File Number: 33888

IN THE SUPREME COURT OF CANADA (ON APPEAL FROM THE FEDERAL COURT OF APPEAL)

BETWEEN:

THE PROVINCE OF ALBERTA AS REPRESENTED BY THE MINISTER OF EDUCATION AND OTHERS* Appellants (Applicants) - and -

THE CANADIAN COPYRIGHT LICENSING AGENCY Operating as "ACCESS COPYRIGHT" Respondent (Respondent)

FACTUM OF THE RESPONDENT, THE CANADIAN COPYRIGHT LICENSING AGENCY Operating as "ACCESS COPYRIGHT"

Pursuant to subsection 40(1) of the Supreme Court Act and Rule 42 of the Rules of the Supreme Court of Canada

David R. Collier Sally A. Gomery Claude Brunet Norton Rose OR LLP Norton Rose OR LLP Suite 1500 Suite 2500 45 O'Connor Street 1 Place Ville Marie Ottawa, Ontario Montréal, Quebec H3B 1R1 K1P 1A4 Telephone: +1 514.847.4539 Telephone: +1 514.847.4726 Telephone: +1 613-780-8604 Telecopier: +1 514.286.5474 Telecopier: +1 613-230-5459

Email: [email protected] Email: [email protected] Email: [email protected]

Solicitors for the Respondent, Access Agent for the Respondent, Access Copyright Copyright *THE PROVINCE OF BRITISH COLUMBIA AS REPRESENTED BY THE MINISTER OF EDUCATION; THE PROVINCE OF MANITOBA AS REPRESENTED BY THE MINISTER OF EDUCATION, CITIZENSHIP AND YOUTH; THE PROVINCE OF NEW BRUNSWICK AS REPRESENTED BY THE MINISTER OF EDUCATION; THE PROVINCE OF NEWFOUNDLAND AND LABRADOR AS REPRESENTED BY THE MINISTER OF EDUCATION; THE NORTHWEST TERRITORIES AS REPRESENTED BY THE MINISTER OF EDUCATION, CULTURE AND EMPLOYMENT; THE PROVINCE OF NOVA SCOTIA AS REPRESENTED BY THE MINISTER OF EDUCATION; THE TERRITORY OF NUNAVUT AS REPRESENTED BY THE MINISTER OF EDUCATION; THE PROVINCE OF ONTARIO AS REPRESENTED BY THE MINISTER OF EDUCATION; THE PROVINCE OF PRINCE EDWARD ISLAND AS REPRESENTED BY THE MINISTER OF EDUCATION; THE PROVINCE OF SASKATCHEWAN AS REPRESENTED BY THE MINISTER OF EDUCATION; THE YUKON TERRITORY AS REPRESENTED BY THE MINISTER OF EDUCATION; THE AIRY AND SABINE DISTRICT SCHOOL AREA BOARD; THE ALGOMA DISTRICT SCHOOL BOARD; THE ALGONQUIN AND LAKESHORE CATHOLIC DISTRICT SCHOOL BOARD; THE ASQUITH-GARVEY DISTRICT SCHOOL AREA BOARD; THE ATIKOKAN ROMAN CATHOLIC SEPARATE SCHOOL BOARD; THE AVON MAITLAND DISTRICT SCHOOL BOARD; THE BLOORVIEW MACMILLAN SCHOOL AUTHORITY; THE BLUEWATER DISTRICT SCHOOL BOARD; THE BRANT HALDIMAND NORFOLK CATHOLIC DISTRICT SCHOOL BOARD; THE BRUCE-GREY CATHOLIC DISTRICT SCHOOL BOARD; THE CAMPBELL CHILDREN'S SCHOOL AUTHORITY; THE CARAMAT DISTRICT SCHOOL AREA BOARD; THE CATHOLIC DISTRICT SCHOOL BOARD OF EASTERN ONTARIO; THE COLLINS DISTRICT SCHOOL AREA BOARD; THE CONNELL AND PONSFORD DISTRICT SCHOOL AREA BOARD; THE CONSEIL DES ÉCOLES CATHOLIQUES DU CENTRE-EST DE L'ONTARIO; THE CONSEIL DES ÉCOLES PUBLIQUES DE L'EST DE L'ONTARIO; THE CONSEIL DES ÉCOLES SÉPARÉES CATHOLIQUES DE DUBREUILVILLE; THE CONSEIL DES ÉCOLES SÉPARÉES CATHOLIQUES DE FOLEYET; THE CONSEIL SCOLAIRE DE DISTRICT CATHOLIQUE CENTRE-SUD; THE CONSEIL SCOLAIRE DE DISTRICT CATHOLIQUE DE L'EST ONTARIEN; THE CONSEIL SCOLAIRE DE DISTRICT CATHOLIQUE DES AURORESBORÉALES; THE CONSEIL SCOLAIRE DE DISTRICT CATHOLIQUE DES GRANDES RIVIÈRES; THE CONSEIL SCOLAIRE DE DISTRICT CATHOLIQUE DU NOUVEL-ONTARIO; THE CONSEIL SCOLAIRE DE DISTRICT CATHOLIQUE FRANCO-NORD; THE CONSEIL SCOLAIRE DE DISTRICT DES ÉCOLES CATHOLIQUES DE SUD-OUEST; THE CONSEIL SCOLAIRE DE DISTRICT DU CENTRE SUD-OUEST; THE CONSEIL SCOLAIRE DE DISTRICT DU GRAND NORD DE L'ONTARIO; THE CONSEIL SCOLAIRE DE DISTRICT DU NORD-EST DE L'ONTARIO; THE DISTRICT SCHOOL BOARD OF NIAGARA; THE DISTRICT SCHOOL BOARD ONTARIO NORTH EAST; THE DUFFERIN-PEEL CATHOLIC DISTRICT SCHOOL BOARD; THE DURHAM CATHOLIC DISTRICT SCHOOL BOARD; THE DURHAM DISTRICT SCHOOL BOARD; THE FOLEYET DISTRICT SCHOOL AREA BOARD; THE GOGAMA DISTRICT SCHOOL AREA BOARD; THE GOGAMA ROMAN CATHOLIC SEPARATE SCHOOL BOARD; THE GRAND ERIE DISTRICT SCHOOL BOARD; THE GREATER ESSEX COUNTY DISTRICT SCHOOL BOARD; THE HALTON CATHOLIC DISTRICT SCHOOL BOARD; THE HALTON DISTRICT SCHOOL BOARD; THE HAMILTON-WENTWORTH CATHOLIC DISTRICT SCHOOL BOARD; THE HAMILTON-WENTWORTH DISTRICT SCHOOL BOARD; THE HASTINGS & PRINCE EDWARD DISTRICT SCHOOL BOARD; THE HORNEPAYNE ROMAN CATHOLIC SEPARATE SCHOOL BOARD; THE HURON PERTH CATHOLIC DISTRICT SCHOOL BOARD; THE HURON-SUPERIOR CATHOLIC DISTRICT SCHOOL BOARD; THE JAMES BAY LOWLANDS SECONDARY SCHOOL BOARD; THE KAWARTHA PINE RIDGE DISTRICT SCHOOL BOARD; THE KEEWATIN-PATRICIA DISTRICT SCHOOL BOARD; THE KENORA CATHOLIC DISTRICT SCHOOL BOARD; THE LAKEHEAD DISTRICT SCHOOL BOARD; THE LAMBTON KENT DISTRICT SCHOOL BOARD; THE LIMESTONE DISTRICT SCHOOL BOARD; THE MISSARENDA DISTRICT SCHOOL AREA BOARD; THE MOOSE FACTORY ISLAND DISTRICT SCHOOL AREA BOARD; THE MOOSONEE DISTRICT SCHOOL AREA BOARD; THE MOOSONEE ROMAN CATHOLIC SEPARATE SCHOOL BOARD; THE MURCHISON AND LYELL DISTRICT SCHOOL AREA BOARD; THE NAKINA DISTRICT SCHOOL AREA BOARD; THE NEAR NORTH DISTRICT SCHOOL BOARD; THE NIAGARA CATHOLIC DISTRICT SCHOOL BOARD; THE NIAGARA PENINSULA CHILDREN'S CENTRE SCHOOL AUTHORITY; THE NIPISSING-PARRY SOUND CATHOLIC DISTRICT SCHOOL BOARD; THE NORTHEASTERN CATHOLIC DISTRICT SCHOOL BOARD; THE NORTHERN DISTRICT SCHOOL AREA BOARD; THE NORTHWEST CATHOLIC DISTRICT SCHOOL BOARD; THE OTTAWA CHILDREN'S TREATMENT CENTRE SCHOOL AUTHORITY; THE OTTAWA-CARLETON CATHOLIC DISTRICT SCHOOL BOARD; THE OTTAWA-CARLETON DISTRICT SCHOOL BOARD; THE PARRY SOUND ROMAN CATHOLIC SEPARATE SCHOOL BOARD; THE PEEL DISTRICT SCHOOL BOARD; THE PETERBOROUGH VICTORIA NORTHUMBERLAND AND CLARINGTON CATHOLIC DISTRIC SCHOOL BOARD; THE RAINBOW DISTRICT SCHOOL BOARD; THE RAINY RIVER DISTRICT SCHOOL BOARD; THE RED LAKE AREA COMBINED ROMAN CATHOLIC SEPARATE SCHOOL BOARD; THE RENFREW COUNTY CATHOLIC DISTRICT SCHOOL BOARD; THE RENFREW COUNTY DISTRICT SCHOOL BOARD; THE SIMCOE COUNTY DISTRICT SCHOOL BOARD; THE SIMCOE MUSKOKA CATHOLIC DISTRICT SCHOOL BOARD; THE ST CLAIR CATHOLIC DISTRICT SCHOOL BOARD; THE SUDBURY CATHOLIC DISTRICT SCHOOL BOARD; THE SUPERIOR NORTH CATHOLIC DISTRICT SCHOOL BOARD; THE SUPERIOR-GREENSTONE DISTRICT SCHOOL BOARD; THE THAMES VALLEY DISTRICT SCHOOL BOARD; THE THUNDER BAY CATHOLIC DISTRICT SCHOOL BOARD; THE TORONTO CATHOLIC DISTRICT SCHOOL BOARD; THE TORONTO DISTRICT SCHOOL BOARD; THE TRILLIUM LAKELANDS DISTRICT SCHOOL BOARD; THE UPPER CANADA DISTRICT SCHOOL BOARD; THE UPPER GRAND DISTRICT SCHOOL BOARD; THE UPSALA DISTRICT SCHOOL AREA BOARD; THE WATERLOO CATHOLIC DISTRICT SCHOOL BOARD; THE WATERLOO REGION DISTRICT SCHOOL BOARD; THE WELLINGTON CATHOLIC DISTRICT SCHOOL BOARD; THE WINDSOR-ESSEX CATHOLIC DISTRICT SCHOOL BOARD; THE YORK CATHOLIC DISTRICT SCHOOL BOARD; and THE YORK REGION DISTRICT SCHOOL BOARD ORIGINAL TO:

