ACCESS COPYRIGHT - ELEMENTARY AND SECONDARY SCHOOL TARIFFS (2010-2012 and 2013-2015) Objectors are precluded by the evidentiary rule of issue estoppel from relitigating the Board's previous substantive findings of fact and law. Access COPYRIGHT argues that the Board should not deduct from the compensable volume of published works on account of "insubstantial copying"
ACCESS COPYRIGHT - ELEMENTARY AND SECONDARY SCHOOL TARIFFS (2010-2012 and 2013-2015) Objectors are precluded by the evidentiary rule of issue estoppel from relitigating the Board's previous substantive findings of fact and law. Access COPYRIGHT argues that the Board should not deduct from the compensable volume of published works on account of "insubstantial copying"
ACCESS COPYRIGHT - ELEMENTARY AND SECONDARY SCHOOL TARIFFS (2010-2012 and 2013-2015) Objectors are precluded by the evidentiary rule of issue estoppel from relitigating the Board's previous substantive findings of fact and law. Access COPYRIGHT argues that the Board should not deduct from the compensable volume of published works on account of "insubstantial copying"
OVERVIEW 1. In accordance with the Copyright Boards June 6, 2014 Notice, these are Access Copyrights Legal Submissions and answers to Questions 1 and 2 attached as Appendix A to the Notice.
2. By way of overview, Access Copyright submits that:
a) the Objectors are precluded by the evidentiary rule of issue estoppel from relitigating the Boards previous substantive findings of fact and law relating to the breadth of Access Copyrights repertoire and the total number of photocopied pages of published works made per annum in elementary and secondary (K-12) educational institutions as revealed by the Volume Study;
b) insubstantial copying cannot be determined on a solely quantitative basis and, accordingly, no deduction from the compensable volume of published works should be made by the Board on account of insubstantial copying;
c) the Objectors have not discharged their evidentiary and legal burdens to support a deduction from the compensable volume of published works on account of the fair dealing exception in section 29 of the Copyright Act (the Act), beyond the deductions advanced by Access Copyright because:
i. the Objectors practices and policies cannot be considered to be presumptively fair 1 ii. the Objectors purported fair dealing guidelines are contrary to law and encourage unfair dealing; and ; iii. the Objectors actual copying behaviour is unfair.
d) the evidence in these proceedings does not support deductions under s. 29.4 and 30.04 of the Act beyond the deductions advanced by Access Copyright; and
e) in respect to conflicts in the evidence tendered by the parties, the Board ought to afford less weight to certain portions of the Objectors evidence because it is demonstrably unreliable and was proffered by at least one individual, Mr. Chodorowicz, who lacked the required independence and objectivity required of expert witnesses. ACCESS COPYRIGHTS REPERTOIRE a) Routes of Authorization / Boards earlier findings 3. The parties to these proceedings participated in inaugural tariff proceedings that led to the Boards June 26, 2009 decision certifying the Access Copyright tariff for K-12 schools (the Decision) 2 . In those proceedings, Access Copyright asserted that its legal authority under the Act to collectively administer the reproduction right of creators and publishers of copyright-protected works stemmed
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from a number of sources: express written grants of rights (e.g. an affiliation agreement); written agreements with other collectives (e.g. Copyright Clearance Center, Inc.); and through its appointment as agent, express or implied, by rightsholders who have not otherwise made an express written grant (non-affiliated rightsholders).
4. Access Copyright provided legal justification for including the works of non-affiliated rightsholders in the royalty calculation in the previous tariff proceeding in a detailed legal brief dated October 9, 2007. 3
In their response to Access Copyrights position, the Objectors asserted that the copyright-protected works of non-affiliated rightsholders ought to be excluded from Access Copyrights repertoire. 5. The Board made a legal finding 4 , well within its jurisdiction, that the works of non-affiliated rightsholders who actively ratify Access Copyrights collective administration of their reprographic rights (by cashing royalty distributions made by Access Copyright arising from the copying of their works in K- 12 educational institutions) are included within Access Copyrights repertoire by way of implied agency. The Boards finding, on the evidence, was that approximately 0.1 percent of these rightsholders did not ratify the agency relationship. The evidence in the present proceedings is that that percentage has remained relatively constant since that time. 5
b) Application of the evidentiary rule of issue estoppel
6. The Boards finding was not challenged by the Objectors on judicial review 6 7. In these present proceedings, the Objectors have recycled their arguments from the inaugural tariff proceedings. The Objectors assert that the only works in Access Copyrights repertoire are those that are the result of valid affiliation agreements
. Absent changes to the relevant provisions of the Act or the tendering of evidence that introduces new facts that were unascertained or unascertainable at the time of the inaugural tariff proceedings, the Boards previous substantive findings of fact and law are binding on the parties in these proceedings.
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. All works of non-affiliated rightsholders are to be excluded. 8. This issue of law was conclusively resolved in the inaugural tariff proceedings. To the extent the Objectors purport to support their recycled assertion with new analyses, this evidence is not grounded in any new facts or any facts that were unascertained or unascertainable at the time of the inaugural tariff proceedings. Accordingly, the Objectors are precluded from proffering evidence in these proceedings to challenge the Boards substantive legal finding and from otherwise calling into question, once again, the breadth of Access Copyrights repertoire 8
. 9. The application of the evidentiary rule of issue estoppel ensures consistency in the Boards decisions, respect for their finality, and allows the Board to augment its previous decisions. If the Objectors are permitted to relitigate issues previously decided with finality, confidence in the fairness
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and integrity of the Boards previous decisions are undermined by the possibility of inconsistent findings in unnecessarily duplicative proceedings.
c) Answers to Boards Post-Hearing Questions 2.1-2.4
10. Should the Board decline to apply the evidentiary rule of issue estoppel, Access Copyright again relies on the evidence of its Executive Director, Ms. Levy 9
, that explains the policy and practicalities that support the administration of the rights of copyright holders on an exclusions basis which: a) ensures that rightsholders whose works are copied receive fair compensation for the copying and use of their works; and b) provides certainty to users as to which works may be copied with immunity from suit for copyright infringement under section 70. 17 of the Act. 11. The facts and law underlying the Boards substantive findings on the breadth of Access Copyrights repertoire remained unchanged: the parties agreed to set the royalty based on the Volume Study data 10 ; Access Copyright has distributed based on that data for the period up to 2012 11 ; Access Copyright continues to pay royalties to non-affiliated rightsholders whose works were captured during the study 12 ; the decision to do so reflects Access Copyrights past (and current) practices; and almost all of the non-affiliated rightsholders have cashed the cheques they received 13
. The only fact that has changed since the Decision that impacts the agency issue is that the Objectors have unilaterally decided to stop paying royalties to Access Copyright and have deprived Access Copyright of data as to which particular works have been copied in K-12 institutions after January 1, 2013. 12. The Board set the inaugural K-12 tariff based on evidence of the general behaviour of collectives and users by drawing conclusions about representative copying behaviour throughout the entire period covered by the tariff 14 . It remains appropriate that the Board include works of non-affiliated rightsholders in the royalty calculation based upon the proven facts and reasonable inferences therefrom that: (a) Access Copyright has continued, and will continue, to distribute royalties once they are paid, to non-affiliated rightsholders when their works are copied; and (b) that the vast majority of those rightsholders will cash the cheques. 15
13. Access Copyright only distributed $2.576 per FTE for the 2010-2012 tariff period because the tariff rate has not yet been finally certified by the Board. Those distributions were made to all rightsholders for whom Access Copyright has information that their works have been copied , including non-affiliated rightsholders. Once the tariff is certified, Access Copyright will, in accordance with its past practices, distribute the remaining royalties to those rightsholders.
14. It would be patently unjust if the Board allowed the Objectors to copy the works of non- affiliated rightsholders without consequence and without payment because the Objectors decided to stop paying royalties under the Access Copyright tariff and ceased to disclose which works have been copied. The Objectors should not, by their unilateral actions, be permitted to copy from copyright-
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protected works of non-affiliated rightsholders simply because they refuse to pay the tariff or otherwise abide by its terms.
15. Exhibit AC-79 is the letter that accompanies Access Copyrights distribution cheques to all rightsholders, including non-affiliated rightsholders. It explains the reasons for the distribution, the sector that copied the rightsholders works and describes the uses made of the works (photocopying, scanning, posting and electronic distribution). The letter is accompanied by a distribution report which lists the individual works copied, the sector that copied the work, the number of copies made and the amount paid for such copying. In response to the Boards request, a sample distribution report has been filed as CONFIDENTIAL EXHIBIT AC-103. When a rightsholder accepts payment for the uses made (as outlined in Exhibits AC-79 and AC-103), it does so with the full knowledge of what is being authorized and the implied agency relationship is ratified.
16. For non-affiliated rightsholders, Access Copyright communicates directly with and pays the copyright owner. In most cases, the copyright owner is the publisher 16
, but sometimes the copyright is owned by an author or authors estate. (For example, if a work is out-of-print, copyright typically reverts to the author.) In those cases, Access Copyright pays the author. In all cases, Access Copyright endeavors, to the best of its ability, to communicate directly with the copyright owner or its agent. 17. Copies made of works owned by non-affiliated rightsholders of an RRO are authorized by the proposed tariffs. Australia has a statutory licence for educational and government copying of books, magazines and newspapers that is managed by Copyright Agency, so there are no non-affiliated rightsholders in Australia relevant to this tariff. The RROs of the United Kingdom and the United States search for and distribute royalty distributions to non-affiliated rightsholders when the RROs are notified that those rightholders' works have been copied. When foreign non-affiliated rightsholders accept payment through their RRO, they ratify the agency relationship. To find otherwise would violate the principle of National Treatment by treating foreign rightsholders differently than Canadian rightsholders when their works are copied in Canada.
18. Access Copyright does not receive confirmation that an affiliation agreement was entered into with the foreign RRO. It relies on the terms of its bilateral agreements, and the exchange of exclusions and inclusions lists (e.g. for born digital works), under which the RRO represents the rights that it has.
d) Sheet music
19. The Board has asked (Post-Hearing Question 2.5) Access Copyright to explain what value accrues to the Objectors to have a tariff for the reproduction of sheet music instead of permitting them to operate on a transactional basis.
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20. First, the testimony of Mr. Chodorowitz in the previous tariff proceeding 17
remains apt in respect to sheet music in the absence of the blanket licence it would be extremely difficult for schools to clear the rights before making copies on a transactional title-by-title, work-by-work basis. 21. Second, there is no evidence in these proceedings that K-12 institutions have ever sought copyright clearances or transactional licences from print music publishers to copy sheet music, despite having copied millions of pages 18 from this genre per annum. Indeed, the evidence of record is that no transactional licences or copyright clearances have ever been sought by K-12 institutions to permit copying of works in Access Copyrights repertoire at any time 19 . The Board is entitled to draw a reasonable inference 20
that the Objectors will not alter their behaviour and now begin to seek transactional licences. 22. Unless the Objectors were to completely cease the copying of sheet music there was no such suggestion, much less such an undertaking from the Objectors to that effect the Board must weigh the practical unworkability and unenforceability of a transactional licensing scheme against the reality that the continued substantial copying of such works at K-12 institutions will deprive owners of the reproduction rights in sheet music all compensation whatsoever if the proposed tariffs exclude sheet music from the compensable genres of works.
