Court File No.

: 33888
BETWEEN:
IN THE SUPREME COURT OF CANADA
(ON APPEAL FROM THE FEDERAL COURT OF APPEAL)
THE PROVINCE OF ALBERTA AS REPRESENTED BY THE
MINISTER OF EDUCATION AND OTHERS*
-and-
THE CANADIAN COPYRIGHT LICENSING AGENCY
Operating as "ACCESS COPYRIGHT"
-and-
APPELLANTS
RESPONDENT
CANADIAN 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,
CANADIAN ASSOCIATION OF UNIVERSITY TEACHERS AND
CANADIAN FEDERATION OF STUDENTS
TorysLLP
79 Wellington Street West, Suite 3000
Box 270, TD Centre
Toronto, ON M5K 1N2
Wendy Matheson
Andrew Bernstein
Tel: (416) 865.0040
Fax: (416) 865-7380
E-mail: abemstein@tm:ys.com
Counsel for the Interveners,
Canadian Association of University Teachers and
Canadian Federation of Students
Osler, Hoskin & Harcourt LLP
Suite 1900,340 Albert Street
Ottawa, ON KlR 7Y6
Patricia J. Wilson
Tel: (613) 235-7234
Fax: (613) 235-2867
E-mail: pwilson@osler.com
Ottawa Agent for the Interveners,
Canadian Association of University Teachers and
Canadian Federation of Students
TO:
AND TO:
AND TO:
AND TO:
AND TO:
REGISTRAR
Wanda Noel
Barrister and Solicitor
5496 Whitewood A venue
Ottawa, ON K4M IC7
Tel: (613) 794-II7I
Fax: (613) 692-I735
E-mail: wanda.noel@sympatico.ca
Fasken Martineau DuMoulin LLP
1300- 55 Metcalfe Street
Ottawa, ON KIP 6L5
J. Aidan O'Neill
Ariel A. Thomas
Tel: (613) 236-3882
Fax: (613) 230-6423
Solicitors for the Appellants* (See Schedule "A")
Norton Rose OR LLP
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
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
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
Cavanagh Williams Conway Baxter
LLP
1111 Prince of Wales Drive, Suite 401
Ottawa, Ontario K2C 3 T2
Colin S. Baxter
Tel: (613) 569-8558
Fax: (613) 569-8668
E-mail: cbaxter@cwcb-law.com
Agent for the Interveners, Canadian
AND TO:
AND TO:
Counsel for the Interveners,
Canadian Publishers' Council,
Association of Canadian Publishers
and Canadian Educational
Resources Council
Hebb & Sheffer
1535A Queen Street West
Toronto, Ontario M6R 1A7
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
Osler Hoskin & Harcourt LLP
340 Albert Street, Suite 1900
Ottawa, ON K1R 7Y6
MarcusKlee
Glen A. Bloom
Tel: (613) 235-7234
Fax: (613) 235-2867
Email: mklee@osler.com
Publishers' Council, Association of
Canadian Publishers and Canadian
Educational Resources Council
Michael J. Sobkin
90 blvd. de Lucerne, Unit #2
Gatineau, Quebec J9H 7K8
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
340 Albert Street, Suite 1900
Ottawa, ON K1R 7Y6
Patricia Wilson
Tel: (613) 787-1009
Fax: (613) 235-2867
Email: pwilson@osler.com
Agent for the Interveners, AUCC and
Solicitors for the Interveners, AUCC ACCC
andACCC
AND TO:
AND TO:
AND TO:
Cassels Brock & Blackwell LLP
Scotia Plaza
2100 - 40 King Street West
Toronto, Ontario M5H 3C2
Casey M. Chisick
Timothy Pinos
Jason Beitchman
Tel: (4I6) 869-5403
Fax: (4I6) 644-9326
Email: cchisick@casselsbrock.com
Counsel for the Intervener,
CMRRA-SODRAC Inc.
