File Number:

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 OF

EDUCATION AND OTHERS*

Applicants (Applicants)
- and -

THE CANADIAN COPYRIGHT LICENSING AGENCY

Operating as “ACCESS COPYRIGHT”
Respondent (Respondent)

APPLICATION FOR LEAVE TO APPEAL

MEMORANDUM OF ARGUMENT OF THE APPLICANTS, THE PROVINCE OF

ALBERTA AS REPRESENTED BY THE MINISTER OF EDUCATION, AND OTHERS*

Pursuant to subsection 40(1) of the Supreme Court Act and Rule 25 of the
Rules of the Supreme Court of Canada

Wanda Noel
Barrister and Solicitor
5496 Whitewood Avenue
Ottawa, ON K4M 1C7
Telephone: (613) 794-1171
Facsimile: (613) 692-1735
E-mail: wanda.noel@sympatico.ca

J. Aidan O’Neill
Fasken Martineau DuMoulin LLP
1300 - 55 Metcalfe Street
Ottawa, ON K1P 6L5
Telephone: (613) 236-3882
Facsimile: (613) 230-6423
E-mail: aoneill@fasken.com

Solicitors for the Applicants

 3

*THE PROVINCE OF BRITISH COLUMBIA AS REPRESENTED

BY THE MINISTER OF EDUCATION;
THE PROVINCE OF MANITOBA AS REPRESENTED
BY THE MINISTER OF EDUCATION,
CITIZENSHIP AND YOUTH;
THE PROVINCE OF NEW BRUNSWICK AS REPRESENTED
BY THE MINISTER OF EDUCATION;
THE PROVINCE OF NEWFOUNDLAND AND LABRADOR
AS REPRESENTED BY THE MINISTER OF EDUCATION;
THE NORTHWEST TERRITORIES AS REPRESENTED
BY 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 AS
REPRESENTED BY THE MINISTER OF EDUCATION;
THE PROVINCE OF SASKATCHEWAN AS REPRESENTED
BY THE MINISTER OF EDUCATION;
THE YUKON TERRITORY AS REPRESENTED
BY 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 CHILDREN’S 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 ÉCOLES CATHOLIQUES DU CENTRE-EST DE L’ONTARIO;
THE CONSEIL DES ÉCOLES PUBLIQUES DE L’EST DE L’ONTARIO;
THE CONSEIL DES ÉCOLES SÉPARÉES CATHOLIQUES DE DUBREUILVILLE;
THE CONSEIL DES ÉCOLES SÉPARÉES CATHOLIQUES DE FOLEYET;
THE CONSEIL SCOLAIRE DE DISTRICT CATHOLIQUE CENTRE-SUD;
THE CONSEIL SCOLAIRE DE DISTRICT CATHOLIQUE DE L’EST ONTARIEN;
 4

THE CONSEIL SCOLAIRE DE DISTRICT CATHOLIQUE DES AURORES

BORÉALES;
THE CONSEIL SCOLAIRE DE DISTRICT CATHOLIQUE DES GRANDES RIVIÈRES;
THE CONSEIL SCOLAIRE DE DISTRICT CATHOLIQUE DU NOUVEL-ONTARIO;
THE CONSEIL SCOLAIRE DE DISTRICT CATHOLIQUE FRANCO-NORD;
THE CONSEIL SCOLAIRE DE DISTRICT DES ÉCOLES CATHOLIQUES DE SUD-
OUEST;
THE CONSEIL SCOLAIRE DE DISTRICT DU CENTRE SUD-OUEST;
THE CONSEIL SCOLAIRE DE DISTRICT DU GRAND NORD DE L’ONTARIO;
THE CONSEIL SCOLAIRE DE DISTRICT DU NORD-EST DE L’ONTARIO;
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 CHILDREN’S CENTRE SCHOOL AUTHORITY;
THE NIPISSING-PARRY SOUND CATHOLIC DISTRICT SCHOOL BOARD;
THE NORTHEASTERN CATHOLIC DISTRICT SCHOOL BOARD;
 5

THE NORTHERN DISTRICT SCHOOL AREA BOARD;

THE NORTHWEST CATHOLIC DISTRICT SCHOOL BOARD;
THE OTTAWA CHILDREN’S 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;
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
 6

TABLE OF CONTENTS
PART I – FACTS .......................................................................................................................................... 2

PART II – QUESTIONS IN ISSUE................................................................................................................ 7

PART III - ARGUMENTS .............................................................................................................................. 8

PART IV – SUBMISSION ON COSTS ....................................................................................................... 20

PART V – ORDER SOUGHT...................................................................................................................... 20

PART VI - TABLE OF AUTHORITIES ....................................................................................................... 21

PART VII - STATUTES RELIED UPON ..................................................................................................... 22

 PART I – FACTS

Overview

1. Six years ago, this Court released its decision in CCH v. Law Society of Upper
Canada interpreting the fair dealing provisions in the Copyright Act. CCH was a
landmark decision because it profoundly changed the way in which exceptions in the
Copyright Act are to be interpreted.