23. Third, given CMRRAs expanding authority 21 to administer its affiliates sheet music reproduction rights, the user uncertainty expressed by Ms. Rioux will dissipate over time. As CMRRAs sheet music repertoire expands, the value to the Objectors (including the immunity from suit afforded by section 70.17 of the Act) will correspondingly increase. This value is one of the benefits that Mr. Chodorowitz acknowledged in the previous tariff proceedings 22
that accrued to the Objectors, albeit in relation to the genres of works then under consideration. 24. With respect to the Boards request (Post-Hearing Question 2.6) for clarification as to the respective mandates of Access Copyright and CMRRA for musical scores in books, the clarification was provided to Objectors counsel and previously filed with the Board 23 . By way of summary, the CMRRA print music right affiliation schedule 24
defines published musical works to include sheet music and musical scores in book form. To the extent a CMRRA affiliate publishes print musical works in the form of books, there is no expansion of Access Copyrights repertoire since the reproduction of those works already falls within Access Copyrights repertoire. 25. Access Copyrights repertoire is only expanded through the operation of the October 2010 mandate agreements 25
when a music publisher who has subscribed to Schedule G of the CMRRA Affiliation Agreement publishes print musical works in the form of sheet music. Any redundancy introduced by the broad definition of published musical works used in Schedule G by CMRRA with its affiliates to include musical scores in books does not add or subtract works from Access Copyrights already-established collective administration mandate.
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26. The joint operation of Schedule G and the mandate agreements afford Access Copyright the right to collectively administer the reproduction right in both sub-genres of published print musical works, from October 2010 onward, of those music publishers who have subscribed to Schedule G to CMRRAs Affiliation Agreement.
LEGAL /EVIDENTIARY ISSUES RELATING TO COPYING BEHAVIOUR IN K-12 SCHOOLS a) Boards previous findings re: volume of copied published works were based on best available evidence, are final and ought not be disturbed
27. Access Copyright and the Objectors jointly designed a comprehensive study which collected data relating to the copying behaviour of teachers in a sample of K-12 institutions over a two week period from February 2005 to March 2006 (the Volume Study).
28. The data captured by the Volume Study was subjected to a rigorous and comprehensive analysis in the previous tariff proceedings by the parties respective experts. The parties tendered expert evidence concerning those analyses. The experts were made available for cross-examination. At the end of this process, the parties essentially agreed on the total number of photocopied pages. The parties were afforded all opportunities to advance all relevant analyses and expert evidence and their positions/arguments on the Volume Study.
29. The Board considered the parties evidence and arguments and made certain substantive findings of fact. Among those findings was that approximately 10.3 billion pages were photocopied in K- 12 institutions per annum and that the volume was comprised of approximately 3.1 billion pages from published works of various genres. 26
30. The Objectors accept that the data in the Volume Study should again be used to calculate the volume of compensable copying in K-12 institutions for the purposes of the present proceedings 27
. In other words, the Volume Study data serves as a satisfactory proxy for the volume of copying during the 2010-2015 tariff periods. 31. Despite that acceptance, the Objectors purport to challenge the substantive findings of fact made by the Board in the previous tariff proceedings arising from the Volume Study. As is the case with the Objectors challenge to the breadth of Access Copyrights repertoire, the Objectors challenge is not grounded in any new facts that were unascertained or unascertainable at the time of the previous tariff proceedings. The evidentiary rule of issue estoppel precludes the Objectors from challenging/re-opening the Boards findings concerning total copying volume of published works in K-12 institutions.
32. The Objectors are not precluded from having the Board reconsider the final compensable volumes for the purposes of the 2013-2015 tariff given the legislative and jurisprudential developments
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relating to fair dealing and other statutory exceptions; and given the fact that the issue of fair dealing is always a fact-based inquiry to be determined upon reliable evidence tendered in each case.
b) A party may not rely on its own responses to interrogatories unless witnesses/evidence are unavailable
33. The Objectors tendered no evidence from current K-12 teachers concerning their copying behaviour during the periods covered by the proposed tariffs. Instead, the Objectors and their expert witnesses purport to rely on the answers given by the Objectors in response to written interrogatories 28
asked by Access Copyright as evidence of current copying behaviour by teachers in K-12 schools. 34. Contrary to the position advanced by the Objectors in their Opening Statement 29 , it was not impossible for the Objectors to tender evidence concerning teacher copying behaviour circa 2013/2014. Mr. Chodorowicz admitted 30 that he had previously conducted polls of teachers in connection with the previous tariff proceedings. Despite having been retained for almost a year 31 , no poll of teacher copying behaviour was undertaken for the purposes of the present proceedings. Moreover, despite the fact that he was at complete liberty to speak to teachers (unlike Mr. Dobner to whom teachers would not speak 32 ), Mr. Chodorowicz never spoke to teachers before filling his report 33
. 35. Interrogatories are in the nature of examinations for discovery 34 . In adversarial proceedings, a party is not permitted to read-in portions of its own discovery as evidence, unless there are no other means to introduce the evidence, because the reliability of these out-of-court self-serving statements cannot be tested through cross-examination; nor can the credibility of the declarants or the reliability of the statements be assessed by the tribunal 35
. 36. The unreliability of these self-serving statements is illustrated in at least two concrete examples in these proceedings: 1) Mr. Chodorowiczs reliance on inaccurate FTE numbers provided by the Objectors in the interrogatory process 36 which were contradicted by the reliable data provided in connection with the Objectors reporting obligations under section 8(4) of the certified tariff; and 2) Mr. Chodorowiczs initial conclusion (recanted at the hearing 37 ) that copying from textbooks is rare, 38 a conclusion arrived at from his reliance on the Objectors unreliable interrogatory responses which was again contradicted by the reliable data gathered in the bibliographic studies conducted under section 10 of the certified tariff (the Bibliographic Studies). 39 37. The rule precluding a party from relying on its own self-serving interrogatory responses, unless supported by a live witness whose evidence may be challenged (by the opposite party) and whose credibility and reliability may be weighed (by the Board), ensures that the Board has probative evidence upon which to make accurate findings of fact, findings that will be afforded significant deference in any judicial review of those findings
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c) Adverse inferences and weighing conflicting evidence
38. The Objectors did not tender evidence within their control, in particular, the evidence of teachers concerning their current copying behaviour. The Board ought to draw an unfavourable inference from that failure, that is, that their evidence would not have assisted the Objectors 41
. 39. To the extent there is a conflict in the evidence tendered by the parties concerning the current copying behaviour of K-12 teachers, the Board ought to afford determinative weight to evidence that was put forward through a witness (Access Copyright witnesses and Mr. Gauthier) who could be challenged through cross-examination and whose credibility could be subjected to the Boards scrutiny. Here, to the extent there is a conflict in the evidence concerning teacher copying behaviour between the self-serving interrogatory answers (and the Objectors expert evidence that is based upon such answers) and the evidence of the Bibliographic Studies about which the Board heard direct evidence from Access Copyrights witnesses, that conflict must be determined in favour of Access Copyright.
40. Moreover, in weighing any conflicts in the evidence, the Board is fully entitled to take into consideration any evidence that suggests that any expert witness impermissibly departed from his role as a non-partisan, objective witness and instead became an advocate for the party who retained him.
41. For decades, common law courts have insisted that experts be independent from the parties who retain them; provide objective, unbiased opinion evidence only in relation to matters within their expertise; and avoid assuming the role of advocates for the parties who retain them. 42 42. The Objectors expert witness, Mr. Chodorowicz, approached his mandate as an expert witness in a non-objective, partisan manner to advocate the interests of the Objectors. As was revealed during his cross-examination, Mr. Chodorowicz selectively extracted only those portions of an authoritative document
43 that supported the Objectors position but inappropriately withheld from his report and his examination in chief all mention of other relevant excerpts that were directly contrary to the Objectors position and that were clearly relevant to his mandate. Moreover, a number of answers given to questions asked of him on cross-examination were evasive and inconsistent 44
. 43. This conduct ought to be taken into account when the Board weighs his evidence. In particular, where his evidence conflicts with that of Mr. Dobner in respect to the impacts of K-12 teacher copying behaviour on the publishers markets, the evidence of Mr. Dobner - who testified in a straightforward and forthcoming manner in accordance with his obligations as an expert witness - should be preferred. INSUBSTANTIAL COPYING 44. In question 4(c) of the Boards technical questions in its June 6, 2014 Notice, the Board referred to its 2009 decision in Satellite Radio 45 as apparent support for setting a threshold for uncompensable insubstantial copying in the present proceedings. The Boards findings in that decision were specific to those proceedings and are inapplicable to the present proceedings.
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45. As correctly found by the Board in Satellite Radio 46 , whether or not there has been reproduction of a substantial part of a work is a question of fact which must be determined in light of all the circumstances of each case. In Satellite Radio, the 4-6 second byte soup was unrecognizable in terms of audio files and was both inaccessible and completely invisible to users. Applying the then leading jurisprudence 47 , the Board correctly determined the issue of substantiality by assessing the quality
that was taken rather than quantity. An assessment restricted to a quantitative measurement of the percentage of the work copied would have been contrary to that jurisprudence. 46. The principles in U & R Tax Services Ltd. were reaffirmed by the Supreme Court of Canada in Cinar Corporation v. Robinson 48 . The Court confirmed that the Act protects creators against both literal and non-literal copying so long as the copied material forms a substantial part of the work from which it is copied. Whether a part copied is substantial must be decided using a qualitative
and holistic approach rather than merely considering the quantity copied. If the copying of any part, even a small quantitative part, represents a substantial portion of the authors skill and judgment expressed in the work, the copyright in the work is infringed. 47. On the facts and circumstances of Satellite Radio, the Board found that the 4-6 seconds were not a substantial part of the work. The 4-6 seconds were part of a technological process, were not chosen by the user and could not be linked together to make a longer segment of a musical work. As the Board found, [a]t no time does a subscriber possess a series of 4 to 6 second clips which when taken together would constitute a substantial part of the work. 49
48. The facts of Satellite Radio stand in stark contrast to the facts in the present proceedings. Here, unlike the Satellite Radio decision, the copied portions of published educational works are completely recognizable and accessible by users and chosen by them. The evidence in these proceedings 50
establishes that K-12 teachers return to the same published educational resource to copy additional portions. As such, while an individual copying event may be less than 2.5% of a work, the phenomenon of compound copying means that teachers copy more than the supposed threshold from a given work for a given class in a given year. 49. In addition, the evidence in these proceedings 51
establishes that, in many published educational works, a substantial amount of original skill and judgment can be expressed in one or two pages of a work. An arbitrary 2.5% threshold, measured solely on a quantitative basis, would permit the substantial copying of such a work. 50. In their submissions to the Supreme Court of Canada in Alberta (Education), the Objectors identified a quote, a sentence , that is, a portion so de minimus, so unimportant that it is not within the right of a copyright owner to control 52
as the proportion of a work that, if copied, would be insubstantial. The Objectors conceded in oral argument that the copying at issue in that case went beyond de minimus copying.
