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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)

July 2012
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By Kevin Sartorio

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.

The following is a link to the full decision: http://scc.lexum.org/en/2012/2012scc37/2012scc37.html

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