The Copyright Board of Canada has released its long delayed decision on photocopying in primary and secondary schools. There are two ways of looking at these decisions - the dollar amount of the tariff and the reasoning. The dollar amount in this case is big - jumping from the current fee of $2.45 per full-time student (FTE) to $5.16 per FTE. Note that this goes back to 2005 (although the back pay will be set at $4.64 per FTE), so this represents a huge additional cost to Canadian education and a major source of revenue for Access Copyright. The Board goes through a detailed analysis of how it arrived at this figure, but at the end of the day, it feels like that it simply split the difference between the two sides. Access Copyright was seeking $8.92, while the schools argued for $2.43 - that averages to $5.67 per FTE and the Board's award is just below that figure. Whether this is just coincidental or by-design, the current system encourages big requests which set a framework for "reasonableness" that can result in major increases in royalties.
The core aspect of the reasoning is the Board's assessment of fair dealing.
The analysis leaves something for both sides, though the on the big issue - can photocopying by teachers on behalf of their students for the purposes of private study qualify as fair dealing - the Board sides with Access Copyright. It concludes that this copying is not fair dealing and therefore deals a blow to the school's argument that most photocopying in schools qualifies as fair dealing. If there is an appeal - and one seems certain - this issue will no doubt arise.
On other aspects of fair dealing, the Board sided with education and against Access Copyright's attempt to limit its scope. The Board started by emphasizing that all exceptions under the Copyright Act are users' rights. It rejected arguments that research requires a narrow interpretation (Access Copyright said it must entail "an investigation, a search or a close study"), going back to its decision that consumer research could even include streaming a preview of a song. The Board also rejected claims that criticism or review required a communication to the public, noting that:
"We cannot agree that a student conveying his or her impressions on the Harry Potter series violates J.K. Rowling's rights when writing them to the author but not when communicating them to the entire class or posting them on MySpace."
There is much more to digest, but the heart of the analysis suggests that fair dealing gets a broad interpretation, but not beyond the limits of the statute itself (ie. limited to the current set of categories) and not so broad as to include overlap with classroom instruction where the teacher does the copying for his or her students.
Update: Further coverage from Howard Knopf and Sam Trosow.
Dan Goldman