The Registrar

COPIES TO:

Wanda Noel Barrister and Solicitor 5496 Whitewood Avenue Ottawa, ON K4M 1C7

Telephone: 613.794.1171 Facsimile: 613.692.1735

E-mail: [email protected]

J. Aidan O'Neill Ariel A. Thomas Fasken Martineau DuMoulin LLP 1300 - 55 Metcalfe Street Ottawa, ON K1 P 6L5

Telephone: 613.236.3882 Facsimile: 613.230.6423

E-mail: [email protected]

Solicitors for the Appellants i

TABLE OF CONTENTS

PART I — FACTS ...... 1

A. Overview...... 1

B. Access Copyright’s licence to K-12 schools ...... 3

C. The Board’s decision...... 5

D. The Judicial Review ...... 8

PART II – QUESTIONS IN ISSUE...... 11

Question 1: What is the appropriate standard of review? ...... 11

Question 2: Did the Board and the Court of Appeal reasonably conclude, on the evidence, that the dealings of K-12 schools with category 4 copies were not fair under the second part of the CCH test? ...... 11

Question 3: Whether, in the case of K-12 schools, certain presumptions should replace the analysis of what is fair under the six CCH factors?...... 12

PART III – ARGUMENTS ...... 12

Question 1: What is the appropriate standard of review? ...... 12

Question 2: Did the Board and the Court of Appeal reasonably conclude, on the evidence, that the dealings of K-12 schools with category 4 copies were not fair under the second part of the CCH test? ...... 14

i) the purpose of the dealing...... 14

ii) the amount of the dealing ...... 15

iii) the remaining four CCH factors...... 17

Question 3: Whether, in the case of K-12 schools, certain presumptions should replace the analysis of what is fair under the six CCH factors?...... 18

i) the argument that the student/end-user’s purpose should be considered is unsound ...... 18

ii) the argument that the amount of the dealing must be assessed individually is unsound ...... 24 ii

iii) the appellants’ contestation of the facts is improper and misleading ...... 30

iv) The objective of the fair dealing exception ...... 30

PART IV – SUBMISSIONS ON COSTS ...... 32

PART V – ORDER SOUGHT...... 32

PART VI – TABLE OF AUTHORITIES...... 33

PART VII – PROVISIONS IN ISSUE...... 35 1

PART I — FACTS

A. Overview

1. In CCH Canadian Ltd. v Law Society of Upper Canada (CCH) this Court held that in order to show that a dealing is fair, and not an infringement of copyright, a defendant must prove i) that the dealing is for one of the allowable purposes in sections 29 and 29.1 of the Copyright Act (the Act) , and ii) that the dealing is fair.

CCH Canadian Ltd. v Law Society of Upper Canada, 2004 SCC 13, [2004] 1 SCR 339 at para 50 [CCH], Appellants’ Book of Authorities (ABA), Tab 1.

2. This Court in CCH set out six non-exhaustive factors to consider in determining whether a dealing is fair under the second part of the test: (1) the purpose of the dealing; (2) the character of the dealing; (3) the amount of the dealing; (4) alternatives to the dealing; (5) the nature of the work; and (6) the effect of the dealing on the work.

CCH, supra para 1 at para 53, ABA, Tab 1.

3. According to CCH, “whether something is fair is a question of fact and depends on the facts of each case”.

CCH, supra para 1 at para 52, ABA, Tab 1.

4. This case is the first judicial application of the CCH decision to fair dealing in educational institutions, specifically in elementary and secondary schools (K-12 schools).

5. For the reasons more fully explained below, Access Copyright submits that the Copyright Board (the Board) and the Federal Court of Appeal (Court of Appeal) rigorously applied CCH and made reasonable findings of fact when they concluded that some photocopying of textbooks and other scholastic materials in K-12 schools is unfair according to the second part of the CCH test.

6. In determining whether the dealings in K-12 schools were fair, the Board examined four distinct fact situations presented to it by the parties’ joint evidence. With respect to three types of copying (“category 1, 2 and 3 copies”) the Board found on the evidence that the 2

schools’ dealings were fair. The parties do not contest these factual findings. However, the appellants contest the Board’s factual finding that the fourth type of copying (“category 4 copies”) was an unfair dealing with Access Copyright’s works.

7. In disposing of this appeal this Court must keep in mind that the first part of the CCH test (the enumerated fair dealing purposes) is not at issue in this case. Both parties agree on this point. The present appeal does not raise any issue about the proper meaning to be given to the allowable fair dealing purposes, including “private study”. What this appeal really concerns is the reasonableness of the Board’s factual conclusion that when teachers make multiple copies for distribution in class, with instructions to students to read the material, (category 4 copies) the teacher’s predominant purpose or motive for making these copies is classroom instruction and tends to be unfair.

8. Furthermore, this Court should keep in mind that the Board found the appellants’ dealings with category 4 copies to be unfair according to all six CCH fairness factors. This case therefore concerns the reasonableness of a number of the Board’s factual conclusions. Nevertheless, the written submissions of the appellants and proposed interveners concentrate almost exclusively on the “purpose of the dealing” and the “amount of the dealing” factors, and give short-shrift to the Board’s conclusions based on the other four fairness factors.

9. Since the Board’s conclusions are based on all six CCH factors, its decision must be upheld by this Court unless it is found to be unreasonable in regard to all of these factors. Such an exercise would require this Court to examine all of the evidence, and substitute its impression of what is fair for that reached by the Board. Such an exercise is impossible given the very limited evidence before this Court. Moreover, since the Board’s conclusions are fact based, this Court should treat them with respect and deference in accordance with the reasonableness standard of review recently articulated in Dunsmuir.

Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 SCR 90 at para 51 [Dunsmuir], Respondent’s Book of Authorities (RAB), Tab 2. 3

10. In Hubbard v Vosper, Lord Denning said “[b]ut after all is said and done, it [fairness] must be a matter of impression. As with fair comment in the law of libel, so with fair dealing in the law of copyright. The tribunal of fact must decide”.

Hubbard v Vosper, [1972] 1 All ER 1023 (CA) at 1027 [Hubbard], ABA, Tab 3, cited in CCH, supra para 1 at para 52, ABA, Tab 1.

11. By their appeal the appellants are attempting to effect an end-run around the Board’s factual findings, by proposing that the Court apply arbitrary presumptions to the “purpose of the dealing” and “amount of the dealing” fairness factors. They invite the Court to ignore the facts regarding the teacher’s predominant purpose for making the copies and examine only the student’s purpose. In addition, the appellants invite the Court to ignore the evidence respecting the total amount of copying that occurred in K-12 schools and examine only whether the amount of each individual act of copying was fair.

12. In sum, the appellants want this Court to ignore many of the essential facts of this case. In their conclusions they audaciously seek to have this Court overturn its ruling in CCH and rewrite the law of fair dealing in Canada as it applies to K-12 schools. They want this Court to radically change the CCH test in their favour in order to allow them to photocopy textbooks and other scholastic materials without fair payment to the creators of those works.

13. This case provides an opportunity for this Court to reaffirm that the CCH principles apply equally to all dealings with copyright works in Canada, including those in schools. This Court should reaffirm the two-step character of the CCH test and the essential role that the factual determinations play under the second part of the test.

B. Access Copyright’s licence to K-12 schools

14. Access Copyright represents authors and publishers of literary and artistic works in printed materials which are subject to copying by photocopying and other forms of reproduction. Its mandate is to administer the reproduction of published materials by issuing licences and collecting and distributing royalties to affiliated copyright owners. Access Copyright is a collective society as defined by the Copyright Act. 4

Witness Statement of Maureen Cavan and Roanie Levy, Copyright Board, Respondent’s Record (RR), Tab 1.

15. In the early 1990’s Access Copyright began granting licences to provincial ministries of education (excluding Quebec and Ontario) and to Ontario school boards, permitting the reproduction by schools, school boards and ministries of education of copyright materials in Access Copyright’s repertoire. Copying by elementary and secondary schools in Quebec is licensed by Copibec, Access Copyright’s sister organization in Quebec.

Witness Statement of Maureen Cavan and Roanie Levy, Copyright Board, RR, Tab 1.

16. By 2004, the parties were unable to agree to the amount of photocopying which was occurring in schools and the value of that copying. Therefore, in 2004 Access Copyright filed the Elementary and Secondary School Tariff, 2005-2009, and asked the Board to establish the royalty rates. This appeal results from the Board’s tariff decision dated July 17, 2009.