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51. In these proceedings, the Objectors take the contrary position, claiming that all copying below a certain quantitative threshold significantly more than a simple quote or sentence falls within the ambit of insubstantial copying. Moreover, the Objectors deduction for insubstantial copying ignores completely the qualitative aspects of the portions copied 53
. That analysis ought to be given no weight by the Board as it does not accord with the jurisprudence and with the Objectors admission in Alberta (Education). 52. The evidence in these proceedings 54 confirms that K-12 teachers value the ability to copy from publishers works and that the portions copied are qualitatively instrumental to meet the educational needs of students. 55
As such, the portions copied are not unimportant or de minimus and thus cannot constitute insubstantial copying. If, from a K-12 teachers perspective, the portions copied have a high educational value that will benefit her students, the portions must be presumed to represent a key portion of the authors skill and judgment whose objective in creating the work was also to express the educational concepts in a way that benefits students. 53. For all the above reasons, an arbitrary quantitative threshold alone cannot be used to determine substantiality. In any event, the evidentiary record confirms that the portions copied by K-12 teachers are not qualitatively unimportant or de minimus. The Board should make no deduction from the compensable volume on account of insubstantial copying. FAIR DEALING a) Overview of Access Copyrights position
54. Access Copyright supports the Statement of Principles on Fair Dealing in Education released by the Association of Canadian Publishers (ACP) in December 2013 56 . Access Copyrights position on fair dealing in elementary and secondary schools is also reflected in the Canadian Educational Resources Councils (CERCs) Fair Dealing Guidelines for K-12 Setting. 57
55. The ACP principles and CERC guidelines advocate for a principled and balanced approach to fair dealing that advance the policy objectives of copyright law. This principled and fair approach is absent from consideration in the Fair Dealing Guidelines published by Council of Ministers of Education, Canada (CMEC) in the third edition of Copyright Matters! (the Guidelines).
b) Legislative and jurisprudential developments
56. Since November, 2012, Section 29 of the Act has expressly identified education as one of the eight enumerated purposes that may qualify as fair dealing, provided the person advocating fairness is able to satisfy its evidential and legal burdens and demonstrate that the dealing is, on the facts of that case, fair. 58
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57. In answer to the Boards Post-Hearing Question 1.1, the amendments to the legislation expanded the first step of the fair dealing test to allow three new enumerated purposes, including education. Neither the legislation, nor the Supreme Court of Canadas decisions in Alberta (Education) or SOCAN v. Bell altered the second fairness step of the fair dealing test. 59 The determination of fair dealing remains a case-by-case analysis 60 and a matter of impression 61
dependent on the facts of the case. 58. In Alberta (Education), Access Copyright and the Objectors agreed that the copying at issue by teachers in K-12 schools met a broad and liberal definition of research or private study under the first step of the CCH fair dealing test. 62
Similarly, for the purposes of the present tariff proceedings, Access Copyright concedes that the purpose of the copying in K-12 schools meets an allowable purpose under the first step of the CCH test (other than copying made solely for the purpose of entertainment). The Board must now engage in a second step fairness analysis and assess the evidence and arguments advanced in these proceedings in respect to the six fair dealing factors identified in CCH. 59. Alberta (Education) turned on the issues presented to the Court, as framed by the Objectors, and the Courts assessment of the evidence of record a record significantly different from the evidentiary record before the Board in the present proceedings:
a) The disputed copying behaviour at issue in Alberta (Education) was limited to an assessment of the impact of the copying of 16.9 million pages of copyright-protected works in the context of the Objectors admission that their copying of approximately 229 million pages should trigger the payment of millions of dollars to Access Copyright under the first certified tariff. Relying on the Objectors submissions, the Court understood that publishers and creators would continue to receive millions of dollars from K-12 institutions through a collective licence for the copying of their works 63
. Here, the Objectors submit that practically all copying in K-12 schools is exempt from royalty payments under the Acts exceptions. b) In Alberta (Education), the copying behaviour at issue, and ultimately found to be fair, involved a teachers situational, unplanned need to copy a few pages or little bits (and certainly not chapters) from a book in order to assist a student struggling to understand the educational content in the assigned textbook. Here, the Objectors submit that practically all copying in K-12 schools non-situational, planned and organized copying of up to 10% of a work or an entire chapter, including the compilation of various excerpts into textbook-like collections 64
, coordinated for maximum value and designed specifically to avoid payment is fair. c) In Alberta (Education), the copying behaviour under consideration by the Court was limited to the copying of little bits solely to complement or supplement the content in the core textbook in the situational context of a struggling student(s) and thus would not substitute or replace the need to purchase the published work. Here the evidence, including a clear admission from the Objectors expert economist, Mr. Chodorowicz 65 , is that certain copying
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behaviours encouraged by the Guidelines will lead to substitution for, and elimination of, certain published works.
d) In Alberta (Education), the copying behaviour at issue was triggered by the unexpected educational needs of the student. Here, all copying behaviour claimed by the Objectors to be encompassed by the fair dealing exception are contextually unlimited and subject only to the unmonitored one chapter or 10% arithmetic ceiling.
e) Unlike the evidence here before the Board, in Alberta (Education) there was scant evidence (labeled an evidentiary vacuum by the Supreme Court 66
) in the record that the markets for the publishers works had been negatively impacted by the copying behaviour there at issue. f) In Alberta (Education), the Supreme Court found that the Board had erred in its assessment of market impacts by including, in that assessment, more than a quarter billion copied textbook pages per year for which the schools already paid a tariff. 67
Here, the Objectors do not pay the tariff and claim that almost all copied pages are fair dealing. Unlike Alberta (Education), the market impact assessment in the present proceedings must include the uncompensated copying of over 300 million pages per year that the Objectors claim is fair. 60. Hence, none of the hallmarks of fairness before the Court in Alberta (Education) unplanned, spontaneous situational copying that did not substitute for the purchase of published works and did not otherwise negatively impact the market are part of the evidentiary record currently before the Board. The present proceedings are a markedly different case than Alberta (Education).
61. The decision in SOCAN v. Bell was also based upon the evidentiary record and arguments advanced by the parties. The two-fold ratio of that case is that the word research as used in section 29 of the Act is not to be restricted to creative endeavors, but includes activities that do not require the establishment of new facts or conclusions; and that it is the ultimate user or consumers perspective to whom the musical previews were communicated that is to be considered when determining whether their dealing with the previews was research-based and otherwise fair. 68
62. Access Copyright submits that, at most, Alberta (Education) corrected the Boards legal error in finding that copies made by a teacher on her own initiative without a triggering request from a student could not be fair research or private study (which resulted in a further reduction of 16.9 million pages from compensable volume in the Boards re-determination decision). SOCAN v. Bell instructs the Board to consider the students (as the end-user) purpose when assessing fair dealing.
63. In addition, the evidence in SOCAN v. Bell established that the end users research-based streaming of short previews did not compete with or adversely affect the purchase of downloads of the works previewed. Indeed, the effect of the ISPs dissemination of low-quality and impermanent previews to end users increased the ultimate sale and permanent downloading of the entire works by
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end users. In other words, there was no negative impact on the market for the musical works previewed: in fact, the converse was true.
64. The evidence of record in the present proceedings establishes, among other things, a significant negative impact on the market for educational works. Beyond this fundamental distinction, the copies in the present proceedings are not disseminated to end users to help them decide whether or not to purchase the entire work from which the copies have been made. Rather, the copies are disseminated as replacements or substitutions for the purpose of the original work. Moreover, the copies made by educational institutions for use by students are not impermanent or of a lesser quality than the original work from which the copies were made. To the contrary, they were made so as to provide a learning resource of equal readability to the original and thus substitute for the need to purchase the original work.
c) The Objectors policies and practices are not presumptively fair
65. In answer to the Boards Post-Hearing Question 1.2, the Guidelines relied upon by the Objectors are only relevant to a fair dealing assessment if their own practices and policies are [for a fair dealing purpose and] fair. It is only if the Board finds that the Objectors general practices are fair that the Guidelines can serve to obviate the Objectors burden to prove that all individual dealings with the works in Access Copyrights repertoire are fair. 69
66. While the Guidelines (clauses 5 and 6) speak of K-12 institutions designating supervisors or other persons to evaluate copying behaviour that exceeds the prescribed copying limits; and purport to place ambiguous limits on copying of multiple short excerpts grounded in the subjective intentions of the teachers [an] intention [to copy]substantially the entire work is prohibited the Guidelines are silent as to the appointment of any supervisor to monitor and enforce the limits.
67. Contrary to the Objectors stated position that there is no obligation on educators to monitor, enforce and police the [Guidelines] 70
, the absence of any obligation to monitor and enforce the limits is a pertinent omission. 68. The importance of monitoring and enforcement of a fair dealing policy is underscored by the CCH decision. That decision turned on the evidence before that Court, including the nature of the works (edited and head-noted judicial decisions and other works essential to legal research) and the implementation by the Great Library of an Access to the Law Policy. That policy provided, on its face, a strict procedure that controlled the nature and extent of the copying behaviour. The policy was supported by the uncontradicted testimony at trial that the Great Library monitored and strictly enforced the policy 71 . Such enforcement was only possible because of the single locus of the copying activities permitted such monitoring to occur. 72 This evidence contributed to the Courts conclusion that the Great Library could rely on the general practice set out in the policy without establishing that all
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individual dealings were, in fact, for an allowable purpose and fair.
69. Here, there is overwhelming evidence in the evidentiary record 73 that monitoring and enforcement of the Guidelines is completely absent and that the copying limits prescribed by the Guidelines are illusory. 74 70. In fact, it is highly unlikely that any version of the Guidelines past, present or future could be deemed to be fair and thereby obviate the Objectors burden to prove that each of their individual dealings are for a fair dealing purpose and are fair. The Objectors past behaviour demonstrates that the Guidelines will not be followed, no matter their purported limits. The second version of Copyright Matters! was in place in K-12 institutions between 2005-2012
75
. That version prohibited the copying of sheet music and consumables, yet the Volume Study established that K-12 teachers copied 19 million pages of sheet music and 170 million pages of consumables per year. Based on the evidence of their past behaviour, the only reasonable inference that may be drawn is that none of the Objectors practices, systems or policies can ever be presumptively fair. 71. Therefore, the Objectors cannot rely on their general practices to establish that the Guidelines are fair 76 . In the absence of language in the Guidelines or other policies which ensure that the prescribed copying limits are followed, controlled, monitored and enforced; and evidence that copying limits are, in fact
, followed, controlled, monitored and enforced, the Board is in no position to make any determination that the Guidelines are presumptively fair. d) The Guidelines ignore the jurisprudence and thus cannot be fair
72. After the Alberta (Education) decision, the Objectors published the Guidelines. In contrast to fair use guidelines published in other jurisdictions, the Guidelines were arrived at without any negotiation or meaningful consultation with any relevant stakeholders (e.g. educational resource publishers). 77
73. Under the Objectors definition of short excerpt, the copying of, inter alia, up to ten per cent of a work, an article, a poem, an entire musical score and an entire chapter of a work is fair. 78 Beyond the ambiguity or fuzziness of that definition 79 74. In attempting to delineate what constitutes fair dealing from dealing which is not, the Guidelines advocate a bright-line arithmetic rule that defines fairness solely by the amount of the dealing. That arithmetic ceiling finds no support in any Canadian jurisprudence and is plainly inconsistent with the Objectors own previous solemn representations to Parliament and the Supreme Court of Canada. , it ignores the Supreme Court jurisprudence upon which the Objectors purport to ground its validity.
75. In March 2011, two of the Objectors members (the Nova Scotia Minister of Education and chair of CMEC; and Deputy Minister) and Objectors counsel, gave evidence to the legislative committee on
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Bill C-32 that was studying, among other issues, the proposed extension of the allowable fair dealing purposes to include education. 80
The Objectors representatives were appearing before the committee on behalf of all education ministers other than Quebec. 76. In their testimony, the Minister and Deputy Minister identified short excerpts as a clip from a television program for a current events class or a diagram illustrating a science or math topic 81 ; or one or two pages from [a] book 82
. 77. In December, 2011, the Supreme Court of Canada in Alberta (Education) was presented with a very narrow issue 83
, that is, whether a teacher copying pages from a copyright-protected work for distribution to students struggling with the course subject matter, without any prior request from students, fell within the ambit of the research or private study fair dealing purposes. 78. As noted above, the volume associated with the disputed copying at issue was 16.9 million pages, approximately 7% of the total compensable copying volume per annum in K-12 institutions. The Objectors did not dispute their obligation to pay royalties to Access Copyright for the copying behaviours that accounted for the remaining 93% (nearly quarter billion pages) of the volume of copied pages.
