This decision by the Supreme Court of Canada involved consideration of the practice of teachers photocopying passages from textbooks and distributing these passages to students.
The Copyright Board and subsequently the Federal Court of Appeal had found that because the material in question was distributed to students as required reading, it was not distributed for the purpose of “private study” such that it would qualify for the “fair dealing” exemption outlined in CCH Canadian Ltd. v. Law Society of Upper Canada.
The Supreme Court of Canada overturned the lower court decisions, finding that the photocopying of short excerpts should not be excluded from “fair dealing” protection merely because it is performed by a teacher for the purpose of instruction. The Copyright Board had erred in finding that instruction of students is fundamentally different from “private study,” the high court ruled:
“The Copyright Board’s approach drives an artificial wedge into these unified purposes of instruction and research/private study by drawing a distinction between copies made by the teacher at the request of a student and copies made by the teacher without a prior request from a student. The word “private” in “private study” should not be understood as requiring users to view copyrighted works in isolation.”
The matter was remitted to the Copyright Board for a new decision on the basis of whether the photocopying in question was “reasonable.”
The Supreme Court’s decision in this regard should not be read as giving carte blanch protection to the photocopying of material for the purpose of “instruction.” It merely stands for the proposition that it is not inherently unfair or unreasonable for an instructor to photocopy a short passage from a textbook in circumstances where purchasing a copy of the book for every student would be impractical or unreasonable:
“With respect to the “alternatives to the dealing” factor, contrary to the Copyright Board’s conclusion, buying books for every student is not a realistic alternative to teachers copying short excerpts to supplement student textbooks. Purchasing a greater number of original textbooks to distribute to students is unreasonable in light of the Board’s finding that teachers only photocopy short excerpts to complement existing textbooks.”
Decided by the Supreme Court of Canada on July 12, 2012.
Click here for the full text of the decision.