copyright

Reprinted with permission.**
 * e-mail from Richard Ellis - Memorial University to member of the CASL Listserv (Canadian Association for School Libraries)

Subscribers to this list should be aware of proceedings before the Copyright Board of Canada that will have an impact on the K-12 sector. The impact of the Copyright Board’s decision will depend on whether the rate currently paid for photocopying in elementary and secondary schools goes up, down or stays the same. The decision could potentially have an impact on the funding available for learning resources.

Access Copyright, formerly known as CanCopy, has proposed a tariff to the Copyright Board suggesting that provincial and territorial departments of education in all provinces and territories, except Quebec, pay Access Copyright an annual fee of $12.00 per elementary and secondary FTE student for the right to do certain copying. Quebec is not covered by Access Copyright’s proposed tariff. Ministries of education in the provinces and territories (except Quebec) currently pay Access Copyright around $2.50 per elementary and secondary FTE. The full text of the proposed tariff can be found on the web in the April 24, 2004 supplement to the Canada Gazette: http://www.cb-cda.gc.ca/tariffs/proposed/re24042004-b.pdf

Subscribers to this list will find the following points of interest.

This is the first time that the Copyright Board has been asked to establish the tariff rate for an Access Copyright license, all other licenses being negotiated between the licensing body and the prospective licensees. Negotiations to renew the K to 12 licenses broke down and Access Copyright flied a tariff with the Copyright Board asking for a rate of $12.00.

The decision of the Copyright Board is important for another reason. The Supreme Court of Canada has published a comprehensive decision on the meaning of fair dealing. The fair dealing provision in the Copyright Act permits “dealings” with works for research, private study, criticism and review, without paying royalties or asking the copyright owner for permission. It is expected that the Copyright Board in its decision on the elementary and secondary school tariff will address how fair dealing applies in an educational setting. This will be an important first judicial pronouncement on how the Supreme Court of Canada’s interpretation of fair dealing applies in an education setting.

In the face of the Access Copyright tariff filing, school boards in Ontario and ministries of education of all the provinces and territories, except Quebec, filed an “objection” to the proposed tariff with the Copyright Board. In the course of the tariff proceeding, the Objectors argued that the above mentioned decision (CCH Canadian Ltd. v. Law Society of Upper Canada – also cited as 2004 SCC 13) has a broad application resulting in much if not all copying in schools being permitted under fair dealing. Access Copyright took the opposite view, interpreting fair dealing in a narrow way, so that only 0.3% is covered under this rubric. It is the position of the Objectors that in modern schools practicing resource-based learning, virtually all copying from copyright-protected works falls under fair dealing if the individual students use the copy for research, private study, criticism or review.

I urge all members of CASL to become familiar with this case as it has the potential to add another significant cost (the above figures are, of course, before tax) to school budgets. You may wish to compare $12.00 plus tax per FTE student to the per-FTE student funding formula in your jurisdiction.

[|Copyright Act] [|CCH v. Law Society]
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