Witness Statement of Maureen Cavan and Roanie Levy, Copyright Board, RR, Tab 1.

17. At the Board the parties offered joint survey evidence regarding photocopying in schools, school boards and ministries of education. The evidence included written statements on “logging stickers” filled out by teachers and staff who made photocopies at a sample of 894 schools during the 2005-2006 school year. The information on the logging stickers identified the work copied and indicated the purpose(s) for making the copies, the number of pages copied and the number of copies made.

18. The joint survey evidence showed that schools, school boards and ministries of education outside Quebec made over 10.3 billion photocopies during the 2005-2006 school year. This included over 3 billion photocopies of published material. Of this, approximately 250 million photocopies were made of published works in Access Copyright’s repertoire.

Statement of Royalties to be Collected by Access Copyright for the Reprographic Reproduction, in Canada, of Works in its Repertoire (Educational Institutions - 2005- 2009) Decision of the Board, dated June 26, 2009 and corrected July 17, 2009 at tables 3 and 4 [Board Decision], Appellants’ Record (AR), Vol. 1 at 89-90. 5

19. According to the evidence, the vast majority (86.4%) of the copies made by K-12 schools from works in Access Copyright’s repertoire were from books, largely educational textbooks. The remaining 7.1% of the copies were from newspapers and 6.5% from magazines and journals.

Board Decision, supra para 18 at para 151, AR, Vol. 1 at 64.

C. The Board’s decision

20. In its tariff decision the Board set a page value for each genre of published work which the appellants have not contested. This gave a final royalty rate of $5.16 per full-time equivalent student per year.

Board Decision, supra para 18, Tables 3 and 4, AR, Vol. 1, at 89-90.

21. At the Board the appellants argued that approximately 18.5 million copies made of works in Access Copyright’s repertoire should be excluded from remuneration on the basis of the fair dealing exception. The Board examined the appellants’ dealing with these works and concluded that 1.7 million copies had been made fairly. These “fair dealing” copies were identified as category 1, 2, and 3 copies in the Board’s Table 1.

Board Decision, supra para 18 at table 1, AR, Vol. 1 at 85.

22. This appeal arises from the Board’s finding that the remaining 16.8 million category 4 copies had not been fairly dealt with by the appellants.

Board Decision, supra para 18 at table 1, AR, Vol. 1 at 85.

23. Before the Board the parties agreed that if a logging sticker indicated that the purpose for copying was “research”, “private study” or “criticism or review”, the copy was made for an allowable fair dealing purpose and no further inquiry into the first part of the CCH test was required. The Board accepted this, stating, “as soon as the logging sticker mentions that the dealing is for an allowable purpose, we must proceed to the next step”. Faced with a debate over whether “criticism” is an activity that is truly engaged in by K-12 students, when a logging sticker indicated that a copy had been made for the purpose of 6

“criticism or review”, the Board concluded that the real purpose for the copying was “research” and moved on to the second part of the CCH test.

Board Decision, supra para 18 at paras 87 and 94, AR, Vol. 1 at 42 and 45.

24. In the end, the Board found that the schools’ dealing with category 4 copies was not fair after completing an analysis of the six CCH factors under the second part of the test. i) Purpose of the dealing

25. With respect to the first fairness factor, the purpose of the dealing, the Board concluded that the real or predominant purpose for making category 4 copies was classroom instruction, not private study. The Board reached this conclusion because teachers had made multiple copies for distribution in class and had instructed students to read the copied material.

Board Decision, supra para 18 at para 98, AR, Vol. 1 at 46.

26. The Board thus distinguished category 4 copies from category 1, 2 and 3 copies. In the case of category 1, 2 and 3 copies, the evidence showed that teachers and staff had made single or multiple copies for themselves or at the request of students. In these cases, the Board accepted that the real or predominant purpose for the copying was research or private study and that the purpose of the dealing was fair under the second part of the CCH test.

Board Decision, supra para 18 at paras 97, 116 and 117, AR, Vol. 1 at 45, 52-53. ii) Character of the dealing

27. With respect to the character of the dealing, the Board found that the character of the dealing with category 4 copies was unfair because “this is a matter of multiple copies distributed to an entire class on the teacher’s initiative” and “students usually keep the copy in a binder just as long as they would keep the original: until the end of the school year”.

Board Decision, supra para 18 at para 100, AR, Vol. 1 at 46-47. 7 iii) Amount of the dealing

28. The Board concluded that the amount of the copying of category 4 copies was also unfair. It considered the fact that teachers generally copied short extracts from books, which tended towards a fairness conclusion, but concluded that because teachers repeatedly copied the same textbooks, the amount of the dealing tended to be “unfair on the whole”.

Board Decision, supra para 18 at para 104, AR, Vol. 1 at 48. iv) Alternatives to the dealing

29. With respect to the alternatives to the dealing factor, the Board found that the schools had an alternative to photocopying textbooks and distributing copies to students in class. Although schools could easily obtain the desired works, they had chosen to make photocopies rather than purchase a sufficient number of books to meet classroom demands.

[107] However, the educational institution has an option that, from a practical standpoint, is not open to the student: buying the original to distribute to students or to place in the library for consultation. The fact that the establishment has limited means does not seem to bar the recognition on this point.

Board Decision, supra para 18 at para 107, AR, Vol. 1 at 49. v) Nature of the work

30. With respect to the nature of the work, the Board distinguished textbooks from the law reports and legal sources considered in CCH. Textbooks can be replaced by other books and learning resources if a school cannot acquire them. On the other hand, reported cases are often the public’s only source of access to the law. A consideration of the nature of the work which tended towards a finding of fairness in CCH did not exist in the present case.

Board Decision, supra para 18 at para 108, AR, Vol. 1 at 49. vi) The effect of the dealing on the work

31. Finally, the Board considered the effect of the dealing on the work. It heard evidence from educational publishers who testified that textbooks are tailor-made in response to 8

different requirements from each of the provincial ministries of education. The publishers stated that they must make significant initial investments to create textbooks, with no guarantee that the books will be purchased by schools or school boards. They testified that in light of different provincial curricular requirements and the variety of subject matters and grade levels, the market for textbooks is highly fragmented, and is fragile since there is no secondary market for the product.

Testimony of Publishers Panel, AR, Vol. 2, at 52 to 56.

32. After hearing the evidence, the Board concluded that the photocopying of textbooks was likely to compete with the sale of the books. In this regard it relied on the publishers’ evidence that textbooks sales in Canada have declined by more than 30 percent in the last twenty years. After noting that several factors may have contributed to this decline, the Board concluded:

[111] We are not able to determine precisely to what extent each factor contributed to this decline. That said, by the Objectors’ own admission, schools copy more than a quarter of a billion textbook pages each year, which represents 86 per cent of copies of Access Copyright’s repertoire.32 Moreover, it seems to us that resource-based learning and use of class sets would be impossible without photocopying works from Access Copyright’s repertoire. Based on these findings and on all of the testimony, we conclude that the impact of photocopies made in support of these practices, while impossible to quantify, is sufficiently important to compete with the original to an extent that makes the dealing unfair.

Board Decision, supra para 18 at para 111, AR, Vol. 1 at 50.

D. The Judicial Review

33. On judicial review to the Court of Appeal the appellants admitted that the first part of the CCH test was not at issue. They merely contested the Board’s treatment of the “purpose of the dealing” factor under the second part of the test. Accordingly, the Court held, “[t]he only question before the Court with respect to fair dealing is therefore whether, having been made for an allowable purpose, the [category 4] copies were made fairly”.

Alberta (Education) v Access Copyright, 2010 FCA 198 at para 28 [FCA Decision], AR, Vol. 1 at 115.

34. The Court added, “[a]t its core, the fair dealing issue comes down to a review of the Board’s ruling that the dealing was unfair. This is a purely factual question”. Citing 9

CCH, it stated “whether something is fair is a question of fact and depends on the facts of each case”.

FCA Decision, supra para 33 at paras 5 and 29, AR, Vol. 1 at 105 and 115.

CCH, supra para 1 at para 52, ABA, Tab 1.

35. Accordingly, the Court of Appeal reviewed the Board’s factual findings on a standard of reasonableness. In doing so, it followed this Court’s decision in Dunsmuir, which held that “questions of fact, discretion and policy as well as questions where the legal issues cannot be easily separated from the factual issues generally attract a standard of reasonableness”, and “where the question is one of fact, discretion or policy, deference will usually apply automatically”.

FCA Decision, supra para 33 at para 27, AR, Vol. 1 at 114-115.

Dunsmuir, supra para 9 at paras 51, 53, RBA, Tab 2.

36. The Court of Appeal rejected the appellants’ contention that the case raised legal questions which should be reviewed for correctness, concluding, “the dispute in the case at bar lacks wide ranging legal significance”.

FCA Decision, supra para 33 at para 32, AR, Vol. 1 at 116.

37. The Court of Appeal concluded that the Board’s factual findings under the second part of the CCH test were reasonable, since they were based on the evidence, comprehensible and transparent.

FCA Decision, supra para 33 at para 48, AR, Vol. 1 at 122.

38. More specifically, with respect to the “purpose of the dealing” factor under the second part of the test, the Court held that the Board was entitled to enquire into the copier’s real purpose or motive for making the copies. The Court stated:

[40] In making this finding, the Board was entitled to look beyond the fact that the logging sticker might have stated that the copies were made for research or private study. Indeed, CCH requires the Board to ‘make an objective assessment of the user/defendant’s real purpose or motive in using the copyrighted work’ (CCH at paragraph 54). The Board was not precluded from finding a different objective purpose at step 2 from the purpose it accepted as fact at step 1. 10

FCA Decision, supra para 33 at para 40, AR, Vol. 1 at 119.

