Court File No.

: 33888

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

THE PROVINCE OF ALBERTA AS REPRESENTED BY THE MINISTER OF EDUCATION AND OTHERS* APPELLANTS -andTHE CANADIAN COPYRIGHT LICENSING AGENCY Operating as "ACCESS COPYRIGHT" RESPONDENT -andCANADIAN PUBLISHERS' COUNCIL, ASSOCIATION OF CANADIAN PUBLISHERS, AND CANADIAN EDUCATIONAL RESOURCES COUNCIL, CANADIAN ASSOCIATION OF UNIVERSITY TEACHERS AND CANADIAN FEDERATION OF STUDENTS, ASSOCIATION OF UNIVERSITIES AND COLLEGES OF CANADA AND ASSOCIATION OF CANADIAN COMMUNITY COLLEGES, CMRRA-SODRAC INC., SAMUELSON-GLUSHKO CANADIAN INTERNET POLICY AND PUBLIC INTEREST CLINIC, CANADIAN AUTHORS ASSOCIATION, CANADIAN FREELANCE UNION, CANADIAN SOCIETY OF CHILDREN'S AUTHORS, ILLUSTRATORS AND PERFORMERS, LEAGUE OF CANADIAN POETS, LITERARY TRANSLATORS' ASSOCIATION OF CANADA, PLAYWRIGHTS GUILD OF CANADA, PROFESSIONAL WRITERS ASSOCIATION OF CANADA AND WRITERS UNION OF CANADA AND CENTRE FOR INNOVATION LAW AND POLICY OF THE FACULTY OF LAW UNIVERSITY OF TORONTO INTERVENERS

FACTUM OF THE INTERVENERS, ASSOCIATION OF UNIVERSITIES AND COLLEGES OF CANADA AND ASSOCIATION OF CANADIAN COMMUNITY COLLEGES

Osler, Hoskin & Harcourt LLP Suite 1900, 340 Albert Street Ottawa, Ontario KlR 7Y6
Marcus Klee Tel: (613) 235-7234

Osler, Hoskin & Harcourt LLP Suite 1900, 340 Albert Street Ottawa, Ontario KlR 7Y6
Patricia J. Wilson Tel: (613) 235-7234 Fax: (613) 235-2867 E-mail: pwilson@osler.com Ottawa Agent for the Interveners, Association ofUniversities and Colleges of Canada and Association of Canadian Community Colleges

Fax: (613) 235-2867 Email: mklee@osler.com

Counsel for the Interveners, Association ofUniversities and Colleges of Canada and Association of Canadian Community Colleges

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TO: AND TO:

REGISTRAR Wanda Noel Barrister and Solicitor 5496 Whitewood Avenue Ottawa, Ontario K4M I C7 Tel: (613) 794-117I Fax: (613) 692-I735 E-mail: wanda.noel@sympatico.ca

AND TO:

Fasken Martineau DuMoulin LLP 1300 - 55 Metcalfe Street Ottawa, Ontario KIP 6L5 J. Aidan O'Neill Ariel A. Thomas Tel: (613) 236-3882 Fax: (613) 230-6423 Solicitors for the Appellants* (See Schedule "A")

AND TO:

Norton Rose ORLLP Suite 2500, I Place Ville Marie Montreal, Quebec H3B IRI Neil Finkelstein (McCarthys) Claude Brunet Tel: (5I4) 847-4539 Fax: (5I4) 286-5474 Email: david.collier@nortonrose.ca Solicitors for the Respondent, Access Copyright

Norton Rose OR LLP Suite I500, 45 O'Connor Street Ottawa, Ontario KIP IA4 Sally A. Gomery Tel: (613) 780-8604 Fax: (613) 230-5459 Email: sally.gomery@nortonrose.ca Agent for the Respondent, Access Copyright

AND TO:

McCarthy Tetrault LLP P.O. Box 48, Suite 4700 T-D Bank Tower Toronto-Dominion Centre Toronto, Ontario M5K IE6 Barry B. Sookman Steven G. Mason Daniel G. C. Glover Tel: (4I6) 60I-7949 Fax: (4I6) 868-0673

Cavanagh Williams Conway Baxter LLP Suite 40I, IIII Prince ofWales Drive Ottawa, Ontario K2C 3T2 Colin S. Baxter Tel: (613) 569-8558 Fax: (613) 569-8668 E-mail: cbaxter@cwcb-law.com

