and skill) possible.

44. The Objectors therefore submit that the Fair Dealing Guidelines, and the copying
transactions identified in the 2005-2006 Survey, tend towards fairness under this factor.

45. However, there is one exception. Consumable works, by definition, are intended for
one-time use. Copying them may reasonably be considered less fair than other works
under the alternative to the dealing factor. However, this single factor is not itself

24
Alberta at para. 32
25
SOCAN v. Bell at para. 47
26
John F. Kennedy, http://izquotes.com/quote/100741
27
Samuel Adams, http://www.values.com/inspirational-quotes/3017-If-Virtue-And-Knowledge-Are-
28
Laertius Diogenes, http://www.giga-usa.com/quotes/authors/laertius_diogenes_a001.htm
11

determinative of fairness. The Objectors submit that, if the other factors are largely fair,
that a consumable may still be fairly copied pursuant to the Fair Dealing Guidelines.
Sixth Factor: Effect of the Dealing on the Work
46. The Fair Dealing Guidelines only allow the copying of short excerpts. By design, the
Guidelines are intended not to allow copying in situations in which a teacher or school
would ordinarily purchase an entire work. The Guidelines further have a safeguard that
prohibits cumulative copying of the same work.
29
The Objectors therefore submit that
the Fair Dealing Guidelines are fair pursuant to this factor.
47. Access Copyright has led some highly speculative and vague evidence about the harm
the Guidelines may potentially have to the publishing industry as a whole. This is
legally irrelevant. This factor deals with the effect of the dealing on the work and
whether the dealing adversely affects or competes with the work.
30
The publishers
bottom line is simply not the Objectors concern, at least in terms of evaluating fair
dealing.
48. As the Supreme Court found in Alberta:
[I]t is difficult to see how the teachers copying competes with the market for textbooks,
given the Boards finding that the teachers copying was limited to short excerpts of
complementary texts. If such photocopying did not take place, it is more likely that
students would simply go without the supplementary information, or be forced to consult
the single copy already owned by the school.
31

49. Access Copyright has entirely failed to link photocopying behaviour or the Fair Dealing
Guidelines to a decline in sales by educational publishers. There are numerous other,
better explanations for declining textbook sales that have been wholly ignored by
Access Copyright.
Other Factors
50. The Supreme Court wrote in CCH that [i]n some contexts, there may be factors other
than [the six] listed here that may help a court decide whether the dealing was fair.
32

The Objectors submit that this is such a context, particularly given Parliaments clear
decision to singularly expand educational fair dealing. There are two additional factors
that the Objectors would have the Board consider in determining the extent of fair
dealing in schools, and the fairness of the Fair Dealing Guidelines.

29
Exhibit Objectors-3C, section 5
30
SOCAN v. Bell at para. 48 (emphasis added)
31
Alberta at para. 36
32
CCH at para. 60
12

51. The first additional factor is that all of the copying in schools, and all copying made
pursuant to the Fair Dealing Guidelines, is non-commercial. The Guidelines specify in
their preamble that they are intended solely for the use of non-profit schools, and
section 7 of the Guidelines prohibits any financial gain from selling copies.
33
The
Supreme Court noted this specifically as a consideration in the purpose of the dealing
factor in CCH:
Moreover, as the Court of Appeal explained, some dealings, even if for an allowable
purpose, may be more or less fair than others; research done for commercial purposes
may not be as fair as research done for charitable purposes.
34

52. However, the Objectors submit that the non-commerciality of a dealing weighs,
by itself, towards the overall fairness of that dealing. The Copyright Act, in
numerous places, draws a line between commercial and non-commercial
copying. The clear intent that flows from the overall structure of the Act is that
these are fundamentally different kinds of copying behaviours.
53. The second additional factor that the Objectors would present to the Board is the
consideration of the public interest, which is the object of all law, including the
Copyright Act:
The Copyright Act is usually presented as a balance between promoting the public
interest in the encouragement and dissemination of works of the arts and intellect and
obtaining a just reward for the creator
[]
The proper balance among these and other public policy objectives lies not only in
recognizing the creators rights but in giving due weight to their limited nature.
35

54. The Supreme Court in CCH also noted the relevance of the "public interest"
when conducting a fair dealing assessment:
I agree with the Court of Appeal that the nature of the works in question judicial
decisions and other works essential to legal research suggests that the Law
Societys dealings were fair. As Linden J.A. explained, at para. 159: It is generally
in the public interest that access to judicial decisions and other legal resources not
be unjustifiably restrained. Moreover, the Access Policy puts reasonable limits on the
Great Librarys photocopy service. It does not allow all legal works to be copied
regardless of the purpose to which they will be put. Requests for copies will be
honoured only if the user intends to use the works for the purpose of research, private