39. The Court noted that international jurisprudence is consistent with the view that the fairness of the purpose under the second part of the CCH test must be examined objectively, citing Commonwealth and U.S. decisions to this effect.

FCA Decision, supra para 33 at paras 41-45, AR, Vol. 1 at 119-121.

40. The Court of Appeal agreed with the Board’s conclusion that the real purpose for the category 4 copies was classroom instruction, not private study. The Court found that the distribution of multiple copies to students in class could not constitute private study, since that would effectively read the word “private” out of “private study”, a meaning the words cannot bear even if section 29 were given a large and liberal interpretation. Furthermore, several factors pointed to classroom instruction as the dominant purpose for the dealing, including the institutional setting in which the copying occurred, the fact that multiple copies were distributed in class with instructions to students to read the material, and the fact that students had not requested the copies. Distinguishing teaching from learning, the Court concluded that the dominant purpose of classroom instruction was “an entirely legitimate conclusion based on the facts of the case”.

FCA Decision, supra para 33 at para 46, AR, Vol. 1 at 121.

41. The Court of Appeal also found reasonable the Board’s conclusions that the dealing was unfair according to the other CCH fairness factors. Regarding the last factor, the effect of the dealing on the work, the Court stated, “[i]n terms of the effect of the dealing, the Board found on the evidence that it was likely that the dealing hurt textbook sales. While the Board admitted there was no conclusive evidence to this effect, it did not act unreasonably in considering the overall decline in sales when conducting its fairness analysis”.

FCA Decision, supra para 33 at para 47, AR, Vol. 1 at 121-122. 11

PART II– QUESTIONS IN ISSUE

42. The central issue for determination by this Court relates to the Board’s conclusion that the dealings of K-12 schools with category 4 copies were not fair under the second part of the CCH test.

43. The appellants agree with Access Copyright. They state, “[t]he issue is whether these dealings by teachers [with category 4 copies] are ‘fair’ according to the principles and the two-step test established in CCH in 2004”.

Appellants’ Memorandum of Argument at para 3.

44. This central issue raises the preliminary question of what is the appropriate standard of review to apply to the Board’s conclusions.

Question 1: What is the appropriate standard of review?

45. For the reasons that follow, Access Copyright submits that the Board’s conclusions respecting the fairness of the K-12 schools’ dealings with its works were all factual in nature and therefore attract the reasonableness standard of review.

Question 2: Did the Board and the Court of Appeal reasonably conclude, on the evidence, that the dealings of K-12 schools with category 4 copies were not fair under the second part of the CCH test?

46. Access Copyright submits that the Board had ample evidence upon which to base its conclusion that when a teacher makes multiple copies for distribution in class, with instructions to students to read the material, and without students having asked for the copies, the predominant purpose for making the copies is classroom instruction. Furthermore, Access Copyright submits that the Board had ample evidence on which to conclude, taking all six CCH factors into account, that the schools’ dealings in these instances were unfair.

47. Access Copyright submits that questions 1 and 2 identified above are the only questions properly before this Court. Nevertheless, the appellants have invited the Court to go beyond the facts of this case and declare: 12

1) that a court should only consider a student’s purpose for using a copied work;

2) that the amount of the schools’ dealing should only be assessed on an individual basis, and;

3) that all copying in schools should be deemed fair if done for the purpose of research, private study, criticism or review.

48. It follows that a final question for this Court, although it does not flow from the decisions below, is whether the “purpose of the dealing” and “amount of the dealing” factors in the second part of the CCH test should be constrained by the legal presumptions proposed by the appellants.

Question 3: Whether, in the case of K-12 schools, certain presumptions should replace the analysis of what is fair under the six CCH factors?

49. For the reasons that follow, Access Copyright submits that there are no sound legal or policy reasons for replacing the CCH test as it applies to copying in K-12 schools.

PART III– ARGUMENTS

Question 1: What is the appropriate standard of review?

50. Access Copyright submits that since this case, by the common agreement of the parties, relates to the Board’s conclusion that K-12 schools dealt unfairly with category 4 copies, the appropriate standard of review is reasonableness.

51. The Board made pure findings of fact when it concluded that category 4 copies were made for the predominant purpose of classroom instruction, whereas category 1, 2 and 3 copies were made for the purposes of research or private study. The Board weighed the evidence in each case, including whether the teacher made a copy on his or her own initiative (category 4) or in response to a request from a student (categories 1, 2 and 3). In addition, the Board’s conclusion was based on the evidence that in certain cases teachers made single copies for his or her own use or for the use of a third party (categories 1, 2 and 3) while in other cases teachers made multiple copies for the purpose of distributing them to students in class (category 4 copies). 13

52. The Board’s conclusion that the schools’ dealings were fair (categories 1, 2 and 3) or unfair (category 4), after considering all six CCH factors, was firmly rooted in the evidence.

53. In particular, the Board pointed to evidence pertaining to the purpose of the dealing, the character of the dealing, the amount of the dealing, and alternatives to the dealing, which led it to conclude that category 1, 2 and 3 copies were fair. With respect to category 4 copies, different evidence relevant to these factors led the Board to an opposite conclusion.

Board Decision, supra para 18 at paras 96-112, AR, Vol. 1 at 45-51.

54. In CCH this Court held that “whether something is fair is a question of fact and depends on the facts of each case. The Court cited Hubbard v Vosper, which held that fair dealing is a “question of degree” and a “matter of impression” for the tribunal of fact to decide.

Hubbard, supra para 10 at 1027, RBA, Tab 8.

55. According to this Court in Dunsmuir, issues of fact, or issues where the facts and the law cannot easily be separated, are reviewed on a standard of reasonableness.

[51] […] questions of fact, discretion and policy as well as questions where the legal issues cannot easily be separated from the factual issues generally attract a standard of reasonableness while many legal issues attract a standard of correctness.

Dunsmuir, supra para 9 at para 51, RBA, Tab 2.

56. Reasonableness according to Dunsmuir is a deferential standard, where the reviewing court pays “a respectful attention to the reasons offered or which could be offered in support of a decision”. According to the reasonableness standard, “tribunals have a margin of appreciation within the range of acceptable and rational solutions”, and the reviewing court is concerned mostly with “the existence of justification, transparency and intelligibility within the decision-making process”.

Dunsmuir, supra para 9 at paras 47, 48, RBA, Tab 2.

57. The reasonableness standard of review applies to the Board’s findings of facts; it also applies to the Board’s conclusions of fairness if one views these conclusions as resulting 14

from the Board’s application of the CCH factors to the evidence. Since the six CCH factors constitute the “analytical framework” through which fairness is determined, the factors and the evidence cannot easily be separated. According to Dunsmuir, where issues of law and fact cannot easily be separated, the reasonableness standard applies.

Dunsmuir, supra para 9 at para 51, RBA, Tab 2.

Question 2: Did the Board and the Court of Appeal reasonably conclude, on the evidence, that the dealings of K-12 schools with category 4 copies were not fair under the second part of the CCH test?

i) the purpose of the dealing

58. Access Copyright submits that the Board’s finding that K-12 schools dealt unfairly with category 4 copies was “an entirely legitimate conclusion based on the facts of the case”. It fell squarely within the range of acceptable and rational solutions open to the Board.

FCA Decision, supra para 33 at para 46, AR, Vol. 1 at 121.

Dunsmuir, supra para 9 at paras 47, 48, RBA, Tab 2.

59. In the case of category 4 copies the Board had clear evidence regarding the purpose for which the copies were made. In these instances, teachers had made multiple copies of works, for distribution in class, with instructions to students to read the materials. Importantly, students had not requested the copies. These facts led the Board to conclude that the teacher’s purpose for making the copies was classroom instruction.

Board Decision, supra para 18 at para 98, AR, Vol. 1 at 46.

60. Since students did not request teachers to make the category 4 copies, the Board had no objective evidence allowing it to find any purpose for the copying other than the teacher’s purpose. This fact distinguished category 4 copies from category 1, 2 and 3 copies, where the Board did not have objective evidence allowing it to determine the predominant purpose for the copying. With respect to these copies, the Board held:

[97] […] In these proceedings, to the extent that the copy is made at the student’s request and more than one purpose is indicated on the sticker, the evidence does not allow us to determine the relative importance of those purposes. In the circumstance, the minute we accept the identification of use noted on the sticker and that one of those uses is research or private study, for 15

the purpose of this case, it follows that the predominant purpose of the dealing is research or private study.

Board Decision, supra para 18 at para 97, AR, Vol. 1 at 45-46.

61. The Board’s factual conclusion regarding the purpose of the copying was made under the second part of the CCH test. In so doing, the Board was following CCH, where this Court, in discussing the “purpose of the dealing” factor under the second part of the test held that, “courts should attempt to make an objective assessment of the user/defendant’s real purpose or motive in using the copyrighted work”.

CCH, supra para 1 at para 54, RBA, Tab 1.

62. The Board could have enquired into the teachers’ real purpose or motive for making category 4 copies in the first part of the CCH test. Instead, under the first of the test the Board accepted the teachers’ subjective logging sticker evidence that their purpose for copying was research or private study. The Board left its objective assessment of the teachers’ real purpose for copying to the second part of the test.

63. It is important to clarify, however, that whether the copier’s real purpose is determined under the first part of the CCH test or the second, the purely factual nature of the enquiry remains the same. The factual conclusion will always be subject to a reasonableness standard.

ii) the amount of the dealing

64. Similarly, the Board reasonably concluded on the facts that the amount of the schools’ dealings with category 4 copies was unfair. The evidence before the Board was that in recent years schools have reduced costs by purchasing class sets of textbooks rather than supplying a textbook to each student. Class sets remain in the classroom and are shared by students and by successive classes of students.

65. The Board described class sets in the following terms:

A class set is a set of books intended to remain in a specific place at all times and be shared by students. These books may be used by more than one class or by various students in the same class.

