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 (Appellants) - and THE CANADIAN COPYRIGHT LICENSING AGENCY Operating as “ACCESS COPYRIGHT” Respondent (Respondent) - and 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, 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 THE CENTRE FOR INNOVATION LAW AND POLICY OF THE FACULTY OF LAW UNIVERSITY OF TORONTO Interveners

MEMORANDUM OF ARGUMENT OF THE INTERVENERS THE CANADIAN PUBLISHERS’ COUNCIL, THE ASSOCIATION OF CANADIAN PUBLISHERS, AND THE CANADIAN EDUCATIONAL RESOURCES COUNCIL

(Pursuant to Rule 37 of the Rules of the Supreme Court of Canada)

McCarthy Tétrault LLP Suite 5300 Toronto-Dominion Bank Tower Toronto, ON M5K 1E6 Barry B. Sookman Daniel G.C. Glover Tel: (416) 601-7949 Fax: (416) 868-0673 E-mail: bsookman@mccarthy.ca Solicitors for the Interveners Canadian Publishers’ Council, the Association of Canadian Publishers, and the Canadian Educational Resources Council

Cavanagh Williams Conway Baxter LLP Suite 401 1111 Prince of Wales Drive Ottawa, ON K2C 3T2 Colin S. Baxter Tel: (613) 780-2011 Fax: (613) 569-8668 Ottawa Agent for the Interveners

ORIGINAL TO: COPIES TO:
Party The Province of Alberta as represented by the Minister of Education (and others*), Appellants

THE REGISTRAR

Counsel Fasken Martineau DuMoulin LLP Suite 1300 55 Metcalfe Street Ottawa, ON K1P 6L5

Agent

J. Aidan O’Neill Ariel A. Thomas Tel.: (613) 236-3882 Fax: (613) 230-6423 aoneill@fasken.com Wanda M. Noel 5496 Whitewood Ave. Ottawa, ON K4M 1C7 Tel.: (613) 794-1171 Fax: (613) 692-1735 wanda.noel@bell.net The Canadian Copyright Licensing Agency Operating as “Access Copyright”, Respondent Norton Rose OR LLP Suite 2500 1 Place Ville Marie Montreal, Quebec H3B 1R1 Norton Rose OR LLP Suite 1500 45 O’Connor Street Ottawa, Ontario K1P 1A4

Claude Brunet Tel.: (514) 847-4539 Fax.: (514) 286-5474 claude.brunet@nortonrose.co m McCarthy Tétrault LLP Toronto Dominion Bank Tower 66 Wellington Street, Suite 5300 Toronto, ON M5K 1E6

Sally A. Gomery Tel.: (613) 780-8604 Fax.: (613) 230-5459 sally.gomery@nortonrose. com

Party

Counsel Neil Finkelstein Tel.: (416) 601-7611 Fax: (416) 868-0673 nfinkelstein@mccarthy.ca

Agent

Canadian Association of University Teachers and Canadian Federation of Students

Torys LLP 79 Wellington Street West Suite 3000 Toronto, ON M5K 1N2 Wendy Matheson Andrew Bernstein Tel.: (416) 865-8133 Fax.: (416) 865-7380 wmatheson@torys.com

Osler, Hoskin & Harcourt LLP 340 Albert Street Suite 1900 Ottawa, ON K1R 7Y6 Patricia J. Wilson Tel.: (613) 787-1009 Fax.: (613) 235-2867 pwilson@osler.com Osler, Hoskin & Harcourt LLP 340 Albert Street Suite 1900 Ottawa, ON K1R 7Y6

Association of Universities and Colleges of Canada and Association of Canadian Community Colleges

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

Marcus A. Klee Glen A. Bloom Tel.: (613) 787-1049 Fax.: (613) 235-2867 mklee@osler.com CMRRA-SODRAC Inc. Cassels Brock & Blackwell LLP Scotia Plaza Suite 2100, 40 King Street West Toronto, ON M5H 3C2 Casey M. Chisick Timothy Pinos Jason Beitchman Tel.: (416) 869-5403

Patricia J. Wilson Tel.: (613) 787-1009 Fax.: (613) 235-2867 pwilson@osler.com

McMillan LLP 50 O'Connor Street Suite 300 Ottawa, ON K1P 6L2

Eugene Meehan, Q.C. Tel.: (613) 232-7171 Fax.: (613) 231-3191 eugene.meehan@mcmilla