33
Exhibit Objectors-3C, section 7
34
CCH at para. 54
35
Thberge v. Galerie dArt du Petit Champlain inc., [2002] 2 S.C.R. 336, 2002 SCC 34 at paras. 30-31
13

study, criticism, review or use in legal proceedings. This further supports a finding that
the dealings were fair. (emphasis added)
36

55. It is beyond question that K to 12 schools represented by the Objectors serve a vital public
interest in educating Canadians. The plain fact that copying by teachers under the Fair
Dealing Guidelines is done entirely to further this interest should weigh heavily in the
Boards considerations.
1.3 - In his testimony (Volume 4, pages 735-736), Mr. Benot Gauthier described the
concept of compound copying as being copying by a person in a repeated manner or
for a person in repeated manners. In evaluating what constitutes fair dealing, please
explain how compound copying should be treated. In particular, please describe the
number of copying occurrences, the amount of each copying, and the delay between
each occurrence that would be necessary to make the copying tend to be unfair.
56. When evaluating compound copying in relation to fair dealing, the only apparently
relevant CCH fairness factor is the amount of the dealing, as compound copying may
reasonably be seen to take a greater amount of a work than each of the individual
copying instances being compounded.
57. The Objectors submit that, in this light, compound copying is relatively simple to
evaluate from a legal perspective. The number of occurrences of copying is irrelevant;
all that matters is the total amount (proportion) of a particular work taken over the
course of multiple copying transactions. The Objectors submit that, if the total amount
is still less than one of the amounts allowed under the definition of short excerpt (as
set out in response to Question 4), then the amount of the dealing factor tends
towards fairness.
58. Under this analysis, the delay between copying occurrences should not be relevant, per
se, but the relevant time period over which to theoretically measure compound copying
should be a school term or semester.
59. Unfortunately, the 2005-2006 Survey was not specifically designed to capture instances
of compound copying. Although Access Copyright has provided examples of a limited
number of instances in which the same work was copied more than once by the same
person during the study period, there is insufficient information to support the conclusion
that these copies exceed the limits set out in the Fair Dealing Guidelines.
60. First, as explained above under the character of the dealing factor, the Supreme Court
found in SOCAN v. Bell that in situations in which the work is provided to the end user
to facilitate his or her fair dealing, fairness must be examined from the perspective of

36
CCH at para. 71
14

the ultimate user or consumer,
37
and in Alberta that there is noseparate purpose on
the part of the teacherThe teacher/copier therefore shares a symbiotic purpose with
the student/user.
38

61. Fair dealing in the context of compound copying must therefore be examined from the
perspective of the end user. However, there is no information about which student(s) or
class of students for which a particular photocopying transaction took place. Although it
might be possible to identify different copying transactions by the same teacher or
administrative person, the Survey data cannot determine whether these transactions
took place in order to educate the same student or class of students.
62. Second, the copier identified by initials on the logging sticker in the Survey data may not
even be a teacher. Many photocopies are made by school administrators on behalf of
various teachers throughout a school. The logging sticker simply does not provide the
information needed to determine for whose benefit a particular copying transaction was
made.
63. Third, and most importantly, none of the transactions shown in Access Copyrights
evidence quantitatively add up to a substantially much larger than normal transaction. If
the Board were to evaluate the addition of these transactions, the Objectors are
confident it would find the total amount is still substantially less than 10% of the work.
64. In raising the issue of compound copying, Access Copyright has recognized the limited
nature of the information available. As a result, there is no way, on the evidence
provided, for the Board to meaningfully or accurately take into account the alleged issue
of compound copying in evaluating fair dealing.
1.4 - Should the Board consider dealings with certain works, such as those that are
considered to be core textbooks, or those on the Trillium list, to be less fair than
dealing with other works?
65. No. The fact that a publisher considers a textbook to be core material, or the fact that
a textbook appears on the Trillium List or other similar approved textbook list is not, in
and of itself, relevant to fair dealing.
66. Textbooks that may be core material for one teacher may be used as a source of
supplementary material by another teacher who uses a different core textbook.
67. The relevant consideration is the use to which the copy is being putand therefore the
reason the original may have been purchasednot the publishers classification. What

37
SOCAN v. Bell at para. 34
38
Alberta at para. 23
15

the individual publishers may consider to constitute a core textbook may not be
considered as such by the teacher who is actually making use of it. Such being the
case, in practical terms, this means consideringunder the effect of the dealing factor
whether or not copying a short excerpt from a textbook is substituting for the normal
purchase of that textbook. There is no evidence whatsoever that this is the case, and
good reason to believe otherwise.
68. Teachers copy to supplement classroom instruction, not to replace the ordinary use of
textbooks. As the Board found in the previous 2005-2009 K to 12 tariff proceeding,
teachers generally limit themselves to reproducing relatively short excerpts from a work
to complement the main textbook.
39