Board Decision, supra para 18 at para 11, AR. Vol. 1 at 21. 16

66. In her opening statement to the Board, the appellants’ lawyer summarized her clients’ evidence regarding class sets:

Another reason that fewer textbooks are being sold is the use of what is called class sets of books. Instead of each student receiving their own textbook, which was the way it was when I was in school, class sets of books are shared among more than one class of students. Actually, the class set remains in one physical place, in one classroom. Successive classes of students come to the books rather than each student being given their own textbook. For example, if there are five grade 10 social study classes in a high school, one set of books serves all five classes.

Wanda Noel, transcript of evidence before the Copyright Board, Vol. 3, June 18, 2007 at 506, lines 3 to 15, RR, Tab 2.

Appellants’ Memorandum of Argument at para 113(4).

67. On the evidence the Board concluded that the “use of class sets would be impossible without photocopying works from Access Copyright’s repertoire”. In essence, the Board found that K-12 schools repeatedly copy textbooks in order to supplement class sets. As a result, the multiple category 4 copies made for classroom distribution act as a substitute for, and replace, the original textbook.

Board Decision, supra para 18 at para 111, AR, Vol. 1 at 50.

68. The Board stated:

[104] With respect to the copies made on the teacher’s initiative for his or her students, there are factors weighing on each side. On the one hand, we were not informed of any guidelines. However, it seems that teachers generally limit themselves to reproducing relatively short excerpts from a work to complement the main textbook. On the other hand, in our view, it is more than likely that class sets will be subject to “numerous requests for [...] the same [...] series”27, which would tend to make the amount of the dealing unfair on the whole. (our emphasis)

[...]

[111] [...] Moreover, it seems to us that resource-based learning and use of class sets would be impossible without photocopying works from Access Copyright’s repertoire. Based on these findings and on all of the testimony, we conclude that the impact of photocopies made in support of these practices, while impossible to quantify, is sufficiently important to compete with the original to an extent that makes the dealing unfair. (our emphasis)

Board Decision, supra para 18 at para 104, 111, AR, Vol. 1 at 48. 17

69. In concluding that the schools’ repeated copying of the same works was an unfair dealing, the Board followed CCH, where this Court held that, “the dealings might not be fair if a specific patron of the Great Library submitted numerous requests for multiple reported judicial decisions from the same reported series over a short period of time”. Indeed, this is the passage from CCH which the Board footnoted in paragraph 104 above.

CCH, supra para 1 at para 68, RBA, Tab 1.

70. The repeated copying of textbooks, and the distribution of multiple copies to students in class with instructions to read the materials, distinguished category 4 copies from category 1, 2 and 3 copies, which the Board found were copied in fair amounts. With respect to these latter copies, the amount of the dealing was fair because teachers tended to comply with the terms of Access Copyright’s licence which imposed limits on how much could be copied from a work. The same conclusion applied even where teachers made multiple copies at the request of a student.

Board Decision, supra para 18 at para 103, AR, Vol. 1 at 47-48.

iii) the remaining four CCH factors

71. As stated above, the Board found the K-12 schools’ dealings with category 4 copies were unfair according to all six CCH factors. The Board had ample evidence to come to this conclusion.

72. The evidence before the Board was that educational publishers incur significant financial risks in order to create textbooks, and that schools are the only market for their products. In recent years, schools have chosen to buy fewer textbooks, in part because they supplement class sets with photocopies made from textbooks. Photocopies act as a substitute for the original, because students tend to keep them for the entire school year. The sale of textbooks in Canada has decreased by more than 30% in the last 20 years. Given these facts, the Board concluded that, “while impossible to quantify”, the impact of photocopies “is sufficiently important to compete with the original to an extent that makes the dealing unfair”.

Board Decision, supra para 18 at paras 11, 40, 69, 99, 107, 118, AR, Vol. 1 at 21, 29, 37, 46, 49, 53. 18

Testimony of Publishers’ Panel, AR, Vol. 2 at 52 to 56.

73. It is significant to note that in its consideration of the remaining four CCH factors the Board applied a consistent fact-sensitive approach in assessing fairness. Thus, in the case of category 1, 2 and 3 copies (single copies made for the use of the person making the copy, and single or multiple copies made for third parties at their request), the Board held that the character of the dealing was fair. The Board stated, “[a]s a general rule, a single copy is made; if there are several, we should, just as we did earlier, take for granted that the person requesting the copies acts on behalf of others with the same stated purpose”.

Board Decision, supra para 18 at para 100, AR, Vol. 1 at 46-47.

74. Similarly, the Board carefully weighed the evidence respecting the alternatives to the dealing factor, finding that with respect to multiple category 4 copies, schools had an alternative to photocopying (they could buy the textbook) but that with respect to single or multiple copies made at the request of a student (category 1, 2 and 3 copies) it would not be reasonable to require students to do all of their research and private study at school, or only to use public domain works.

Board Decision, supra para 18 at para 106, AR, Vol. 1 at 48-49.

75. The appellants do not dispute the facts above and have not shown that the Board’s factual conclusions of unfairness are unreasonable. Given the reasonableness of the Board’s conclusions, Access Copyright submits that this Court should uphold the decisions below.

Question 3: Whether, in the case of K-12 schools, certain presumptions should replace the analysis of what is fair under the six CCH factors?

i) the argument that the student/end-user’s purpose should be considered is unsound

76. Notwithstanding CCH, the appellants argue that the Board’s fact-based approach to determining fairness was incorrect. With respect to the purpose of the dealing, they state, “[r]ather than trying to determine dominant and subordinate purposes, the dealing should be examined from the perspective of the consumer of the copy”.

Appellants’ Memorandum of Argument at 17, subtitle (iii). 19

77. The appellants’ assertion is unsupported in law and flies in the face of CCH. The only reason advanced by the appellants for their position is that the end-user’s purpose was preferred in CCH and in SOCAN v Bell. However they overlook the obvious factual differences in the cases, and forget that different facts may lead to different results without inconsistency.

Society of Composers, Authors and Music Publishers of Canada v Bell Canada, 2010 FCA 123 [SOCAN], ABA, Tab 5.

78. In CCH this Court held that the purpose of the library patron who initiated the copying was the real or predominant purpose because the patron requested (and therefore “authorized”) copies from the librarian, who had “no other purpose for the copying”. In the present case, however, teachers had their own independent purpose for making category 4 copies, as we have seen. The Board noted that:

[98] […] the teacher’s role is scarcely comparable to that of staff at the Great Library, the subject of CCH. A teacher, in deciding what to copy and for whom, just as when directing students’ conduct, is doing his or her job, which is to instruct students.

Board Decision, supra para 18 at para 98, AR, Vol. 1 at 46.

[113] […] To begin with, the student-teacher relationship is not the same as that between the Great Library and lawyers. The Great Library is simply an extension of a lawyer’s will. A teacher does not merely act on behalf of a student, given that, to a large extent, it is the teacher who instructs the student what to do with the material copied.

Board Decision, supra para 18 at para 113, AR, Vol. 1 at 51.

79. The fact that the library patron in CCH requested the copies and the librarian had no other purpose for the copying is an important fact which clearly distinguishes the present case as it applies to category 4 copies. The distinction is especially apparent when one considers that, consistent with CCH, where students requested copies from teachers (category 1, 2 and 3 copies) the Board found that it could not find a purpose for the copying other than the student’s purpose of research or private study.

80. In SOCAN v Bell the Court of Appeal found that online music services and consumers had “equally important” purposes for downloading song previews. In the present case, 20

there was no evidence of equally important purposes for the dealing with category 4 copies. This fact distinguishes the SOCAN case from the present one.

SOCAN, supra para 77 at para 22, ABA, Tab 5.

81. It follows that the Board was entirely reasonable, in the case of category 4 copies, to examine the copier’s or teacher’s purpose for making the copies.

82. The appellants’ assertion that the Board should have considered the students’ purpose for using the category 4 copies, in addition to ignoring the facts of this case, is legally unsound for a number of reasons.

83. CCH held that it is the user/defendants’ real purpose or motive that is relevant to the fair dealing analysis. This is the correct position: since fair dealing is a defence to copyright infringement, the application of the exception must necessarily begin with the question: “whose dealing will infringe copyright if it is not permitted under fair dealing?”

CCH, supra para 1 at para 54, RBA, Tab 1.

84. In the present case, the teacher needs the benefit of the exception, since without it, his or her act of reproduction will infringe copyright. It is the teacher that is “dealing” with the work within the meaning of section 29 of the Act.

85. Conversely, the student does not “deal” with the work by reading or studying the copied page. Such activities are irrelevant to copyright law. Under section 3 of the Act a copyright owner has the right to prevent a person from reproducing his work, but not from reading it.

86. The student’s purpose might only become relevant, like that of the library patron in CCH, if by requesting a copy he or she authorizes the act of infringement and causes it to happen. In such a case the copier might be regarded as the agent or facilitator of the person who ultimately uses the copied work.

a) The meaning of “private”

87. Viewed in this way, it was unnecessary for the Court of Appeal to have considered the meaning of “private study” and to have concluded that while students in class may be 21

engaged in study, they are not engaged in “private” study. Since students were not directing the teachers’ dealings when they made multiple copies for distribution in the classroom, the students were not potential “user-defendants” and their purpose for using the copies was not relevant.