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Counsel for the Interveners, Canadian Publishers' Council, Association of Canadian Publishers and Canadian Educational Resources Council AND TO:
Hebb & Sheffer 1535A Queen Street West Toronto, Ontario M6R 1A7

Agent for the Interveners, Canadian Publishers' Council, Association of Canadian Publishers and Canadian Educational Resources Council

Michael J. Sobkin 90 blvd. de Lucerne, Unit #2 Gatineau, Quebec J9H 7K8

MarianHebb Warren Sheffer Tel: (416) 556-8187 Fax: (866) 400-3215 Counsel for the Interveners, Canadian Authors Association, Canadian Freelance Union, Canadian Society of Children's Authors, Illustrators and Performers, League of Canadian Poets, Literary Translators' Association of Canada, Playwrights Guild of Canada Counsel for the Interveners, Professional Writers Association of Canada and Writers Union of Canada AND TO:
Torys LLP 79 Wellington Street West, Suite 3000, Box 270, TD Centre Toronto, Ontairo M5K 1N2

Tel: (819) 778-7794 Fax: (819) 778-1740 Email: msobkin@sympatico.ca

Agent for the Interveners, Canadian Authors Association, Canadian Freelance Union, Canadian Society of Children's Authors, Illustrators and Performers, League of Canadian Poets, Literary Translators' Association of Canada, Playwrights Guild of Canada Agent for the Interveners, Professional Writers Association of Canada and Writers Union of Canada

Osler Hoskin & Harcourt LLP Suite 1900, 340 Albert Street Ottawa, Ontario K1R 7Y6

Wendy Matheson Andrew Bernstein Tel: (416) 865.0040 Fax: (416) 865-7380 E-mail: abernstein@torys.com Counsel for the Interveners, Canadian Association of University Teachers and Canadian Federation of Students

Patricia Wilson Tel: (613) 787-1009 Fax: (613) 235-2867 Email: pwilson@osler.com Agent for the Interveners, Canadian Association of University Teachers and Canadian Federation of Students

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AND TO:

Cassels Brock & Blackwell LLP Scotia Plaza, Suite 2100 40 King Street West Toronto, Ontario M5H 3C2 Casey M. Chisick Timothy Pinos Jason Beitchman Tel: (416) 869-5403 Fax: (416) 644-9326 Email: cchisick@casselsbrock.com Counsel for the Intervener, CMRRA-SODRAC Inc.

McMillan LLP Suite 300, 50 O'Connor Street Ottawa, Ontario KIP 6L2 Eugene Meehan, Q.C. Tel: (613) 232-717I Fax: (613) 23I-3I9I Email: eugene.meehan@mcmillan.ca Agent for the Intervener, CMRRASODRACinc.

AND TO:

David Fewer Universite d'Ottawa Centre for Law, Technology and innovation (CIPPIC) 57 Louis Pasteur St. Ottawa, Ontario KIN 6N5 Tel: (613) 562-5800 Ext: 2558 Fax: (613) 562-5417 Counsel for the Intervener, Samuelson-Glushko Canadian Internet Policy and Public Interest Clinic

AND TO:

Macera & Jarzyna Suite I200 427 Laurier Avenue West Ottawa, Ontario KIR 7Y2 Howard P. Knopf Tel: (613) 238-8I73 Fax: (613) 235-2508 Email: howard.knopf@macerajarzyna.com Counsel for the Intervener, Centre for Innovation Law and Policy of the Faculty of Law University of Toronto