CCH v. Law Society of Upper Canada, 2004 SCC 13 (“CCH”)

Copyright Act, R.S.C. 1985, c. C-42 (“Copyright Act”)

2. Prior to the CCH decision, exceptions were viewed as limitations on the rights of
copyright owners and were narrowly interpreted. CCH changed this view of the
Copyright Act. The decision replaced “exceptions” with “users’ rights” and directed that
these rights “should not be interpreted restrictively.”

CCH, para. 48

Copyright Act, s. 29

3. This case involves the first judicial application of CCH to educational dealings.
The dealing in this case involves copying of published materials by a teacher for
distribution to students in his or her class. The issue is whether these dealings by
teachers are “fair” according to the principles established in CCH in 2004.

4. The decisions below of the Copyright Board of Canada (the “Board”) and the
Federal Court of Appeal are now a legal precedent for the proposition that a teacher
making copies for distribution to students in his or her class is not fair dealing. Unless
this precedent is overturned by this Court, a teacher making copies for distribution to
students in his or her class will never meet the second step of the fair dealing test – the
"fairness" test – laid down by this Court in CCH.

5. Exceptions in the Copyright Act are, according to this Court in CCH, not to be
interpreted restrictively because they represent the legitimate rights of users. The
Federal Court of Appeal, in the present case, did not directly consider the significance of
that directive.
 2

CCH, para. 48

Alberta (Education) v. Access Copyright, 2010 FCA 198 (the “Appeal

Decision”)

6. The factual record establishes that teachers in elementary and secondary

schools copy short excerpts, primarily from textbooks, for distribution to students in their
classes. The purpose of the copying is to supplement material in the textbooks which
have been provided to the students – for example, a teacher might occasionally
distribute a page of math problems from a different mathematics textbook.

7. The evidence before the Board demonstrated that teachers were copying for
students, on average, six pages per month per student of published material from
Access Copyright’s repertoire.

Statement of Royalties to be Collected by Access Copyright for the

Reprographic Reproduction, in Canada, of Works in its Repertoire
(Educational Institutions – 2005-2009), Decision of the Board, June 26,
2009, corrected version July 17, 2009, para. 118, Table 1 (the “Board
Decision”), Applicants’ Record, Tab 4

Transcript, Vol. 8, pages 1586-1588, Applicants’ Record, Tab 8

8. Unlike CCH and SOCAN v. Bell, this case is not about a commercial use of
copyright works. Despite this inconsistency, copying by teachers for students has been
held to be unfair, while copying for lawyers and streaming music previews to consumers
has been held to be fair.

SOCAN v. Bell, 2010 FCA 123 (“SOCAN v. Bell”)

9. This application for leave to appeal raises matters of national and public
importance, especially in light of the contradictory appellate jurisprudence, the
continued uncertainty in the law concerning the scope of the fair dealing exception, and
the broader impact of the Board and Appeal Decisions on copyright users across
Canada.

Supreme Court Act, R.S.C. 1985, c. S-26, subs. 40(1)

10. This case and SOCAN v. Bell, which was decided only three months prior to the
Appeal Decision, are the first appellate-level considerations of fair dealing since this
Court’s decision in CCH. The two cases take crucially different approaches to analyzing
 3

fair dealing. In SOCAN v. Bell, as in CCH itself, the “purpose of the dealing” factor at
the second stage of the fair dealing analysis was assessed from the perspective of the
consumer of the subject-matter of the copyright – the lawyer and the online music
shopper. Yet, in this case, the purpose was assessed from the perspective of the
teacher who made the copy, instead of the student who was the consumer of the copy.

CCH

SOCAN v. Bell

11. The Federal Court of Appeal decisions in SOCAN v. Bell and in this case are
also inconsistent regarding how to assess the “amount of the dealing” when conducting
the second stage of the fairness analysis. The Federal Court of Appeal, in SOCAN v.
Bell, assessed the amount of the dealing by comparing the length of the extract at issue
with the length of the entire work. In the Appeal Decision, however, that Court took the
opposite approach and approved the Board’s decision to measure the amount of the
dealing in the aggregate over a period of time.

CCH, para. 56

12. SOCAN is currently seeking leave to appeal from this Court on the exact issue of
which “end of the telescope” the courts should look through in assessing the “amount of
the dealing.” The Applicants submit that the opposite approaches taken by the Board in
this case and in the decision that, when judicially reviewed, became SOCAN v. Bell, and
upheld by the Federal Court of Appeal demonstrate a need for clarification by this Court.
In SOCAN v. Bell, the Federal Court of Appeal stated that it would “leave this issue for
another day.” The Applicants submit that the filing with the Court of two applications for
leave regarding the same issue is a signal that that day has come.