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) 562-54I7
Counsel for the Intervener,
Samuelson-Glushko Canadian
Internet Policy and Public Interest
Clinic
Macera & Jarzyna
427 Laurier Avenue West, Suite
I200
Ottawa, Ontario KIR 7Y2
Howard P. Knopf
Telephone: (613) 238-8173
Fax: (613) 235-2508
Email:
howard.knopf@maceraiarzyna.com
Counsel for the Intervener, Centre
for Innovation Law and Policy of the
Faculty of Law University of
Toronto
McMillan LLP
50 O'Connor Street, Suite 300
Ottawa, Ontario KIP 6L2
Eugene Meehan, Q.C.
Tel: (6l3) 232-7171
Fax: (613) 231-3191
Email: eugene.meehan@mcmillan.ca
Agent for the Intervener, CMRRA-
SODRACinc.
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 of Education, 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; A von 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 !'Ontario; Conseil des ecoles publiques de l'Est
de !'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
Conseil scolaire de district du Grand Nord de !'Ontario; Conseil scolaire de district du Nord-Est
de !'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; F oleyet 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; Hamilton-
Wentworth District School Board; Hastings & Prince Edward District School Board
Homepayne 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
TABLE OF CONTENTS
Page
PART I- OVERVIEW ............................................................................................................... 1
PART ll - QUESTION IN ISSUE ............................................................................................ 2
PART III- STATEMENT OF ARGUMENT ........................................................................... 2
Goals of the Copyright Act are served by teachers and. students ......................................... 2
Whose purpose counts? ....................................................................................................... 5
Does there need to be a request? ......................................................................................... 7
Not merely "classroom instruction" .................................................................................... 7
Aggregation is not appropriate ............................................................................................ 9
Conclusion ......................................................................................................................... 10
PART IV- SUBMISSION ON COSTS ................................................................................... 10
PART V - RELIEF REQUESTED .......................................................................................... 10
PART VI- TABLE OF AUTHORITIES ................................................................................ 11
PART Vll - STATUTES RELIED ON .................................................................................... 12
- 1 -
PART I- OVERVIEW
1. The Canadian Association of University Teachers and Canadian Federation of
Students together represent the interests of teachers and students at the university and
college level. CAUT and CPS intervene in this case to assist the Court in analyzing fair
dealing to ensure that this user right appropriately protects fair dealing in the teaching and
learning environment.
2. The decisions below erred by introducing legal hurdles that have no place in the law
of fair dealing. There is no place for a principle that only a teacher's purpose should be
considered, without regard for the student. Yet the respondent in this appeal continues to
advance a position that amounts to this: isolate the teacher, and ignore the student.
3. The respondent would agree to consider the student only if the student has made a
request for the copy. But there is no sound basis to uphold an artificial distinction based on
whether the copy is requested by a student, or, instead, the product of a proactive teacher
anticipating her student's interests. The suggestion that it can only be fair dealing when a
student "requests" a copy belies common sense. Similarly, the decisions below focused,
wrongly, on whether the copying was teacher-initiated or was accompanied by teacher's
instructions.
4. Neither of these hurdles is consistent with this Court's decision in CCH, nor the
underlying purposes of fair dealing under the Copyright Act.
5. The Federal Court of Appeal also narrowed the fairness analysis by limiting it to
"classroom instruction," which it then found weighed against fairness. Yet, "classroom
instruction" mischaracterizes the logged purpose, which, fairly characterized, serves the
interests protected by fair dealing.
6. In the fairness analysis, the dealing should be considered as a whole. The people
who are engaging in the dealing should all be considered, including the ultimate user of the
work. Both the teacher and the student must be considered. This ensures that this important
user right is not narrowed to the point that a person who wishes to use the work must take
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specified steps themselves, or risk endangering the fairness analysis. Students should be
able to have help from their teacher.
7. Both teaching and learning actively serve the goals of the Copyright Act, including
the sharing and dissemination of knowledge, the development and exercise of essential skills
in research, private study, criticism and review, and the creation of new works. This, in tum,
means that, in conducting the fairness analysis, these activities must weigh in favour of,
rather than against, fair dealing.
PART II -QUESTION IN ISSUE
8. CAUT and CFS will focus on three aspects ofthe fairness analysis:
(a) the errors oflaw that affected the analysis of purpose in the decisions below;
(b) the proper analysis of purpose; and
(c) the use of aggregation in considering the amount of the dealing.