69. The Fair Dealing Guidelines only allow the copying of short excerpts from a textbook.
There is no reasonable way a short excerpt could substitute for a core textbook, which
would normally be used in its entirety. A teacher copying a short excerpt from a
textbook is prima facie reason to believe that the textbook being copied is not core
within that particular teachers lesson plan.
70. Notably, the Supreme Court in Alberta did not consider it relevant that the copies at
issue were required reading for students.
40


1.5 In evaluating if the amount of the dealing tends to be fair with respect to a
compilation, Drs Wilk and Whitehead stated in their testimony that the amount of pages
copied had to be divided by the total number of pages of the compilation. Please
comment on this position in light of the Robertson v. Thompson Corp. Supreme Court of
Canada decision. Given the fact that a newspaper is protected as a compilation and
that each article is also protected as an individual copyrighted work, how should the
amount of the dealing be evaluated?

71. The Supreme Court, in Robertson v. Thomson Corp., clearly states that an article in a
newspaper is protected by copyright, both as an individual work and as part of the larger
compilation of the newspaper:

The right of reproduction adheres equally to the benefit of authors of individual works and
to those of collective works or compilations. In considering the publishers right of
reproduction, the majority says that the line between the rights of individual authors and
the rights of authors of collective works should be drawn on the basis of whose originality
is being reproduced This, with respect, seems to me to contradict the essence of
collective works and compilations, which inherently contain the originality of both the

39
2005-2009 K to 12 Tariff Reasons for Decision at para. 104
40
Category 4 copies were made for students with instructions to read them Alberta at para. 42
16

authors of individual works as well as of the creator of the collective work or
compilation. Any reproduction of a collective work will necessarily involve the
reproduction of both sets of originality.
41


72. The Objectors submit that, for the purpose of evaluating the fairness of a dealing, the
Copyright Board should consider the amount of the dealing factor with respect to the
entire newspaper. This is because a user deals with a work as it is published and sold.
Therefore, for a user who wishes to deal fairly with an article in a newspaper or
magazine to determine whether the amount he or she wishes to use is fair, the
publication as a whole is the relevant work against which to measure the amount
excerpted.
73. If an article were published and purchased individually (as are some academic articles),
the individual article could rightly be considered independently in judging the amount
copied with respect to the amount of the dealing factor. Similarly, if a work of literature
originally written as a single book was published instead as a trilogy, as was The Lord of
the Rings, it would be rightly counted as three separate books under the amount of the
dealing factor.

74. This issue was considered by the United States District Court for the Northern District of
Georgia, in Cambridge Univ. Press v. Becker.
42
In that case, one of the copying events
at issue was the copying of a chapter from a book in which each of the chapters was
an article written by a different author. At page 70 of its decision, the Court decided that
a publisher with the exclusive right to publish the entirety of a book cannot defeat a
user's fair use defence by arguing that too much of a particular chapter has been
copied, even though the chapters were written by different authors and were initially
conceived as separate works.

75. This same reasoning applies to articles in newspapers, magazines, and journals. Even
though articles are written by different authors and are usually written as separate
works, this should not serve to defeat a users right to deal fairly with a publication that
legally incorporates the work of multiple authors into a single consolidated work.

76. The copying limits in Access Copyrights own proposed tariff admit the difference
between dealing with an individual article and with a Published Work more
generally. The limits in section 3(3) of the proposed tariffs allow copying of ten
percent of a Published Work or an entire newspaper article or page. Users are

41
Robertson v. Thomson Corp., [2006] 2 S.C.R. 363, 2006 SCC 43 at para. 82
42
Cambridge University Press; Oxford University Press, Inc.; Sage Publications, Inc. v. Mark P. Becker,
in his official capacity as President of Georgia State University, 2012 U.S. Dist. LEXIS 78123 (N.D. Ga.
May 11, 2012), http://www.nacua.org/documents/CambridgeUPress_v_Becker_051112.pdf at pp. 59-63.
The decision is under appeal.
17

therefore not limited to ten percent of an article, nor are users limited depending
upon how many articles may be on a particular newspaper page. It would be
highly inconsistent for Access Copyright to claim that dealing with an individual
article and with an entire book are legally equivalent.

77. In any case, even if the relevant work for the consideration of the amount of the
dealing factor is the article and not the newspaper, the Objectors submit that this factor
still tends towards a finding of fairness when a teacher is dealing with a single article for
a class of students.

