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6

MR. FINKELSTEIN: Chief Justice, Members of the Court.

7

I will make several introductory remarks to set the context for the

8

Respondent’s position on this appeal and then three submissions on the appeal. I will

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refer primarily to my Condensed Book, which is a light green book.

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The first introductory point is that in my submission, this appeal falls

11

to be governed more by the principles of administrative law than by copyright law. The

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second introductory point – Justice Rothstein alluded to this earlier or said it – there is no

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issue of access here. The students are going to get the material. The only issue is whether

14

the government is going to pay for it or the authors are going to subsidize it; that is the

15

issue. And furthermore and related, there is no issue of affordability here. The

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governments, the ministries, the school boards, took the affordability issue off the table

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at the hearing. And so as you read the factums and as you hear the submissions, the

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flavour of affordability comes through, but in fact, if you look at paragraph 42 of the

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Copyright Board’s decision, the last sentence:

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“... since the objectors do not raise ability to pay, there is no

21

need to elaborate on the issue.”

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And so --

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MADAM CHIEF JUSTICE McLACHLIN: But it is all about money.

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MR. FINKELSTEIN: Well --

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MADAM JUSTICE DESCHAMPS: And that, all provinces may be

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in the same situation as Alberta.

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MR. FINKELSTEIN: We can only go on the record. And I should

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say that without commenting on the economic situation of Alberta, there were panels

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from Ontario; there were panels from Newfoundland. It think it is fair to say it was a

5

national effort on the part of the objectors, except for Quebec.

6

So with that in mind, I have three submissions. The first is fair

7

dealing or the fairness element of fair dealing, which is the only issue here, is a question

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of fact.

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That, in my submission, is settled by CCH, unless you depart from

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CCH, the issues before you are questions of fact. CCH is at tab 1 of my compendium,

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and I am referring particularly to paragraphs 52 and 53.

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M y second submission is that given that, the standard of review is

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reasonableness. Number 1: the Board was dealing with a question of fact; and number 2:

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It was dealing with its constituting statute.

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MADAM JUSTICE ABELLA: What if we find, Mister Finkelstein,

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that we have concerns with an aspect of their decision under fair dealing, such as

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whether the user’s right or the teacher’s is determinative? How does that -- they have

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made a factual finding based on their approach to law. If we are not satisfied with that

19

perspective, where do we put the factual finding?

20

MR. FINKELSTEIN: Let me -- I am getting to that in my next

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submission. The short answer is: I say that the issue -- that is the whose purpose

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question. The issue of whose purpose, in my submission, is settled law. Unless this

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Court decides to depart from the principles established by CCH, the issue is settled, and I

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will explain that shortly.

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MADAM JUSTICE ABELLA: But I -- I agree with you; I thought it

1

was settled. But the Board took a different position and therefore?

2

MR. FINKELSTEIN: No; the Board didn’t take a different position.

3

The Board did not take a different position. May I come to that very shortly?

4

MADAM JUSTICE DESCHAMPS: Before you get to another topic

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on the reasonableness or the correctness standard. Isn’t the Federal Court called to look

6

at the same legal issues when they have an infringement problem? So we would be in a

7

position to say: Appellate review would be done on a correctness basis if it comes from a

8

judge on the legal issue; but the Appellate or Federal Court will have to say: I defer to

9

the Board’s interpretation on the same question of law?

10

MR. FINKELSTEIN: Justice Deschamps, where it is a question of

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fact; it doesn’t make a difference. The Appellate review will always defer on findings of

12

fact, unless they are perverse. And so to finish the answer, in CCH, at paragraph 52, the

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Court, through the Chief Justice, said it is a question of fact; quoted extensively from

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Lord Denning and the Hubbard case, and at the end said: The tribunal of fact will decide

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and it doesn’t matter, for these purposes, whether it is the Copyright Board or the

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Federal Court trial division.

17

So I am about to make a quick submission and then get to Justice

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Abella’s question. It is important to recognize that -- and B propos your question: The

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Copyright Board here, in my submission, did apply the CCH constrict at paragraph 53;

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made detailed findings of fact in the context of an adversarial hearing that lasted eight

21

days; heard 27 witnesses, with examination and cross-examination; and reviewed 127

22

documents, including detailed appendices; and from that rendered its decision, I say on

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the facts.