SOCAN v. Bell, Memorandum of Argument, Application for Leave to

Appeal, filed with S.C.C. August 13, 2010 Tab 9

SOCAN v. Bell, para. 30

13. The decisions below are inconsistent with CCH. They hold that when a copy of a
work is provided to a user with instructions to read it, that use, because of the presence
of instructions, cannot be fair dealing. Yet in CCH, many of the users of copies of
literary works which were found to be fair dealing were likely instructed to read those
 4

copies. A judge instructing a law clerk to read certain cases is one example. A lawyer
instructing an articling student to review case law or legal authorities on a particular
legal issue is another. The Board’s finding in this case, and the Federal Court of
Appeal’s upholding of that finding, ignores the factual similarities between teachers and
students, lawyers and articling students, and judges and law clerks.

Board Decision, para. 98

Appeal Decision, para. 46

14. The Federal Court of Appeal’s decision on the standard of review to be applied in
this case also does not accord with this Court’s decision in Dunsmuir v. New Brunswick
and raises significant legal questions about the relevance of pre-Dunsmuir decisions.
Further, the Appeal Decision establishes a dangerous precedent that the standard of
review of legal decisions made by the Board is that of reasonableness, and thus that the
Board is not held to the proper standard of correctness on matters of general
interpretation of the Copyright Act.

Appeal Decision, para. 32, Applicants’ Record, Tab 5

Dunsmuir v. New Brunswick, 2008 SCC 9 (“Dunsmuir”)

15. This case is important for a large segment of Canadian society: approximately
four million elementary and secondary school students. However, the interpretation of
fair dealing is also important because, across Canada, members of the public use
copyrighted works every day. According to this Court in CCH, these Canadians have
certain users’ rights to deal fairly with those works. In order to exercise these rights
without fear of legal retribution, the law must be clear. Yet the inconsistencies in the
decisions below only create more confusion.

Transcript, Vol. 8, page 1588, Applicants’ Record, Tab 8

Board Decision, para. 185

16. To ensure that users’ rights are given the broad scope and application that this
Court has determined they have, and that copyright users across Canada are able to
take advantage of those rights without fear of legal retribution, clarification with respect
to the scope and application of fair dealing from this Court is essential.
 5

The Tariff

17. The Applicants comprise a coalition of the twelve provincial and territorial
Ministries of Education outside of Quebec, and the school boards in Ontario. The
royalties paid by the Applicants are approved by the Board and certified in the Canada
Gazette in the form of Statements of Royalties called “tariffs.”

18. The issues involved in this application for leave to appeal arise out of a June 26,
2009 decision of the Board setting the royalty rates to be paid to Access Copyright, a
Canadian collective society representing authors and publishers. The tariff applies to
the photocopying of books, newspapers, magazines and other publications within
Access Copyright’s repertoire in Canadian elementary and secondary schools (with the
exception of Quebec) during the 2005 to 2009 calendar years.

19. In certifying a tariff, the Board hears legal submissions and economic evidence
from the collective society proposing the tariff and copyright users who have filed
objections to it; in this proceeding, Access Copyright and the Applicants, respectively.
The tariff approved by the Board is entitled the Statement of Royalties to be Collected
by Access Copyright for the Reprographic Reproduction, in Canada, of Works in its
Repertoire in respect of Educational Institutions (2005-2009) (the “Tariff”).

Board Decision, Applicants’ Record, Tab 4

20. In assessing the total number of photocopied pages which gave rise to copyright
royalty payments, the Board had to determine the number of pages that should be
excluded from the calculation as a result of the “fair dealing” provisions in the Copyright
Act.

Copyright Act, ss. 29, 29.1

The Board’s Decision

21. The 2009 decision of the Board is the first to apply CCH in Canadian schools.
The Board found that copies distributed by teachers to their students that were not
requested by them, or provided to students with instructions to read the material, did not
 6

constitute fair dealing. In the Board's view, both types of copies consequently required
royalty payments under the Tariff.

22. In reaching these conclusions, the Board applied the two-step test established by
this Court in CCH to determine whether a particular dealing is fair. Both steps of the
test must be met:

1. Is the use of the copyrighted material for an allowable purpose

under the Copyright Act?

2. Is the use of the copyrighted material fair, using the factors set out
in CCH?

CCH, paras. 50-53

23. In its June 26, 2009 decision, the Board accepted the parties’ agreement that the
photocopying in question was for an allowable purpose listed in the fair dealing
provision of the Copyright Act. The first step of the test is not at issue in this case.

24. The Board then applied the second step of the test to determine whether the
“dealing” was fair. The Board interpreted the six factors set out in CCH in order to
assess whether the dealings in this case were, in fact, fair: the purpose, character and
amount of the dealing, alternatives to the dealing, the nature of the work, and the effect
of the dealing on the work.