Party

Counsel Fax.: (416) 644-9326 cchisick@casselsbrock.com

Agent n.ca

Samuelson-Glushko Canadian Internet Policy and Public Interest Clinic

David Fewer Université d'Ottawa Centre for Law, Technology and innovation (CIPPIC) 57 Louis Pasteur St. Ottawa, ON K1N 6N5 Tel.: (613) 562-5800 Ext: 2558 Fax.: (613) 562-5417 dfewer@uottawa.ca

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 Centre for Innovation Law and Policy of the Faculty of Law University of Toronto

Hebb & Sheffer 1535A Queen Street West Toronto, ON M6R 1A7 Marian Hebb Warren Sheffer Tel.: (416) 556-8187 Fax.: (866) 400-3215 mhebb@sympatico.ca

Michael J. Sobkin 90 blvd. de Lucerne, Unit #2 Gatineau, Quebec J9H 7K8 Tel.: (819) 778-7794 Fax.: (819) 778-1740 msobkin@sympatico.ca

Macera & Jarzyna 427 Laurier Avenue West Suite 1200 Ottawa, ON K1R 7Y2 Howard P. Knopf Tel.: (613) 238-8173 Fax: (613) 235-2508 howard.knopf@macerajarzyn

Party

Counsel a.com

Agent

*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; 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 SUDOUEST; 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; 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

TABLE OF CONTENTS OVERVIEW.........................................................................................1 QUESTION
IN

ISSUE................................................................................1 ARGUMENT........................................................................2

STATEMENT

OF

A.Fair Dealing and Education Have Always Been Distinct...................................................2 B.Only the Purpose of the Copier Is Relevant to Questions of Fair Dealing.......................4 C.The Cumulative Effects of Copying Must Be Considered in Assessing the Fairness of a Dealing 7 D.The Ministers Overstate the Meaning of “User Rights” ...................................................9 COSTS............................................................................................10 ORDER SOUGHT.................................................................................10 TABLE
OF

AUTHORITIES..........................................................................11
ON............................................................................14

STATUTES RELIED

PROVISIONS IN ISSUE..................................................................15

OVERVIEW 1. As this Court has recognized, the Copyright Act (the “Act”) embodies dual goals. On the one hand, it is intended to promote the encouragement and dissemination of works of the arts and intellect. On the other, it is intended to guarantee a just reward for the creator. 2. In this appeal, the Appellants seek to alter the copyright balance by expanding fair

dealing to permit mass uncompensated copying. They argue that the purpose of the copier, the educational institution seeking to save money, is irrelevant in determining if a dealing is fair. They invite this Court to disregard the cumulative economic effects of their copying on publishers. They argue for a test that would not even permit courts to consider whether such copying would undermine entire markets for educational works. 3. If given effect to by this Court, these principles would radically rewrite copyright law and

its system of incentives. They would expand fair dealing to destroy any real expectation of copyright in educational settings. They would weaken the ability of rights holders to license and to be paid for their works. This would result in fewer investments by publishers in educational materials to meet the diverse cultural needs of Canadians. In the long run, such a decision would hurt publishers, school systems, students, and the public at large. QUESTION IN ISSUE 4. The question before this Court is whether the Copyright Board (the “Board”) reasonably decided that the dealings of K-12 schools in respect of Category 4 copies were unfair. The Interveners submit that the Board came to a reasonable conclusion on this issue after conducting a detailed assessment of the facts in accordance with the CCH fairness factors. On the facts, it was perfectly reasonable for the Board to make the factual finding that when teachers make copies of works for distribution to students in class with instructions to read them, the purpose of the dealing is classroom instruction and not private study. It was also reasonable for the Board to look at the overall impact of the copying and to make the factual determination that it was unfair. 5. The Appellants seek to circumvent the Board’s factual findings by proposing new legal

presumptions. These presumptions are inconsistent with the Act, its legislative history, the CCH decision, and international law, including Canada’s international treaty obligations. In particular:

(a)

There is a clear and well-recognized distinction between copying for research,

private study, criticism or review purposes and copying for educational or teaching purposes. (b) Any assessment of the purpose of a dealing must be premised on the copier’s

objective primary purpose, not the hypothetical purposes of other persons. (c) In assessing the fairness of a dealing, the cumulative impacts of the dealing need

to be examined. A dealing cannot be fair if the overall effect of the dealing would conflict with a normal exploitation of a work such as where it enters into economic competition with it. (d) The concept of “user rights” is an important metaphor for understanding the

importance of the statutory fair dealing defence. However, these user interests do not trump exclusive rights in determining the copyright balance. STATEMENT OF ARGUMENT A. Fair Dealing and Education Have Always Been Distinct 6. The modern approach to statutory interpretation requires terms “to be read in their entire

context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament”. Legislative history and international treaty commitments also guide interpretation.1 A careful review shows that from the outset, Parliament has distinguished between listed fair dealing purposes on the one hand such as research and private study, and educational purposes on the other. 7. Canada’s fair dealing provisions have their source in the UK Copyright Act, 1911.