78. The Supreme Court of Canada has already plainly stated, in CCH, that copying entire
articles may be fair pursuant to this fairness factor: The amount taken may also be
more or less fair depending on the purpose. For example, for the purpose of research
or private study, it may be essential to copy an entire academic article or an entire
judicial decision. However, if a work of literature is copied for the purpose of criticism, it
will not likely be fair to include a full copy of the work in the critique.
43


79. In CCH, the Supreme Court approved the copying limits in the Great Librarys Access to
the Law Policy when it found that the Great Librarys adoption of that policy was fair
dealing. That policy provides: "Ordinarily, requests for a copy of one case, one article or
one statutory reference will be satisfied as a matter of routine."
44


80. For educational purposes, as with the legal research considered in CCH, it is almost
certain that dealing with an entire newspaper article would be necessary. Most
newspaper articles are written to be concise statements of the facts of a particular
situation, or succinct arguments relating a single issue. Omitting even a small portion of
a newspaper article would likely leave out key context or facts necessary to fully
understand the article. Using an article for classroom education is therefore best served
by the entirety of an article.

81. In terms of a practical evaluation of the amount excerpted from a newspaper, the 2005-
2006 Survey data did not collect information with respect to the length of the copied
articles. It would consequently not have been possible for Drs. Wilk and Whitehead to
calculate the amount of the dealing with respect to the individual articles copied.

82. As another practical matter, newspaper articles are often found on a single page of that
newspaper. Omitting any portion of such an article when photocopying would likely
require taking scissors to the page.

43
CCH at para. 56
44
CCH at para. 61
18



3. Rates

Please explain the position of the Objectors with respect to Access Copyright proposed
Tariffs. If, and as alleged by the Objectors, reproductions by K to 12 schools are not
compensable, why do the Objectors propose rates at $ 0.49 (2010-2012) and $ 0.46
(2013-2015) per FTE and not zero? The Objectors also refer in their Statement of Case
to the certification of a transactional tariff to cover copies not authorized by the
Copyright Act. Please provide an explanation for this proposal, which should include
details about proposed rates and methodology.

Why Do the Objectors Propose Rates of $0.49 (2010-2012) and $0.46 (2013-2015) Per
FTE and Not Zero?

83. The Objectors have never alleged that there are zero compensable transactions within
K to 12 schools. When the 2005-2006 Survey data are evaluated on a transaction-by-
transaction basis, there appear to be certain transactions that exceed the limits of users
rights (as best can be reasoned from the limited data) in the Copyright Act. These
transactions also appear to be subject to a rightful compensation claim by Access
Copyright.

84. The rates of $0.49 and $0.46 per FTE therefore represent the best estimations the
Objectors can put forward of the economic value of the respective proposed tariffs,
based on the data available.

85. However, the Objectors do submit that the general practices of K to 12 schools under
the Fair Dealing Guidelines are consistent with fair dealing. Fair dealing, as a users
right in the Copyright Act, is not only applicable in individual cases or instances, but also
as an overall practice or policy.

86. As the Supreme Court stated in CCH:

This raises a preliminary question: is it incumbent on the Law Society to adduce
evidence that every patron uses the material provided for in a fair dealing manner or can
the Law Society rely on its general practice to establish fair dealing? I conclude that the
latter suffices. Section 29 of the Copyright Act states that [f]air dealing for the purpose of
research or private study does not infringe copyright. The language is
general. Dealing connotes not individual acts, but a practice or system. This comports
with the purpose of the fair dealing exception, which is to ensure that users are not
unduly restricted in their ability to use and disseminate copyrighted works. Persons or
institutions relying on the s. 29 fair dealing exception need only prove that their own
19

dealings with copyrighted works were for the purpose of research or private study and
were fair. They may do this either by showing that their own practices and policies were
research-based and fair, or by showing that all individual dealings with the materials were
in fact research-based and fair.
45


87. The Objectors submit that they have met the burden established by CCH to show that
their own practices and policies are fair.

Details of the Objectors Proposed Transactional Tariff

88. A blanket FTE-based tariff is essentially made obsolete by the changes to the Copyright
Act made in 2012, and the Supreme Courts decisions in CCH and Alberta. A
transactional tariff that licenses particular transactions would have much greater utility
for the Objectors and would complement, rather than conflict with, the educational fair
dealing regime envisioned by adding education as one of the enumerated fair dealing
purposes.