79. The issue as to what proportion copied from an educational resource qualified as a short excerpt for the purposes of fair dealing was not before the Court. However, throughout their submissions, the Objectors variously defined short excerpt as follows:
a) a few pagesfor students having a problem with a lesson you are trying to teach 84
; b) the copying in dispute in this case is short excerpts copied to supplement the main textbook 85
; c) what is a short excerpt?...in Canada, I cant give you a percentage answer or a mathematical answer 86
; d) we are taking short excerpts from a different resource, and it is a very short excerpt 87
; e) [the undisputed quarter billion pages which the Objectors agreed was compensable] would be things like chapters from a book; not short excerpts but long excerpts, if you want to continue with the analogy that I began with that fair dealing deals with little bits 88
; f) the [Objectors] position is not that this Court should set a mathematical formula [for defining short excerpt] 89
; and g) Under the [previous] negotiated licencethe [Objectors] would pay for an article, a poem, up to 10 percent of a work, a chapter. So, the fair dealing provision under that negotiated
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licence was not important because the licence paid for way more than what you could copy under fair dealing (emphasis added). 90
80. Consistent with its decision in CCH (when the Court refused to grant the Law Societys claimed declaratory relief for a 10% copying threshold 91
), the Supreme Court in Alberta (Education) did not define short excerpt in purely arithmetic terms. The amount of the dealing was but one factor the Court considered in the overall factual matrix in the context of the Objectors representations about teacher copying behaviour. 81. Accordingly, and in partial answer to the Boards Post-Hearing Question 1.1, the Supreme Court of Canada correctly declined to provide a purely mathematical definition of short excerpt in Alberta (Education). The Courts reluctance to do so was a clear recognition that an assessment of fair dealing cannot start and end with a quantitative limit on the amount of the dealing factor. Evidence on the amount of dealing factor is to be considered and weighed along with the evidence relating to all other fair dealing factors.
82. One need only compare the Objectors representations to other august bodies as to what is, and what is not, a short excerpt to the definition of short excerpt used in the Guidelines to appreciate the Objectors radical departure in the nature and extent of the copying that they submit in the present proceedings falls within the scope of the fair dealing exception. The Objectors stated position in these proceedings contradicts their own previous formal representations and, not unsurprisingly, finds no support in Alberta (Education).
83. The manifest inconsistency and unfairness of the definition of short excerpt developed by CMEC is captured by Mr. Georges unabashed admission in answer to a question from the Board that the copying of a chapter comprising 45% of the source work would be fair since the teacher is not required to choose the most restrictive option 92 84. The Guidelines otherwise ignore all other fair dealing factors. They do not encourage teachers to seek out reasonable alternatives to copying. They place no limits on the aggregate volume of copying that teachers may make. They place no objective limits on compound copying. They do not require teachers to consider the qualitative aspects of the portions copied. They permit .
93
teachers to make textbook-like collections comprised of chapters (or other substantial portions) copied from published works; and permit the systematic, pre-planned copying from published works that is not restricted in any way to meet the situational needs of individual students. 85. Combined with a definition of short excerpt that permits the copying of substantial portions of works even well in excess of the supposed 10% ceiling the Guidelines incentivize K-12 institutions to make free self-made resources comprised of copied chapters and other substantial portions of publishers works and dis-incentivize the purchase of resources from which these copies are made. 94
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86. Copying from publishers works thus facilitates the Objectors adoption of the emerging pedagogical model whereby teachers now draw on a number of different alternatives to the core textbook model. From an economic fairness standpoint, payment for such facilitation should be made. 95
87. Finally, as discussed further below, the evidence of record confirms that the Objectors actual copying behaviour and the copying permitted under the Guidelines has already had significant negative impacts on the publishers markets for their works and will very likely continue to have serious negative impacts on those markets. Apart from the harm to the publishers, the evidence establishes that both creators and users of such works will also be negatively impacted by the copying behaviour encouraged by the Guidelines.
e) Assessment of the evidence of record in respect to the six fair dealing factors
A. Legal and evidentiary burdens
88. As discussed above, whether the dealing is fair is a question of fact and depends on the facts of each case 96
. In any adversarial proceedings such as the present proceedings, the Board must, when making its findings of fact, be mindful where the legal and evidential burdens lie in respect to the fair dealing factors. 89. The Supreme Court of Canada in CCH 97
confirmed that the party (in these proceedings, the Objectors) who asserts that its copying behaviour is fair bears the legal burden of establishing that fact. This means that if, after consideration of all relevant factors, the Board remains in a state of uncertainty as to whether the copying was fair, or finds that the parties respective positions are evenly balanced, it must find that the copying was not fair. 90. In addition, the Objectors, who assert that their copying behaviour is fair, bear a number of evidential burdens. They are obliged to adduce evidence, or point to evidence in the record, to permit the first five recognized factors relating to fairness to be assessed by the Board. Should the Objectors fail to discharge any of these evidential burdens, the Board cannot weigh any of these factors in their favour.
91. In respect to the sixth fair dealing factor the effect of the dealing on the markets in which the works are sold Access Copyright, the party responding to the Objectors fair dealing assertion, bears the evidential burden to adduce evidence, or point to evidence in the record, concerning the market impacts of the copying behaviour.
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B. Fairness Analysis The Purpose of the Dealing
92. Access Copyright submits that the proper consideration of this factor requires the Board to do more than merely confirm that one or more of the pre-requisite statutory allowable purposes has been met. In identifying this fairness factor, the Courts must have intended that the fact-finders assessment of the purpose of the dealing factor look beyond that confirmation. To redundantly restrict the second-stage analysis of this factor to repeating that the purpose is an allowable one would rob this fairness factor of any meaning whatsoever.
93. Assessing the fairness of the purpose requires that the Board consider all of the purposes of the copying and weigh the evidence to determine whether the copiers purposes are, on balance, fair. In other words, the Board must ask, Is there something about these other purposes that renders the copying more or less fair? Whether or not the purposes are, on balance, fair requires an assessment of copyright policy: does the purpose of the copying further the public interest in the encouragement and dissemination of works of the arts and intellect and obtaining a just reward for the creator? (underlining added for emphasis). 98
The balance sought in copyright must seek to balance all three of those public policy objectives. 94. Access Copyright submits that the Board ought to consider whether or not the purpose of the copying was transformative in nature. Canadian courts have yet to determine whether a transformative purpose is relevant to an assessment of the fairness of the copying behaviour. 99
95. Applying copyright policy, the Board should ask, Is the copying transformative, such that a new audience will experience the expression of the idea or an audience will experience the expression in a new way? If yes, the copying tends toward fairness because it furthers both the encouragement and dissemination of works of the arts and intellect without (arguably) infringing on the original authors right to obtain a just reward for his work.
96. The Board should also ask, Is the copying for a purpose other than the purpose for which the original work was created? If yes, the copying tends towards fairness if it encourages the creation of works and the dissemination of works without interfering with the creators just reward. For example, the purpose of sampling an original musical work may be to create a new transformative or derivative work. The sample may encourage new works of the arts in terms of the new expression that is created. In another example, the purpose of the dealing may be to encourage the purchase of the work 100
. These facts may weigh towards fairness. 97. However, when the purpose of the copying is identical to the purpose underlying the creation of the original work, or where no sale will result, that dealing tends towards unfairness. If the purpose of the original work that has been copied was educational in nature and to be used for instruction, and the portions copied from the work are used solely for the identical purpose, in particular without any transformative or derivative benefits to the copying, none of the policy objectives of copyright law are met. As such, the copying will tend to be less fair.
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98. Here, K-12 institutions have copied resources intended for educational purposes and used the copied portions for the identical purpose. There is no transformative or derivative purpose in the nature of that copying that would advance copyright policy. Not only do the copies lack any transformative purpose, but they are not transformative in any way. The copies at issue in this proceeding are merely slavish, identical duplications of portions of original copyright-protected works.
99. In addition, K-12 teachers copy, and are encouraged by the Guidelines to copy, instead of purchasing the original works in order to save money. 101 Barring an access issue (which has not been proven or alleged in this case), such copying does not further copyright policy in the dissemination of works of art and intellect. To the contrary, it discourages
works of art and intellect and deprives the creator of his just reward. 100. Finally, in these proceedings, there are no safeguards in place to prevent the copies from replacing the original work 102
. To the contrary, the copies at issue in this case are made for the purpose of avoiding the purchase of the original work. C. Fairness Analysis The Character of the Dealing
101. An assessment of this factor requires the Board to consider the extent of copying, in the aggregate, and requires the Board to examine how the works were dealt with 103 . A particular dealing might be unfair if multiple copies of works are being widely distributed....if a single copy of a work is used for a specific legitimate purpose, or if the copy no longer existed after it was used, this would favour a finding of fairness 104
. 102. In Alberta (Education), the Objectors did not contest the Boards findings related to the character of the dealing factor. Because the issue was not before the Court, its reasons are silent on this factor, other than to identify the Boards error in considering the aggregate amount of copying twice, once under the character of the dealing factor and again under the amount of the dealing factor, thereby conflating the two factors 105
. The Boards finding that the character of the dealing the aggregate volume of copying tends towards unfairness was not challenged by the Objectors on judicial review and was thus left undisturbed by the Court. 103. In their assessment of the copying behaviour in the present proceedings, the Objectors ignored completely the evidence relating to the character of the dealing. 106 That evidence confirms that over 300 million pages from works in Access Copyrights repertoire approximately 90 pages per student 107
are copied in each academic year by K-12 institutions. K-12 teachers make multiple copies from works for wide distribution to the entire class. It is inconceivable that the copying of 90 pages per student per year is situational or done to help a student understand a particular concept; rather, the copying is pre- planned and systematic. The Objectors have introduced no evidence that these copies are made to meet the needs of individual students who are having difficulty understanding a particular concept.
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104. Unlike the SOCAN v. Bell case, where no copy existed after the preview was heard, where users did not receive a permanent copy and where the file was automatically deleted from the users computer 108 , students (and teachers) keep copies for at least the entire duration of their classes, and often beyond 109 and the copies can be (and are) further reproduced and disseminated by users. 110
105. In addition, the shift in teaching pedagogy from the purchase and use of a textbook for every child in a class to differentiated instruction and resource-based learning means that copies are not made to complement a core textbook, but rather, are made as the core learning resource for a class, 111
thereby substituting for the purchase of textbooks. The copying behaviour encouraged by the Guidelines is thus substitutive and not complementary. 112
D. Fairness Analysis The Amount of the Dealing
i) Qualitative assessment essential
106. The amount of the dealing factor requires an assessment of both the quantitative amount of the copying and the importance of the part copied 113 . The amount factoris an examination of the proportion between the excerpted copy and the entire work 114 or the proportion of the excerpt used in relation to the whole work 115
. 107. The Guidelines, and the Objectors position in these proceedings, presumptively fix as fair the copying of all or portion of a work provided the amount copied does not exceed an arbitrary percentage (10%) or other quantitative segment (e.g. a chapter or an article) of the work as published, without any qualitative assessment of the importance of the portion copied.
108. The Objectors bear the burden to establish that the amount of the dealing, considered both qualitatively and quantitatively, is fair. The evidence in these proceedings 116
confirms that, in assessing this factor, the Objectors experts ignored completely any qualitative aspects of the amount copied. 109. Teachers copy any and all key aspects of an educational work. They copy entire chapters, which may contain an entire analysis of a given topic. They copy entire poems, articles and short stories from compilations. 117 They copy two pages of a textbook designed to contain an entire lesson which may comprise the essence of the creators expression, created with a significant investment of time, skill and effort, and which are pedagogically important. 118
Such copying very clearly reproduces the heart of the work and is thus unfair. The Guidelines authorize and encourage this copying behaviour and do not instruct K-12 teachers to assess any qualitative aspects of the portions copied. ii) No impairment of copyright in works comprising a compilation
110. The Boards assessment of this factor must also take into consideration Parliaments clear instruction 119 that the creation/publication of a compilation of works which enjoys its own copyright protection does not impair the protection conferred by the Act in respect to the copyright in the
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individual works comprising the compilation. The decision in Robertson v. Thomson Corp. 120
, re-affirmed Parliaments instruction. 111. In these proceedings, whenever discrete works are published in a compilation, the Guidelines 10% rule permits K-12 teachers to copy the entirety of one or more works provided the portions copied fall under the arbitrary ceiling. The 10% ceiling may encompass several poems or short stories within the compilation. Given that K-12 teachers are not required to use the most restrictive option 121
, the separate definitions of short excerpt are internally incongruous since the 10% rule (para. 4(a) of the Guidelines) would permit copying behaviour that exceeds the definition of short excerpt under paras. 4(c) (f). 112. Moreover, even assuming K-12 teachers restricted themselves to the copying behaviour permitted by the Guidelines an assumption that is contradicted by the evidence 122 113. A finding of fairness would result in the creator/publisher of a work essentially losing all copyright protection if he chooses to market and monetize his work other than as a stand-alone work. Analogizing this result to musical works underscores the unfairness of that finding: a song released as a single would be protected by copyright, but if the song was released as part of an album, the artist and composer would lose that protection since that single work could be copied for free. That result would be manifestly unfair and an affront to copyright policy. compliance with the Guidelines ignores Parliaments instruction not to impair the Acts protection in the discrete works published within a compilation. When 100% of a discrete work contained within a compilation is copied, that behaviour is manifestly unfair.