88. Even if we were to consider the student’s purpose for using the copied works, it could not be characterized as “private study” in the present case. “Private study” means one's own study, just as “private copying” in Part VIII of the Act means copying by oneself, for oneself. Although it is possible for a student to be engaged in private study in a public place, this is not what occurs when a group of students is directed by a teacher to read from the same page. In such a case the students may be “learning”, but they are not engaged in “private study” which is an activity conducted on one’s own.

b) The transfer of purpose

89. The Copyright Act also confirms that it is the “user-defendant’s” purpose which is relevant to fair dealing. Section 30.2 of the Act provides that libraries, archives and museums can deal with protected works without infringing copyright if they do so on behalf of a person who is covered by the fair dealing exception. The section is a clear legislative transfer of an end-user’s fair dealing purpose of research and private study to the benefit of another person dealing with the work in a library, archive or museum and who, absent such a provision, would be liable for copyright infringement.

Copyright Act, R.S.C. 1985, c. C-42, s. 30.2, RBA, Tab 10.

90. Similar provisions exist in the United Kingdom, confirming that, but for the legislated exceptions, the rule in that country is that it is the user-defendant’s purpose or motive for dealing with the work that is relevant to the fair dealing analysis.

Copyright, Designs and Patents Act 1988 (U.K.), 1988, ch. 48, ss. 29(3), 38, 39 and 40, RBA, Tab 14.

c) International jurisprudence

91. CCH’s focus on the “user/defendant’s real purpose or motive” for the dealing is consistent with Commonwealth and U.S. jurisprudence. In the cases of Associated Newspapers Group PLC, Time Warner Entertainments Co. LP and Pro Sieben Media AG, 22

the English courts held that factors which may be relevant to assessing fairness include “the motive with which the material has been copied” and the true purpose of the “alleged infringer” in using the copyrighted work.

Associated Newspapers Group PLC v News Group Newspapers Limited and others, [1986] RPC 515 (Ch Pat) at 518, RBA, Tab 7.

Time Warner Entertainments Company LP v Channel Four Television Corporation PLC, [1993] 28 IPR 459 (CA), RBA, Tab 12.

Pro Sieben Media AG v Carlton UK Television, [1999] 1 WLR 605 (CA), RBA, Tab 10.

92. The decision in Sillitoe v McGraw-Hill Book Co. confirms that it is the dealer’s purpose which is relevant to fair dealing, not the end-user’s. The English High Court stated the following:

The onus of showing that an exception applies is on the defendants. Mr. Jeffs contended that section 6(1) is widely drawn and not limited to the actual student, so that if a dealing is fair and for the purposes of private study the subsection applies whether the private study in mind is one's own or that of somebody else. Here, he said, the dealing was for the purpose of private study by the examinees who would acquire the notes. I do not accept that argument. To my mind section 6(1) authorises what would otherwise be an infringement if one is engaged in private study or research. The authors of the Notes, when writing the Notes and thus "dealing" with the original work, were not engaged in private study or research. To my mind University of London Press Ltd. v University Tutorial Press Ltd. [1916] 2 Ch. 601 at 613, affords some support for this view.

Sillitoe v McGraw-Hill Book Co., [1983] Fleet Street Reports 545 (Ch) at 558, RBA, Tab 11.

93. Similarly, in De Garis v Neville Jeffress Pidler, the Federal Court of Australia held that a press clipping and news monitoring agency which provided photocopied clippings to its customers was not dealing fairly with the works since, even if the customers were conducting research or study, the defendant was not. The Court held:

[t]he relevant purpose required by s. 40(1) is that of Jeffress, not that of its customer. That is to say, even if the customer were engaged in research, this would not assist Jeffress.

[…]

Again, even if the ‘study’ were the purpose for which a subscriber retained the services of Jeffress, it cannot be said that ‘study’ was the purpose of Jeffress.

De Garis v Neville Jeffress Pidler PTY, [1990] IPR 292 (FCA) at 298, 299, RBA, Tab 16. 23

94. In Haines v Copyright Agency Ltd., the Federal Court of Australia held that in conducting a fair dealing analysis it is important to distinguish between the institution making copies for teaching purposes and the activities of individuals engaged in research or study.

Haines v Copyright Agency Ltd., [1982] 42 ALR 549 (FCA) at 556, RBA, Tab 17.

95. In Copyright Licensing v University of Auckland, the New Zealand Court held that the relevant purpose to consider under that country’s fair dealing provision was the purpose of the person doing the copying. The Court held that it was not a fair dealing with a work for the purpose of research or private study for a university or its employees to make master copies of a work and to make copies available to students or allow students to make their own copies of the work.

Copyright Licensing Ltd. v University of Auckland, [2002] 3 NZLR 76 (NZHC) at para 52, RBA, Tab 18.

96. American decisions are also to the effect that it is the copier’s or “alleged infringer’s” purpose which is relevant to a fair use analysis.

97. In Los Angeles News Service, the Ninth Circuit found that a news editing service was not dealing fairly with broadcast works which it copied and made available to its customers. The Court held:

“[t]he fact that the VTR owner’s customer buys the tape to watch the movie at home at a convenient time will not shield the VTR owner from liability; the ultimate use to which the customer puts the tape is irrelevant, as is the use AVRS’s [the defendant’s] customers make of the tapes AVRS sells”.

Los Angeles News Service v Tullo, 973 F.2d 791 (9th Cir. 1992) at 797 [Los Angeles News Service, RBA, Tab 20.

98. In Princeton University Press McMillan, Inc. the defendants operated a copy shop which sold anthologies to students. The Sixth Circuit affirmed the U.S. District Court’s decision that “the use of the material mentioned in the statute refers to the use by the alleged infringer, not the consumers of the material who in this case happen to be students”. The District Court rejected the defendants’ contention that they could “stand in the shoes” of the students. 24

Princeton University Press Macmillan, Inc. v Michigan Document Services, Inc., 855 F. Supp. 905 (U.S. Dist. 1994) at 909-910, RBA, Tab 21.

99. In Zomba Enterprises, Inc. the Sixth Circuit found that under the purpose and character of the use factor, “the end-user’s utilization of the product is largely irrelevant; instead the focus is on whether the alleged infringer’s use is transformative and/or commercial”.

Zomba Enterprises, Inc. v Panorama Records, Inc., 491 F.3d 574 (6th Cir. 2007) at 582, RBA, Tab 22.

100. Finally, in Leadsinger, Inc. the Ninth Circuit cited its earlier decision in Los Angeles News Service and held that “the ultimate use to which the customer puts a copyrighted work is irrelevant”.

Leadsinger, Inc. v BMG Music Publishing Opinion, Inc., 512 F.3d 522 (9th Cir. 2008) at 530, RBA, Tab 19.

Los Angeles News Service, supra para 97 at 797, RBA, Tab 20.

101. It follows from these cases, as well as from this Court’s ruling in CCH and the Copyright Act, that the appellants are wrong to ask this Court to declare that the student’s purpose is the only relevant purpose to consider. The appellants’ request for a declaratory judgment to this effect is legally unfounded and based on no sound principles. Accordingly, their request to the Court should be denied.

ii) the argument that the amount of the dealing must be assessed individually is unsound

102. The appellants have not argued that the Board’s conclusions regarding the amount of the dealing were unreasonable. They have simply argued that, as a general proposition, dealings should be assessed on an individual basis because “fair dealing is an individual right, not a group right”. While they argue that an individual assessment was made in SOCAN v Bell, it is important to note that the Court of Appeal decided “to leave this issue for another day”.

SOCAN, supra para 78 at para 30, ABA, Tab 5.

103. Once again, with respect to the amount of the dealing factor, there is no sound reason to reject CCH’s case-by-case factual analysis in favour of a rigid and arbitrary rule which dictates that only the individual amount of the dealing is relevant in assessing fairness. In 25

order to ensure that a dealing is fair, a court must be free in each case to assess the amount of the dealing from different perspectives, including the amount of the work taken in proportion to the entire work, the amount taken by an individual dealer, and the aggregate amount taken in cases of systematic copying.

104. In the present case, the Board looked at the amount of the copying from several perspectives. It noted that short extracts were copied, but also that over a quarter of a billion pages were copied from Access Copyright’s repertoire and that multiple copies of the same works were made on repeated occasions.

105. A consideration of only one of these factors would necessarily have constrained the Board’s appreciation of fair dealing as a “question of degree” and a “matter of impression”.

Hubbard, supra para 10 at 1027, ABA, Tab 3, cited in CCH, supra para 1 at para 52, ABA, Tab 1.

106. The appellants are wrong to argue that the amount of the dealing should be measured individually because fair dealing is an “individual right”. It is both normal and desirable that a court would examine not only an individual’s dealing, but all related dealings in deciding whether a dealing is fair. The court would also want to know the dealer’s state of mind, including whether the dealer knows, or has reason to know, that his or her individual dealing is part of a larger pattern.

107. Examining an individual dealing in a larger related context does not negate an individual user’s right. A person cannot claim to deal fairly with a work if he or she knows, or should know, that her dealing is part of a larger unfair practice. A teacher who repeatedly copies short extracts from a textbook, and who knows, or has reason to know, that other teachers are doing the same thing in order to substitute copies for the purchase of textbooks, cannot claim to be dealing fairly with the work.

108. In Hyde Park Residence Ltd. v Yelland, the English court held that fairness should be applied and judged on an objective basis, by asking whether a “fair minded and honest person” would have dealt with the copyright work in the same manner which the defendant did, for the same purposes. 26

Hyde Park Residence Ltd. v Yelland, [2001] Ch. 143 at 159 (CA), RBA, Tab 9.

109. In the case of schools, it is particularly relevant to look at all of the copying activity because it is authorized and controlled in an institutional setting. As this Court noted in CCH, “‘dealing’ connotes not individual acts, but a practice or system”, thereby allowing a court to examine the practices (including all of the dealings) and the policies of the institution in order to assess fairness.

CCH, supra para 1 at para 63, ABA, Tab 1.

