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Intellectual Property Law - Copyright - Protected subject matter - Literary works - Books and other writings - Royalties - Defences to infringement - Statutory defences - Educational use

Thursday, March 30, 2017 @ 8:00 PM  

Application by Access Copyright (Access) for judicial review of a Copyright Board of Canada decision, certifying the royalty rates to be collected by Access for the reproduction of works in its repertoire by schools throughout Canada, other than Quebec, during the 2010-2012 and 2013-2015 tariff periods. The Board approved an annual royalty rate per student for the first and second tariff, applying a “volume times value” methodology, pursuant to which the volume of compensable copying was multiplied by the estimated value of each page of the copied work for one of the four genres in the Access repertoire, which included books, periodicals, newspapers and consumables. Because of the cost of gathering information about the volume of copying being undertaken, the parties agreed to rely on a prior study, although Access pointed out that the volume of copying was underestimated in that study due to some coding errors on its part. The consortium of schools relied on its dissemination of guidelines to teachers about what copying was permitted and what was subject to the payment of royalties. The Board determined that a large portion of the copying being done was fair dealing within the meaning of section 29 of the Copyright Act.

HELD: Application allowed in part. The Board erroneously stated that Access provided no evidence to support a claim that the volume of copying was underestimated in the prior study due to coding errors, where Access clearly had presented such evidence in the form of an expert report. As such, it was unreasonable for the Board to refuse to consider whether or not the Access repertoire had been underestimated. The Board gave due consideration to the issue of compound copying in determining what constituted substantiality in the context of copying portions of works. It was reasonable for the Board to reject the proposition that what was worth copying was worth protecting. In all other respects, the Board’s decision was reasonable. The Board properly accounted for the amount of copying, the nature of the copying, the effects of that copying on the publishing market and the existence of reasonable alternatives to copying, including purchasing entire books or portions thereof. Accordingly, the only reviewable error that justified reconsideration by the Board was the error concerning the impact of the coding errors on the repertoire of Access.