PART III- STATEMENT OF ARGUMENT
Goals of the Copyright Act are served by teachers and students
9. The central goals of the Copyright Act are to encourage the creation and the
dissemination of literary, artistic and other works, as well as providing a just reward to their
creators. The Act is intended to reflect a balance between the rights of creators and the
rights of users. It creates a lengthy but limited statutory monopoly for creators of works.
Society of Composers, Authors and Music Publishers of Canada v.
Canadian Association of Internet Providers, [2004] 2 S.C.R. 427,
2004 SCC 45 at para. 40 [SOCAN v. CAIP]
10. Fair dealing is a user right that counterbalances the above monopoly. It serves the
purposes of the Act by encouraging dissemination of information, knowledge and ideas.
CCH Canadian v. Law Society of Upper Canada, [2004] 1 S. C.R.
339,2004 SCC 13 at para. 48 [CCH Canadian]
-3-
11. At the K-12level and onward, teachers disseminate information, knowledge and
ideas to students. Students learn how to engage in research, study, criticism and review.
Students create new works with the assistance of teachers. As students move forward
through school, college and university there is an inevitable blurring of the lines between
learning in the classroom and research, private study, criticism and review.
12. Indeed, while the nature of knowledge-sharing and modes of instruction and learning
can vary significantly throughout the primary and secondary (i.e., K -12) school, it varies
even more at the post-secondary level. Post-secondary students have an increasing role in
initiating the activities involved in their own education. Although classic teacher/student
lecture or classroom instruction can form a significant part of the undergraduate experience,
it plays a smaller role in the university or college environment than in K -12.
13. This continues as students progress from undergraduate studies to graduate
programs. At this stage, students are not only active researchers, but also use works
discussed in class to further their own research. At every level, students use information,
knowledge and ideas in the creation of their own works.
14. All of these activities serve the purposes of the Copyright Act and should be
encouraged in the consideration of whether a dealing is fair.
15. Fair dealing. Fair dealing is a user right, not merely an exception to the statutory
monopoly provided by the Copyright Act. As a result, this Court has insisted that fair
dealing be interpreted generously and given a "large and liberal" construction. This
approach to fair dealing applies both on the threshold question of whether the dealing is for
a listed purpose and on the subsequent fairness analysis, which asks whether the dealing is
or is not fair in the circumstances.
CCH Canadian at paras. 48, 51
16. Threshold met. In this case, there is no issue that the first step of the test for fair
dealing has been met. The Board accepted as fact that the copies at issue were made for an
allowable purpose. At the Federal Court of Appeal, the parties agreed.
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Alberta (Education) v. Access Copyright, 2010 FCA 198 at paras.
22, 28, 34, 35 [FCA Decision]
17. Fairness factors. This appeal therefore focuses on the second stage of the CCH test;
the application of the non-exhaustive list of fairness factors. But this Court should not lose
sight of the fact that the threshold requirement- an allowable purpose- has been satisfied.
18. In weighing the fairness factors, the Court can explicitly take into consideration the
competing goals of the Act, and balance the rights of creators against the rights of users.
However, simply asserting (as the respondent does) that intellectual property rights should
be respected does not assist with the question of how far those rights go, what are their
limits, and how the balance that lies at the heart of the Act should be maintained.
19. Errors of law. The Board and Federal Court of Appeal erred in their fairness
analysis. Although the CAUT and CFS take issue with each aspect ofthe analysis, it will
focus its submissions on these matters:
a) that it is an error of law to focus only on one part of the dealing when
considering the purpose of the dealing in the context of the fairness factors -
the court should look at the dealing as a whole;
b) that it is similarly an error of law to have the decision on fair dealing turn on
whether the copy is made "at the request of' a user, rather than "on behalf of'
a user- there is no such requirement in the Copyright Act;
c) that the purpose of the dealing in this case should be characterized broadly,
not narrowly as mere "classroom instruction";
d) that, in the context of the fairness factors, dealing for the purpose of teaching
and learning should weigh in favour of, rather than against, fair dealing; and
e) that in considering the amount of the dealing aggregation is not appropriate,
which is demonstrated by the respondent's own submissions.
-5-
Whose purpose counts?