89. The Objectors are not in a position to write a completely new tariff proposal on Access
Copyrights behalf. However, the essential terms of the transactional tariff would be:

i. Access Copyright would grant one-time licences to a K to 12 teacher or staff
member to copy a Published Work in its Repertoire, subject to its direct licensing
limit of up to 25% of a work (and the other limits enumerated in section 3(3) of
the proposed tariffs).
46


ii. A per-page royalty rate of the following would apply based on the type of work
(calculated at the Nordicity 2013-2015 page values
47
rounded to the nearest
cent), plus applicable taxes:
a. Books and textbooks: $0.11
b. Newspapers: $0.02
c. Periodicals: $0.01
d. Consumables: $0.05
e. Sheet music: $0.30
48


iii. A user of the tariff would provide reasonable bibliographic information to Access
Copyright, including title, author, ISBN/ISSN, and the specific numbers of the
pages used (as applicable).

45
CCH at para. 63
46
Exhibit AC-2F, Appendix B at p. 24
47
Exhibit Objectors-8 at p. 43, Table 30
48
Subject to Access Copyright being able to confirm in that a particular work of sheet music is within its
Repertoire
20


iv. The transactional tariff would only apply for the year 2015 (and going forward
until a new tariff is certified for 2016 and beyond). A transactional tariff cannot be
applied retroactively because there are no records of copying transactions. The
Objectors submit that the blanket rates it has proposed are appropriate for the
years already passed.

v. The transactional tariff would apply in the alternative to, not in addition to, any
FTE-based tariff.

vi. Otherwise, essentially the same terms and conditions as in the existing proposed
tariffs would apply. The Objectors however reserve the right to take issue with
any of Access Copyrights proposed terms if and when the Board allows
submissions on the administrative provisions of the tariffs.

90. There is no evident reason why the Nordicity per-page rates would apply differently to a
transactional licence than to a blanket licence. A selection premium is already built into
the Nordicity rates.

91. Access Copyright currently allows transactional permission requests through its
website
49
, but it is not guaranteed that permission will be given even if a work is within
Access Copyrights repertoire. In any case, Access Copyright is certainly equipped to
handle transactional permissions through a tariff.


4. Copyright Matters

Please explain on what basis the Objectors established their position with respect to the
definition of what constitutes a short excerpt as described in paragraph 4 of section 3 of
Copyright Matters! (Exhibit Objectors 3B).

92. While the Supreme Court of Canada in Alberta found that dealing with "short excerpts"
is fair, the Court did not discuss the meaning of "short excerpts." In that case, the
Supreme Court described the amount of the dealing factor as follows:


49
See, for example, the Access Copyright Website How to Calculate the Price for a Transactional (Pay-
Per-Use) Licence:
http://www.accesscopyright.ca/permissions/how-to-calculate-the-price-for-a-transactional-%28pay-per-
use%29-licence/
21

[T]he amount factor is not a quantitative assessment based on aggregate use, it is an
examination of the proportion between the excerpted copy and the entire work, not the
overall quantity of what is disseminated.
50


93. The seventeen million Category 4 copies that were specifically at issue in Alberta were
not evaluated individually, but rather found to be categorically fair based on the Boards
determination that teachers generally copy short excerpts to supplement classroom
instruction and to facilitate the research and private study of their students.

94. Following the Alberta decision, the Objectors were left with the task of determining a
reasonable definition of a short excerpt for teachers to apply in their copying activities.
Canadian teachers clearly needed such a definition to ensure that their copying fell
within the limits permitted by the Supreme Courts decision. The Objectors
subsequently looked to legislation, court decisions and scholarly writing in other
countries to identify a practical description of short excerpt for teachers.

95. The definition of a short excerpt within the Fair Dealing Guidelines and in Copyright
Matters! is as follows:

A short excerpt means:

a) up to 10 per cent of a copyright-protected work (including a literary work, musical
score, sound recording, and an audiovisual work);
b) one chapter from a book;
c) a single article from a periodical;
d) an entire artistic work (including a painting, print, photograph, diagram, drawing,
map, chart, and plan) from a copyright-protected work containing other artistic
works;
e) an entire newspaper article or page;
f) an entire single poem or musical score from copyright-protected work containing
other poems or musical scores;
g) an entire entry from an encyclopedia, annotated bibliography, dictionary, or
similar reference work.
51


96. The amount of the dealing factor was a threshold test in the volume analysis of Drs.
Wilk and Whitehead.
52
A copying transaction that did not meet the Objectors
quantitative definition of a short excerpt in paragraph 4 of section 3 of Copyright
Matters! could not quality as fair dealing under this analysis.