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Now I will review the six CCH factors now, the first of which was

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the purpose of the dealing, and I will deal with Justice Abella’s question. So I can ask

1

you to please turn up tab 1 of my compendium, paragraph 48. Procedurally, and I am

2

looking at the second full sentence. Procedurally, a defendant -- and so in the context of

3

an infringement case, that would be a person being sued, the potential infringer. And in

4

the context of a tariff case, that would be the person who is going to be subject to the

5

tariff, and that in this case is the ministries and the school boards.

6

The defendant is required to prove that his or her dealing with a work

7

has been fair. And so you look at it from the perspective of the potential infringer.

8

MADAM CHIEF JUSTICE McLACHLIN: There is just a little

9

qualification, I think, though, which is at paragraph 66, which says that you can also

10

look at the purpose in proving that. One of the elements is the purpose of the dealing.

11

Sure, it is the infringer who has legally the onus, but he can look to say: Why did I do it?

12

I did it to help someone else. I did it, in the case of the great library, to help these

13

lawyers research their cases. And that makes it more fair.

14

So it is a little more nuanced than simply saying it is just one point of

15

view; both points of view come in the purpose of it; the use that is going to be put comes

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into it --

17

MR. FINKELSTEIN: Chief Justice, I --

18

MADAM CHIEF JUSTICE McLACHLIN: -- whether you want to

19

say you focus on one or the other; it strikes me they are all important.

20

MR. FINKELSTEIN: -- I wasn’t going to stop at paragraph 48.

21

So if I can ask you now to turn to paragraph 54, where the Court says

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this – and I am looking at the fourth line from the bottom:

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“... this said, courts should attempt to make an objective

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assessment of the user defendant’s real purpose or motif in

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using the copyrighted works.”

1

So again, the Court speaks of looking at the purpose of the user

2

defendant. That is the perspective, and it quotes from associated newspapers as authority

3

for that proposition.

4

And then if I can ask the Court to please turn up paragraph 66 -- not

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66; 63, on the ninth line, please:

6

“Dealing connotes not individual acts but a practice or a

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system.”

8

And so the Board here looked at the practice and system of the boards

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and ministries in accordance with the dictates of CCH. This comports with the purpose

10

of the fair dealing exception, which is to ensure that users are not unduly restricted in

11

their ability to use and disseminate copyrighted works persons or institutions relying on

12

the Section 29 fair dealing exception – and that in this case is the ministries and school

13

boards, not the students – need only prove that their own dealings with copyright works

14

were for the purpose -- so there is a conjunction here among the user defendant, the

15

dealing and the purpose – own purpose of private study and were fair. They may do this

16

either by showing that their own practices and policies were research-based and fair, or

17

by showing that all individual dealings with the (inaudible) and with the materials were in

18

fact research-based or fair.

19

And so that, in my submission, is the statement of principle in CCH.

20

Then, if you go on to paragraph 64, the Court then has to assess the

21

purpose of the librarian Law Society. Because the Law Society was the subject of the

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infringement case.

23

And if you look on page 372, it says, second line:

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“The reproduction of legal works is for the purpose of research

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in that it is an essential element of the legal research

1

process...”

2

And here, in my submission, is the explanation; there is no other

3

purpose for the copying.

4

Now people don’t do things for no reason. And so if the Law Society

5

librarian didn’t have his own purpose for the copying – he didn’t copy for no reason –

6

and that is --

7

So in my submission, what the Court here is saying is you do look at

8

it from the perspective of the potential infringer and you ask: What is the purpose of the

9

potential infringer, and in this Law Society case, the potential infringer had no purpose

10

other than the directive one of the patron. And so the patron’s purpose was ascribed to

11

the Law Society because the librarian had no purpose of his own.

12

MR. JUSTICE MOLDAVER: Isn’t that potentially a problem that

13

your friend points us to 118? And if the Board, they looked at the purpose and said: Well

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the purpose here is instruction. But if they got that wrong and if really the purpose was

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to facilitate the private study or research of the student, isn’t that a pretty fundamental

16

error that could impact on the whole fairness assessment?

17

MR. FINKELSTEIN: Well what I am dealing with here at the

18

moment is whose purpose you look at.