Board Decision, paras. 96-114

25. With regard to the purpose of the dealing, the Board concluded that copies of
excerpts made on the teacher's initiative for his or her students, and copies the teacher
directs the students to read, are unfair:

A teacher, in deciding what to copy and for whom, just as

when directing students' conduct, is doing his or her job,
which is to instruct students. According to this criterion, the
dealing therefore tends to be unfair.
Board Decision, para. 92
 7

26. With regard to the amount of the dealing, the Board concluded that there are
factors weighing on each side of the fairness assessment:

However, it seems that teachers generally limit themselves

to reproducing short excerpts from a work to complement the
main textbook. On the other hand, it is more likely that class
sets will be subject to "numerous requests for [...] the same
[...] series", which would tend to make the amount of the
dealing unfair on the whole.
Board Decision, para. 104

CCH, para. 69

27. With regard to the remaining four factors established by this Court in CCH, the
Board also concluded that a teacher making copies for distribution to students in his or
her class was not fair.

The Federal Court of Appeal’s Decision

28. The Applicants applied for judicial review of the Board decision. The Federal
Court of Appeal found the Board’s ruling that the dealing was unfair was a “largely
factual inquiry well within the competence of the Board” and upheld the Board decision
as “not unreasonable.”

Appeal Decision, para. 32

29. The principle set out by this Court in CCH, that users' rights should not be
interpreted restrictively, is not addressed by the Federal Court of Appeal in its decision.
Applying the standard of reasonableness to its judicial review of the Board Decision
made it unnecessary for the Federal Court of Appeal to apply that important legal
principle to the fact situation of a teacher copying for students in his or her class.

PART II – QUESTIONS IN ISSUE

30. This application for leave to appeal seeks clarification from this Court on the
application of the fair dealing provisions of the Copyright Act in Canadian elementary
and secondary schools. Clarification is needed because of inconsistent decisions below
 8

on the law of fair dealing. The Applicants submit that the following questions are
unanswered legal issues of public and national importance such that guidance from this
Court is warranted and, indeed, necessary:

(a) Whose purpose is relevant in determining fair dealing: the copier’s

purpose, the user’s purpose, or both?

(b) How is the amount of dealing to be looked at in determining fair dealing:

per dealing, or in the aggregate?

(c) How is the direction that fair dealing not be interpreted restrictively in CCH
to be applied to a teacher making copies for students in his or her class?

(d) What is the appropriate standard of review to use in interpreting the

application of fair dealing to different categories of users?

PART III - ARGUMENTS

A. The Decisions Below Inconsistently State How to Assess the “Purpose of

the Dealing”

31. The Federal Court of Appeal found the Board’s decision that it is unfair for a
teacher to make copies for the students in his or her class to be a reasonable one:

[…] the Board was also reasonable to take into consideration

whether a student requested the copies him or herself or
whether the teacher made the copies at his or her own
initiative. […] the Board found that since the students in
question did not request the photocopies themselves, given
the instructional setting, it is likely that the purpose of the
photocopying was for the instruction of the students, not for
private study. […] Similarly, the Board was entitled to find
that when a student is instructed to read the material, it is
likely that the purpose of the copying was for classroom
instruction rather than the student’s private study.
Appeal Decision, para. 46
 9

Board Decision, paras. 96-98

32. The Federal Court of Appeal in its decision found accordingly that because the
“true purpose or motive” of the copying was for the teacher to instruct his or her
students, and not for the student’s private study, those copies were unfair.

Appeal Decision, para. 46

33. In effect, the Board and Federal Court of Appeal Decisions make a legal
determination that, where there are multiple users of copyright works participating in a
transaction, each with their own purposes, the only ‘true’ purpose relevant in an
assessment of fairness is the purpose of the person making the copy.

34. The decisions below inconsistently determine whose purpose is the relevant one
when assessing whether a particular dealing is fair. CCH involves librarians copying for
lawyers. SOCAN v. Bell involves online music sellers streaming music online for
previewing by their prospective customers. In both cases, the courts found the relevant
purpose to be that of the actual user of the copy. In contrast, in this case, the relevant
purpose was found to be that of the person making the copy, the teacher, and not that
of the person using it, the student. This is inconsistent and requires clarification from
this Court.

35. In CCH, the dealings at issue were the result of a transaction involving multiple
actors. The Law Society of Upper Canada’s Great Library made copies of published
legal materials for lawyers. This Court had two purposes to choose from in determining
whether those dealings were fair: the Great Library’s purpose in serving its patrons, and
the lawyers’ purpose in conducting legal research to serve their clients.

36. This Court’s discussion of the purpose of the Great Library’s dealing centers on
the purposes of the copies’ end users:

Although the retrieval and photocopying of legal works are

not research in and of themselves, they are necessary
conditions of research and thus part of the research process.
The reproduction of legal works is for the purpose of
research in that it is an essential element of the legal
research process. There is no other purpose for the copying;
 10

the Law Society does not profit from this service. Put simply,
its custom photocopy service helps to ensure that legal
professionals in Ontario can access the materials necessary
to conduct the research required to carry on the practice of
law. In sum, the Law Society’s custom photocopy service is
an integral part of the legal research process, an allowable
purpose under s. 29 of the Copyright Act.
CCH, para. 64 (emphasis added)

37. A “lawyer, law student, member of the judiciary or authorized researcher” who
requested copies of legal materials from the Great Library that were found to have been
made under the fair dealing exception may have been conducting his or her research
under the instructions or at the request of another person—indeed, it is likely that each
law student or authorized researcher was doing his or her work for that reason. Yet this
Court did not consider the presence of instructions to read the material worth
mentioning as a factor that would make the copying less likely to be fair.