50
Alberta at para. 29
51
Exhibit Objectors-3C
52
Exhibit Objectors-10 at para. 159
22

97. This was a highly conservative approach for the Objectors to take, since the amount of
the dealing is only one of the six fairness factors, and is not by itself determinative of
fairness. As the Supreme Court stated in CCH, the quantity of the work taken will not
be determinative of fairness, but it can help in the determination. It may be possible to
deal fairly with a whole work.
53


98. During the oral argument at the Supreme Court in Alberta, the meaning of "short
excerpt" was discussed by the Appellants (the Objectors in this Proceeding.)
54
The
Objectors cited the Australian Copyright Act's definition of what constitutes a
"reasonable portion" under fair dealing,
55
as well as the agreement between educational
publishers, authors and educators in the United States regarding what educational uses
could be made under the fair use provision in the United States Copyright Act.
56


99. Both the United States and Australia's copyright laws characterize 10% of a work, or an
entire chapter, or an entire article, as being a "fair" amount. Such being the case, the
Supreme Court in Alberta made its decision in full knowledge of what was considered a
"short excerpt" under fair dealing law in Australia and under fair use in the United
States.

100. These international comparisons support the view that dealing with a single article from
a newspaper, magazine or journal, and dealing with 10% or less of a work or a single
chapter of a book, is "fair."

101. Every foreign jurisdiction has nuances and important distinctions in comparison to
Canadian copyright law. Fundamentally, however, the measure of a reasonable portion
of a work to use without compensation or infringement should rationally be similar
across jurisdictions that have a similar common law philosophy of copyright law. These
international comparisons are provided not as being determinative of Canadian law, but
rather to illustrate the fact that there is some international consensus on the answer to
the question before the Copyright Board: what is a short excerpt?; i.e., what amount of
copying is fair? This established consensus then guided the Objectors in developing the
definition of short excerpt set out in the Fair Dealing Guidelines.





53
CCH at para. 56
54
Supreme Court of Canada, Hearing Transcript for Alberta (Education) v. Canadian Copyright Licensing
Agency (Access Copyright), December 7, 2012, p. 7, line 21 to p. 8, line 25
55
Copyright Act 1968 (Australia), http://www.austlii.edu.au/au/legis/cth/consol_act/ca1968133/ ss. 40- 42
56
U.S. Copyright Law, USC Title 17, http://www.copyright.gov/title17/circ92.pdf s. 107
23

Australia

102. The fair dealing sections in Australia's Copyright Act 1968 have certain quantitative
specifications about the amount of dealing permitted without the payment of royalties.
57

With regard to published literary works (as well as other works), subsection 40(1)
provides that fair dealing for purposes of research or study does not constitute an
infringement of copyright.

103. Subsection 40(3) provides that all of a copyright-protected work contained in a single
article in a periodical publication may be reproduced pursuant to fair dealing for the
purposes of research or study.

104. Subsection 40(4) limits the reproduction right in 40(3) to one article per periodical
publication. Notably, and with respect to question 1.5 above, the Australian Copyright
Act clearly treats the periodical itself as the relevant work for evaluating fair dealing,
despite the fact that the articles within a periodical are also separately protected works.

105. Subsection 40(5) describes a reasonable portion of a work that can be reproduced
pursuant to fair dealing:

(5) Despite subsection (2), a reproduction, for the purpose of research or study, of not
more than a reasonable portion of a work or adaptation that is described in an item of the
table and is not contained in an article in a periodical publication is taken to be a fair
dealing with the work or adaptation for the purpose of research or study. For this
purpose, reasonable portion means the amount described in the item.

Works, adaptations and reasonable portions
Item Work or adaptation Amount that is
reasonable portion
1 A literary, dramatic or
musical work (except a
computer program), or an
adaptation of such a
work, that is contained in
a published edition of at
least 10 pages
(a) 10% of the number of
pages in the edition; or
(b) if the work or
adaptation is divided into
chapters--a single
chapter
2 A published literary work
in electronic form (except
a computer program or
an electronic compilation,
such as a database), a
published dramatic work
(a) 10% of the number of
words in the work or
adaptation; or
(b) if the work or
adaptation is divided into

57
Copyright Act 1968 (Australia), ss. 40-42
24

Works, adaptations and reasonable portions
Item Work or adaptation Amount that is
reasonable portion
in electronic form or an
adaptation published in
electronic form of such a
literary or dramatic work
chapters--a single
chapter

106. Subsection 40(6) provides that the dealing only needs to meet one of the criteria: 10%
or a single chapter. A user is not limited to the shorter of the two options, and the length
of a chapter is irrelevant.

107. The term "reasonable portion" denotes an amount that is synonymous with, if not larger
than, the amount described by the term "short excerpt." The Australian Copyright Act,
in some ways, allows broader reproduction under fair dealing than that allowed by the
Fair Dealing Guidelines, since the Australian Copyright Act does not contain the same
safeguards or limitations. The Objectors therefore submit that the quantitative limits of
up to 10% of a work or a single chapter or article are reasonable amounts for the
Copyright Board to use in assessing the fairness of a dealing in Canada.