Section 2 of that Act categorized fair dealing and schools exceptions separately, the latter imposing careful restrictions on copying for use in a school setting.2 Canada adopted both

1

CCH Canadian Ltd. v. Law Society of Upper Canada (“CCH”), [2004] 1 S.C.R. 339 at para. 9, Interveners’ Authorities (“IA”), Tab D; Théberge v. Galerie d’Art du Petit Champlain inc., [2002] 2 S.C.R. 336 at para. 6 IA D; Bishop v. Stevens (“Bishop”), [1990] 2 S.C.R. 467 at 473 IA D. 2 Copyright Act, 1911, s. 2 IA D; MacGillivray, Copyright Act 1911 Annotated, at 34-35 IA D.

2

exceptions verbatim in 1921. As in the 1911 UK Act, Parliament categorized the exceptions separately. The schools exception was limited in nature, and remains so.3 8. In 1997, Parliament added new exceptions to address what copies may be made by an

“educational institution” on its “premises”. These exceptions specify who can copy, where copies may be made, and for what purposes. For example, s. 29.4 is an exception for “reproduction for instruction”. The only copies allowed are for overhead projection or handwritten display. The only persons entitled to make them are “an educational institution or a person acting under its authority”. These single copies are only non-infringing when made “for the purposes of education or training on the premises of an educational institution”.4 9. The history and structure of the Act, therefore, demonstrate that Parliament did not intend

copying by an educational institution for the purpose of education or training to be confused with copying for private study or research purposes. It intended only the latter to be a purpose that could be a fair dealing. This Court has recognized that the rights separately enumerated in s. 3(1) of the Act are “distinct… in theory and in practice”. So too should separately enumerated exceptions be interpreted to achieve independent purposes.5 10. The dichotomy between copying for the listed fair dealing purposes and copying for

educational purposes has long been recognized in case law and legislation throughout the Commonwealth. Applying this distinction, courts have routinely rejected efforts by institutional or commercial copiers to brand their copying as fair dealing for research or private study.6
3

CCH Canadian Ltd. v. Law Society of Upper Canada, 2004 FCA 278 (“CCH FCA”) at paras. 129, 296 IA D; Copyright Act 1921, ss. 16(1)(i), (iv) IA D. The “short passages” provision remains in s. 30 of the Act IA D. 4 Copyright Act, ss. 2 (“educational institution”, “premises”), 29.3, 29.4-29.9, 30.3-30.4, 32.2(3), 45(1) IA D. 5 Bishop at 477 IA D. 6 CCH FCA, paras. 129, 296 IA D; Sillitoe v McGraw-Hill Book Co Ltd, [1983] F.S.R. 545 at 558 IA D; University of London Press Ltd. v. University Tutorial Press Ltd., [1916] 2 Ch. 601 at 613-14 IA D; Hager v. ECW Press Ltd. (1999), 85 C.P.R. (3d) 289 at para. 53 IA D; Haines v. Copyright Agency Ltd., [1982] 64 FLR 184 at 191 (F.C.A. App.) IA D; Copyright Licensing Ltd v University of Auckland, [2002] 3 NZLR 76 at paras. 15-16, 31, 36, 51-53, 60 (H.C.) IA D; Longman Group Ltd v Carrington Technical Institute Board of Governors, [1991] 2 NZLR 574 at 586, 588-89 (H.C.) IA D; United Kingdom, Copyright, Designs and Patents Act 1988, ss. 29-30, 32-36A IA D;

3

11.

Last, it is worth noting that this Court has consistently exercised caution when asked to

insert into ambiguous language an exception already on Parliament’s legislative agenda.7 B. Only the Purpose of the Copier Is Relevant to Questions of Fair Dealing 12. The Appellants ask this Court to focus solely on the possible purposes of an individual

student rather than the purpose of the educational institution in assessing the fairness of a dealing. But there is no basis in copyright to exclude from consideration the real purpose of the copier and to thereby give the copier a defence where the copying is for someone else.8 Accepting this proposition would vastly alter the copyright balance by permitting intermediaries to reap economic benefits from acts of copying without having allowable purposes of their own. 13. The structure of the Act shows that fair dealing is a defence to the defendant’s own

dealings with a work, not a defence to a dealing for someone else. Where Parliament intended to depart from this normal rule and create exceptions that would extend to copying for the purposes of others, it did so expressly.9