114. In Post-Hearing Question 1.5, the Board asked for a comment in respect to the Objectors evidence to the effect that in calculating the amount of the dealing in respect to a compilation, the amount copied must be divided by the total number of pages in the compilation. The relevant proportion for newspapers and magazines is the portion copied relative to the length of the article, not the compilation.
115. The Objectors evidence, and any argument they may advance in reliance thereon, runs contrary to the ratio in Robertson v. Thomson Corp. 123 iii) The Objectors have not met their evidential burden on the amount of the copying factor which recognizes that the copyright in discrete works comprising a compilation must be respected. In the context of these tariff proceedings, and the Boards assessment of fairness, the Board cannot overlook that the effective disaggregation of compilations into discrete works that is permitted by the Guidelines will result in the expropriation of 100% of the creators expression if the entirety of that discrete work is copied without compensation. There is nothing fair about expropriating the entirety of a creators expression.
116. In Post-Hearing Question 1.3, the Board asked how compound copying should be assessed in the fair dealing analysis. Compound copying describes copying behaviour whereby a teacher returns to
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the same educational resource at different times to copy discrete additional portions of the work. Access Copyright filed evidence 124
that compound copying occurs in K-12 institutions. 117. In CCH 125 , the Supreme Court of Canada observed that the dealings with a work may not be fair if a specific patron of the Great Library submitted numerous requests for multiple reported decisions from the same work over a short period of time, observing further that there [was] no evidence that [such behaviour] has occurred. In Alberta (Education), the majority was concerned that the Board looked at the overall quantity of what [was] disseminated under the amount of the dealing factor, and thus disregarded the rights of the individual student. It found that the Board conflated its assessment of the aggregate volume of multiple copies being distributed to entire classes (the character of the dealing) with an assessment of the proportion between the excerpted copy and the entire work (the amount of the dealing). As such, the amount of the dealing factor must be looked at from an individual students perspective and in relation to the qualitative and quantitative proportions taken from the work. 126
118. Access Copyright filed evidence that, during the two-week Volume Study, teachers engaged in compound or sequential copying; that is, copying by the same teacher from the same work. 127 The Board may draw a reasonable inference that individual students receive copied portion after copied portion from the same book made by the same teacher in the same class in the same year. This copying behaviour is consistent with the evidence before the Board that K-12 schools use class sets of textbooks 128 , (e.g. where 90 students share a set of 30 textbooks, and that those sets are copied for students homework assignments. 129 ). This behaviour is also consistent with the evidence that Ministries of Education no longer purchase a core textbook for every child in the class. 130 Teachers copy a few pages each time they go to the photocopier and return to copy from the same book for the same class, over and over again.
119. In their analysis, Drs. Wilk and Whitehead conceded that they did not account at all for the phenomenon of compound copying 131
. The Objectors led no evidence from teachers. Furthermore, the Volume Study measured copying only for a two-week period and therefore could not capture the amount of a work received by an individual student over the course of a school year. Thus, the Board cannot determine the volume of compound copying. 120. In the circumstances, the amount of the dealing with respect to an individual work cannot be assessed in this proceeding. The quantity copied by multiple visits to a photocopier by the same teacher to copy excerpts from the same work is understated since, in the Objectors analysis, each successive visit to the photocopier resets the amount of the copying from the work at zero instead of being added to the percentage copied from the same work on previous visits to the photocopier. Therefore, the uncontradicted evidence is that compound copying occurs but no quantitative estimate of the extent to which teachers engage in that behaviour is available to the Board.
121. The Objectors were the only parties to these proceedings who could shed light on the frequency of such behaviour and the typical amount of the work copied. The Objectors bore the burden to adduce evidence on this phenomenon. Such evidence could have been led by calling teachers, or panels of
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teachers, as witnesses or, better yet, polling them to gather evidence as to the incidence of compound copying and introducing this polling evidence through Mr. Chodorowicz. He confirmed 132
that he had polled teacher behaviour in the past in connection with the inaugural K-12 tariff proceedings. In the absence of such evidence, the Board cannot rely on the Volume Study data or the Objectors analysis of the data to accurately assess the amount of the dealing. An adverse inference may be drawn if, without reasonable explanation, a party fails to adduce evidence available to it that could have resolved a disputed issue. In this evidentiary vacuum, the Board can only find that compound copying occurs in K- 12 schools and, in the context of the amount of dealing factor, tends toward unfair dealing. 122. That finding ought to be made irrespective of the number of copying occurrences, the amount of the copying and the delay between each occurrence. All such subsidiary details mistakenly focus solely on the quantitative aspects of the behaviour on a particular day at a particular time, and disregard the phenomenon of a teacher returning to the same book throughout the year 133
and the paramount consideration of the qualitative aspects of the portions copied. Given that the portions copied are substantial from a qualitative perspective, the particulars requested by the Board would not be helpful to the fairness analysis. E. Fairness Analysis Alternatives to the Dealing
123. In CCH, the Supreme Court of Canada concluded, based upon the evidentiary record before it, that it was not apparent that there were available alternatives to the copying activities carried out by the Great Library at the request of patrons of the Law Society who were engaged in research-based activities. Moreover, the Supreme Court of Canada concluded that it would be burdensome to expect remotely located patrons to travel to Toronto each time they wanted to track down a legal source and would be unreasonable to expect them to conduct all their research from the original works physically restricted to the Great Library. With all reasonable alternatives to copying ruled out, the copying activities carried out tended to be fair. 134
124. In Alberta (Education), the Supreme Court of Canada understood that what was at issue was the situational copying of little bits (and much less than what could be copied under the Access Copyright licence) from multiple educational resources to meet the unexpected needs of particular students and that teachers only photocopy to complement existing textbooks 135 . In that factual matrix, the Court found that buying books for each student is not a realistic alternative to teachers copying short excerpts to supplement student textbooks 136
. 125. In these proceedings, the evidence establishes that publishers offer reasonable alternatives to copying the content for free (e.g. McGraw Hills iLit digital, disaggregated collection of literary selections). 137 One of the Objectors witnesses from the Manitoba Textbook Bureau confirmed that it could purchase individual chapters from the publishers separate from the textbook. 138
In the current factual matrix, purchasing the content is clearly a reasonable alternative to copying it for free.
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126. The evidence is that the copying will substitute for the purchase of the works from which copies are made 139 and permit teachers to get around the financial shortages they are facing 140 ; will lead to the unrestricted copying of entire works published within a compilation; and will lead to entire chapters (even if they comprise 45% of a works) being copied without any compensation to the rightsholders. There is also evidence before the Board that K-12 schools no longer purchase a core textbook for every child in a class and that textbook sales are declining. 141
127. The pedagogical shift to resource-based learning requires teachers to copy from a variety of resources, including published books, magazines and newspapers. This evidentiary record is markedly distinct from the facts and circumstances cited by the Court in Alberta (Education). In this context , where teachers photocopy in order to create
their core resource (as opposed to supplementing one that has already been purchased), buying those professionally published resources is certainly a reasonable alternative to copying them. 128. As with the assessment of all fair dealing factors, the Boards consideration of this factor ought to promote copyright policy. If there are no reasonable alternatives to copying a work (such as was the case in CCH) and copying must occur in order to disseminate the work or to encourage works of the arts, then the dealing will tend towards fairness. If however, there are
alternatives to copying and copying is not reasonably necessary to disseminate the work or to achieve the ultimate purpose of the user, the dealing will tend to be unfair. 129. The Objectors have not introduced any evidence that there were no alternatives to the dealing. The Guidelines do not require or instruct K-12 teachers to consider any other available alternative to the copying from published educational resources. To the contrary, the Objectors evidence in these proceedings is that teachers have a myriad of other alternatives to copying from published works, such as open access content, self-created works and the purchase of individual chapters. 142
Given all of those alternatives, it is unfair that teachers copy, and are encouraged by the Guidelines to copy, from copyright-protected published works. 130. On this record, there is no evidence that the copying activities in question were reasonably necessary in order to meet the students educational objectives. To the contrary, the purchase of the original works (including excerpts thereof) or a licence to copy the original works would meet the same objective. In the absence of such evidence that the copying was necessary to achieve the ultimate purpose because there were no alternatives available, the Boards assessment of this issue must tend toward unfairness. F. Fairness Analysis Nature of the Works
131. In CCH, the court found that, if a work has not been published, the dealing may be more fair in that its reproduction could lead to a wider public dissemination of the work one of the goals of copyright law 143 . All of the works at issue in this proceeding are published works. This fact related to the nature of the works tends to make the dealing unfair.
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132. In addition, the works in CCH that had been copied in strict accordance with the Access to the Law Policy were editorial versions of judicial decisions (including head-notes) and other legal resources essential to legal research. The Supreme Court of Canada agreed with the Federal Court of Appeal that it was generally in the public interest that access to judicial decisions (funded by the public purse) and other legal resources not be unjustifiably restrained. This observation was also made in recognition of the fact that, without permitting the copying behaviour at issue in CCH, lawyers in remote Ontario locations without ease of access to the Great Library would essentially have to replicate the Great Librarys holdings in order to have equal access to the law.
133. The nature of the works at issue in the present proceedings educational works created and published for profit many of which are customized to the requirements stipulated by the Ministries of Education triggers no access to law considerations or other public interest. The copying of the works in question does not engage the broader public interest to ensure the public have unfettered access to the law. These facts related to the nature of the works tend to make the dealing unfair.
134. Indeed, in the inaugural tariff proceedings, the Board held that access to classroom materials did not raise the same public interest concerns as access to legal resources. 144
Instead, the works copied were educational works, tailor-made for and marketed to the very users that copied them. Moreover, as also noted by the Board, there was rarely an alternative to a legal judgment; but a textbook can always be replaced with other resources. As a consequence, the Board found that a consideration of this factor tended toward unfairness, a finding that the Objectors did not challenge on judicial review. The nature of the works at issue in the present tariff proceedings has remained unchanged since the 2009 Board decision. 135. The evidence confirms that the bulk of the copies at issue in these proceedings (44% of total copying) are made from textbooks 145 . Consumables were the second highest source of copying in 2012, representing 23% of the total copying in that year 146 . The works at issue are published original works, created with skill and judgment by professional authors, many of them educators. They are of high quality and originality and require a great deal of research, pedagogical expertise and editorial judgment 147 . The Objectors require that the publishers works be diverse and represent Canadian content, Canadian examples and Canadians of note, primarily authored and produced in Canada. 148
In addition, the nature of consumables workbooks which are created and intended for one-time use makes the copying of them manifestly unfair as the copying eliminates the need to purchase them. An overall assessment of the nature of the works copied tends toward unfairness. 136. In Post-Hearing Question 1.4, the Board asked whether, in making its assessment of fair dealing, it ought to make distinctions between core textbooks or those prescribed by the Ontario Ministry on the Trillium List from other works. The answer is no. The distinction between a core and supplemental resource is relevant only to whether it meets or exceeds a certain percentage of the requirements of a particular curriculum. The distinction in no way dilutes the value of any resource, no matter how K12 institutions define it. For example, a novel is not defined as a core resource but is
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an invaluable supplemental instructional resource to teach English. The copying from such works ought not be treated any differently than copying from a core math textbook. 149
137. As discussed below, the substantial copying from all copyright-protected works encouraged by the Guidelines negatively impacts the publishers markets for their works, irrespective of the core vs. supplemental definition prescribed by K-12 institutions.