110. If a court were to consider only individual dealings it would rarely, if ever, conclude that the dealing had an effect on the market for the work, thereby rendering the sixth CCH factor meaningless. If individual uses were considered to be fair without regard to the multiplicity of such individual uses, the market for school textbooks could be destroyed under the weight of individual fair dealings. Educational publishing could die from a thousand cuts.

111. A leading authority on the law of fair use in the United States has described the danger to educational publishing through unlimited copying:

With ever greater technological advances in methods for the making of inexpensive photocopies, the problem each year becomes more acute. Present photocopying practices represent but the tip of the iceberg. The photocopying revolution has begun, but has yet to run its full course. Photocopying in general, and more particularly classroom and library reproduction of copyrighted materials, command a certain sympathy because they generally involve no commercial exploitation, and more particularly, in view of their socially useful objectives. What this overlooks is the tremendous reduction in the value of copyrighted works that must result from a consistent and pervasive application of this practice. One who creates a work for educational purposes may not suffer greatly by an occasional unauthorized reproduction. But, if every school room or library may, by purchasing a single copy, supply a demand for numerous copies through photocopying, or similar devices, the market for copyrighted educational materials would be almost completely obliterated. This could well discourage authors from creating works of a scientific or educational nature. If the “progress of science and useful arts” is promoted by granting copyright protection to authors, such progress may well be impeded if copyright protection is virtually obliterated in the name of fair use.

Melville B. Nimmer & David Nimmer, Nimmer on Copyright, vol. 4, loose leaf (San Francisco: Matthew Bender, 2011) at 13-198.2, RBA, Tab 23. 27

112. A leading U.K. authority, Copinger and Skone James on Copyright, also recognizes the risk to authors and publishers of creating broad exceptions to their exclusive rights in the educational sector:

However, just because education is a worthy cause does not mean that some form of blanket exception to copyright should be allowed. It must be remembered that it is works made for educational purposes that will often be copied in educational establishments. A wide exemption would therefore undermine the market for such works, so that a publisher would be unlikely to invest in their production

Kevin Garnett, Gillian Davies & Gwilym Harbottle, Copinger and Skone James on Copyright, 16th ed., vol. 1 (London: Sweet & Maxwell, 2011) at para 9-96, RBA, Tab 15.

113. The U.K. Copyright Tribunal echoed these remarks, stating:

In declining to create a wide generalised defence for educational establishments the legislature has struck a balance between the interests of copyright owners on the one hand, and the interests of education and scholarship on the other. A healthy publishing industry is important in general, but of particular importance to those in education. Wholesale exemption from the copyright laws for educational establishments would be damaging to the publishing industry, and in consequence damaging to education. On the other hand the publishing industry depends on academic authors for much of its raw material. If education is burdened too heavily with copyright restrictions, teaching and scholarship is discouraged, to the disadvantage of the public interest in general, and the publishing industry in particular. It is a good example of a symbiotic relationship.

Universities UK Ltd. v Copyright Licensing Agency Ltd., [2002] RPC 36 (Copyright Tribunal) at para 39, RBA, Tab 13.

114. Canadian legislators have expressed the same view that the needs of education should not override the rights of creators. The 1985 Sub-Committee Report to the House of Commons entitled A Charter of Rights for Creators stated:

The Sub-Committee has already stated that copyright is the legal recognition of the property rights of creators in their works, and that property carries with it the notion that the rights attaching to it should not be limited unless there is a demonstrated public policy reason to do so. Applying these principles leads the Sub-Committee to the conclusion that the needs of education should not override the rights of creators. If the needs of education justified limitations to rights, then teachers and caretakers should not be paid. Nor should the utilities, such as water or hydro, used by schools be paid for. If our legal system were to require creators to forego payment for the benefit of education, then all the other participants in the system should also be required, by law, to forego payment. 28

Standing Committee on Communications and Culture, Second Report of the Sub- Committee to the House of Commons on the Revision of Copyright, October 1985, at 70, RBA, Tab 5.

115. This conclusion was echoed by the Standing Committee on Canadian Heritage in May 2004, which agreed “with the copyright holders’ presumption that just as schools pay for desks and heating, they should also pay for intellectual property.”

Interim Report on Copyright Reform, Standing Committee on Canadian Heritage, 2004 at 14, RBA, Tab 6.

116. In Théberge, this Court stated that “the Copyright Act is usually presented as a balance between promoting the public interest in the encouragement and dissemination of works of the arts and intellect and obtaining a just reward for the creator”. Should the Court grant the appellants’ request and disregard the aggregate amount of textbook copying in K-12 schools, the balance sought to be achieved in the Act and the fair dealing exception would most certainly be upset. By depriving authors and publishers of their just reward, the Court would endanger the laudable social objective of encouraging the creation and dissemination of works of the arts and the intellect.

Théberge v Galerie d'Art du Petit Champlain Inc., 2002 SCC 34, [2002] 2 SCR 336 at para 30 [Théberge], RBA, Tab 3.

CCH, supra para 1 at para 48, ABA, Tab 1.

117. A flexible approach to assessing the amount of the dealing is necessary in order to find the true measure of what is fair. The appellants’ submissions provide a good example of how different yardsticks can be used to present a misleading picture of the fairness of a dealing.

118. The appellants repeat several times in their factum that only 4.5 copied pages per student per year are in dispute in this case. This repetition is clearly intended to create sympathy for the idea that the copying at issue is de minimis. However, the appellants’ measurement is highly misleading.

119. The figure of 4.5 copied pages per student is the simple mathematical result obtained by dividing the 16.8 million category 4 copies by the number of students in Canada. This is a meaningless figure. Since the appellants argue that all of their photocopying is fair 29

dealing, one could just as easily argue that 64 pages per student per year are at stake in this case because the appellants copied over 246 million pages from Access Copyright’s repertoire in 2005-2006. Indeed, an untold number of copies would be at stake if all of the copying in K-12 schools were to fall under the fair dealing exception.

120. The figure of 4.5 copies per student per year is also meaningless because the assumption that the amount of copying is spread evenly across the Canadian student population is not only unproven, it is improbable. In fact, the appellants themselves dispute the assumption when they state that the distribution of copies is “narrow rather than wide”. At paragraph 89 of their factum the appellants claim that the “[d]istribution of copies is typically limited to either some students in a class or, at most, one class of students from among many classes in an elementary or secondary school. Wide distribution of multiple copies is not the fact situation here”.

Appellants’ Memorandum of Argument at para 89.

121. As a result, some students may receive hundreds of photocopies in a year while others receive fewer, or none. The fact that some students may have received a large number of copied pages is particularly relevant in light of the schools’ practice of repeatedly copying extracts from the same textbooks in order to supplement class sets. A consideration of these two facts together (a narrow distribution of many copies to some students, and the repetitive copying of textbooks to supplement class sets) tips the scale even further towards a conclusion that the amount of the dealing is unfair.

122. This appeal is not about 4.5 copies per student per year: it is about the next Copyright Board tariff and future cases. The appellants invite this Court to make broad, sweeping declarations about copying in K-12 schools that would put at risk Access Copyright’s entire educational publishing repertoire, from which 246 million pages are copied each year by K-12 schools.

123. In conclusion, there is no sound reason for assessing the fairness of the amount of a dealing on an individual basis only. Such a perspective misses the reality of what occurs in an institutional setting and cannot lead to a proper factual assessment of what is fair. 30

The appellants’ arguments, and the declaratory relief they seek in this regard, should be rejected by the Court.

iii) the appellants’ contestation of the facts is improper and misleading

124. In their application for judicial review the appellants only contested the Board’s conclusion regarding the “purpose of the dealing” factor. In their subsequent application for leave to appeal to this Court, the appellants added a second ground of appeal, and argued that the Board also erred in its consideration of the “amount of the dealing” factor, citing the decision in SOCAN v Bell.

125. Despite the appellants’ limited grounds of review and appeal, they now argue for the first time in their factum that the Board erred in its application of all six CCH factors.

Appellants’ Memorandum of Argument at paras 86-122.

126. This is procedurally improper. More importantly, it puts this Court in the untenable position of having to review findings of fact which were based on a voluminous evidentiary record which is not before the Court. This Court cannot possibly review the Board’s factual findings on the basis of the highly selective presentation of the evidence contained in the appellants’ factum. Moreover, this selective, anecdotal evidence has been presented by the appellants in an attempt to mask the evidence, as retained by the Board, that in many instances the category 4 copies did not “supplement” textbooks ( as the appellants attempt to demonstrate), but acted as substitutes for textbooks when there was an insufficient number of them in a class set.

iv) The objective of the fair dealing exception

127. This case was, and remains, about the setting of an appropriate royalty fee; it is not about access to educational materials. K-12 schools presently have access to high quality textbooks and they will continue to do so as long as the market for these books remains healthy.

128. In Théberge, this Court warned against upsetting the balance in copyright law by giving excessive control to holders of copyright who might “create practical obstacles to [the] 31

proper utilization” of copyright works. Such a danger does not exist in the present case. K-12 schools pay reasonable licence fees for the right to make photocopies of textbooks.

Théberge, supra para 112 at para 32, RBA, Tab 3.

129. Théberge held that the fair dealing exception is intended to counter the “practical obstacles” that might impede the public’s access to copyright works. It did not hold that the fair dealing exception is intended to act as a discount to a licence fee, which is what the appellants are attempting to achieve through the present appeal.

Théberge, supra para 112 at para 32, RBA, Tab 3.

130. In CCH this Court raised expectations when it held that fair dealing is a “user’s right”. Those raised expectations have led users like the appellants to ask that the right be clarified and made more predictable. However, this should not come at the expense of upsetting the balance between users’ and creators’ rights under the Act. In the final analysis, fair dealing is based on considerations of what is fair. That determination should not be sacrificed in the interest of predictability, by replacing a fact-based enquiry with arbitrary rules regarding the fairness of the purpose and the amount of the dealing.