20. The Copyright Board and the Federal Court of Appeal both held that, in considering
the purpose of the dealing, it is necessary to look at the purpose of the teacher, who actually
made the copy, rather than the students, who will use and benefit from the copies. The
respondent goes further and asks this Court to adopt a rule that the "purpose of the dealing"
will always and only be the purpose of the person actually making the copy, rather than the
ultimate user, unless an express request had been made by the user.
Decision of the Board, dated June 26, 2009 and corrected July 17,
2009 at para. 98 [Board Decision]
FCA Decision, 2010 FCA 198 at paras. 37, 38,46
21. There is no reason to isolate one participant in the dealing, excluding from the
analysis the other people who participate in or benefit from the dealing. This is the opposite
of the approach taken in CCH, which required an objective assessment ofthe users' and
defendants' purposes. It also is contrary to fair dealing's status as a user right (not a narrow
exception) that depends on an overall analysis of whether or not the dealing is fair.
22. In CCH, the trial judge construed fair dealing strictly and narrowly, holding that the
person engaging in the copying could not rely on the use that the ultimate user intended to
make of the work. In doing so, it relied on some of the very same cases from other
jurisdictions that the respondent relies on in its factum, such as Sillitoe and De Garis.
However, this Court rejected this categorical approach. Instead, in explaining how the
assessment of purpose is to be conducted, the Court stated "courts should attempt to make
an objective assessment of the user/defendant's real purpose or motive in using the
copyrighted work."
CCH Canadian Ltd. v. Law Society of Upper Canada, [2000] 2
F.C. 451 at para. 175 (F.C. T.D.)
CCH Canadian at para. 54
23. This is sensible. It is the use of the work, rather than just the copying of the work
that needs to be considered when considering the "purpose of the dealing." This means that
the user must be considered, not just the copier.
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24. This is how this Court dealt with the purpose of the dealing when applying the
fairness factors in CCH. The defendant actually engaged in the copying was the Law
Society. However, in construing the purpose of the dealing, the Court focused on all aspects
of the transaction, including the purposes of the requesting lawyers (i.e., the ultimate users).
CCH Canadian at para. 64
25. The result of the respondent's argument would be that a user must physically make
the copies at issue him or herself, or, as discussed below, request that it be done. However,
this artificial distinction, and its corollary - that absent a request by the user someone who
assists the user cannot rely on the user's purposes - is inconsistent with both the idea of a
"user's right" and a large and liberal construction of fair dealing.
26. This is particularly important because not all users can necessarily make their own
copies. Some do not have the original that they want copied (as with the lawyers in CCH).
Others do not have access to the equipment needed to make a copy (e.g., many students).
This means that, to exercise their right, they need some form of assistance. Holding that
only the copier's (and not the user's) purpose can be considered undermines a student's
ability to get help from his or her teacher.
Focus should be on the dealing as a whole
27. Fair dealing requires focus on the dealing as a whole. The approach in the decisions
below - requiring the Court to determine a "dominant" purpose - means the Court must
select one of these different parties and only one of its purposes. This determination is
inherently arbitrary, since the different parties may have different purposes, all of which are
necessary for the copying to occur.
28. The only way to avoid arbitrariness in analyzing the purpose is to avoid identifying a
single party in isolation. Rather, the proper approach is to consider the course of dealing as
a whole. This makes particular sense in light of fact that the determination of purpose is one
factor of many in the fairness analysis. The ultimate user- here, the student- should not be
excluded from the consideration.
-7-
Does there need to be a request?
29. Nor should there be a distinction between works copied by teachers at the request of
a student and works copied without first receiving a request. All copies are made for the
student's uses. The fair dealing provisions in the Act do not require a user "request."
30. The respondent defends this distinction on the basis that the student "authorizes" the
copy, making the student's purpose relevant. The result defies common sense. If an 8 year
old child asks for a copy it would be fair dealing. But, if the Grade 3 teacher anticipates that
her students could be interested in something and proactively provides it, it would not be
fair. This distinction does not make sense. The copy was made for the benefit of the student
whether it was initiated by the teacher, or requested by the student.
