Canada: Photocopies Made By Teachers To Distribute To Students As Part Of Class Instruction Can Qualify As Fair Dealing Under The Copyright Act: Alberta (Education) v. Access Copyright (2012 SCC 37)
Access Copyright represents authors and publishers of literary
works in printed materials and applied to the Copyright Board for a
tariff covering photocopying activities in elementary and secondary
schools across Canada. More particularly, the case concerned short
copies of extracts from texts and other works made at the
teacher's own initiative (and not on specific student request)
coupled with instructions by the teacher to his or her students
that they read the materials.
The Board determined that this category of copying by teachers
was done for "research or private study" but was not
"fair" in all the circumstances, and thus remuneration
was required. The Federal Court of Appeal found this conclusion was
reasonable.
A majority of the Supreme Court of Canada (led by Justice
Abella) disagreed, and ordered the matter be remitted back to the
Copyright Board for reconsideration in accordance with the
Court's reasons.
In assessing the question of "fairness," Access
Copyright's position was that the primary purpose of the
dealing needs to be characterized from the perspective of the
teacher copier and not the student end user. The teacher's
purpose was argued to be "instruction," something
different than research or private study, and thus should tend to
make the dealing less fair.
In Justice Abella's view, this approach was inappropriate
and the concepts of "research" and "private
study" were not in the circumstances inconsistent with an
instructional purpose. In her words, instructing teachers share a
"symbiotic purpose" with the student/user who is engaged
in research or private study.
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