Even more on Access Copyright and the Supreme Court: eviscerated or not?

September 24th, 2012 by Barry Sookman Leave a reply »

My mother warned me to be suspicious when people give gratuitous compliments. So, I read with some suspicion the recent blog post by Ariel Katz, who responded to my post Did the Supreme Court eviscerate Access Copyright’s business model? A reply to Michael Geist, generously calling me a “well experienced lawyer” and a “smart well-trained lawyer”.[[1]]

In that post I argued that Michael Geist’s claim that the Supreme Court’s decision eviscerated Access Copyright’s business model did not stand up to scrutiny. I pointed out that his assertions completely ignored the teachings of the Supreme Court that whether something is a fair dealing is a question of fact and that his claims were not based on any analysis to demonstrate why the Supreme Court decision had the effects he claimed.

Ariel Katz’s reply did not attempt to refute my assertions. Nor, like Michael Geist, did he engage in any analysis of the decision of the Supreme Court to try and show what impacts the case might have on future cases involving educational copying.

His main claim seems to be that I sought to underplay what the Supreme Court had to say; that I tried to distinguish the case and to argue that the holding was limited to its specific facts but inapplicable to others. He sought to establish this by making the following arguments, none of which make his point or establish how the Supreme Court decision could be applied in settings other than those in issue in the Access Copyright case:

  • He claims the Supreme Court does not hear appeals unless it intends to lay down principles that are intended to apply to other settings. I agree this is generally the case. But, this assertion sheds no light on how the court’s actual decision will be applied in future cases. It also provides no foundation for any argument that Copyright Access’ business model will be eviscerated by the decision.
  • He claims that in a motion for leave to intervene in the appeal made by organizations representing publishers which my firm represented, arguments were made that the decision rendered by the court would likely be applied in a variety of future cases. Of course a decision of the Supreme Court will be applied in future cases. But, again this assertion sheds no light on how the court’s actual decision will be applied in those future cases. It also provides no basis for the argument that Copyright Access’ business model will be eviscerated by the decision.

To be fair, even though Ariel Katz’s post may have been intended to support Michael Geist’s claims, he did not expressly advance Michael Geist’s argument that the Supreme Court decision will eviscerate Access Copyright’s business model. In fact, he acknowledges the exact legal principle that was at the heart of one of the two main flaws in Michael Geist’s post. He says “Of course, the Court offered guidelines that will have to be applied in different factual settings, and there’s no question that what may be fair dealing in one situation may not be in another, and that how exactly they apply in each and every instance may not always be certain.” (emphasis added)

Further, unlike Michael Geist, he does not claim that as a result of the decision of the Supreme Court all or almost copying that would be covered by an Access Copyright license would be covered by fair dealing.[[2]] He interprets the case as laying down a rule that a dealing would be fair where a work is reproduced “for educational and other legitimate purposes as long as what is being copied is reasonably necessary to achieve those purposes, when there is no realistic alternative to the copying, and the copying does not adversely affect or competes with the original work.” The implication of his interpretation is that dealings by educational institutions falling outside of this factual matrix may well be considered unfair. Whether they will or won’t will always be a question of fact.

Without a doubt, future cases will clarify the actual scope of what the Supreme Court decided and how other facts not before the court fit into the CCH/Access Copyright framework. I don’t agree with Ariel Katz’s interpretation of the Access Copyright case. For example, the Supreme Court did not turn Canada’s fair dealing defense into US fair use by expanding the allowable purpose of a dealing to be for any “legitimate purpose”. It also didn’t rule that all dealings for an educational purpose in K-12 and higher educational settings would be considered research or private study or would be considered under the first fairness factor as tending to be fair. Nor did it rule that under the amount of the dealing factor that copying any amount that may be reasonably necessary would tend to be fair. His suggested interpretation also leaves out any consideration of the character of the dealing factor which examines, among other things, the aggregate amounts of copying and the nature of the work factor.

For the reasons explained in my original blog post, the factual situation considered by the Supreme Court, and its ruling, are much narrower than either Michael Geist or Ariel Katz claim.