31. Similarly, compare two hypothetical teachers: one who puts copies of articles on
reserve as a matter of course for students who are interested in doing extra reading on a
particular topic, and one who responds to specific requests by students for further reading on
the same topic by handing out articles to the students who asked for them. While only one is
copying the articles "at the request of' their students, both are copying "on behalf of' their
students. Both are acting for their students' benefit, in furtherance of the learning process,
including research and private study. It makes no sense to distinguish between these two
teachers in determining the purpose of the dealing.
Not merely "classroom instruction"
32. It is also apparent that the decision of the Federal Court of Appeal was too narrowly
drawn when it characterized the purpose of the dealing as "classroom instruction."
33. To begin with, that label is misleading. There was no logging sticker for the purpose
"classroom instruction." That phrase was used by the Federal Court of Appeal, but the
actual logging purpose is broader: "student instruction, assignments and class work."
FCA Decision, 2010 FCA 198 at para. 13
-8-
34. Moreover, the Federal Court of Appeal construed its own phrase, classroom
instruction, narrowly. Its analysis proceeded as if the student did not have an active role at
all. That approach oversimplifies classroom instruction, even if it were a proper label.
35. Instead, the Court should have regard for the process of student instruction,
assignments and class work, and consider that purpose broadly. K-12 teachers make copies
for the purpose of teaching their students through the dissemination of materials (including,
but not limited to, classroom instruction). Students, in tum, use those copies for the purpose
of learning from them. They may be doing research, for example. Teacher and students are
jointly engaged in the process of teaching and klarning, and in doing so employ the statutory
purposes of fair dealing, including research, private study, criticism and review. The
presence of a valid purpose has been admitted in this case.
36. If fair dealing is to be given a "large and liberal" interpretation as a user right, then
the appropriate question is whether all the purposes in the course of the dealing, considered
as a whole and not in isolation, make the dealing more or less fair.
CCH Canadian at para. 52
3 7. There are many different uses of copyrighted works in the K -12 system that involve
learning, but not classroom instruction. This is particularly true on the facts of this case,
which involve four-and-one-half copies per student per year. A grade 5 English teacher can
make copies of a poem and ask students to read it to themselves at home, simply to hear the
rhythm and cadence as they read it. A grade 12 music teacher can ask her class to set the
poem to music. An art teacher can ask the c l a s ~ to draw what they think the poem is about,
or what it inspires. None of these are "classroom instruction," but all contribute to the
students' learning process. All are within the logging sticker, "student instruction,
assignments and class work."
38. Beginning at the K-12 level and increasing at college and university, teaching and
learning involve research, private study, criticism, review and creation of new works. There
is an inevitable blurring of the lines between student instruction, assignments and class
work, research, private study, criticism and review. The learning process is multi-faceted
and serves the overarching purposes of the Copyright Act, which should work in favour of
-9-
fairness. This is why the U.K. Copyright Tribunal warned "[i]f education is burdened too
heavily with copyright restrictions, teaching and scholarship is discouraged, to the
disadvantage of the public interest in general. .. "
Universities UK Ltd. v. Copyright Licensing Agency Ltd., [2002]
RPC 36 at para. 39
39. CAUT and CFS are not suggesting that all cases involving learning automatically
lead to a conclusion of fairness. However, when the purpose of the dealing passes the
threshold- that is, the first step of the CCHtest- and the dealing serves the goals of the
Copyright Act, these activities must weigh in favour of, rather than against, fair dealing.
40. The dangers that the respondent points to, specifically the effect on publishers,
can be addressed by other fairness factors such as the amount of the dealing and the effect
of the dealing on the market for the work.
Aggregation is not appropriate
41. The amount of copying, to the extent that it may be relevant, should be considered based
on an individual dealing, not on an aggregated basis. To do otherwise leads to at least two
problems. First, it makes fair dealing essentially unworkable in practice. The person making the
copies cannot know the aggregate figures in advance, or perhaps at all, and cannot know whether
he or she can make the copies to further a valid purpose. Second, the concern that aggregation
attempts to raise (the sheer quantity of the copying) is already dealt with by the fairness factors.
42. Although it does not appear that evidence was tendered on this point in this case, an
aggregate analysis may show an adverse impact on the market for the work. Even then, this
is but one factor and not determinative. The textured nature of fair dealing is very different
than pointing to comparative numbers and suggesting that their sheer quantities should
determine the outcome of the analysis.