108. Although Australia has enacted mandatory statutory licences for government
institutions, this is not relevant to the determination of what is considered a reasonable
portion. The statutory licence scheme that the federal and state governments use does
not account for the users right of fair dealing. This has been the subject of some legal
debate in Australia. The Australian Law Reform Commission has recommended
making statutory licences voluntary and has stated that they should better account for
users rights.
58
The Commission recommends that government and education licences
in Australia's Copyright Act should be modified to reflect fair dealing rights.

New Zealand

109. New Zealand's copyright literature uses the term "small extract. Section 43 of New
Zealand's Copyright Act leaves the amount of the dealing undefined.
59
However, the
New Zealand Copyright Council has developed an Information Sheet, entitled Copyright
Use in the Education Sector, stating that copying "a small extract, up to 10% may be
used as a rough guideline" to assess what amount can be copied for educational use

58
Australia Law Reform Commission, Copyright and the Digital Economy Final Report
http://www.alrc.gov.au/sites/default/files/pdfs/publications/final_report_alrc_122_2nd_december_2013_.p
df at pp. 196-198
59
Copyright Act 1994 (New Zealand), ss. 40-43, online:
http://www.legislation.govt.nz/act/public/1994/0143/latest/DLM345634.html
25

under fair dealing. It also states that "[s]ometimes it is fair to copy a whole work such
as a poem or journal article."
60


Israel

110. Israel amended its Copyright Act in 2007 to introduce fair use provisions.
61
The fair use
provision in section 19 of that statute leaves the amount that may be copied under that
provision undefined. However, guidelines have been published in the Journal of the
Copyright Society (2010) in an article entitled "Fair Use Best Practices for Higher
Education Institutions: The Israeli Experience."
62


111. In order to apply the fair use provision in educational institutions, post-secondary
institutions in Israel collectively created a Code of Best Practices for the use of copyright
materials. This Code was negotiated by a coalition of all of the major post-secondary
educational institutions in Israel, and sets out their shared understanding of fair use for
education under the Israeli Copyright Act.

112. The Code instructs users to take the following considerations into account in
determining how much they can fairly copy:

The use of roughly one fifth of a work is considered fair use. The determination
should not be made simply on a quantitative basis but on a qualitative one as
well.
The use of an entire article taken from a periodical or an anthology of articles is a
fair use.
The use of an entire indivisible work, such as a picture, photograph, drawing,
table, etc., is a fair use.
63


113. These limits were recently validated in a court-approved negotiated settlement in a
dispute between Hebrew University and two major Israeli publishers concerning the
extent of fair use for educational purposes. Both the publishers and the university
agreed to the following definition of fair use:

Scope of fair use:

60
Copyright Use in the Education Sector, New Zealand Copyright Council, Nov. 2008, online:
http://www.copyright.org.nz/html/blob.php/Copyright+Use+in+the+Education+Sector.Oct+2008.pdf?attach
=true&document=439&filetypecode=1&fileId=112 at p. 4
61
Copyright Act of 2007 (Israel) s.19, http://www.wipo.int/wipolex/en/text.jsp?file_id=132095
62
Dotan, Amira, Niva Elkin-Koren, Orit Fischman-Afori, Ronit Haramati- Alpern, Fair Use Best Practices in
Higher Education, Journal of the Copyright Society of the U.S.A., online:
http://www.colman.ac.il/English/AcademicUnits/Law/Faculty/Orit_Fishman_Afori/Documents/Fair
%20Use%20Best%20Practices%20Israel%20SSRN.pdf at p. 23
63
Ibid. at p. 23.
26


(1) With respect to a book, the scope of fair use for the purposes of this Agreement only,
shall be deemed to be up to 20% of the number of pages in the book, for the purposes of
any single Coursepack, or for the purposes of a list of the electronic reserves of any
single course;

(2) With respect to an article, the scope of fair use shall be the entire article, provided that
if in a single course, there is a need for more than one article from a book that is a
collection of articles, the provisions regarding the permitted scope of fair use of a book as
set out in paragraph (1) shall apply;
64


United States

114. The fair use provision was first introduced in the United States Copyright Act in 1976.
Prior to that time, fair use was a well-established judicial doctrine recognizing that a
defendant's allegedly infringing act could be defended as fair, and thus not infringe
copyright. The introduction of fair use into the Copyright Act precipitated the negotiation
of An Agreement on Guidelines for Classroom Copyright in Not-For-Profit Educational
Institutions with respect to books and periodicals (the Agreement).
65
The Agreement
was negotiated by representatives of publishers, authors and educational institutions.