CCH, para. 47

38. The Federal Court of Appeal’s finding in this case, on the other hand, was that if
the user of the copy was instructed to read the material, or did not his or herself request
the copy, the true purpose of those copies is instruction and is therefore unfair. That
finding ignores the factual similarities between this case and CCH.

39. The decisions below in this case are also inconsistent with the interpretation of
fair dealing in SOCAN v. Bell. In SOCAN v. Bell, the Board and the Federal Court of
Appeal on judicial review found that a fair dealing analysis on the purpose of the dealing
should be conducted through the eyes of the person for whom the copy is intended.
The Federal Court of Appeal, in SOCAN v. Bell, said the following about determining the
“true purpose” of a dealing at the second stage of the fair dealing analysis:

SOCAN argues that the primary purpose of previews is not

research, but rather increased sales and, accordingly,
increased profits. There is no doubt that, for the seller, this is
an important objective […] But this does not exclude other
equally important purposes. We must consider previews
from the point of view of the person for whom they are
intended: the consumer of the subject-matter of the
 11

copyright. Their purpose is to assist the consumer in seeking

and finding the desired musical work.
Bell, para. 22 (emphasis added)

40. The facts in SOCAN v. Bell and in the present case are analogous. Just as an
online music service, in providing previews, has as its own important objective
increased sales, teachers copying for their students have their own important objective
of enhancing students’ learning experiences.

41. Nonetheless, the Court of Appeal in SOCAN v. Bell directed that when there are
multiple purposes to choose from in examining whether a dealing is fair, the purpose of
the dealing should be examined from the point of view of the individual consumer of the
subject-matter of the copyright, not from the point of view of the person making the work
available. In CCH, librarians made works available to lawyers. In SOCAN v. Bell, online
music stores made music available to consumers. In both of those situations, the real
purpose was found to be that of the consumer – of the lawyer conducting research and
of the consumer shopping for music. Yet in this case, the relevant purpose was not
found to be that of the consumer, the student. The relevant purpose was found to be
that of the person making the copy, the teacher. That finding conflicts with both CCH
and SOCAN v. Bell.

42. The approaches adopted by the Board and the Federal Court of Appeal in this
case are fundamentally inconsistent with this Court's approach in CCH and the Federal
Court of Appeal’s approach in SOCAN v. Bell. If the Federal Court of Appeal had used
the same approach and analyzed fair dealing in this case “from the point of view of the
person for whom the [copies] are intended,” the presence of a teacher’s instructions to
read the material would not have led to the finding that the dealing was unfair.

SOCAN v. Bell, para. 22

43. There are now two potential approaches a court might take when analyzing
whether the purpose of the dealing is fair, when more than one person is involved in the
dealing. The Applicants submit that this inconsistency creates considerable uncertainty
in the law of fair dealing. It is now impossible for a potential litigant to know which “end
of the telescope” a judge might look through in determining whether a dealing is fair.
 12

44. Because of this inconsistency in the Federal Court of Appeal’s approach,

clarification from this Court is needed as to the question of whose purpose is relevant
when determining fair dealing: the purpose of the person who made a copy, or the
purpose of the “consumer of the subject-matter of the copyright”?

SOCAN v. Bell, para. 22

B. The Decisions Below Inconsistently State How to Measure the “Amount of

the Dealing”

45. The Federal Court of Appeal decisions are, further, inconsistent in their
approaches to assessing the amount of the dealing when conducting a fair dealing
analysis. In SOCAN v. Bell, the amount of the dealing is assessed by examining each
individual dealing. In this case, the amount of the dealing by teachers was assessed in
the aggregate.

46. The Federal Court of Appeal in SOCAN v. Bell identified two possible ways to
assess the amount of the dealing: the amount of the dealing in proportion to the
complete work, or alternatively the amount of the dealing in the aggregate number of
users and copyright material. It chose the first method, assessing the amount of the
dealing by comparing the length of the preview to the length of a complete work. The
amount of the dealing was thus found to be a “modest amount.”

SOCAN v. Bell, paras. 27, 29

47. Yet, in the present case, the Board found first that the dealing involved “short
excerpts” from textbooks and then assessed the amount of the dealing on an aggregate
basis. The Board concluded that the amount of the dealing was “unfair on the whole”
because of the likelihood of “numerous requests for [...] the same [...] series.” Despite
the fact that it had used the opposite approach in SOCAN v. Bell, the Federal Court of
Appeal upheld the Board Decision.

