Wednesday, December 15, 2010

CMEC on "making multiple copies for class use"

In its most recent bulletin on Bill C-32, CMEC - which represents the K-12 system in outside of Quebec - says:

Education organizations, including the CMEC Copyright Consortium believe that Bill C‐32 should
clarify how fair dealing applies to copying by a teacher for students in his or her class. The
CMEC Copyright Consortium believes that Bill C‐32 must make it clear that "education" includes
"making multiple copies for class use."

This clarification would result in a Canadian copyright law that is similar to the "fair use"
provision in the United States Copyright Act
. The "fair use" provision, like "fair dealing" in
Canada, also involves two tests to determine whether a "use" is fair. Under the first test, the
enumerated purposes are "criticism, comment, news reporting, teaching (including multiple
copies for classroom use), scholarship, or research." Education organizations want Bill C‐32 to
provide a similar provision — that the new enumerated purpose be "education (including
multiple copies for class use)," rather than simply “education.”
Such an amendment would
make it clear that a Canadian teacher, like their US counterpart, can make copies for students in
his or her class under the first test. The dealing would still have to be "fair" under the second

(emphasis added)

I agree with this. In fact, I've repeatedly called for this myself.

Such a clarification would avoid years of uncertainty and litigation. While further tweaks to s. 29 may be required or desirable, this one is a good one.
Unless the Supreme Court of Canada grants leave to CMEC in its attempt to appeal the decision of the Federal Court of Appeal from last summer that upheld the Copyright Board's K-12 decision and  unless the Supreme Court of Canada ultimately overturns the decisions below, the Canadian educational system will be at a profound disadvantage compared to our American counterparts.

It is difficult to understand why anyone would argue that the Canadian educational system should provide less access at  greater cost than in the USA. Any suggestion that such an amendment would violate the Berne three step test is simply nonsense. If it does, we'd be in good company with the USA.

The state of copyright law as it now applies in Canadian classrooms is very unsatisfactory as a result of the recent Copyright Board and Federal Court of Appeal decisions. It is simply unacceptable and, with respect, quite incorrect that any copying done because a teacher requires or suggests that a student read something cannot be fair dealing. It is the purpose of the student - the researcher - that matters, as the Federal Court of Appeal correctly acknowledged in another earlier decision this year involving iTunes.

Hopefully the Supreme Court of Canada will hear both these cases and clarify the law in Canada.  That, however, is likely to be at least another 18 months away. And there is no guarantee that the Court will grant leave or that, if it does, that it will reverse the FCA on the K-12 decision.Only about one in ten leave applications are granted.

Given what Access Copyright is trying to do to the post-secondary system now at the Copyright Board, and the warp speed treatment that the Board is providing to AC, we need sufficient certainty, clarity and correction from the result of the Board and the FCA and we need it ASAP from Parliament.

CMEC's suggestion in this instance is very helpful and timely..



  1. It also of course guarantees even stronger opposition to making education a fair dealing purpose as it shows that CMEC is trying to achieve through legislation what it can't get through the courts. However, it is worth noting that fair use as interpreted in the US is very narrow in terms of what is acceptable for the classroom.

  2. CMEC is trying to get the the Court's and Board's decision overruled in the Supreme Court of Canada. There are very good grounds to do so in this case.

    It is, of course, perfectly legitimate to get Parliament to step in when the Courts get things wrong or even when the Courts get things right, if the result is not good policy.

    Collectives do this when it suits them. SOCAN has done so successfully (the so-called "SOCAN amendment"). CPCC is now trying to do so - but the Government is saying that no means no.

    So don't snipe at CMEC for doing just what collectives do. On this point, CMEC is doing what needs to be done.