19

MR. JUSTICE MOLDAVER: (inaudible)

20

MR. FINKELSTEIN: So -- and I take your question to be: Assuming

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that is right, maybe the Board got that purpose wrong. But the threshold question is:

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Whose purpose do you look at? And my submission to you is: You look at the purpose of

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the potential infringer; that is whose purpose you look at and that is what the Law

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Society did – excuse me, the CCH --

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MADAM CHIEF JUSTICE McLACHLIN: It can’t be derivatives, so

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we also then have to look at the – as you just said, you have to look at the person for

2

whom he is doing it or she is doing it. So --

3

MR. FINKELSTEIN: No; that is not what I said. What I said was --

4

MADAM CHIEF JUSTICE McLACHLIN: You said patrons -- the

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patrons’ purpose was ascribed to the Law Society.

6

MR. FINKELSTEIN: Because the Law Society had no independent

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purpose.

8

MADAM CHIEF JUSTICE McLACHLIN: Well if a teacher doesn’t

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have any independence purpose, then they --

10

MR. FINKELSTEIN: But the teacher does.

11

MADAM CHIEF JUSTICE McLACHLIN: What is it?

12

MR. FINKELSTEIN: Well, I am going to take you to the evidence

13

shortly.

14

MADAM CHIEF JUSTICE McLACHLIN: (inaudible)

15

MR. FINKELSTEIN: There is lots of evidence in this case about

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purpose.

17

MADAM JUSTICE ABELLA: What do you say the test --

18

MR. FINKELSTEIN: I say the teacher’s purpose is to teach, to give

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instruction. The student’s purpose is to learn.

20

Now it is true there is a symbiotic relationship just the way there is a

21

symbiotic relationship in a contract of purchase and sale between a vendor and a

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purchaser.

23

MR. JUSTICE ROTHSTEIN: But why isn’t that the purpose of the

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Law Society’s library to provide a service to lawyers who need to look at books or in

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that case wanted to get faxes of copies of cases. That was the Law Society’s purpose; to

1

provide that service; no?

2

MR. FINKELSTEIN: Well, it says here there was no other purpose

3

for the copying but the facilitation of research.

4

MADAM JUSTICE ABELLA: What is the purpose of giving

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instructing?

6

MR. FINKELSTEIN: What is the purpose of giving instruction?

7

MADAM JUSTICE ABELLA: Right?

8

MR. FINKELSTEIN: Let’s go to the beginning of the chain here.

9

What happens is -- and I will just give you the reference in the

10

evidence. The reference is at tab 4 of my compendium. And you will see at the top of the

11

pages, there is -- head pages; and I am going to refer to pages 109, 111 and 130. The

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ministries set the curriculum. That is their purpose; it’s to provide education. They set

13

the curriculum. They then reset the curriculum on average every seven years. And

14

usually, when they reset the curriculum, they have got to buy new books. And all of this

15

is in aid of their independent purpose of providing education. The teacher is an

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instrumentality of the ministry or the board of education and provides the instruction.

17

And I say that is a separate and independent purpose from the learning of the student.

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The teacher is more than a facilitator. The ministry is more than a facilitator.

19

MADAM JUSTICE ABELLA: Is there were no students, what would

20

the teachers’ role be?

21

MR. FINKELSTEIN: But there are students. It is the same --

22

MADAM JUSTICE ABELLA: But (shushing sound) the right.

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(Laughter) That is my point.

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MR. FINKELSTEIN: I recognize that. I mean what we have a system

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of education, but that doesn’t mean that you look at every person’s purpose along the

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chain. You look at the --

2

MADAM JUSTICE ABELLA: (inaudible)

3

MR. FINKELSTEIN: -- you look at the infringer’s purpose.

4

MADAM JUSTICE ABELLA: Is there any inconsistency, Mister

5

Finkelstein, between anybody’s purpose in this piece? At the end of the day, isn’t the

6

objective of everyone the same, namely to educate students so that they can learn

7

whatever it is the curriculum or the teacher tells them they have to learn? But are we

8

really doing this exercise any favours by parsing something which is integrated? And one

9

potential --

10

MR. FINKELSTEIN: But my proposition isn’t that it isn’t integrated.

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My proposition is that when you are looking at the fair dealing exception; when you are

12

looking to see whether the copies have to be paid for or not, the potential infringer has to

13

fit within the exception, in which case they don’t have to pay for the copies, or they

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don’t fit into the exception, in which case they do have to fit in with the copies.

15

Now if access was a problem; if the students were not going to get the

16

material; that would be a relevant factor in fairness. It wouldn’t be a relevant factor in

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whose purpose you look at or in whose dealings you look at, but it would be a relevant

18

factor in the effect of the dealing.