G. Fairness Analysis - Effect of the Dealing on Publishers Markets
i) Overview
138. The parties appear to have a fundamental disagreement concerning the scope of this fair dealing factor. Access Copyright submits that a plain reading of CCH, in particular paragraph 72, supports its contention that in assessing impacts and likely impacts of the copying behaviour, the Board must consider all likely impacts upon the markets for the publishers works, including all suppliers (publishers and creators) of educational resources to those markets and the users (ultimately students) of such resources.
139. The Objectors, on the other hand, contend that the only relevant consideration is whether Access Copyright is able to make a causal or concrete link between copying behaviour and a corresponding decrease in the sales of the works copied. That position runs counter to a plain reading of CCH.
140. Even if the Objectors myopic position on this fair dealing factor were accepted as a correct interpretation of CCH, the evidence on this record establishes, among other negative impacts, that since the implementation of the Guidelines in 2013:
a) the decrease in primary sales of educational resources of the six largest publishers in 2013 has been double the decrease in sales observed in 2012 150
; b) at least one publisher has ceased the publication of consumables and another has ceased the publication of books of plays and reduced the publication of anthologies 151
; c) by Mr. Chodorowiczs own admission, that copying behaviour will, in fact, substitute for the purchase of the works from which copies are made; 152
and d) the copying behaviour permitted and encouraged under the Guidelines has otherwise had and will have a direct substitutive impact on the works from which copies are made. 153
141. Access Copyright has also tendered a substantial body of evidence, much of it unchallenged by the Objectors, that the copying behaviour, the implementation of the Guidelines and the Objectors
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cessation of royalty payments has already had, and will likely have in the future, a number of detrimental (in some cases dramatically so, e.g. Oxford University Press 154
) impacts on: a) publishers, in terms of a reduction in primary sales, the elimination of secondary licensing income, the elimination of certain genres of works (e.g. consumables and anthologies) made particularly vulnerable to copying under the Guidelines, and a reduction of investment in the development of new works) ;
b) Canadian creators, in terms of the loss of secondary licensing income and reduced demand ( and primary royalties) for their services; and
c) the quantity, diversity, indigeneity and quality of educational resources available to the K-12 education system, resulting in long term negative impacts on Canadian students.
142. The Objectors summarily dismiss Access Copyrights evidence of negative market impacts as overly dramatic and entirely speculative. The evidence upon which the Objectors exclusively rely to respond to Access Copyrights evidence is that of Mr. Chodorowicz. The Board ought to give little or no weight to his evidence since, in a number of respects, the facts upon which he relied to provide his opinion were inaccurate or unreliable 155 ; and the testimony he gave, both in his expert report and in examination-in-chief, was significantly undermined through cross-examination. 156
ii) Impacts arising from the elimination of secondary licensing income
143. It is not disputed that, effective January 2013, the Objectors ceased all payments to Access Copyright under the previous certified tariffs once the Guidelines were published. The aggregate financial impact on publishers and creators was the loss of approximately 13.5 million dollars per annum.
144. The loss of that income (for which publishers did not have to incur any costs they go right to the bottom line 157
) has resulted in : i. the shuttering of Oxford University Presss K-12 publishing division 158
; ii. layoffs at McGraw Hill Ryerson 159
; iii. less money to publishers to invest in new titles 160
; iv. a strong disincentive to Canadian creators to continue making creative contributions to K-12 resources 161
; and v. according to a report that Mr. Chodorowicz considers authoritative, problematic legal interpretations of the previous law have nearly decimated the market for licensing
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educational uses of copyright materials, including significant damage on the publishing sector in particular (underlining added for emphasis). 162
iii) Impacts on primary sales
145. In addition to the evidence of such impacts referred to in the Overview, the facts provided by the publisher witnesses and the expert opinion of Michael Dobner 163
provide clear evidence, that was unshaken on cross-examination, of direct material impacts and likely impacts from the actual copying behaviour, the increased copying behaviour encouraged by the Guidelines and the elimination of royalty payments for such copying, including reduced profitability and the substitution/elimination of works. iv) Impacts on creators
146. The creator survey 164 commissioned by Access Copyright and designed and executed by Mr. Gauthier gave a voice to creators. Mr. Dobner opined on the results of the survey to the effect that as a direct result of the implementation of the Guidelines and the consequential elimination of secondary licensing income; and the likely reduction in primary royalties arising from fewer mandates from publishers, a significant number of creators will cease their creative contributions to K-12 resources, robbing the market of the skills and talents of the creators. 165
None of this evidence was rebutted by the Objectors. v) Impacts on investment in K-12 resources
147. The expert evidence of Mr. Dobner, factually supported by the publisher witnesses, clearly established that the implementation of the Guidelines and the cessation of payments under the tariff will likely reduce the number and diversity of new titles in Canada and the redirection of foreign-parent investment to other foreign jurisdictions where return on investment is greater. 166
vi) Impacts on quality, diversity and indigeneity of K-12 resources
148. The expert evidence of Mr. Dobner, factually supported by the publisher witnesses, clearly establish the likely long-term negative impacts on the quality, diversity and indigeneity of works made available to K-12 students arising from the disappearance of Canadian creators, the disappearance of small, specialized and unreplaceable niche publishers, the increased reliance on foreign-produced titles, and the inevitable drop in quality between self-made teacher content and professionally created resources customized and approved for use to meet curriculum objectives 167
. vii) Conclusion on fair dealing
149. In answer to the Boards Questions 1.2(a) and (b), Access Copyright submits that the reproduction of a single article or chapter for a class is possibly fair dealing, provided the Board considers these specific copying examples in the context of the entire evidentiary record and all six fair
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dealing factors. These questions appear to make the same legal error as the Objectors Guidelines by considering only one fairness factor: the amount of the dealing. In order to determine whether the dealings are fair, all other fairness factors must be assessed by weighing the evidence of record. As noted above, when properly weighing the probative value of the evidence and after considering all the fairness factors, the Board must conclude that the vast majority of the dealings are unfair.
150. For the reasons discussed above, the Boards deduction from the volume of compensable copying to account for fair dealing ought to be approximately 19.2 million pages as advanced by Access Copyright 168
. The 19.2 million pages is arrived at by adding together: approximately 18.5 million pages arising from the ratio in Alberta (Education) (and the Boards January 2013 re-determination decision thereon); and
approximately 700,000 pages that represent single copies of pages from a work, irrespective of the amount copied, that are less likely to constitute systematic copying and are more likely to fall within the parameters of copying behaviour articulated by the Objectors before the Supreme Court and in their opening statement in these proceedings, that is, to meet the educational needs of individual struggling students.
151. Consistent with the findings of the Supreme Court in Alberta (Education), a deduction of this magnitude to permit fair uncompensable copying behaviour will not likely have a serious negative impact on the markets for the publishers works since the remaining approximately 338 million (2010- 2012 tariff) or 324 million (2013-2015 tariff) copies will be compensable under the certified tariffs.
152. Access Copyright submits that it has met the evidentiary burden upon it in respect to fair dealing. There is no evidentiary vacuum. In contrast, the Objectors have failed, in the manners discussed above, to meet several of their evidentiary burdens. The evidence they did file was anecdotal, unreliable and should be afforded little weight. The Objectors have not met their legal burden to establish that actual teacher copying behaviour or the copying behaviour authorized and encouraged by the Guidelines falls within the fair dealing exception.
OTHER STATUTORY EXCEPTIONS a) Section 29.4(1) projection in class
153. The Objectors reduced the volume of compensable copies by approximately 2.3 million pages 169
to account for the 172 copying events that were identified in the Volume Study data as projection in class. That reduction in volume is not supported by the evidence since the Objectors expert witnesses included, within their analysis, those copying transactions in which the teacher made multiple copies. The analysis was not restricted to those transactions which showed that only a single copy was made for
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the purposes of display in class 170
. The exception in section 29.4(1) is not available if multiple copies are made. Evidence that multiple copies were made militates against the availability of the exception. b) Section 29.4(2) reproduction for tests and examinations
154. The Objectors reduced the volume of compensable copies by approximately 7.5 million pages 171
to account for 260 copying events that were identified in the Volume Study data as inclusion in student tests and examinations for the second tariff period. The Objectors deduction included consumables. Access Copyright submits that consumables do not qualify for the exception because they are commercially available (as defined in ss. (a) of the definition in the Act) in a medium appropriate for the purpose. Consumables are workbooks that provide space for students to perform exercises and are intended for one time use. c) Section 30.04 works available through Internet