131. The authors of A Charter of Rights for Creators put it this way:

Some submissions to the Sub-Committee requested that fair dealing be “defined” so as to provide certainty. The Sub-Committee is of the view that it is not possible to define fair dealing without sacrificing essential flexibility. To be effective, any fair dealing provision must be flexible. It must be left to the discretion of the courts to mould and shape according to technological developments and existing practices. Fair dealing must be used in accordance with its name, that is, as a method of determining what is fair and what is not fair on the facts of a particular case.

Standing Committee on Communications and Culture, 1985, supra para 114 at 64, RBA, Tab 5.

132. K-12 schools should continue to pay royalties for the right to copy, in order to compensate rights owners and encourage the creation and dissemination of new works. It is a question of simple economics and good social policy. Expanding the fair dealing exception as the appellants propose would upset the balance of the Act and ultimately be counter productive to the very schools which depend on the production of quality textbooks. 32

133. Although Access Copyright strongly believes that the present appeal is without merit, it is extremely concerned by the impact this Court’s decision could have on the educational publishing industry in Canada if the appellants’ relief is granted. Such an unwarranted extension of the fair dealing exception could threaten the survival of the Canadian educational publishing industry and must be avoided.

PART IV– SUBMISSIONS ON COSTS

134. Access Copyright seeks the costs of this appeal and in the Court below.

PART V – ORDER SOUGHT

135. Access Copyright respectfully requests that the appeal be dismissed, with costs.

ALL OF WHICH IS RESPECTFULLY SUBMITTED this 30th day of September, 2011.

David R. Collier

Claude Brunet

Solicitors for the Respondent Access Copyright 33

PART VI – TABLE OF AUTHORITIES

Authority Paragraphs

Case law

Alberta (Minister of Education) v Access Copyright, 2010 FCA 198, 33, 34, 35, 36, 37, 38, [2010] FCJ No 952. 39, 40, 41, 58

Associated Newspapers Group PLC v News Group Newspapers Limited, 91 [1986] RPC 515 (Ch Pat).

CCH Canadian Ltd. v Law Society of Upper Canada, 2004 SCC 13, 1, 2, 3, 34, 61, 68, 83, [2004] 1 SCR 339. 109, 112

Copyright Licensing Ltd. v University of Auckland, [2002] 3 NZLR 76 95 (NZHC).

De Garis v Neville Jeffess Pidler PTY, [1990] IPR 292 (FCA). 93

Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 SCR 190. 9, 35, 55, 56, 57, 58

Haines v Copyright Agency Ltd., [1982] 42 ALR 549 (FCA). 94

Hubbard v Vosper, [1972] 1 All ER 1023 (CA). 10, 54, 105

Hyde Park Residence Ltd. v Yelland, [2001] Ch. 143 (CA). 108

Leadsinger, Inc. v BMG Music Publishing Opinion, Inc., 512 F.3d 522, 100 (9th Cir. 2008).

Los Angeles News Service v Tullo, 973 F.2d 791 (9th Cir. 1992). 97, 100

Princeton University Press Macmillan, Inc. v Michigan Document 98 Services, Inc., 855 F. Supp. 905 (U.S. Dist. 1994).

Pro Sieben Media AG v Carlton UK Television, [1999] 1 WLR 605 (CA). 91

Sillitoe v McGraw-Hill Book Co., [1983] Fleet Street Reports 545 (Ch). 92

Society of Composers, Authors and Music Publishers of Canada v Bell, 77, 80, 102 2010 FCA 123, [2010] FCJ No 570.

Théberge v Galerie d'Art du Petit Champlain Inc., [2002] 2 SCR 336, 112, 128, 129 2002 SCC 34. 34

Time Warner Entertainments Company LP v Channel Four Television 91 Corporation PLC, [1993] 28 IPR 459 (CA).

Universities UK Ltd. v Copyright Licensing Agency Ltd., [2002] RPC 36 113 (Copyright Tribunal).

Zomba Enterprises, Inc. v Panorama Records, Inc., 491 F.3d 574 (6th Cir. 99 2007).

Tribunal Decision and Tariff

Decision of the Board (July 17, 2009) online: Copyright Board of Canada 18, 19, 20, 21, 22, 23, . 59, 60, 65, 68, 70, 72, 73, 74, 78

Transcript

Transcript of Evidence, Vol. 3, Copyright Board of Canada, June 18, 66 2007.

Academic Sources

Melville B. Nimmer & David Nimmer, Nimmer on Copyright, vol. 4, 111 loose leaf (San Francisco: Matthew Bender, 2011).

Kevin Garnett, Gillian Davies & Gwilym Harbottle, Copinger and Skone 112 James on Copyright, 16th ed., vol. 1 (London: Sweet & Maxwell, 2011).

Legislation

Copyright Act, R.S.C. 1985, c. C-42, s. 30.2. 89

Copyright, Designs and Patents Act 1988 (U.K.), 1988, ch. 48, ss. 29(3), 90 38, 39 and 40.

Parliamentary Sources

Standing Committee on Communications and Culture, Second Report of 114, 131 the Sub-Committee to the House of Commons on the Revision of Copyright, October 1985.

Interim Report on Copyright Reform, Standing Committee on Canadian 115 Heritage, 2004. 35

PART VII– PROVISIONS IN ISSUE

Copyright Act, R.S.C. 1985, c. C-42, s. 30.2.

Research or private study Étude privée ou recherche

30.2 (1) It is not an infringement of copyright for a 30.2 (1) Ne constituent pas des violations du droit library, archive or museum or a person acting d’auteur les actes accomplis par une bibliothèque, under its authority to do anything on behalf of any un musée ou un service d’archives ou une personne person that the person may do personally under agissant sous l’autorité de ceux-ci pour une section 29 or 29.1. personne qui peut elle-même les accomplir dans le cadre des articles 29 et 29.1. Copies of articles for research, etc. Articles de périodique (2) It is not an infringement of copyright for a library, archive or museum or a person acting (2) Ne constitue pas une violation du droit d’auteur under the authority of a library, archive or le fait pour une bibliothèque, un musée ou un museum to make, by reprographic reproduction, service d’archives ou une personne agissant sous for any person requesting to use the copy for l’autorité de ceux-ci, de reproduire par reprographie, research or private study, a copy of a work that is, à des fins d’étude privée ou de recherche, une or that is contained in, an article published in oeuvre qui a la forme d’un article — ou qui est contenue dans un article — si, selon le cas : (a) a scholarly, scientific or technical periodical; or a) celui-ci a été publié dans une revue savante ou un périodique de nature scientifique ou technique; (b) a newspaper or periodical, other than a scholarly, scientific or technical periodical, if b) le journal ou le périodique — autre qu’une the newspaper or periodical was published more revue savante ou le périodique visé à l’alinéa a) than one year before the copy is made. — dans lequel il paraît a été publié plus d’un an avant la reproduction. Restriction Restrictions (3) Paragraph (2)(b) does not apply in respect of a work of fiction or poetry or a dramatic or musical (3) Le paragraphe (2)b) ne s’applique pas dans le work. cas où l’oeuvre est une oeuvre de fiction ou de poésie ou une oeuvre musicale ou dramatique. Conditions Conditions (4) A library, archive or museum may make a copy under subsection (2) only on condition that (4) La copie visée au paragraphe (2) ne peut être fournie que si la personne à qui elle est destinée : (a) the person for whom the copy will be made has satisfied the library, archive or museum that a) convainc la bibliothèque, le musée ou le service the person will not use the copy for a purpose d’archives qu’elle ne l’utilisera qu’à des fins other than research or private study; and d’étude privée ou de recherche;

(b) the person is provided with a single copy of b) ne reçoit qu’une seule copie de l’oeuvre. the work. Actes destinés aux usagers d’autres bibliothèques, musées ou Patrons of other libraries, etc. services d’archives

(5) A library, archive or museum or a person (5) Une bibliothèque, un musée ou un service acting under the authority of a library, archive or d’archives, ou une personne agissant sous l’autorité 36 museum may do, on behalf of a person who is a de ceux-ci, peuvent, pour ce qui est du matériel patron of another library, archive or museum, imprimé, accomplir pour les usagers d’une autre anything under subsection (1) or (2) in relation to bibliothèque, d’un autre musée ou d’un autre service printed matter that it is authorized by this section d’archives, pourvu que la copie qui leur est remise to do on behalf of a person who is one of its ne soit pas sous une forme numérique, les actes patrons, but the copy given to the patron must not qu’ils peuvent accomplir, en vertu des paragraphes be in digital form. (1) ou (2), pour leurs propres usagers.

Destruction of intermediate copies Copies intermédiaires

(5.1) Where an intermediate copy is made in order (5.1) Dès qu’une copie est remise au titre du to copy a work referred to in subsection (5), once paragraphe (5), toute copie intermédiaire faite en the copy is given to the patron, the intermediate vue de sa réalisation doit être détruite. copy must be destroyed. Règlements Regulations (6) Le gouverneur en conseil peut, par règlement et (6) The Governor in Council may, for the purposes pour l’application du présent article : of this section, make regulations a) définir « journal » et « périodique »; (a) defining “newspaper” and “periodical”; b) définir ce qui constitue une revue savante ou un (b) defining scholarly, scientific and technical périodique de nature scientifique ou technique; periodicals; c) préciser les renseignements à obtenir (c) prescribing the information to be recorded concernant les actes accomplis dans le cadre des about any action taken under subsection (1) or paragraphes (1) et (5), ainsi que leur mode de (5) and the manner and form in which the conservation; information is to be kept; and d) déterminer la façon dont les conditions visées (d) prescribing the manner and form in which au paragraphe (4) peuvent être remplies. the conditions set out in subsection (4) are to be met.