19

And so I don’t dispute that it is an integrated system and I don’t

20

dispute that teachers don’t walk into empty classrooms. What I do say is that what we are

21

dealing with is a statutory provision where there is an infringement of copyright going on

22

here. That was conceded to Justice Rothstein in the first question. And the issue is: Does

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the government, who is the infringer, have to pay for it? And so you look at the

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government’s dealing; that is my submission. And the way you explain the Law Society

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case having regard to what I say is clear language in paragraphs 48, 54 and 63, is to say

1

there wasn’t any other purpose as there is here teaching education, whatever; there

2

wasn’t any independent purpose that the potential infringer had. It was only to help the

3

patrons.

4

MADAM CHIEF JUSTICE McLACHLIN: This depends on drawing

5

a sharp line between teacher as one concept and studying and research as another. So if a

6

teacher says: Here is a piece of paper; study it or go do some research on it, where are

7

you?

8

MR. FINKELSTEIN: Well, that is what teachers do, in my

9

experience. And sometimes students listen and sometimes they don’t. The teacher says --

10

the teacher teaches and the students learn.

11

MADAM CHIEF JUSTICE McLACHLIN: Well, in my experience,

12

it is not quite that simple. It is a very symbiotic relationship, I think, and --

13

MR. FINKELSTEIN: Oh sure, but not -- not --

14

MADAM CHIEF JUSTICE McLACHLIN: -- and wouldn’t teaching

15

embrace – I mean you teach students how to do research -- and we won’t get into how

16

broad or narrow research is; we did that yesterday. But they have to learn how to figure

17

things out. Maybe learning how to figure things out is a form a research. They have to

18

sometimes actually do experiments and labs; they have to -- they have to study. They are

19

told they have to study in class, outside class. And this is all -- without that there is no

20

teaching. So it is one activity, it seems to me, a symbiotic activity. You can’t teach

21

without students; you can’t learn without teachers, probably, very much.

22

It is difficult for me or it seems a little artificial, if I can put it that

23

way, to try to say there is this sharp way of looking at each independently.

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MR. FINKELSTEIN: I am not asking you to do that in a vacuum.

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What --

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MADAM CHIEF JUSTICE McLACHLIN: (inaudible) your

2

argument, except for what you may say about inner vacuum. I don’t --

3

MR. FINKELSTEIN: But that is the critical point, is that I am saying

4

that when you are considering the fair dealing exception, the copyright infringement, you

5

will look at the potential infringer. That is the school board; that is the teacher; you look

6

at that person’s dealing, not another person’s dealing.

7

MADAM JUSTICE ABELLA: But can’t you say, just based on the

8

discussion you have just had with the Chief Justice, that the teacher’s purpose was also

9

study; that the purpose of -- to have an artificial demarcation between copies made that

10

teacher’s request and not suggests that the teacher’s purpose in directing copies had

11

nothing to do with private study. The whole point of a teacher making copies is for the

12

students’ private study.

13

So I am not even sure there is dichotomy between purposes at play

14

here.

15

MR. JUSTICE MOLDAVER: Sorry, but --

16

MR. FINKELSTEIN: Well, I am not sure how I can express my

17

point any more effectively. In my submission, there is a difference between teacher and

18

learning. They may work together but they are different; the teacher is not the student

19

and the student is not the teacher.

20

MR. JUSTICE FISH: Mister Finkelstein, does this help at all? Do

21

you distinguish between a case where a student approaches the teacher and says: Teach,

22

as you know I am having trouble with this stuff. Have you any supplemental readings for

23

me to look at? And the teacher indicates which supplemental readings and the teacher’s

24

experience might help?

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MR. FINKELSTEIN: Yes. I think --

1

MR. JUSTICE FISH: That would be different --

2

MR. FINKELSTEIN: -- I think and the Board thinks -- thank you --

3

MR. JUSTICE FISH: -- that is different in a case where the teacher,

4

knowing that this student is having difficulty, doesn’t weight for the request but for the

5

very same purpose provides the photocopies.

6

MR. FINKELSTEIN: Thank you, My Lord; you are right. And that

7

is where the Copyright Board came down; categories 1, 2 and 3 were the situation you

8

described. The teacher really was in the position of the librarian. The teacher was asked

9

by the student, was requested by the student, and those were fair dealing because he

10

looked at it from the perspective of the student. It was driven by the student, whereas

11

category 4 was driven by the teacher, and that is the distinction that I would make and

12

that is the distinction that the Copyright Board made.