43. The difficulty with aggregation is illustrated by the respondent's submissions. The
respondent advances the aggregate figures yet urges the Court to r ~ j e c t the average- that is,
4.5 copies per student per year. The respondent observes that some students may have
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received no copies, and others hundreds. These individual circumstances would be relevant
to considering whether the dealing is fair, according to the respondent. We agree.
44. Further, aggregation and averages go hand in hand. The court should not rely on one
and reject the other.
Conclusion
45. Both teaching and learning actively serve the goals of the Copyright Act, including
the sharing and dissemination of knowledge, the development and exercise of essential skills
in research, private study, criticism and review, and the creation of new works. CA UT and
CFS submit that the decisions below erred in their fairness analysis, introducing legal
hurdles and narrow characterizations, and finding that the purpone of the dealing weighed
against it being fair. Quite the contrary, properly considered, the analysis of fairness factors
discussed above weighs in favour of, and not against, fairness.
PART IV- SUBMISSION ON COSTS
46. CAUT and CFS are not seeking costs and ask that no costs be awarded against them.
PART V- RELIEF REQUESTED
47. CAUT and CFS respectfully request that their counsel be permitted to make oral
submissions at the hearing.
November 17, 2011
AL ... ~ . : - m , _ . .. . ICH IS RESPECTFULLY SUBMITTED
U
_, /
/
F -------
Andrew Bernstein/
~ ~
Alexandra Peterson
Of counsel for the Intervener, Canadian Association of University
Teachers and Canadian Federation of Students
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.,:v, ...
. ; - ~ V - 4
PART VI- TABLE OF AUTHORITIES
Authority Citing
Paragraphs
Cases
1. Society of Composers, Authors and Music Publishers of 9
Canada v. Canadian Association of Internet Providers,
[2004] 2 s.c.R. 427, 2oo4 sec 45
2. CCHCanadian v. Law Society of Upper Canada, [2004] 1 10, 15,22,24,36
s.c.R 339, 20o4 sec 13
3. CCH Canadian Ltd. v. Law Society of Upper Canada, [2000] 22
2 F.C. 451
4. Statement of Royalties to be Collected by Access Copyright 20
for the Repro graphic Reproduction, in Canada, of Works in
its Repertoire (Educational Institutions- 2005-2009)
Decision of the Board, dated June 26, 2009 and corrected
July 17' 2009
5. Alberta (Education) v. Access Copyright, 2010 FCA 198 16,20,33
6. Universities UK Ltd. v. Copyright Licensing Agency Ltd., 38
[2002] RPC 36
Legislation
7. Copyright Act, R.S.C. 1985, c. C-42 4, 7, 9, 14, 15, 18,
19,38,39,45
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PART VII- STATUTES RELIED ON
Copyright Act, R.S.C., 1985, c. C-42, s. 29 and s.29.1
29. Fair dealing for the purpose of research or private study does not infringe
copyright.
29. L'utilisation equitable d'une oeuvre ou de tout autre o ~ j e t du droit d'auteaur
aux fins d' etude privee ou de recherche ne constitue pas une violation du droit
d'auteur.
29.1 Fair dealing for the purpose of criticism or review does not infringe
copyright if the following are mentioned:
(a) the source; and
(b) if given in the source, the name of the
(i) author, in the case of a work,
(ii) performer, in the case of a performer's performance,
(iii) maker, in the case of a sound recording, or
(iv) broadcaster, in the case of a communication signal.
29.1 L'utilisation equitable d'une oeuvre ou de tout autre objet du droit d' auteur
aux fins de critique ou de compte rendu ne constitue pas une violation du droit
d'auteur ala condition que soient mentionnes:
(a) d'une part, la source;
(b) d'autre part, si ces renseignements figurent dans la source:
(i) dans le cas d'une oeuvre, le nom de I' auteur,
(ii) dans le cas d'une prestation, le nom de l'artiste-interprete,
(iii) dans le cas d'un enregistrement sonore, le nom du producteur,
(iv) dans le cas d'un signal de communication, le nom du radiodiffuseur.