Australia, Copyright Act 1968, ss. 10, 40-41, 44, 83 IA D; New Zealand, Copyright Act 1994, ss. 42-49 IA D; Boudreau v. Lin (1997), 75 C.P.R. (3d) 1 at 12 IA D; Robic-Leger at 29.4 IA D; Fox at 23-10 and 23-11 IA D. 7 Bill C-60, s. 18 IA D; Bill C-61, s. 18 IA 45; Bill C-32, ss. 21, 23-27 IA D; Bill C-11, ss. 21, 23-27 IA D. Also see Bishop at 483-84 IA D, where this Court refused to read into the Act an ephemeral exception for broadcasters: “Given the policy issues raised and the repeated consideration of the matter by Parliament and its legislative adjuncts, it is my view that it would be inappropriate for this Court to interfere.” 8 Copinger on Copyright at 565 IA D; Tamaro, 2011 Copyright Act at 552-53 IA D; Productions Avanti Ciné-Vidéo Inc. v. Favreau (1999), 1 C.P.R. (4th) 129 at 149-50 (Q.C.A.) IA D. 9 CCH, para. 48 IA D; Copyright Act, ss. 30.2(1), (2), (5) IA D.

4

14.

In determining the purpose of a dealing at both the first10 and second steps11 of the fair

dealing analysis, the courts have always sought to make an objective assessment of the user’s real purpose or motive in using the copyright work. This focus has always been on the person who causes the copy to be made, not those of other persons who might eventually read it or use it.12 For example, in Longman, the High Court of New Zealand rejected an attempt to classify reproductions by a tutor of copyrighted drawings and text for classroom instruction as being for the purpose of private study of students.13 In Auckland, the High Court of New Zealand rejected the claim that a university’s practice of copying materials into class sets for use by students was a fair dealing for criticism or review. It held that, absent a specific request by a student, “the obvious purpose of the copying is […] to provide students with source material for the course being undertaken”.14 In Sillitoe, the UK High Court of Justice rejected the argument that the publisher of Coles Notes could claim it was engaged in research or private study because the end user readers might use them for such purposes.15 15. CCH did not depart from this well-accepted analytical framework. In CCH, this Court

applied an objective test to determine the primary purpose of the Great Library. On the facts, the Great Library never acted until after legal researchers requested single copies of works “for
10

CCH at paras. 48, 54 IA D; Ashdown v Telegraph Group Ltd, [2001] EWCA Civ 1142 at para. 61 (C.A.) IA D; De Garis v Neville Jeffress Pidler Pty Ltd (1990), 37 F.C.R. 99 at 105 (F.C. Austl.) IA D; Hyde Park Residence Ltd v. Yelland, [2000] EWCA Civ 37 at para. 21-22, 32 (Eng. C.A.) IA D. The Board incorrectly stated in obiter at para. 88 that if a use has mixed purposes, and the predominant purpose is not an allowable purpose, the dealing should nonetheless be considered an allowable purpose (Appellants’ Record (“AR”), Tab 3). This approach is inconsistent with CCH and could result in (a) a trace or ancillary presence of an allowable purpose curing a clearly forbidden purpose, putting undue weight on the second stage, and (b) nullifying the threshold test and transforming it into an open-ended, unstructured evaluation of fairness factors, resulting in considerable uncertainty for creators and users alike. 11 CCH at para. 54 IA D; Zamacois at 301 IA D; Favreau at 149-50 IA D; Hyde Park at para. 37 IA D. 12 Sillitoe at 558, IA D; London at 613-14 IA D; De Garis at 105 IA D. 13 Longman at 588 IA D; also see Boudreau at 12, IA D. 14 Auckland at paras. 34-36, 48-54, IA D; Universities UK Ltd v Copyright Licensing Agency Ltd, [2002] E.M.L.R. 35 at paras. 31-35, 39 IA D. 15 Sillitoe at 558, IA D; Boudreau at 12, IA D; London at 613 IA D; Blackwell Publishing Inc. v. Excel Research Group LLC, 92 USPQ2d 1743 at 1748 (E.D. Mich. 2009) IA D.