Board Decision, para. 104

Appeal Decision

48. When the amount of the dealing is assessed using individual dealings, the
decisions below are inconsistent. The Federal Court of Appeal in SOCAN v. Bell
 13

assessed the amount of the dealing factor by looking at individual dealings. A 30-
second preview of a three or four minute music track was found to be a “modest
amount” and was therefore fair. Yet, in this case, copying a few pages, “short excerpts,”
from a textbook, was found to be an unfair dealing. There is a lack of clarity as to what
“short excerpts” or “modest amounts” means when conducting a fair dealing analysis
using an individual dealing. Thirty seconds from a three or four sminute song is a much
larger amount, proportionally to the whole work, than a short excerpt from a textbook
with hundreds of pages.

49. With regard to the “amount of the dealing” factor, the Board concluded that there
are factors weighing on each side of the fairness assessment:

With respect to the copies made on the teacher’s initiative

for his or her students, there are factors weighing on each
side. On the one hand, we were not informed of any
guidelines. However, it seems that teachers generally limit
themselves to reproducing relatively short excerpts from a
work to complement the main textbook. On the other hand,
in our view, it is more than likely that class sets will be
subject to “numerous requests for [...] the same [...] series”,
which would tend to make the amount of the dealing unfair
on the whole.
Board Decision, para. 104 (emphasis added)

CCH, para. 69

50. The Board examined the amount of the dealing by measuring the number of
copies made in the course of many of teachers’ separate dealings (“numerous requests
for […] the same […] series”), over a period of time and in the aggregate (“unfair on the
whole”).

Board Decision, para. 104

51. This approach to measuring the amount of the dealing was not explicitly
addressed in the Appeal Decision, but as the Appeal Decision upheld the Board
Decision, the Federal Court of Appeal has implicitly found that the appropriate
“yardstick” for measuring the amount of the dealing is the aggregate of dealings over an
indefinite period of time.
 14

52. The approach of looking at the dealings in the aggregate is inconsistent with the
approach taken by that same Court three months prior in SOCAN v. Bell. In that case,

[…] the Board found the amount of the dealing to be the

length of each preview in proportion to the length of the
complete work. In making this determination, it also
considered the user’s objective of researching a purchase.

I consider this approach to be precisely what is called for in

the circumstances; the Board has not erred in adopting it.
However, SOCAN proposes a different yardstick. Rather
than considering each preview individually, it suggests
measuring the amount and determining the fairness of the
dealing by considering the aggregate number of users and
previews and the resulting hours of uncompensated music.
SOCAN v. Bell, paras. 27-28 (emphasis added)

53. The Federal Court of Appeal decided to “leave this issue for another day.”
However, it accepted the Board’s decision, finding it “not unreasonable or in error.”

SOCAN v. Bell, paras. 30, 31

54. As SOCAN is also currently seeking leave to appeal to this Court on this exact
same issue, from an opposing position, the Applicants submit that the opposite
approaches to this question taken by the Board and upheld by the Federal Court of
Appeal demonstrate a need for clarification from this Court.

C. Fair Dealing Must be Given a Non-Restrictive Interpretation

55. The Applicants submit that the decisions below failed to give fair dealing a non-
restrictive interpretation as directed by this Court in CCH. In that case, this Court
articulated a guiding principle to apply when interpreting the Copyright Act, that
exceptions in the Copyright Act are users’ rights and must not be interpreted
restrictively:

The fair dealing exception, like other exceptions in the

Copyright Act, is a user’s right. In order to maintain the
proper balance between the rights of a copyright owner and
users’ interests, it must not be interpreted restrictively.
CCH, para. 48 (emphasis added)
 15

56. The Applicants submit that the Board and Federal Court of Appeal below erred
by giving research, private study, criticism and review a restrictive interpretation in
holding that the making of photocopies by a teacher for a class of students is not fair
dealing.

57. The facts in this case are analogous to CCH. The chief difference is that the
copying in this case is done in a non-commercial context, which the Applicants submit
should only tend towards making the dealing more fair. The Board nevertheless decided
that a teacher making copies for students in his or her class leaned towards a finding a
lack of fairness under all six of the fairness factors in CCH. The Applicants submit that
this is a misinterpretation of the law, as it is vastly inconsistent with this Court’s
directions on fair dealing in CCH.

58. Although the Board’s findings of fact are not in dispute, its interpretation of the
CCH factors, and its resulting application of the facts to those factors, take a very
narrow and restrictive approach. The Applicants seek clarification from this Court on
whether its landmark decision in CCH was intended to permit consumers to stream
previews of music offered by online music sellers, but prohibit a teacher from making
copies of short excerpts for students in his or her class.

59. The current law of the interpretation of fair dealing is confusing and unclear. In
contrast, the provisions of the Copyright Act which grant rights to copyright owners are
clear and have been the subject of multiple decisions in the Canadian courts. Fair
dealing has not been the subject of nearly the same judicial scrutiny, particularly since
the landmark CCH decision. CCH profoundly changed the manner in which users’ and
owners’ rights in the Copyright Act are understood.

