London Community News
By Paul Everest/London Community News/Twitter: @PaulEverest1
Five Supreme Court of Canada decisions handed down this week on copyright issues will “hopefully” balance consumer rights with the need to fairly compensate authors and musicians, a University of Western Ontario law professor said.
The court denied applications on Thursday (July 12) from groups representing authors, publishers and songwriters seeking extra compensation when music and videogames are downloaded or when teachers photocopy parts of textbooks for students.
“The common thrust throughout all these decisions is that the Supreme Court is trying to apply the standard in copyright law that says, essentially, there should be a reasonable balance between the interests of owners and users and that fair dealing and other doctrines are going to be applied to make sure we have this balance,” said Samuel E. Trosow, an associate professor at the university who specializes in copyright law. “One of the issues that’s flowing throughout all five of these cases is, what’s the standard of review when a court reviews a Copyright Board decision.”
One of the decisions Trosow feels is most important to the public revolves around a bid by Access Copyright, a Canadian copyright licensing agency representing authors and publishers, to collect royalties when teachers photocopy excerpts of textbooks.
At issue is whether elementary and secondary schools can claim the benefit of “fair dealing” when teachers make copies of parts of books and instruct students to read the material.
Fair dealing is a term referring to the occasions when copyrighted material can be used without fear of infringement on the grounds of research, private study, criticism or news reporting.
Although the Canadian Copyright Board concluded the copying in question was for the purpose of research or private study, it determined such copying does not fall within the realm of fair dealing because a teacher copied the materials and instructed the class to study them instead of students requesting the materials.
Alberta’s Education Ministry appealed the decision, but the Federal Court of Appeal upheld the board’s conclusion.
The Supreme Court agreed to a discretionary review of the decision, however, and found the board erred in suggesting a distinction between the “unified purposes of instruction and research/private study.”
But it did not go so far as to say such copying is fair dealing and referred the case back to the board, calling on it to use the court’s decision to determine when copying does fall under fair dealing.
Trosow said the board will now have to more closely evaluate what type of copying is taking place, including the quantity of copies made and the purpose of those copies, before seeking compensation from educational institutions for the authors of the copied materials.
“The Supreme Court is saying the Copyright Board needed to be more generous in applying fair dealing for purposes of private study and that they made a mistake in making this artificial distinction about whether the teacher was asking the student to read it and the Supreme Court now says they (the board) have to go back and recalculate the tariff,” he said.
Although the court’s decision is “not an invitation to sort of start doing mass production of the books that you’re otherwise going to purchase,” Trosow added, teachers now have a little more “latitude” when making decisions about copying educational materials.
“People can just take a little more comfort in making these excerpt copying without worrying about copyright infringement or costs.”
In a media release, Access Copyright stated the kind of copying referred to in the court’s decision only covers about seven per cent of the millions of pages copied in schools every year and the decision will only have a “limited impact” on how the authors and publishers it represents are compensated.
"The decision absolutely does not mean a free-for-all on copyright-protected materials used in the classroom. On the contrary, it leaves copyright licensing in the education sector alive and well," said Maureen Cavan, the agency’s executive director.
Trosow said another of the five decisions of particular interest to the public involved the Society of Composers, Authors and Music Publishers of Canada (SOCAN) asking the Copyright Board to take song previews on music download sites on the Internet into account when determining how much compensation the creators of those songs receive.
“SOCAN was saying, in determining what the tariff should be, we should take into account the value of these previews,” Trosow said, adding the board had said no to an increase in compensation since the previews, many of which are 30-second-long song samples, allow consumers to research what songs they want to buy.
“SOCAN was trying to convince the court to take a narrower definition of research. Does a consumer who is going online to investigate something and in the course of doing that gets a bit of a sample, does that constitute research such that it comes within the scope of fair dealing?”
The Supreme Court upheld the board’s decision, agreeing that since the previews allow consumers to research a product they may want to purchase, the preview falls under fair dealing.
Trosow said if SOCAN had gotten its way, the consumers of downloadable music may have seen some slight price increases.
“If this had gone the other way, then the service providers would have had to have decided, ‘Do we want to eat this additional cost, do we want to pass it along to our customers in higher costs’?” he said. “Fortunately they don’t have to deal with that.”
He added since the previews are streamed and often lead to “lawful” purchases, the decision is not harmful to the music industry.
“So the music industry is really worried about online piracy. It would seem to me, and apparently it seems to the court, they should welcome this sort of this thing and not try to monetize every last thing that goes on.”
Although he was not available for comment, SOCAN’s chief executive officer, Eric Baptiste, said in a media release that while the organization is pleased with some of the court’s decisions relating to the use of music on the Internet by large broadcasting companies and entertainment software companies, it was “disappointed that the court chose not to uphold the rights of our members in all of its decisions.”