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SCHEDULE "A" Province of Alberta as represented by the Minister of Education Province of British Columbia as represented by the Minister of Education; Province of Manitoba as represented by the Minister ofEducation, Citizenship and Youth; Province ofNew Brunswick as represented by the Minister of Education Province ofNewfoundland and Labrador as represented by the Minister of Education; Northwest Territories as represented by the Minister of Education, Culture and Employment; Province of Nova Scotia as represented by the Minister of Education Territory ofNunavut as represented by the Minister of Education; Province of Ontario as represented by the Minister of Education; Province of Prince Edward Island as represented by the Minister of Education Province of Saskatchewan as represented by the Minister of Education; Yukon Territory as represented by the Minister of Education; Airy and Sabine District School Area Board; Algoma District School Board Atikokan Roman Catholic Separate School Board; Avon Maitland District School Board; Bloorview MacMillan School Authority; Bluewater District School Board; Brant Haldimand Norfolk Catholic District School Board Bruce-Grey Catholic District School Board; Campbell Children's School Authority; Caramat District School Area Board; Catholic District School Board of Eastern Ontario; Collins District School Area Board; Connell and Ponsford District School Area Board Conseil des ecoles catholiques du Centre-Est de l'Ontario; Conseil des ecoles publiques de l'Est de l'Ontario; Conseil des ecoles separees catholiques de Dubreuilville; Conseil des ecoles separees catholiques de Foleyet Conseil scolaire de district catholique Centre-Sud; Conseil scolaire de district catholique de l'Est Ontarien; Conseil scolaire de district catholique des Aurores Boreales; Conseil scolaire de district catholique des Grandes Rivieres Conseil scolaire de district du Grand Nord de l'Ontario; Conseil scolaire de district du Nord-Est de l'Ontario; District School Board ofNiagara; District School Board Ontario North East; Dufferin-Peel Catholic District School Board Durham Catholic District School Board; Durham District School Board; Foleyet District School Area Board; Gogama District School Area Board; Gogama Roman Catholic Separate School Board; Grand Erie District School Board Greater Essex County District School Board; Halton Catholic District School Board; Halton District School Board; Hamilton-Wentworth Catholic District School Board; HamiltonWentworth District School Board; Hastings & Prince Edward District School Board

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Hornepayne Roman Catholic Separate School Board; Huron Perth Catholic District School Board; Huron-Superior Catholic District School Board; James Bay Lowlands Secondary School Board; Kawartha Pine Ridge District School Board Keewatin-Patricia District School Board; Kenora Catholic District School Board; Lakehead District School Board; Lambton Kent District School Board; Limestone District School Board; Missarenda District School Area Board Moose Factory Island District School Area Board; Moosonee District School Area Board; Moosonee Roman Catholic Separate School Board; Murchison and Lyell District School Area Board; Nakina District School Area Board; Near North District School Board Niagara Catholic District School Board; Niagara Peninsula Children's Centre School Authority; Nipissing-Parry Sound Catholic District School Board; Northeastern Catholic District School Board; Northern District School Area Board Northwest Catholic District School Board; Ottawa Children's Treatment Centre School Authority; Ottawa-Carleton Catholic District School Board; Ottawa-Carleton District School Board; Parry Sound Roman Catholic Separate School Board Peel District School Board; Peterborough Victoria Northumberland and Clarington Catholic District School Board; Rainbow District School Board; Rainy River District School Board; Red Lake Area Combined Roman Catholic Separate School Board Renfrew County Catholic District School Board; Renfrew County District School Board; Simcoe County District School Board; Simcoe Muskoka Catholic District School Board; St Clair Catholic District School Board; Sudbury Catholic District School Board Superior North Catholic District School Board; Superior-Greenstone District School Board; Thames Valley District School Board; Thunder Bay Catholic District School Board; Toronto Catholic District School Board; Toronto District School Board Trillium Lakelands District School Board; Upper Canada District School Board; Upper Grand District School Board; Upsala District School Area Board; Waterloo Catholic District School Board; Waterloo Region District School Board Wellington Catholic District School Board; Windsor-Essex Catholic District School Board; York Catholic District School Board; and York Region District School Board Algonquin and Lakeshore Catholic District School Board; Asquith-Garvey District School Board Conseil scolaire de district catholique du Nouvel-Ontario; Conseil scolaire de district catholique Franco-Nord; Conseil scolaire de district des ecoles catholiques de Sud-Ouest; Conseil scolaire de district du Centre Sud-Ouest

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TABLE OF CONTENTS Page

PART I A B PART II PART III A B STATEMENT OF FACTS Overview The Decision of the Court and the Board Below POINTS IN ISSUE STATEMENT OF ARGUMENT The Standard of Review is Correctness Fair Dealing Should be Technologically Neutral Private Study Does Not Mean Undirected Study Is the Non-Commercial Context Largely Irrelevant? Conclusion PART IV PARTY PART VI PART VII SUBMISSIONS ON COSTS ORDER REQUESTED TABLE OF AUTHORITIES STATUTES RELIED ON 1 1
2

3 3 3
4

c
D

5
6 10 10 10 11
13

-1-

PART I- STATEMENT OF FACTS

A
1.