60. Without clarification from this Court on what fair dealing permits teachers to do
for the students in their classes, the fear of being sued for copyright infringement will
result in students’ fair dealing rights being unduly limited, contrary to what this Court
intended when it decided CCH.

CCH, para. 51
 16

61. Members of the public who use copyrighted works need to be able to have some
idea of what exactly fair dealing permits them to do if they are to confidently assert the
rights the Copyright Act purports to grant them. Without further guidance from this Court
on what the fair dealing provisions mean or whose purpose should be considered when
determining whether a dealing is fair, the fair dealing right, the broadest and most
significant users’ right in copyright, will become useless—little more than the “right to
hire a lawyer.” Users of copyright should not live in fear of legal retribution because the
law is not clear.

Lawrence Lessig, Free Culture (New York: The Penguin Press, 2004) at 187

62. This situation, in which the rights of users are vague and uncertain, and the rights
of owners are well-established, upsets the balance between them which this Court
sought to establish in Théberge v. Galerie d'Art du Petit Champlain. When speaking of
the need for clarity in the law, Binnie J. stated that it would be unacceptable to “have the
public searching for elusive distinctions.” He warned that if the law remained unclear,
“[t]here would be no even reasonably “bright line” between infringing and non-infringing
conduct.”

Théberge v. Galerie d'Art du Petit Champlain Inc., 2002 SCC 34, para. 40
(“Théberge”)

63. Under the Copyright Act, conduct that qualifies as fair dealing “does not infringe
copyright.” Therefore, just as there should be a “bright line” between infringing and non-
infringing conduct as regards the reproduction of works, it follows that there should be a
“bright line” between what is fair dealing and what is not.

Copyright Act, ss. 29, 29.1, 29.2

64. Fair dealing is the broadest and most important users’ right in copyright law.
Clarifying how to give fair dealing the non-restrictive interpretation directed by this Court
in CCH is important to teachers and their students. However, on a grander scale,
knowing how to properly determine whether a dealing is fair is also important for the
huge number of Canadians who deal with a wide variety of copyright works on a daily
basis.
 17

D. The Appropriate Standard of Review is Correctness

65. Courts must employ a standard of either reasonableness or correctness when

conducting judicial reviews.

Dunsmuir, para. 55, citing Toronto (City) v. C.U.P.E. [2003] 3 S.C.R. 77 at

para. 62

66. Applying a reasonableness standard to its judicial review of the Board Decision
allowed the Federal Court of Appeal to avoid addressing the important question of what
a non-restrictive interpretation of the users' right to deal fairly with copyright works
means for a teacher making copies for distribution to the students in his or her class.
Moreover, the Federal Court of Appeal set a standard of undue deference to the Board
on questions of interpretation of the Copyright Act.

67. The Applicants submit that the interpretation of sections 29, 29.1 and 29.4(2) of
the Copyright Act is a matter of law of “central importance to the legal system [...] and
outside the [...] specialized area of expertise” of the Board. The appropriate standard of
review is therefore, according to this Court in Dunsmuir, that of correctness.

Dunsmuir, para. 60

68. The Applicants further rely on the precedent for the standard of review of legal
questions decided by the Board that this Court determined in its decision Society of
Composers, Authors and Music Publishers of Canada v. Canadian Association of
Internet Providers:

There is neither a preclusive clause nor a statutory right of

appeal from decisions of the Copyright Board. While the
Chair of the Board must be a current or retired judge, the
Board may hold a hearing without any legally trained
member present. The Copyright Act is an act of general
application which usually is dealt with before courts rather
than tribunals. The questions at issue in this appeal are
legal questions. For example, the Board’s ruling that an
infringement of copyright does not occur in Canada when the
place of transmission from which the communication
originates is outside Canada addresses a point of general
legal significance far beyond the working out of the details of
an appropriate royalty tariff, which lies within the core of the
Board’s mandate.
 18

None of the parties is challenging the Board’s view of the

facts themselves. It is the legal significance of the facts that
is in issue. In my view, accordingly, the decision of the Board
on the legal questions at issue in this appeal should be
reviewed on a correctness standard.
Society of Composers, Authors and Music Publishers of Canada v.
Canadian Association of Internet Providers, 2004 SCC 45, paras. 49-50
(“SOCAN v. CAIP”) (emphasis added)

69. The Board, in this decision, was certainly acting outside its core mandate of
“determining the details of an appropriate tariff.” It was determining the scope and
application of the fair dealing rights of Canadian students by interpreting the Copyright
Act and CCH. The Board, with its expertise on copyright royalties, is certainly entitled to
deference on findings of fact and its calculation of specific tariffs, but it is not entitled to
have the final word on simply any matter having to do with the Copyright Act.

SOCAN v. CAIP, para. 49; see also Copyright Act, subs. 70.15(1), 83(8)-(9)

70. The Federal Court of Appeal in this case found that SOCAN v. CAIP, having
been decided before Dunsmuir was decided, was insufficient authority to support review
on a correctness standard. It decided that the leading case on the standard of review of
administrative tribunals “put a renewed emphasis on the importance of deference to
administrative tribunals when they interpret their own statute.”