Ariel Katz’s post is also an interesting read for another reason. In it, he attacked Access Copyright for allegedly discrediting some of its critics in academia (presumably including him) as “anti-copyright ideologues” and “ivory-tower-out-of-touch-non-pragmatic-wishful-thinking-academics” and for making “empirically unfound and theoretically hollow arguments”. He then attacked Access Copyright, other collectives, and the creative community claiming:

  • all copyright collectives – which include the 35 collectives that operate in Canada – “are driven by a single objective: to maximize that license fees that they collect”;[[3]]
  • all copyright collectives – which include over 400 collectives that operate worldwide – “perceive any meaningful application of fair dealing as an existential threat”;
  • all copyright collectives – which include collectives which administer rights on behalf of actors, broadcasters, choreographers, composers, dancers, directors, documentary producers, film producers, music publishers, musicians and other performers, playwrights, poets, print publishers, record producers, screenwriters, songwriters, sports teams (as broadcasters), television producers, visual artists and writers – “abhor fair dealing”;
  • members of the cultural community who had argued that the fair dealing exception had to be construed to be in compliance with Canada’s international obligations including the Berne Three Step test were incorrect;[[4]]
  • Access Copyright and its supporters “took the most extreme and arrogant position” that copying by an educational institution for the purpose of education or training is categorically excluded from the purview of fair dealing”, even though cases from Canada, the UK, Australia and New Zealand had consistently held that copying for educational or training purposes did not fall into the allowable fair dealing for private study purpose, and even though Parliament amended Section 29 to add fair dealing for education as a new allowable purpose because copying for an educational purpose was not regarded as falling into the private study purpose;
  • Access Copyright is “an oppressive cartel” “cartelizing the market”; and
  • Access Copyright threatens “to terrorize universities”.[[5]]

He also appeared to disparage all collectives for not being “creators or producers of content” or “disseminators of creative works” – although they play a vital role in facilitating access to and the dissemination of culture .

His post reveals his perspectives about Access Copyright in particular and collectives in general, and by implication the individuals and organizations that make up the entire cultural community in Canada who are represented by and are members of collectives and who themselves are both creators and users of copyright.

Michael Geist calls Ariel Katz’s blog a “must-read post”. I agree with him, not only because of the generous compliments Ariel gives me or because his post provides an excellent window for understanding the tone, temperature, and perspectives of some of those who attack Access Copyright and others in the cultural community. His post clearly acknowledges that whether something is a fair dealing is a question of fact, that what may be fair dealing in one situation may not be in another and that, accordingly, educational institutions cannot simply assume they don’t need licenses for copying that would be covered by an Access Copyright license.

For more information about the Copyright Modernization Act or Bill C-11 or copyright reform, see Change and the Copyright Modernization Act.

 

 


[1] Neil Finkelstein of my firm McCarthy Tétrault, was co-counsel in the Access Copyright appeal with Claude Brunet of Norton Rose Canada. Dan Glover and I were counsel for the interveners the Canadian Publishers’ Council, the Association of Canadian Publishers and the Canadian Educational Resources Council.

[2] The closest he comes to expressing any views is when he says: ““Several groups have wasted no time to embrace a “copy-free” interpretation of the ruling by incorrectly asserting that educational institutions no longer need licences to copy.” I don’t know who are those several groups, but I haven’t seen any such “copy-free” interpretation. The interpretations that I have read only suggest that the licenses that Access Copyright offers are likely unnecessary.”

[3] He says: “Copyright collectives are single-purpose organizations. They are not creators or producers of content, nor are they disseminators of creative works. They are driven by a single objective: to maximize that license fees that they collect, and they firmly believe that any use and any dealing should, in principle, pay paid for, and they view themselves as entitled to those payments. Copyright collectives such as Access Copyright abhor fair dealing, because fair dealing, by definition, is a use that does not require license or payment, and they resent the notion that when licenses are needed, they can often be granted on more competitive terms without their involvement. Consequently, they view any reform that would facilitate transactions in a competitive market as a lost opportunity to collectively license this activity, and perceive any meaningful application of fair dealing as an existential threat.”

[4] The Supreme Court did not have to decide the issue having found that there was no evidence before the court that the dealing in issue had any detrimental effects on the market.

[5] See John Degen’s reply to this claim, latest from the freecult – you’re either with us, or you’re a terrorist.

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