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specific purposes, identified in advance”. The Great Library had no independently identifiable purpose. It made no copies at its own discretion. It did not “perform this task for its own economic benefit”. As this Court recognized, “[t]here is no other purpose for the copying”.16 16. Applying the objective approach mandated in CCH, a completely different result is

dictated on the facts for the Category 4 works. The Appellants set the curriculum and select the textbooks used for instructions. They exclusively decide what to copy. The only purpose at the time of the copying is that of the maker, the teacher/educational institution. At the time the copies are made, the eventual student readers are unaware of their existence. The copies are also substitutes for the texts which are available for purchase in the market. The Appellants seek to copy them for free to achieve their other intended purpose, which is to reduce costs by purchasing fewer books. Their copying is for their own economic benefit as they profit from the exploitation of the copyright works by not paying the customary price for them.17 17. Accepting the test proposed by the Appellants that their purposes are the purposes of their

students would hollow out the intended closed categories of allowable purposes in the Act. It would subject all unauthorized copying for others that might be for their research, private study, criticism, review or news reporting purposes into an allowable purpose for the copier, greatly expanding the scope of the fair dealing exception. It would require courts to ignore a copier’s actual purposes and pay regard only to the possible allowable purposes of another person. Thus the fair dealing provision would shelter intermediaries who act on their own initiative and do not themselves have an allowable purpose. In digital environments where works can easily be copied and made available for mass distribution over internal or external networks like the Internet by
16

CCH at paras. 1, 61, 64 IA D; CCH FCA at paras. 132, 143 IA D (explaining that, on the facts, “the Law Society can vicariously claim an individual end user's fair dealing exemption, and to step into the shoes of its patron”). 17 Harper & Row v. Nation Enterprises, 471 U.S. 539, 562 (1985) IA D; Testimony of Pilon and de la Chenelière, pp. 63, 79-80 AR 10; Testimony of Hammond, MacDonald, Lambert and Hatcher pp. 109-13, 130 AR 11.

6

educational institutions, commercial entities and anyone else, this expansion of fair dealing would severely curtail exclusive rights and make enforcement of copyright uncertain, expensive and extremely difficult.18 18. In the educational sector, it would lead to extensive uncompensated copying over digital

networks, as institutions would claim practically all of their copying was for a listed exception and was “fair”. Moreover, if institutions could rely on their students’ purposes to claim the exception, then even if many student uses turn out not to be for a listed purpose, the institutions would still claim a defense by arguing that their “practices or systems” were for those purposes and were fair.19 This would result in even more significant uncompensated copying even in circumstances in which neither the student nor the institution engage in an allowable activity. C. The Cumulative Effects of Copying Must Be Considered in Assessing the Fairness of a Dealing 19. The Appellants seek to obscure the real impacts of their copying by proposing another

legal test that would turn copyright law upside down. Building upon their proposition that they can rely on another’s purpose when they copy, they argue that each act of copying should be separately assessed for the purpose of determining their liability. This test masks the economic significance and overall aggregate impacts of their copying and risks putting publishers to death by a million cuts. 20. This approach has been consistently rejected by courts, which focus on the real impacts

of the copying on the work. In the U.S., courts examine not only the market harm caused by the particular actions of the alleged infringer, but also whether the challenged use would adversely impact the potential market if it became widespread. The courts recognize that “Isolated
18 19

Sookman and Glover, “Why Canada Should Not Adopt Fair Use” (2009), 2 Osgoode Hall Rev.L.Pol'y 139 IA D. The Board Decision at para. 84 rejected that educational institutions had a fair practice or system AR 3; CCH at para. 63 IA D.

7

instances of minor infringements, when multiplied many times, become in the aggregate a major inroad on copyright that must be prevented.” The courts have thus rejected fair use defences that would have the effect of “supplanting the copyright holder’s commercially valuable right.”20 21. In this case, the Appellants seek to undermine the “effect of the dealing on the work”

factor. They do so even though the Board found as a fact that the Appellants’ copying was “sufficiently important to compete with the original to an extent that makes the dealing unfair” and a practice that “conflict[s] with the normal exploitation of the work or unreasonably prejudice[s] the legitimate interests of rights holders”.21 22. In the USA, the Supreme Court has called the effect on the market factor “undoubtedly

the single most important element of fair use”. Fair use cannot apply to copying which materially impairs the marketability of the work which is copied.22 In the UK, “by far the most important factor is whether the alleged fair dealing is in fact commercially competing with the proprietor’s exploitation of the copyright work, a substitute for the probable purchase of authorized copies, and the like. If it is, the fair dealing defense will almost certainly fail”.23 23. In Canada, all exceptions, including fair dealing, must meet Canada’s obligations under

the Berne Convention and the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs). This includes consistency with the “Three-Step Test”. Accordingly, a dealing cannot be fair if the “effect of the dealing on the work” rises to a level where it would “conflict
20