13

MADAM JUSTICE ABELLA: The context is children. Lawyers

14

know what they want to look for. Children, eight year olds, don’t go in to the teacher

15

and say: I am having trouble with this logarithm. (Laughter) Maybe books --

16

MR. FINKELSTEIN: No, but they may have trouble with what is

17

two and two. I mean there are categories 1, 2 and 3 where that did happen, Justice

18

Abella; there are two million copies made in categories 1, 2 and 3. They may not have

19

been eight year olds asking for logarithms but two million copies were made, and the

20

Board said: Given that the driver, the initiator for those was a student, that is fair

21

dealing, from the student’s perspective, we will look at it from the student’s perspective

22

because it was initiated by the student.

23

MR. JUSTICE MOLDAVER: But excuse me, Mister Finkelstein. I

24

just want to understand if I am getting your point, which I thought was, when you started

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this out, you weren’t sort of drawing a distinction between teacher, student, so on so

1

forth. You were saying: Look; there is a Board there; there is a government there; the

2

teachers are an arm of the Board and the government; there is some potential ulterior

3

motif on the part of the Board or government that the Law Society didn’t have --

4

MR. FINKELSTEIN: That is right.

5

MR. JUSTICE MOLDAVER: -- but that the Board does have, which

6

is money, saving money; saving the cost of having to go out and buy all these textbooks

7

and so on. That is why (inaudible)

8

MR. FINKELSTEIN: That was my -- that is right. I was simply

9

dealing with questions about the relationship between teaching and learning and I don’t

10

want to be understood to be making a submission that at large there is no relationship

11

between the two.

12

MADAM CHIEF JUSTICE McLACHLIN: Now that we are talking

13

about buying textbooks, perhaps you can answer the question I put to your colleague.

14

MR. FINKELSTEIN: Yes.

15

MADAM CHIEF JUSTICE McLACHLIN: There is the suggestion

16

somewhere that the alternative is to buy a few textbooks to – a few more textbooks to

17

keep in the classroom supplementing what is already in the library. Is that how you see

18

this regime working if your point of view is accepted? How would our classrooms look?

19

Would –

20

MR. FINKELSTEIN: The way the classrooms look now – and this is

21

the record – is that as I understand the question that you put to Ms. Noel, it was the

22

students now buy a few textbooks; they would have to buy a lot more. As I understand,

23

that is not how it works. What happens is class text are bought, which must stay in the

24

classroom. So if you have got 20 students in a classroom, you would have eight class

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text; they sit in the classroom.

1

At paragraph 104, the Board says: They are serial copying from the

2

same texts over the course of the term; the student keep the text; and at paragraph 111

3

and 118, it says: That practice, that copying, competes with the text.

4

MADAM CHIEF JUSTICE McLACHLIN: So –

5

MR. FINKELSTEIN: And so the choices, the alternative is: Yes, for

6

the boards to either buy sufficient texts –

7

MADAM CHIEF JUSTICE McLACHLIN: For everyone?

8

MR. FINKELSTEIN: Well, for as many as required. It may be that

9

in a class of 20 you could avoid – maybe in a class of 20 you wouldn’t have to buy for

10

everybody; I don’t know. But –

11

MADAM JUSTICE ABELLA: Make copies for the rest?

12

MR. FINKELSTEIN: Well my point really is you can buy texts or

13

you can pay the tariff. The school board has a choice. Nobody is saying that it has to go

14

and buy texts for everybody; they can pay the tariff. And that would be my answer to

15

your question, Chief Justice; the question you put to Ms. Noel earlier and that you are

16

putting to me now; they can pay the tariff.

17

MADAM CHIEF JUSTICE McLACHLIN: We are just thinking it

18

might be an appropriate time to take a morning break. Would that suit you or –

19

MR. FINKELSTEIN: Yes.

20

MADAM CHIEF JUSTICE McLACHLIN: Thank you.

21

MR. FINKELSTEIN: I can’t tell from the clock how much time I

22

have left.

23

MADAM CHIEF JUSTICE McLACHLIN (10:51): You have 29

24

minutes and 26 seconds. (Laughter)

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MR. FINKELSTEIN: Very good; thank you.

1

--- The Court is in recess at 10:51 a.m.

2

--- The Court resumes at 11:06 a.m.

3

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