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

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

Board of Canada (the "Board") gave the fair dealing exception a restrictive interpretation in the decision under review. It held that when a teacher copies four and a half pages, per student, per year, for use by students, the dealing is necessarily unfair despite the fact that the dealing by the student "is research-based and fair". It did so on the basis that the use of the copyright work was under the instruction of a teacher: ... the teacher-student relationship is not the same as that between the Great Library and lawyers. The Great Library is simply an extension of a lawyer's will. A teacher does not merely act on behalf of a student, given that, to a large extent, it is the teacher who instructs the student what to do with the material copied.
CCH Canadian Ltd v. Law Society of Upper Canada, 2004 SCC 13, [2004] 1 SCR 339 ("CCH") at para 48, Appellant's Book of Authorities ("ABA") Tab 1.

Statement of Royalties to be Collected by Access Copyright for the Reprographic Reproduction, in Canada, of Works in its Repertoire (Educational Institutions2005-2009) Decision of the Copyright board, June 26,2009 corrected version July 17, 2009 ("Board Decision"), para 113, Appellants' Record ("AR"), Vol. 1, pg. 51.

2.

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

Appeal, will have a deleterious effect on the education of Canadians, which is of the highest national importance. As Justice La Forest observed: No proof is required to show the importance of education in our society or its significance to government. The legitimate, indeed compelling, interest of the state in the education of the young is known and understood by all informed citizens.
R. v. Jones, [1986] 2 S.C.R. 284, at pg. 299, AUCC/ACCC Book of Authorities ("AIABA"), Tab 4

3.

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

foster the dissemination of knowledge, facilitate creativity and enhance the ability of citizens to reason and learn. This Court has observed that: A school is a communication centre for a whole range of values and aspirations of a society. In large part, it defines the values that transcend society through the educational medium.
Ross v. Brunswick School District No. 15, [1996] 1 S.C.R. 825, at pg. 856-857, A/ABATab6
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-24. The Association of Universities and Colleges of Canada ("AUCC") and the Association

of Canadian Community Colleges ("ACCC") represent public and private not-for-profit postsecondary educational institutions. Canadian colleges are found in 1,000 urban, rural and remote communities across every province and territory in Canada, and are attended by 1.5 million students from all backgrounds who are acquiring the advanced skills essential to Canada's economic growth and productivity. Universities are vital centres of research, learning and discovery that attract students from all walks of life to develop their critical thinking, research and creative skills. As Madam Justice Wilson observed: The state readily acknowledges the important role universities play not only in the education of our young people but also more generally in the advancement and free exchange of ideas in our society....
Mckinney v. University of Guelph, [1990]3 SCR 229 at pg. 379, per Wilson J. (dissenting), AIABA, Tab 3

5.

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

provision in the Copyright Act liberally and generously in the context of non-profit educational institutions, and to ensure that the criteria for determining what constitutes "fair" for the purposes of fair dealing, are attentive to both the learning and teaching process and are technologically neutral. 6. AUCC and ACCC are concerned that the Board's decision, if allowed to stand, would

impede the learning and teaching process in Canada's universities and colleges. AUCC and ACCC therefore urge this Court to place significant weight on the learning dimension in any assessment of the purpose, scope, nature, and means of a dealing in an educational context, when determining whether or not the dealing is fair. This will help to ensure the continued vitality of Canada's universities and colleges.

B
7.

The Decision of the Court and the Board below

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

newspapers and other copyright material, given to students in kindergarten to grade 12. The Board held that, although the parties agreed that copies were made for an enumerated purpose under section 29 of the Copyright Act, they were nonetheless unfair upon a consideration of the six factors set out by this Court in CCH. The Board focussed its attention on "the real purpose or motive of the dealing," under the first factor in CCH and concluded that, even when copies were
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-3made "solely" for a permitted purpose, the predominant purpose of the copy was "instruction or 'non-private' study." The Board concluded: Even when made solely for purposes allowed under the exception, a copy made by a teacher with instructions to read the material, whether or not it was made at a student's request, and a copy made at the teacher's initiative for a group of students are simply not fair dealing. Their main purpose is instruction or non-private study. [emphasis added]
Board Decision, para 118, AR, Vol. 1, pg. 53.