Appeal Decision, para. 32

71. However, the Federal Court of Appeal ignored this Court’s clear direction in
Dunsmuir to look to existing jurisprudence for the appropriate standard of review:

[E]xisting jurisprudence may be helpful in identifying some of

the questions that generally fall to be determined according
to the correctness standard… This simply means that the
analysis required is already deemed to have been performed
and need not be repeated.
Dunsmuir, para. 57

72. “Existing jurisprudence” establishes that the appropriate standard of review in

applying and interpreting the Copyright Act is correctness. SOCAN v. CAIP established
that a decision on whether an infringement of copyright occurs in Canada “addresses a
point of general legal significance far beyond the working out of the details of an
 19

appropriate royalty tariff, which lies within the core of the Board’s mandate.” Whether a
teacher making a copy for students in his or her class is fair dealing, or an infringement
of copyright, is clearly a decision on whether an infringement of copyright occurs in
Canada.

SOCAN v. CAIP, para. 49

73. The Applicants submit that the Federal Court of Appeal erred in choosing the
standard of reasonableness under this Court’s directive in Dunsmuir. The Board's ruling
that the making of copies by a teacher for students in his or her class infringes copyright
addresses a legal issue of general significance far beyond the working out of the details
of appropriate royalty payments under a tariff. The Board's mandate is to set tariffs, not
to establish an incorrect and unreasonable legal precedent that copying by a teacher for
students in his or her class is not fair dealing. This is an important question of law, and
it is crucial that the courts are certain that the answer is correct, and not merely within
the bounds of reason.

74. The analysis performed in SOCAN v. CAIP is applicable to this scenario as it

concerned a decision on whether an activity is an infringement of copyright, a clearly
analogous question of law of general importance, arising from a proceeding of the same
administrative body. In this proceeding, the Board and the Federal Court of Appeal
were concerned with the Board’s interpretation and application of the fair dealing
provisions in sections 29 and 29.1 of the Copyright Act, as well as this Court’s
interpretation of those provisions set out in CCH. The appropriate standard of review is
therefore correctness.

Conclusion

75. The Applicants submit that the Copyright Board and Federal Court of Appeal
decisions below create inconsistencies and errors in law with consequences reaching
far beyond elementary and secondary schools. The issues at hand go to the very core
of users’ rights under the Copyright Act. The importance of this case is palpable, both to
teachers nationwide, and in the future judicial interpretation of fair dealing in the
 20

Copyright Act. Guidance from this Court is essential in order for fair dealing to have a
meaningful and coherent value for users of copyright in Canada.

PART IV – SUBMISSION ON COSTS

76. The Applicants submit that the Court, if it grants leave, should follow its usual
practice and grant leave with costs in any event of the cause.

PART V – ORDER SOUGHT

77. The Applicants respectfully request an order granting leave to appeal from the
decision of the Federal Court of Appeal dated July 23, 2010, with costs in any event of
the cause.

All of which is respectfully submitted this 29th day of September, 2010.

______________________
Wanda Noel

______________________
J. Aidan O’Neill

Counsel for the Applicants

 21

PART VI - TABLE OF AUTHORITIES

Statutes Referred to at para

Copyright Act, R.S.C. 1985, c. C-42. 20, 64, 69.

Supreme Court Act, R.S.C. 1985, c. S-26. 9.

Cases Referred to at para

Bell Canada v. Society of Composers, Authors and 8, 10, 11, 12, 34, 39, 40, 41,
Music Publishers of Canada, 2010 FCA 220. 42, 44, 45, 46, 47, 48, 52, 53.

CCH Canadian Ltd. v. Law Society of Upper Canada, 1, 2, 3, 47, 5, 8, 10, 11, 13, 15,
2004 SCC 13, [2004] 1 S.C.R. 339. 21, 22, 24, 26, 27, 29, 30, 34,
35, 36, 37, 38, 41, 42, 50, 55,
57, 58, 59, 60, 64, 69, 74.

Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 14, 65, 67, 70, 71, 73.
S.C.R. 190.

Society of Composers, Authors and Music Publishers 68, 69, 70, 72, 74.
of Canada v. Canadian Assn. of Internet Providers,
2004 SCC 45, [2004] 2 S.C.R. 427.

Théberge v. Galerie d'Art du Petit Champlain inc., 62.

2002 SCC 34, [2002] 2 S.C.R. 336.

Books Referred to at para

L. Lessig, Free Culture: how big media uses 61.

technology and the law to lock down culture and
control creativity, (New York: The Penguin Press,
2004).
 22

PART VII - STATUTES RELIED UPON

1. Copyright Act, R.S.C. 1985. C-42., ss. 29, 29.1 and 29.2.; 70.15(1); 83(8); 83(9).
2. Supreme Court Act, R.S.C. 1985, c. S-26., ss. 40(1).