115. The Agreement states that it describes the minimuma safe harbourand not the
maximum limits of educational copying from books and periodicals under fair use. The
Agreement is long and relatively detailed. The most relevant aspects of the Agreement
for the purposes of this submission are the quantitative limits used to separate a fair use
from an unfair one.

116. Under the Agreement, it is fair use to make a single copy of a chapter from a book and
an article from a periodical or newspaper. It is fair use for a teacher to make multiple
copies, one for each student in a class, provided the amount copied meets a number of
tests set out in the Agreement, one of which is brevity. The brevity test is met if a
teacher copies a complete article or an excerpt of not more than 10% of the work.

117. In 2012, the United States District Court for the Northern District of Georgia issued a
comprehensive decision on fair use.
66
This decision reviewed the Agreement, which
was negotiated in 1976, 38 years ago, and concluded that the safe harbour represented

64
Mediation Settlement Between Schocken Publishing House, Bialik Institute Publishing, and The
Hebrew University, Unofficial English translation at p. 4
65
An Agreement on Guidelines for Classroom Copyright in Not-For-Profit Educational Institutions with
respect to books and periodicals, http://www.copyright.gov/circs/circ21.pdf pp. 5-6.
66
Cambridge University Press; Oxford University Press, Inc.; Sage Publications, Inc. v. Mark P. Becker,
in his official capacity as President of Georgia State University, 2012 U.S. Dist. LEXIS 78123 (N.D. Ga.
May 11, 2012), http://www.nacua.org/documents/CambridgeUPress_v_Becker_051112.pdf. The decision
is under appeal.
27

by the Agreement is "very restrictive".
67
In other words, the Court considered the brevity
test set out in the Agreementincluding the 10% limitas being overly conservative
from the perspective of an educational user.

118. One of the issues before the Court was what portion of a book is sufficiently small to
qualify for fair use. The Court rejected a flat word or page count, opting instead for a
percentage of pages that reasonably limits copying, as well as a reasonable limit on the
number of chapters which may be copied.
68
The Court stated: "it is relevant here that
the excerpts were generally a small part (averaging around 10%) of the whole work.
Such a small excerpt does not substitute for the book as a whole."
69


119. The Court reached the following conclusions regarding the amount of the dealing factor.
First, when a book is divided into chapters or contains fewer than ten chapters, unpaid
copying of no more than 10% of the pages in the book is permissible under the amount
of the dealing factor. Second, where a book contains ten or more chapters, the unpaid
copying of up to, but no more than one chapter (or its equivalent), is permissible under
the amount of the dealing factor.

Conclusion

120. It is clear that Access Copyright did not establish the permitted copying limits in its
various tariffs and licences, such as 10% of a work, an article, or one chapter, without
first considering what amount would be reasonably unlikely to substitute for the
purchase of a work. Access Copyrights board members and its affiliates are publishers
and authorsstakeholders that would certainly not allow the licensing of copying if it
would interfere with their sales.

121. Furthermore, the Objectors did not set out to design Fair Dealing Guidelines that would
mimic the Access Copyright tariffs. Rather, the reason the limits in the Objectors Fair
Dealing Guidelines and Access Copyrights tariffs and licences are so similar is because
all are likely the result of a similar legal analysis. Copying limits such as 10% of a work,
a single article, or a single chapter, are selected by design in order that they not
substitute for the normal purchase of a copyright-protected work. Seen from this
viewpoint, it is not surprising that experts on both sides would come to similar
conclusions as to the reasonable amounts that can be copied without interfering in sales
of the works themselves.


67
Ibid. at page 56
68
Ibid. at page 71
69
Ibid. at page 74
28

122. As indicated above, the definition of a short excerpt, in particular, is not something that
was picked out of thin air by the Objectors. Instead, it was based on a careful review
of the consensus reached in a number of common law jurisdictions, as well as in Israel,
that have all dealt with a similar issue. The Objectors submit that this consensus should
be considered by the Board in determining how reasonably to define a short excerpt
for teachers and students in Canada in the context of this tariff proceeding.

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

ALL OF WHICH IS RESPECTFULLY SUBMITTED, this 8
th
day of August, 2014.

Wanda Noel
Jordan Snel
5496 Whitewood Ave.
Ottawa, ON K4M 1C7
Tel: 613-692-9232
Fax: 613-692-1735
wanda.noel@bell.net
jordan.snel@bell.net


and

J. Aidan ONeill
Ariel Thomas
Fasken Martineau DuMoulin LLP
55 Metcalfe St., Suite 1300
Ottawa, ON K1P 6L5
Tel: 613-236-3882
Fax: 613-230-6423
aoneill@fasken.com
athomas@fasken.com
Counsel to the Objectors