8.

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

and placed significant weight on the purported distinction between instruction and private study.
Alberta (Minister of Education) v. Canadian Copyright Licensing Agency (c.o.b. Access Copyright), 2010 FCA 198 ("Appeal Decision"), para 46, Vol. 1, AR, pg. 121.

PART II - POINTS IN ISSUE

9. AUCC and ACCC will address four issues in this appeal: (a) (b) (c) (d) What is the standard of review? Is fair dealing technologically neutral? Were the fair dealing purposes construed restrictively? Is the non-commercial nature ofthe dealing "practically irrelevant" when evaluating the fairness of the dealing?

PART III- STATEMENT OF ARGUMENT A

10.

The Standard of Review is Correctness

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

question of"generallaw that is both of central importance to the legal system as a whole and outside the adjudicator's specialized area of expertise". The construction of the fair dealing exception is of central importance to the legal system as a whole and outside the adjudicator's specialized area of expertise. The meaning of"private study" and the Board's ruling that a copy made by a teacher with instructions to read the material, whether or not it was made at a student's request, cannot be fair dealing, addresses a point of general legal significance far beyond the working out of the details of an appropriate tariff. The proper construction of the
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-4-

meaning of "private study" and how one determines the "true purpose" of a use in an educational context has far reaching implications affecting millions of Canadians. The standard of review should be correctness. This Court has already made this assessment in similar circumstances: The Copyright Act is an act of general application which usually is 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.
Society of Composers, Authors and Music Publishers of Canada v. Canadian Association of Internet Providers, 2004 SCC 45, para 49, ABA, Tab 6. Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 SCR 190, paras. 58-61, A/ABA, Tab2

B
11.

Fair Dealing Should be Technologically Neutral

Universities and colleges have embraced technological innovation. Published works are

now accessed and used in electronic form. The lecture hall has extended into the virtual environment of course websites made available through electronic learning management systems. Professors increasingly research and teach in an electronic environment. Students, even more so, rely on computers and mobile devices to study, conduct research and participate in university and college courses. 12. A basic tenant of copyright law in Canada is that the Copyright Act is technologically

neutral. The provisions of the Act, including the fair dealing exception, are technologically neutral. If it is fair dealing for a student to make a photocopy of a periodical article from a volume in the library to read and study in the library, it must also be fair dealing for the student to scan the periodical article from the library book to read and study at home on his or her computer.
Robertson v. Thomson Corp., [2006] 2 S.C.R. 363, [2006] S.C.J. No. 43, para 49, A/ABA, Tab 5 Canadian Assn. of Broadcasters v. Society of Composers, Aut/tors and Music Publishers of Canada [1994] F.C.J. No. 1540 (F.C.A.), para 23, A/ABA, Tab 1

13.

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

including the fairness criteria, without regards to the technology used in the dealing. The fair dealing exception cannot be frozen in a technology which over time becomes antiquated, thereby negating the exception as a user's rights.
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-5-

C
14.

Private Study Does Not Mean Undirected Study

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

dichotomy, between teaching and learning or between instruction and private study. It argues here, as it did before the Board, that "copies of excerpts made on the teacher's initiative for his or her students or at the student's request with instructions to read them," for the purpose of research, private study, criticism or review, is necessarily unfair because the copy is made for educational purposes (instruction) rather than private study or research (learning).
Respondent's Factum, para 40. Board Decision, para 98, AR, Vol. 1, pg. 46.

15.

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

research, private study, criticism and review conducted by a student in an educational environment to an analysis of the meaning of "private study":

... "Private study" presumably means just that: study by oneself. ... A large and liberal interpretation means that the provisions are given a generous scope. It does not mean that the text of a statute should be given a meaning it cannot ordinarily bear. When students study material with their class as a whole, they engage not in "private" study but perhaps just "study." ... [emphasis added]
Appeal Decision, para 38, AR, Vol. 1, pg. 118.

16.

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

educational use could never amount to fair dealing: "[ ... ] if a law professor requests a copy of a work for the purpose of distributing it among his or her students, such a request would not be for the purpose of private study".
Board Decision, para 90, AR, Vol. 1, pg. 43.

17.