CCH at para. 68 IA D; Boudreau at 12, IA D; Breen v. Hancock House Publishers (1985), 6 C.P.R. (3d) 433 at 436-37 (F.C.T.D.) IA D; Tamaro at 554-55 IA D; Ashdown at para. 70 IA D; Sillitoe at 564, IA D; Harper & Row at 562, 568-69 IA D; Campbell v. Acuff-Rose Music, 510 U.S. 569 at 590-94 (1994) IA D; Sony Corp. v Universal City Studios 464 U.S. 417 at 451, 482 (1984) IA D; Basic Books Inc. v. Kinko's Graphics Corp., 18 USPQ2d 1437 at 1443-44 (S.D.N.Y. 1991) IA D; Mulcahy v. Cheetah Learning LLC, 72 USPQ2d 1814 at 1818 (8th Cir. 2004) IA D; National Association of Boards of Pharmacy v. University of Georgia, 86 USPQ2d 1683 at 1703-4 (M.D.Ga. 2008) IA D. 21 Board Decision, paras. 111, 113-114 AR 3; Testimony of Pilon and de la Chenelière, AR 10-11, pp. 56, 58, 63, 67, 79-80; Testimony of Hammond, MacDonald, Lambert and Hatcher pp. 109-13, 130. 22 Harper & Row at 566-69 IA D; Nimmer on Copyright, Vol. 4, §13.05[A][4] IA D. 23 Ashdown at para. 70 IA D.

8

with a normal exploitation” of the work” or “unreasonably prejudice” the legitimate interests of rights holders. A dealing rises to this level, inter alia, if it enters into economic competition with the exercise of the right of reproduction by the rights owner.24 Given the Board’s clear findings, it would have been correct to find the dealing unfair on this ground alone. 24. In CCH, this Court stated that if “the reproduced work is likely to compete with the

market for the original work, this may suggest that the dealing is not fair”. It also stated that the “effect of the dealing on the work” is not the “most important” fair dealing factor. This may apply where the overall economic impacts of the dealing are de minimis. But in a case like this, where copying enters into economic competition with rights holders, the harm rises to a level where it “conflicts with a normal exploitation” of the work and the dealing must be regarded as unfair. To hold otherwise would place Canada at risk of violating the Three-Step Test.25 D. The Ministers Overstate the Meaning of “User Rights” 25. The Appellants and other Interveners rely extensively on the concept of “users’ rights” to

promote a view of fair dealing that would substantially curtail copyright holders’ rights and permit extensive copying on behalf of others. Their use of the term to justify this severe curtailment of exclusive rights illustrates the dangers of treating the word “user rights” literally, rather than as a metaphor to express the importance of user interests. 26. Fair dealing falls within Part III of the Act under the heading “Exceptions”. Exceptions

create no rights. Exceptions simply provide that if the relevant acts are a fair dealing, they will
24

Théberge at para. 6 IA D; Bishop at 473 IA D; Taking Forward the Gowers Review at 9 IA D; Berne Convention, Art. 9(2) IA D; TRIPs Agreement, Art. 13 IA D; WIPO Guide at BC-9.21 to 9.29 IA D; Ficsor at 284-87 IA D; WTO Panel Report at para. 6.229 IA D. 25 The Court may wish to clarify its two comments about the effect of the dealing on the work factor. The Pro Sieben case cited states only at 613 IA D that this factor “is a very important consideration, but not the only consideration”. To be consistent with the Three Step Test, a dealing must be unfair where it competes with the original or would otherwise conflict with a normal exploitation of the work or unreasonably prejudice the legitimate interests of rights holders. Board Decision, para. 113 AR 3, Ficsor at 91-92, IA D; Ricketson at §13.11-13.25 IA D; Daniel Gervais, “The Purpose of Copyright Law in Canada” (2005), 2 UOLTJ 315 at 322-23 IA D.

9

not infringe copyright. In order “to maintain the proper balance in copyright between the rights of a copyright owner and users’ interests, it must not be interpreted restrictively”.26 27.
When considering the objects of the Act, this Court should not accept submissions that focus solely on interpreting the fair dealing exceptions “liberally” to enable institutional users to avoid obligations to pay for making copies of books and other works simply because it happens in an educational setting.27 Vastly extending fair dealing in this manner would unfairly force publishers to subsidize the costs of education.28 Copyright policy should not underestimate the importance of exclusive rights because of the critical role they play in creating incentives to invest in and produce new works, stimulate creative activity, and promote competition in the public interest.29

28.

This is a critically important case to the long-term health of Canadian publishing and the

education system. It will be applied beyond the K-12 setting. This Court should ensure that the short-term interests of certain users do not outweigh the long-term interests of society as a whole.30 COSTS 29. The Interveners do not seek costs and ask that no costs be awarded against them. ORDER SOUGHT 30.
26 27

The Interveners respectfully request that this appeal be dismissed.

