Court Of Appeal Upholds Fair Dealing Reduction in K-12 Copying Tariffs

In Access Copyright v British Columbia Ministry of Education et al, the Federal Court of Appeal identified a single reviewable error in the Copyright Board’s decision relating to the copying of works by elementary and secondary schools.

Access Copyright licenses the reproduction of works whose copyright is owned by its affiliates. Access proposed tariffs that would apply to copies of works in its repertoire that were made by elementary and secondary schools from 2010 to 2015. A consortium comprising the British Columbia Ministry of Education, other ministries of education, and Ontario school boards, objected to the proposed tariffs.

The Board certified a tariff of $2.41 to $2.46 per full-time equivalent student. The Board commented that this is lower than the $4.81 per student tariff that was previously in place, mainly because of the application of Alberta v Access Copyright regarding fair dealing. Access appealed the Board’s decision to the Federal Court of Appeal.

Access took issue with the fact that the Board considered each of the six factors relevant to fair dealing individually, instead of as a whole, and that it considered some factors to be neutral, instead of supporting either party’s position. The Court of Appeal concluded that the Board’s general approach, and its application of each of the factors, was reasonable.

Access also argued that all copying was substantial and therefore subject to the tariff; the Consortium argued that copying 1-2 pages was not substantial. The Board accepted the Consortium’s approach for longer works. On appeal, the Court held that this finding was at the “very core of the expertise” of the Board and that the Board’s conclusion was reasonable.

Access’ appeal was not entirely unsuccessful: the Court of Appeal noted that the Board’s decision stated that it had no evidence of the effect of coding errors in a dataset used to calculate the tariff, when evidence on that topic had actually been filed with the Board. The matter was therefore referred back to the Board on that issue.

A copy of the decision may be found here. Copies of the Copyright Board decision and accompanying tariff may be found here and here, respectively.