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

review, these activities somehow become unfair when a teacher provides guidance on what should be used for that purpose. Nowhere in this Court's decision in CCH, or the Copyright Act, is it stated that fair dealing activities, such as research or private study, must be self-directed, let alone conducted in isolation from others. In addition, while teaching may have public dimensions, the act ofleaming is a personal and private endeavour, aimed at individual development. This remains true even when learning is undertaken in the presence of others, or in an organized learning environment. Homework, for example, is no less private study simply because thirty other students are at home studying the same extract of a copyright work.

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-618. By holding that fair dealing activities must be self-directed, the Court below has

restrictively interpreted the fair dealing exception. Whenever a teacher encourages or directs a student to read material for the purpose of research, private study, criticism and review, it will be only the teacher's purpose as educator that is considered, and not the purpose of the student. This would apply even when the student requests that the copy be made by the teacher, and by necessary implication, even when the student makes the copy of the short extract for themselves based on guidance from the teacher. This cannot be correct.
Board Decision, para 98, AR, Vol. 1, pg. 46.

D 19.

Is the Non-Commercial Context Largely Irrelevant? A reason for the error of the Court below in disregarding or diminishing the purpose of

the student, lies in its failure to consider the non-commercial context of education in K-12 schools. The Court of Appeal held that under the first of the six CCH factors, the noncommercial context was "largely irrelevant" to detennining the purpose of the dealing: The applicants are correct to state that, unlike the teachers in the case at bar, the University Tutorial Press was clearly using the examinations for commercial purposes. However, this is a largely irrelevant distinction. ULP does not mention the commercial motives of the users as a relevant factor: it states only that the dealing was unfair because it was for educational purposes, rather than private study. In fact, it is unclear that profit factors into the determination of whether or not a use was "private study" at all. After all, the Supreme Court made clear in CCH that research for profit can still qualify as fair dealing (CCH at paragraph 54). In short, there is no reason to believe that the absence of profit renders the applicants' dealing fair.
Appeal Decision, para 39, AR, Vol. 1, pg. 118-119.

20.

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

fair dealing under section 29, it also cautioned that when copying is conducted for commercial purposes it may be less fair than when the copying is done for charitable purposes. The Federal Court of Appeal therefore erred in finding that the non-commercial nature of the copies at issue was "largely irrelevant" to the fairness analysis simply because some commercial activities in other contexts could nonetheless qualify as fair dealing.
CCH, para 54, Respondent's Book of Authorities ("RBA"), Tab 1.

21.

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

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

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-7-

upon by both the Board and the Federal Court of Appeal, involved a book which contained copyright examination papers with criticisms and answers to some of the questions which was sold to students who had to take the examinations. The defendants argued that because the publication of the examination papers enabled prospective candidates to prepare for examinations it was "private study" and thus fair dealing, and that the profit made was irrelevant. The court held that the student's purpose of private study did not render the defendant's publishing for profit a fair dealing.
Board Decision, para 90, AR, Vol. I, pg. 43. University of London Press, Ltd. v. University Tutorial Press, Ltd., [1916] 2 Ch. 601 [ULP] at 613,607, and 613 ("London Press"), A/ABA Tab 7

22.

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

paragraph 91 of its factum, involve a consideration of the presence, or absence, of a commercial purpose as part of the determination as to whether or not a dealing was fair, while others do not support the proposition for which they are cited. For example, the Court in Associated
Newspapers Group PLC held that the dealing was not fair because the newspaper published the

private love letters sent between royalty "in order to attract readers". This commercial purpose was crucial to the Court's holding that the dealing was not fair. As the Court observed, the "question of fairness must at bottom depend upon the motive with which the material has been copied." The motive in this case was profit through increased readership.
Associated Newspapers Group PLC v News Group Newspapers Limited, [1986] RPC 515 (Ch Pat), pg. 518, RBA, Tab 7.

23.

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

which were notes on the published works of well-known authors sold to students studying for literature examinations. In an action for infringement of copyright brought against the U.K. distributor of the notes, the distributor claimed fair dealing for the purpose of private study because this was the purpose of students who purchased and read the notes. The commercial purpose of the dealer, however, rendered the student's purpose far less relevant in the fair dealing analysis: The defendants are enriching themselves by making use of the plaintiffs work ... There are large sales of the Notes over a wide territory.
Sillitoe v McGraw-Hill Book Co., [1983] Fleet Street Reports 545 (Ch), pg. 564, RBA, Tab 11.