CCH at para. 48 (emphasis added) IA D. Auckland at para. 24 IA D; Universities UK at para. 39 IA D; Longman at 586 IA D; Campbell at 584 IA D (“the mere fact that a use is educational and not for profit does not insulate it from a finding of infringement”). 28 Sony Corp. at 478 IA D. 29 BMG Canada Inc. v. Doe, 2005 FCA 193 at para. 40 IA D (“Copyright law provides incentives for innovators – artists, musicians, inventors, writers, performers and marketers – to create ...”); Eldred v. Ashcroft, 123 S.Ct. 769, 785n.18 (2003) IA D (“individual effort by personal gain is the best way to advance public welfare through the talents of authors and inventors”). 30 Universities UK at paras. 39-40 IA D (“In declining to create a wide generalised defence for educational establishments the legislature has struck a balance between the interests of copyright owners on the one hand, and the interests of education and scholarship on the other. A healthy publishing industry is important in general, but of particular importance to those in education. Wholesale exemption from the copyright laws for educational establishments would be damaging to the publishing industry, and in consequence damaging to education.”)

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ALL OF WHICH IS RESPECTFULLY SUBMITTED THIS 21st DAY OF NOVEMBER, 2011

McCarthy Tétrault LLP Solicitors for the Interveners the Canadian Publishers’ Council, the Association of Canadian Publishers, and the Canadian Educational Resources Council
10862665

TABLE OF AUTHORITIES No. Authority 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13. 14. Ashdown v Telegraph Group Ltd, [2001] EWCA Civ 1142 (C.A.) Basic Books Inc. v. Kinko's Graphics Corp., 18 USPQ2d 1437 (S.D.N.Y. 1991) Bishop v. Stevens, [1990] 2 S.C.R. 467 Paras. Cited B, C, C C A, A, A, C

Blackwell Publishing Inc. v. Excel Research Group LLC, 92 USPQ2d 1743 B (E.D. Mich. 2009) BMG Canada Inc. v. Doe, 2005 FCA 19 Boudreau v. Lin (1997), 75 C.P.R. (3d) 1 (Ont. S.C.) Breen v. Hancock House Publishers et al., (1985), 6 C.P.R. (3d) 433 (F.C.T.D.) Campbell v. Acuff-Rose Music, 510 U.S. 569 (1994) CCH Canadian Ltd. v. Law Society of Upper Canada, [2004] 1 S.C.R. 339 CCH Canadian Ltd. v. Law Society of Upper Canada, 2004 FCA 278 Copyright Licensing Ltd v University of Auckland and Others, [2002] 3 NZLR 76 (H.C.) De Garis v Neville Jeffress Pidler Pty Ltd (1990), 37 F.C.R. 99 (F.C. Austl.) Eldred v. Ashcroft, 123 S.Ct. 769 (2003) Hager v. ECW Press Ltd. (1999), 85 C.P.R. (3d) 289 (F.C.) D A, B, C C C, D A, B, B, B, C, C, D A, A, B A, B, D B D A

11

15. 16. 17. 18. 19. 20. 21. 22. 23. 24. 25. 26. 27. 28. 29. 30. 31. 32. 33. 34.

Haines v. Copyright Agency Ltd., [1982] 64 FLR 184 (F.C.A. App.) Harper & Row v. Nation Enterprises, 471 U.S. 539 (1985) Hyde Park Residence Ltd v. Yelland, [2000] EWCA Civ 37 (Eng. C.A.) Longman Group Ltd v Carrington Technical Institute Board of Governors, [1991] 2 NZLR 574 (H.C.) Mulcahy v. Cheetah Learning LLC, 72 USPQ2d 1814 (8th Cir. 2004) National Association of Boards of Pharmacy v. University of Georgia, 86 USPQ2d 1683 (M.D. Ga. 2008) Productions Avanti Ciné-Vidéo Inc. v. Favreau (1999), 1 C.P.R. (4th) 129 (Q.C.A.) Pro Sieben Media AG v Carlton UK Television Ltd, [1999] 1 W.L.R. 605 (C.A.) Sillitoe v McGraw-Hill Book Co Ltd, [1983] F.S.R. 545 (Ch.) Sony Corp. v. Universal City Studios, 464 U.S. 417 (1984) Théberge v. Galerie d’Art du Petit Champlain inc., [2002] 2 S.C.R. 336 Universities UK Ltd v Copyright Licensing Agency Ltd, [2002] E.M.L.R. 35 (Copyright Trib.) University of London Press Ltd. v. University Tutorial Press Ltd., [1916] 2 Ch. 601 (Ch.D.) World Trade Organization, Report of the Panel, United States – Section 110(5) of the US Copyright Act Zamacois v. Douville (1943), 2 C.P.R. 270 (Ex. Ct.) Garnett, Davies and Harbottle, Copinger and Skone-James on Copyright, 16th Ed. London: Sweet & Maxwell, 2011 at 565 Mihály Ficsor, The Law of Copyright and the Internet (Oxford: Oxford University Press, 2002) Daniel Gervais, “The Purpose of Copyright Law in Canada” (2005), 2 UOLTJ 315 E.J. MacGillivray, The Copyright Act, 1911, Annotated (London: Stevens and Sons, 1912) John McKeown, Fox on the Law of Copyright and Industrial Design (Toronto: Carswell, looseleaf, 2011)