155. The Objectors reduced the volume of compensable copies by approximately 107,000 pages to account for seven copying events involving works that were available on the Internet. 172 Access Copyright accepted that two copying events, representing approximately 66,000 pages, qualify for that exception. Contrary to the requirement in ss.30.04 (5), the Objectors did not assess whether the works were available from the Internet without the consent of the copyright owner. 173 On the evidence, five of the transactions, including the unauthorized copies made from a National Geographic magazine, 174
were made available though the Internet without the authority of the copyright owner. The Board ought to make no further deduction on account of this exception beyond the volume conceded by Access Copyright in Table 5.2 of Exhibit AC-67. 175
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ENDNOTES
1 CCH Canadian Ltd. v Law Society of Upper Canada 2004 SCC 13 (CCH), para. 63, Access Copyright Book of Authorities (ACBOA), Tab 7
2 Statement of Royalties to be Collected by Access Copyright for the Reprographic Reproduction, in Canada, Of Works in its Repertoire (Educational Institutions- 2005-2009), July 17, 2009 Decision (Decision), ACBOA, Tab 3 3 Access Copyright Legal Brief, October 9, 2007, ACBOA, Tab 2, paras. 92-119 4 Decision, ACBOA, Tab 3, paras. 130-134 5 Levy/Duncan/Lamantia Reply Evidence, Exhibit AC-61, para. 6, Appendix 61-D 6 In addition, none of the Boards findings of fact were challenged by the Objectors see Alberta (Education) v. Canadian Copyright Licensing Agency ( Access Copyright), 2012 SCC 37 (Alberta (Education) at para. 54, ACBOA, Tab 4 7 Objectors Statement of Case, Exhibit OBJ-1, paras. 20-21 8 Sopinka, Lederman & Bryant, The Law of Evidence in Canada (Sopinka), Fourth Ed. 2014, paras. 19.57-19.72,19.75-19.82,19.84-19.94,19.96-19.100,19.102-19.103,19.168-19.170, ACBOA, Tab 20 9 Levy/Duncan/Lamantia Evidence, Exhibit AC-2, paras. 15-33; TRANSCRIPT, VOL. 1, p. 31 (line 9) p. 37(line 13); p. 96 (line 21) p. 105 (line 24) 10 Objectors Statement of Case, Exhibit OBJ-1, para. 25 11 Levy/Duncan/Lamantia Evidence, Exhibit AC-2, para. 91; Exhibit AC-79 12 Levy, TRANSCRIPT, VOL. 1, p. 34(line 23) p. 37(line13) 13 Levy, TRANSCRIPT, VOL. 1, p. 36(line 7) p.37 (line 13); Exhibit AC-61, para.6 14 Decision, ACBOA, Tab 3, para. 133 15 Sopinka, ACBOA, Tab 20, para. 2.86, paras. 4.5 - 4.6 16 It may be that the creator retains a copyright interest in the work, depending on the contractual arrangements between creator and publisher. In those cases, the publisher is obligated to pass on the applicable royalties to the creator, as outlined in Exhibit AC-79. Access Copyright does not, and need not, inquire into those arrangements and is justified, based on decades of proceeding in this fashion without complaint from any quarter, in presuming that creators and publishers have acted in accordance with their respective obligations 17 Chodorowicz Cross-Examination, Exhibit AC-100, p. 1459 (line 22) 1460 (line 3); TRANSCRIPT, VOL. 8, p. 1747 (line 25) p. 1751 (line 11)
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18
Gauthier Evidence, Exhibit AC-11, Appendix B, Table 3.1 (code 4), p.91 19 Rollans Cross-examination, TRANSCRIPT, VOL. 1, p. 201 (line 13) p. 202 (line 3); p. 235 (lines 13- 23); Gerrish Evidence, TRANSCRIPT, VOL. 2, p. 362 (lines 15-19); Delbridge Cross-examination, TRANSCRIPT, VOL. 5, p. 887 (lines 1-6); Chodorowicz Cross-examination, TRANSCRIPT, VOL. 8, p.1747 (lines 18-24) 20 Sopinka, ACBOA, Tab 20, para. 2.86, paras. 4.5- 4.6 21 Rioux Evidence, Exhibit AC-9, para. 19; Rioux, TRANSCRIPT, VOL. 3, p. 595 (line 23) p.598 (line 20); p. 601 (line 13) p. 604 (line 14) 22 Chodorowicz Cross-examination, TRANSCRIPT, VOL. 8 , p.1748 (lines 8-20); Exhibit AC-100, p.1459, lines 10-21 23 Access Copyright Response to Undertakings, Exhibit AC-102, Appendix E 24 CMRRA Affiliation Agreement, Schedule G, Exhibit AC-9A, p.25 25 Mandate agreements, Exhibit AC-2K 26 Decision, ACBOA, Tab 3, para. 136, Table 2 27 Objectors Statement of Case, Exhibit OBJ-1, para. 25 28 Objectors Interrogatory Responses, Exhibits OBJ-11 to OBJ-17 29 Objectors Opening Statement, TRANSCRIPT, VOL. 5, p. 827 (lines 15-19) 30 Chodorowicz Cross-examination, TRANSCRIPT, VOL. 8, p. 1703 (line 17) p. 1705 (line 16); Exhibit AC-99, p. 1342 (line 10) p. 1343 (line 9) 31 Chodorowicz Cross-examination, TRANSCRIPT, VOL. 8, p. 1712 (lines 20-22) 32 Dobner Evidence, Exhibit AC-13, para. 40; Dobner Evidence, TRANSCRIPT, VOL. 7, p. 1357 (lines 14- 23) 33 Chodorowicz Cross-examination, TRANSCRIPT VOL. 8, p. 1702 (line 3) p. 1703 (line 16) 34 ONeill, J.A., December 2009, The Evidentiary Procedures of the Copyright Board of Canada, p.2 , ACBOA, Tab 19; Groupe Archambault Inc. v. CMRRA/SODRAC Inc. et al.2005 FCA 330 at para. 8, ACBOA, Tab 10 35 Newfoundland Processing Ltd. v. South Angela (1995), 102 F.T.R. 300, paras. 11-16, ACBOA, Tab 12; Sopinka, paras 6.380-6.381, ACBOA, Tab 20 36 Chodorowicz Cross-examination, TRANSCRIPT, VOL. 8, p.1756 (lines 7-25)
37 Chodorowicz Cross-examination, TRANSCRIPT, VOL. 8, p. 1702 (line 3) p. 1703 (line 9)
33
38 Chodorowicz Evidence, Exhibit OBJ-9, para. 32 39 Gauthier Evidence, paras. 9-27, Table 3.1, Exhibit AC-11; Gauthier Reply Evidence, paras. 12-17, Exhibit AC-67; Chodorowicz Cross-examination, TRANSCRIPT, VOL. 8, p. 1723 (line 10)-p. 1724(line 1) 40 Alberta (Education) at paras. 37, 40, 59-60, ACBOA, Tab 4; Canadian Broadcasting Corporation/Societe Radio-Canada v. SODRAC 2003 Inc. et al, 2014 FCA 84 (CBC) at paras. 27, 51-52, ACBOA, Tab 5 41 Sopinka, para. 6.450 6.451, ACBOA, Tab 20 42 The Advocates Society, June 2014, Principles Governing Communications with Testifying Experts, p.1 , ACBOA, Tab 18 43 International Intellectual Property Alliance (2014) Canada: 2014 Special 301 Report on Copyright Protection and Enforcement, issued February 7, 2014, Exhibit OBJ-18; Chodorowicz Cross- examination, TRANSCRIPT, VOL. 8, p. 1730 (line 19) p. 1747(line 17) 44 Chodorowicz Cross-examination, TRANSCRIPT, VOL. 8, p.1677 (line 6) p. 1678 (line 3) cf. p.1683 (line 25) p.1684 (line 14); p. 1681 (lines 2-24) cf. p.1683 (lines 8-24) 45 Statement of Royalties To Be Collected by SOCAN et al. In Respect of Multi-channel Subscription Satellite Radio Services (Satellite Radio), May 6, 2009, ACBOA, Tab 14 46 Satellite Radio, para. 96, ACBOA, Tab 14 47 U & R Tax Services Ltd. v. H & R Block Canada Inc.(1995), 62 C.P.R. (3d) 257 (F.C.T.D.), ACBOA, Tab 17 48 Cinar Corporation v. Robinson, 2013 SCC 73 at paras. 25-28, ACBOA, Tab 8; The Federal Court of Appeal in Edutile Inc. v. Automobile Protection Assn (APA), [2000] 4 F.C. 195 at para. 22, ACBOA, Tab 9) also warned against a solely quantitative assessment, To enter upon a simple calculation of a percentage or proportion to determine whether there was an infringement would be to unduly minimize protection given to copyright. The Federal Court of Appeal reaffirmed the point in CCH (ACBOA, Tab 6) at para. 97 when it again declined to specify a particular percentage of a work that delineates the substantial from the insubstantial. In respect to one of the works in issue, the copying of 2.6% of the work was found to be substantial, despite its comparatively small quantitative portion of the work in question, because it was qualitatively integral to the work ( at para. 238) 49 Satellite Radio, para. 97, ACBOA, Tab 14 50 Levy/Duncan/Lamantia Reply Evidence, Exhibit AC-61, para. 4; Exhibits AC-61B & AC-61C
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51 Gerrish Reply Evidence, Exhibit AC-64, para. 20, Exhibit AC-64B; Gerrish Evidence, TRANSCRIPT VOL. 2, p. 401 (line 4) p. 405 (line 20) 52 Levy/Duncan/Lamantia Evidence, Exhibit AC-2W, p. 8 53 Whitehead Cross-examination, TRANSCRIPT, VOL. 6, p. 1157 (line 5) p. 1158 (line 23) 54 Bilyk Cross-examination, TRANSCRIPT, VOL. 9, p. 1903 (lines 6-16) 55 Objectors Opening Statement, TRANSCRIPT, VOL. 5, p. 820 (lines 17-21); Lisi Evidence, TRANSCRIPT, VOL. 9,p. 1815 (lines 4-5) 56 Rollans Reply Evidence, Exhibit AC-62A; Rollans Cross-examination, TRANSCRIPT, VOL. 1, p. 257 (line 7) p. 259 (line 25) 57 McIntyre Evidence, Exhibit AC-4C. As noted in the cover letter to the exhibit, the CERC Guidelines were forwarded to every Minister of Education in the country (excluding Quebec) in March 2013. 58 CCH at paras. 25,48,72, ACBOA, Tab 7 59 SOCAN v. Bell had nothing to do with educational institutional copying at all. The issue before the Board, and the reviewing Courts, was whether the communication to the public of low quality, impermanent, non-reproducible and non-communicable short previews of musical works by Internet Service Providers (ISPs) triggered an obligation to pay a fee to the applicable copyright collective. 60 CCH at para. 52, ACBOA, Tab 7; 61 Hubbard v. Vosper, [1972] 1 All E.R. 1023 (C.A), at p. 1027 , ACBOA, Tab 11 62 Alberta (Education) at para. 14 , ACBOA, Tab 4 63 This understanding was consistent with the Objectors firm commitment made in March 2011 by one of the Objectors to Parliament that the inclusion of education as a fair dealing allowable purpose would result in no loss of revenue for people who are in the creative economy Exhibit AC-2V, p.16
64 CMECs Fair Dealing Guidelines published in Copyright Matters!, Third Edition, (December 2012), George Evidence, Exhibit OBJ-3B. 65 Chodorowicz Cross-examination, TRANSCRIPT, VOL. 8, p. 1715 (line 20) p. 1717 (line16) 66 Alberta (Education) at para.34, ACBOA, Tab 4
67 Alberta (Education) at para. 34, ACBOA, Tab 4 68 SOCAN v. Bell, [2012] 2 S.C.R. (SOCAN) at paras. 19, 22, 30, ACBOA, Tab 15
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69 CCH at para. 63 , ACBOA, Tab 7 70 Objectors Opening Statement, TRANSCRIPT, VOL. 5, p. 821 (lines 15-21) 71 CCH Canadian Ltd. v. Law Society of Upper Canada, [2002], 4 F.C. 213 (CCH FCA) at para. 3 (FCA), ACBOA, Tab 6 72 CCH at paras. 61, 64, ACBOA, Tab 7 73 Responses to Interrogatories, Exhibits AC-17, AC-18, AC-19-25, AC-49-52, AC-54-56; Delbridge Cross-examination, TRANSCRIPT, VOL. 5. p. 879 (line 8) p. 884 (line 4); George Cross-examination, TRANSCRIPT, VOL. 6, p. 1233 (line 12) p. 1235 (line 7); Giles Cross-examination, TRANSCRIPT, VOL. 6, p. 1254 (line 7) p. 1255 (line 20); p.1264 (line 1) p.1265 (line 9); p. 1293 (line 24) p. 1294 (line 6); Chodorowicz Cross-examination, TRANSCRIPT, VOL. 8, p.1706 (lines 5-17); p.1707 (line 5) p.1709 (line 11); Lisi Evidence, TRANSCRIPT, VOL.9, p.1819 (line 3) p. 1820 (line 3); Gill Cross-examination, TRANSCRIPT, VOL. 9, p. 1870 (lines 3-23); Viva Evidence, TRANSCRIPT, VOL. 9, p. 1948 (lines 11-19) 74 Taylor Evidence, Exhibit AC-8, paras. 26-34, Exhibits AC-8C to 8G; TRANSCRIPT, VOL. 3, p. 572 (line 2) p. 578 (line 16); Rollans Reply Evidence, Exhibit AC-62, paras. 7-10; Gerrish Reply Evidence, Exhibit AC-64, paras. 4-5, Exhibit 64A; Besse Reply Evidence, Exhibit AC-65, paras 5-11, Exhibits AC-65A to 65N; Besse Evidence, TRANSCRIPT, VOL.2, p.469 (line 10) p. 477 (line 12); Giles Cross-examination, TRANSCRIPT, VOL. 6, p.1281 (line 2) p. 1291 (line 24); Exhibits AC-90 to AC-95; Gill Evidence, TRANSCRIPT, VOL. 9, p. 1822 (lines 2-13) 75 Copyright Matters, 2 nd Edition, available at https://www.st- clair.net/Data/Sites/1/media/public/InformationServices/Online%20Safety/copyrightmatters.pdf , page 9 76 CCH at para. 63, ACBOA, Tab 7