24.

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

who requested information on particular subjects. The Court held that this use did not constitute
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-8fair dealing because the company was in the business of providing materials for research. As a result, even though a client would use the purchased materials for research, the dealing was not fair. The Federal Court of Australia clearly indicated that such a commercial purpose was critical to its finding: Its purpose, which is purely commercial, is to supply a photocopy of material already published in return for a fee. This is an activity engaged in by Jeffress in the ordinary course of trade, which, in my view, is in the nature of an information audit and should be distinguished from research activity of the kind contemplated by s 40 ...
DeGaris v Neville Jeffress Pidler PTY, [1990] IPR 292, at pg. 298, RBA, Tab 16.

25.

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

fairly with broadcast works which it copied and sold to its customers. The Court emphasized the commercial purposes of the transactions, holding that fair use did not apply because the defendants "purposes are 'unabashedly commercial"' and "profit is its primary motive". The Court repeated that if a use is "for a commercial or profit-making purpose, that use 'would be presumptively unfair."'
Los Angeles News Service v Tullo, 973 F.2d 791 (9th Cir. 1992) at pg. 797-798, RBA, Tab20.

26.

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

institution, that sold illegally copied materials to students. The Court noted that "the defendants have continued for an extensive period of time to take and use the property of others for their own personal gain," and concluded that the fact that a publication was commercial as opposed to non-profit "tends to weight against a finding of fair use".
Princeton University Press MacMillan, Inc. v. Michigan Document Services, Inc., 855 F. Supp. 905 (U.S. Dist. 1994) at pg. 908,909, RBA, Tab 21.

27.

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

performed on a profit-making basis by a commercial enterprise" was critical in holding that the use was not fair. Similarly reasoning animated the Court in Leadsinger. which held: ('[T]he end-user's utilization of the product is largely irrelevant.. .. ') Leadsinger' s basic purpose remains a commercial one--to sell its karaoke device for profit. And commercial use of copyrighted material is 'presumptively an unfair exploitation ofthe monopoly privilege that belongs to the owner of the copyright.'
Leadsinger, Inc. v BMG Music Publishing Opinion, Inc., 512 F.3d 522 (9th Cir. 2008) at pg. 530, RBA, Tab 19.

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-9Zomba Enterprises, Inc. v Panorama Records, Inc., 491 F.3d 574 (6th Cir. 2007) at pg. 582-583, RBA, Tab 22.

28.

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

ultimately held to be fair. The Court distinguished this case from one where the predominant purpose was profit and asked: is the program incorporating the infringing material a genuine piece of criticism or review, or is it something else, such as an attempt to dress up the infringement of another's copyright in the guise of criticism, and so profit unfairly from another's work?
Time Warner Entertainments Company LP v Channel Four Television Corporation PLC, [1993] 28 IPR 459 (CA) at pg. 468, RBA, Tab 12.

29.

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

portion of a copyright interview with a woman pregnant with octuplets as part of a television show on "checkbook journalism". The Court of Appeal, upon reversing the trial judge, found that the true purpose for using the material was criticism, and observed that attention should have been directed to "the likely impact on the audience". The presence or absence of a commercial motive or purpose should be given significant weight in an analysis of fair dealing under Canadian law in an educational context.
Pro Sieben Media AG v Carlton UK Television, [1999] 1 WLR 605 (CA) at pg. 616, RBA, Tab 10.

30.

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

dealing analysis courts must distinguish between the institution making copies and the activities of students. The Federal Court of Australia was interpreting the application of provision in the
Australian Copyright Act. Section 40 sets out fair dealing for the purpose of"research or study,"

whereas section 53B provides a separate copying exemption for educational institutions. The copying in question clearly fell under one of the two exemptions, and the Court was distinguishing between the two provisions because each imposes unique reporting requirements on the institution. The portion of the decision that Access Copyright references states "it is important to the proper working of the sections that a distinction be recognized" [emphasis added]. This case provides no guidance on whether a sharp distinction should be drawn between the purposes of the educational institution and the purposes of students in assessing the fairness of a dealing.
Haines v Copyright Agency Ltd., [1982] 42 ALR 549 (FCA) at pg. 555-556, RBA, Tab 17.