A B, C, C B A, B, D C C B C A, B, C C, D A, C B, D, 28 A, B C B B C, C C A A

12

35. 36. 37. 38. 39. 40.

Melville and David Nimmer, Nimmer on Copyright (Newark: LexisNexis, looseleaf, 2007) Sam Ricketson and Jane C. Ginsburg, International Copyright and Neighbouring Rights. (Oxford: Oxford University Press, 2006) Robic-Leger, Canadian Copyright Act Annotated. (Toronto: Thomson Carswell, looseleaf, 2011) Barry Sookman and Daniel Glover, “Why Canada Should Not Adopt Fair Use” (2009), 2 Osgoode Hall Rev.L.Pol'y 139 Normand Tamaro, 2011 Annotated Copyright Act (Toronto: Carswell, 2010) UK Intellectual Property Office, Taking Forward the Gowers Review of Intellectual Property: Proposed Changes to Copyright Exceptions (Newport: Concept House, 2008) World Intellectual Property Organization, Guide to the Copyright and Related Rights Treaties Administered by WIPO. (Geneva: WIPO, 2003)

C C A B B, C C

41.

C

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STATUTES RELIED ON No. Authority 42. 43. 44. 45. 46. 47. 48. 49. 50. 51. 52. 53. Canada, Copyright Act, c. C-42 Canada, Copyright Act, 1921, 11-12 Geo. 5 Canada, Bill C-60, An Act to amend the Copyright Act (first reading), 5354 Elizabeth II, 2004-2005 Canada, Bill C-61, An Act to amend the Copyright Act (first reading), 5657 Elizabeth II, 2007-2008 Canada, Bill C-32, An Act to amend the Copyright Act (first reading), 59 Elizabeth II, 2010 Canada, Bill C-11, An Act to amend the Copyright Act (first reading), 60 Elizabeth II, 2011 Australia, Copyright Act 1968, Act. No. 63 of 1968 New Zealand, Copyright Act 1994, 1994 No. 143 United Kingdom, Copyright Act, 1911, l & 2 Geo. 5. c. 46 United Kingdom, Copyright, Designs and Patents Act 1988, ch. 48 Berne Convention for the Protection of Literary and Artistic Works (Paris Act, 1971) Agreement on Trade-Related Aspects of Intellectual Property Rights (Annex 1C to the Agreement Establishing the World Trade Organization, 1994) Paras. Cited A, A, A, B A A A A A A A A A C C

14

PROVISIONS IN ISSUE

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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 (Appellants) - and THE CANADIAN COPYRIGHT LICENSING AGENCY Operating as “ACCESS COPYRIGHT” Respondent (Respondent) - and CANADIAN PUBLISHERS' COUNCIL, ASSOCIATION OF CANADIAN PUBLISHERS AND CANADIAN EDUCATIONAL RESOURCES COUNCIL (AND OTHERS) Interveners MEMORANDUM OF ARGUMENT OF THE INTERVENERS THE CANADIAN PUBLISHERS’ COUNCIL, THE ASSOCIATION OF CANADIAN PUBLISHERS, AND THE CANADIAN EDUCATIONAL RESOURCES COUNCIL (Pursuant to Rule 37of the Rules of the Supreme Court of Canada)

McCarthy Tétrault LLP Box 48, Suite 5300 Toronto Dominion Bank Tower Toronto, ON M5K 1E6 Barry B. Sookman / Daniel G.C. Glover Tel: (416) 601-7949 Fax: (416) 868-0673 Solicitors for the Interveners ****************************** Cavanagh Williams Conway Baxter LLP Barristers and Solicitors 401 – 111 Prince of Wales Drive Ottawa, ON K2C 3T2 Colin S. Baxter Tel: (613) 780-2012 Fax: (613) 569-8668 Email: cbaxter@cwcb-law.com Agent for the Appellants #10862665