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77 McIntyre Evidence, TRANSCRIPT, VOL. 2, p. 275 (line 23) p. 278 (line 10); p. 279 (lines 6-9); p.282 (line 23) p. 284 (line 14); McIntyre Evidence, Exhibit AC-4, paras. 14-15, 24; Exhibit AC-4D, p. 3 (last para.); Delbridge Evidence, TRANSCRIPT, VOL.5, p. 866 (line 11) p. 868 (line 23); cf. Objectors Opening Statement, TRANSCRIPT, VOL. 5, p. 820 (line 22) p. 821 (line 6) 78 On the dubious strength of this unprecedented and untested definition, and despite the fact that the Guidelines were not launched to teachers until September 2013 [George Evidence, TRANSCRIPT, VOL. 6, p. 1206 (lines 19-22)], the Objectors ceased paying royalties to Access Copyright under the previous certified tariff, effective January 1, 2013. 79 Bilyk Evidence, TRANSCRIPT, VOL. 9, p. 1897 (lines 2-21); Bilyk Cross-examination, TRANSCRIPT, VOL.9, p. 1926 (line 22) p. 1928 (line 4) 80 Transcript from March 24, 2011 Hearing of Legislative Committee on Bill C-32, Exhibit AC-2V 81 Exhibit AC-2V, p. 2 82 Exhibit AC-2V, p. 8; After the Supreme Court of Canadas decision in Alberta (Education), the Nova Scotia acting Associate Deputy Minister, Ms. Delbridge, continued to identify short excerpts as a few paragraphs or a page- Exhibit AC-84
83 Exhibit AC-2V, p. 14 84 Objectors submissions to the Supreme Court of Canada in Alberta (Education), December 11, 2011, Exhibit AC-2W, p. 7 (lines 13-24); p. 10 (lines 24-25); p.16 (lines 15-16) 85 Exhibit AC-2W, p. 11 (lines 3-4) 86 Exhibit AC-2W, p. 13 (lines 6-7) 87 Exhibit AC-2W, p. 17 (lines 23-24) 88 Exhibit AC-2W, p. 22 (lines 7-9) 89 Exhibit AC-2W, p. 23 (lines 17-18) 90 Exhibit AC-2W, p. 30 (lines 19-24) 91 CCH at para. 90, ACBOA, Tab 7 92 George Evidence, TRANSCRIPT, VOL. 6, p. 1209 (line 13) p. 1210 (line 13) 93 Lisi Cross-examination, TRANSCRIPT, VOL. 9, p. 1859 (line 4) p. 1862 (line 5)
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94 Rollans Evidence, Exhibit AC-3, paras. 47, 53-55; Rollans Evidence, TRANSCRIPT, VOL. 2, p. 252 (line 1) p. 255 (line 9); Dobner Evidence, Exhibit AC-13, paras. 159-165 95 Dobner Evidence, TRANSCRIPT, VOL. 7, p. 1371 (line 22) p. 1374 (line 24) 96 CCH at para. 52, ACBOA, Tab 7 97 CCH at para. 48, ACBOA, Tab 7; Alberta (Education) at para. 12, ACBOA, Tab 4 98 Theberge v. Galerie dArt du Petit Champlain Inc., 2002 SCC 34 at paras. 30-31, ACBOA, Tab 16 99 In SOCAN, the Supreme Court declined to narrow the definition of research to transformative purposes in its assessment of the first part of the test. The Court did not find that whether or not a use is transformative is irrelevant in a fair dealing assessment. To the contrary, it said that a suggestion that research be restricted to the creation of new works would conflate the allowable purpose with the fairness analysis and unduly raise the bar for entering that analysis (at para. 27). The court held that whether the purpose of the copying is transformative belongs in the second stage fairness analysis. 100 As in SOCAN 101 Rollans Evidence, Exhibit AC-3, paras. 33, 53-54; Mcintyre Evidence, Exhibit AC-4, para. 35; Dobner Evidence, Exhibit AC-13, paras. 91-97; Gerrish Reply Evidence, Exhibit 64A, paras 4-5, Exhibit 64A; Giles Cross-examination, TRANSCRIPT, VOL. 6, p.1271 (lines 6-20); Moreover, to the extent budgetary constraints contribute to the unprecedented levels of copying behaviour sanctioned and authorized by the Guidelines, the Objectors are publicly funded institutions. If they are not properly funded, it is not the role of creators and publishers whose works are being copied to make up the shortfall by accepting less than the economic value of their rights under the Act CBC at para. 84, ACBOA, Tab 5 102 SOCAN at para. 35, ACBOA, Tab 15 103 CCH at para. 55, ACBOA, Tab 7 104 SOCAN at para. 37, ACBOA, Tab 15; CCH at para. 55, ACBOA, Tab 7 105 Alberta (Education) at paras. 29-30, ACBOA, Tab 4 106 Whitehead Cross-examination, TRANSCRIPT, VOL. 6, p. 1173 (lines 4-13)
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107 This average copying per student per year is over 22-fold the four pages per student per year discussed in Alberta (Education) 108 SOCAN at para. 38, ACBOA, Tab 15 109 Response to Interrogatory, Exhibit AC-53, confirms that over two-thirds of the sampled teachers keep at least some of the copied pages for use in subsequent semesters or school years 110 Gauthier Evidence, Exhibit AC-11, Appendix B, p. 86; Wilk/Whitehead Evidence, Exhibit OBJ-10, Appendix G, p. 177; Wilk/Whitehead Cross-examination, TRANSCRIPT, VOL. 6, p. 1055 (line 23) p. 1059 (line 8); The fact that teachers, during the Volume Study, were approaching the photocopiers with earlier photocopied pages significantly impaired Drs. Wilk/Whiteheads ability to ascertain the length of the entire work from which the copies were made they could only do so for 50% of the analyzed transactions 111 Lisi/Gill Evidence, Exhibit OBJ-05, p. 3, p. 7-8; Bilyk/McKinny Evidence, Exhibit OBJ-06, p. 1-2, p. 5; Gill Evidence, TRANSCRIPT, VOL. 9, p. 1780 (line 20) p. 1783 (line 13); Lisi Evidence, TRANSCRIPT, VOL. 9, p. 1785 (lines 2-25); p. 1798 (line 20) p. 1800 (line 10); Lisi/Gill Cross-examination, TRANSCRIPT, VOL. 9, p. 1838 (line 15) p. 1840 (line 21); Bilyk Evidence, TRANSCRIPT, VOL. 9, p. 1881 (lines 3-19); p. 1892 (line 17) p. 1893 (line 14); Bilyk Cross-examination, TRANSCRIPT, VOL. 9, p. 1900 (line 14) p. 1903 (line 16); McIntytre Evidence, Exhibit AC-4, para. 21 and Exhibit AC-4B 112 Chodorowicz Cross-examination, TRANSCRIPT, VOL. 8, p. 1715 (line 20) p. 1717 (line 16);
Dobner Evidence, TRANSCRIPT, VOL. 7, p. 1371 (line 22) p. 1374 (line 24); p. 1396 (line 17) 1397 (line 17); p. 1401 (lines 4-22) 113 CCH at para. 56, ACBOA, Tab 7 114 Alberta (Education) at para. 29, ACBOA, Tab 4
115 SOCAN at para. 41, ACBOA, Tab 15 116 Whitehead Cross-examination, TRANSCRIPT, VOL. 6, p. 1172 (line20) p. 1173 (line 3) 117 Wilks Evidence, Exhibit AC-7, para. 10-11; para. 13-14;
Besse Evidence, TRANSCRIPT, VOL. 2, p. 460 (line 25) p. 461 (line 2);
Dobner Evidence, TRANSCRIPT, VOL. 7. P. 1399 (line 24) p. 1400 (line 9) 129 As revealed in the Witness Statement of Katie Suitor, Exhibit Objectors-9D , Filed May 4, 2007 in the previous proceedings; Besse Evidence, TRANSCRIPT, VOL. 2, p. 461 (line 2) p. 462 (line 2)
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130 Gill Evidence, TRANSCRIPT, VOL. 9, p. 1780 (line 20) p. 1781 (line 14); Lisi Cross-examination, TRANSCRIPT, VOL. 9, p. 1840 (lines 4-11); Response to Interrogatory, Exhibit AC-43 131 Whitehead Cross-examination, TRANSCRIPT, VOL. 6, p. 1162 (line 10) p. 1163 (line 18) 132 Chodorowicz Cross-examination, TRANSCRIPT, VOL. 8, p. 1703 (line 17) p. 1705 (line 16); Exhibit AC-99 ( p. 1342, line 20 p. 1343, line 9) 133 For example, a teacher could have copied a chapter of a book on the 9 th day of the observation period (Thursday) and returned to copy the next chapter of the same book three days later (Monday), outside the observation window. 134 CCH at para. 57, ACBOA, Tab 7 135 Alberta (Education) at para. 32, ACBOA, Tab 4 136 Alberta (Education) at para. 32, ACBOA, Tab 4 137 Gerrish Reply Evidence, Exhibit AC-64, paras. 15 -18
138 McKinny Evidence, TRANSCRIPT, VOL. 9, p. 1897 (line 23) p. 1898 (line 11) 139 Gerrish Reply Evidence, Exhibit AC-64, para. 14; Gerrish Evidence, TRANSCRIPT, VOL. 2, p. 393 (line 24) p. 396; Chodorowicz Cross-examination, TRANSCRIPT, VOL. 8, p. 1715 (line 20) p. 1717 (line 16); Wilks Evidence, TRANSCRIPT, VOL. 3, p. 536 (line 15) p. 537 (line 10); Taylor Evidence, TRANSCRIPT, VOL. 3, p. 570 (line 23) p. 571 (line 23); Dobner Evidence, TRANSCRIPT, VOL. 7, p. 1396 (line 17) 1398 (line 5); p. 1427 (lines 13-18); p. 1440 (line 4) p. 1441 (line 1) 140 Giles Cross-examination, TRANSCRIPT, VOL. 6, p. 1271 (lines 6-20);
154 Dobner Reply Evidence, Exhibit AC-69 (Appendix C), para. 36; Rollans Evidence, TRANSCRIPT, VOL. 1 , p. 179 (line 24) p. 181 (line 4); p. 187 (lines 8-15); McIntyre Evidence, TRANSCRIPT, VOL. 2, p. 267 (line 22) p. 268 (line 25); p. 297 (line 25) p. 298 (line 23); McIntyre Cross-examination, TRANSCRIPT, VOL. 2, p. 319 (lines 13-16); Dobner Evidence, TRANSCRIPT, VOL. 7, p. 1361 (lines 13-22); p. 1395 (lines 5-16) 155 See paragraph 36 of the text and the evidence cited in the endnotes in that paragraph 156 See paragraph 42 of the text and the evidence cited in the endnotes in that paragraph. Particularly troubling was his reliance on Exhibit OBJ-18 the IIPAs publication of the 2014 Special 301: Canada Report as an authoritative source of information for the purposes of providing his opinions but his failure, in his report and in his examination in chief, to direct the Board to those other aspects of the report which were clearly relevant to his mandate and clearly contradicted his opinion concerning the economic impacts on the publishers markets in Canada. 157 Gerrish Evidence, Exhibit AC-5, para.25;
Besse Evidence, Exhibit AC-6, para. 19;
43
Dobner Evidence, Exhibit AC-13, para. 154 158 See evidence cited in endnote 154 159 Gerrish Evidence, Exhibit AC-5, para. 26; Gerrish Evidence, TRANSCRIPT, VOL. 2, p. 363 (lines 6-12); p. 378 (line 23) p. 379 (line 11) 160 Rollans Evidence, Exhibit AC-3, paras. 46, 55; McIntyre Evidence, Exhibit AC-4, paras 28, 36; Gerrish Evidence, Exhibit AC-5, paras. 20, 23, 26-27; Besse Evidence, Exhibit AC-6, para. 23; Wilks Evidence, Exhibit AC-7, para. 16; Taylor Evidence, Exhibit AC-8, paras. 17-18; Dobner Evidence, Exhibit AC-13, paras. 203-215 161 Rollans Evidence, Exhibit AC-3, para. 51; Besse Evidence, Exhibit AC-6, para. 23; Wilks Evidence, Exhibit AC-7, para. 12; Taylor Evidence, Exhibit AC-8, paras. 17-18; Gauthier Evidence, Exhibit AC-10; Gauthier Evidence (PowerPoint), Exhibit AC-78, slides 11-13; Gauthier Evidence, TRANSCRIPT, VOL. 4, p. 746 (line 7) p. 761 (line 21); Dobner Evidence, Exhibit AC-13, paras. 182-202 162 Exhibit OBJ-18, p.1 163 See evidence cited in endnotes 150-154 and 160 164 Exhibit AC-10 165 See evidence cited in endnote 161 166 See evidence cited in endnote 160;