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- 10Conclusion

31.

The Court of Appeal has made it very difficult to sustain a fair dealing user's right in an

educational context because the "true purpose" of the copying will frequently involve instruction. "Private study" must be given a broader interpretation so as to include study in an educational context when directed by a teacher. In addition, the non-commercial and educational reasons for the copying should be considered under the first of the six CCH factors. This does not mean that all educational uses of copyright material will be fair. It simply means that the balancing of factors under the CCH test in an educational context must take into account, and give significant weight to, the purpose of the student in using the copyright material.
PART IV -SUBMISSIONS ON COSTS

32.

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

PART V- ORDER REQUESTED

33.

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

the hearing.

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

OSLER, HOSKIN & HARCOURT LLP Suite 1900, 340 Albert Street Ottawa, ON K1R 7Y6

Marcus Klee Tel: (613) 235-7234 Fax: (613) 235-2867 email: mklee@osler.com Counsel for the Interveners, AUCC and ACCC

-11-

PART VI -TABLE OF AUTHORITIES Authority Case Law Paragraphs

1. 2. 3.

Alberta (Minister of Education) v. Canadian Copyright 8, 15, 19 Licensing Agency (c.o.b. Access Copyright), 2010 FCA 198 Associated Newspapers Group PLC v News Group Newspapers 22 Limited, [1986] RPC 515 (Ch Pat) Canadian Assn. of Broadcasters v. Society of Composers, 12 Authors and Music Publishers of Canada [1994] F.C.J. No. 1540 (F.C.A.) CCH Canadian Ltd v. Law Society of Upper Canada, 2004 SCC 1, 20 13, [2004] 1 SCR 339 DeGaris v Neville Jeffress Pidler PTY, [1990] IPR 292 Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 SCR 190 Haines v Copyright Agency Ltd., [1982] 42 ALR 549 (FCA)
24 10 30

4. 5. 6. 7. 8. 9.

Leadsinger, Inc. v BMG Music Publishing Opinion, Inc., 512 27 F.3d 522 (9th Cir. 2008) Los Angeles News Service v Tullo, 973 F.2d 791 (9th Cir. 1992)
25
4

10. Mckinney v. University of Guelph, [1990] 3 SCR 229

11. Princeton University Press MacMillan, Inc. v. Michigan 26 Document Services, Inc., 855 F. Supp. 905 (U.S. Dist. 1994) 12. Pro Sieben Media AG v Carlton UK Television, [1999] 1 WLR 29 605 (CA) 13. R. v. Jones, [1986] 2 S.C.R. 284 14. Robertson v. Thomson Corp., [2006] 2 S.C.R. 363, [2006] S.C.J. No. 43 15. Ross v. Brunswick School District No. 15, [1996] 1 S.C.R. 825
2

12 3

16. Sillitoe v McGraw-Hill Book Co., [1983] Fleet Street Reports 23 545 (Ch) 17. Society of Composers, Authors and Music Publishers of Canada v. Canadian Association of Internet Providers, 2004 SCC 45
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10

-1218. Statement of Royalties to be Collected by Access Copyright for 1, 7, 14, 16, 18, 21 the Reprographic Reproduction, in Canada, of Works in its Repertoire (Educational Institutions - 2005-2009) Decision of the Copyright board, June 26, 2009 corrected version July 17, 2009 19. Time Warner Entertainments Company LP v Channel Four 28 Television Corporation PLC, [1993] 28 IPR 459 (CA) 20. University of London Press, Ltd. v. University Tutorial Press, Ltd., [1916] 2 Ch. 601 [ULP] ("London Press") 21

21. Zomba Enterprises, Inc. v Panorama Records, Inc., 491 F.3d 27 574 (6th Cir. 2007) Legislation 22. An Act to Amend the Copyright Act, S.C. 1997, c. 24, s. 29 1, 7,20

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-13PART VII -STATUTES RELIED ON

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

Section 29
Fair Dealing Research or private study
29. Fair dealing for the purpose of research or private study does not infringe copyright.

Utilisation equitable Etude privee ou recherche

29. L'utilisation equitable d'une oeuvre ou de tout autre objet du droit d'auteur aux fins d' etude privee ou de recherche ne constitue pas une violation du droit d'auteur.

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