arenaud@accesscopyright.ca P: 416 868 1621, ext.

294 Ap r i l 8, 2 0 13

BY E-MAIL
Copyright Board of Canada 56 Sparks Street Suite 800 Ottawa, Ontario K1A 0C9 Attention: Gilles McDougall, Secretary General Dear Mr. McDougall: RE: Application for an interim approved tariff in respect to the Access Copyright Educational Institutions Tariff (2013-2015) (the Proposed Tariff)

Introduction Access Copyright applies to the Copyright Board under section 66.51 of the Copyright Act (the Act) for an interim decision in the form of an approved interim tariff. The interim tariff would continue the Access Copyright Elementary and Secondary School Tariff, 2005-2009 (the Previous Tariff), as redetermined on January 18, 2013, until the final determination of this Proposed Tariff. Status Quo Ante (as of December 31, 2012) The Previous Tariff expired on December 31, 2009. In accordance with section 70.18 of the Act, the provincial and territorial Ministries of Education and the school boards in Ontario (the Objectors) continued to remit royalties specified in the Previous Tariff for the period ended December 31, 2012. Objectors Threaten to Stop Paying Royalties On or about December 5, 2012, counsel for the Objectors notified Access Copyright that, as and from January 1, 2013, none of the tens of thousands of teachers within the Objectors respective employ would be operating under the [Previous Tariff]. A copy of counsels notification is attached to this application as Appendix A. Counsels representation was unsupported by any explanation, much less evidence, that teachers had modified their copying behaviour effective January 1, 2013 to eliminate the remuneration-triggering copying of over 200 million pages of copyright-protected works that were captured in the 2005-2006 volume study conducted in respect to the Previous Tariff proceedings. It is unfathomable that such a wholesale modification has occurred or is even possible.
Access Copyright, The Canadian Copyright Licensing Agency One Yonge Street, Suite 800, Toronto, Ontario M5E 1E5 P: 416 868 1620 F: 416 868 1621 TF: 1 800 893 5777 www.accesscopyright.ca

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Rather, it is more than likely that counsels representation is grounded in her co-authorship and publication of a document entitled Copyright Matters! A copy of that publication is attached as Appendix B to this application. Chapter three of that publication purports to establish guidelines for elementary and secondary school teachers that describe the activities that are permitted under fair dealing in accordance with the Copyright Act and decisions of the Supreme Court. Presumably, the publication is referring to the November 7, 2012 amendments to the Copyright Act and the decisions of the Supreme Court of Canada in CCH Canadian Ltd. v. Law Society of Upper Canada, 2004 SCC 13 (CCH) and Alberta (Education) v. Canadian Copyright Licensing Agency (Access Copyright), 2012 SCC 37 (Alberta (Education)). The publication also purports to define that which constitutes a short excerpt, the making of which is said to fall under the fair dealing exception to infringement. If one compares the definition of short excerpt in Copyright Matters! with the types and extent of copying permitted under section 3(3) of the Previous Tariff, it is readily apparent that the definition of short excerpt advanced by the Objectors counsel essentially converts what was previously a compensable act under the Previous Tariff (acknowledged as much by the Objectors payment of royalties under the Previous Tariff until the end of 2012) into an act of uncompensable fair dealing. In other words, the number of copied pages that trigger a royalty has dropped from over 200 million pages to nil. In effect, the Objectors have pre-emptively concluded, without any supporting explanation or evidence, prior to any adjudication of the matter, and on the basis of an unprecedented and arbitrary bright-line definition of short excerpt, that all their employees copying activities now constitute fair dealing. This conclusion has had detrimental consequences to Access Copyright as discussed below. No Legal Support for Objectors Position Contrary to Objectors counsels representation, the proposed guidelines are not supported by the amendments to the Copyright Act or any Supreme Court decision. The activities encompassed by the fair dealing definition advanced by Objectors counsel in Copyright Matters! were not the activities under consideration by that Court in any previous decision. In CCH, the decision turned on the evidence before that Court, including the nature of the works (judicial decisions and other works essential to legal research) and the implementation of an Access to the Law Policy that could be effectively and strictly enforced given the single locus of the copying activities. The Court declined the appellants express request for a declaration that the making of a single copy of a limited selection of text (not more than 10% of the work) in a legal treatise, digest or other review or summary of the law does not constitute infringement.... Insofar as such works were concerned, the declaration of non-infringement granted by the Court was limited to single copies of a limited selection of text when made by the Great Library in accordance with its Access to the Law Policy. In other words, the Supreme Court rejected a bright-line arbitrary rule by declining to specify a particular percentage of a work that delineated non-infringing fair dealing and infringement. The decision was reached on the particular evidentiary record before the Court and provides no precedential support for the ill-conceived expansive definition of short excerpt provided in Copyright Matters!. 2

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In Alberta (Education), counsel who co-authored Copyright Matters! appeared for the appellants before the Supreme Court. In her submissions before that Court, counsel represented that the disputed copying activities at issue in that case involved the copying of short excerpts copied to supplement the main textbook [Transcript of oral hearing, page 6, lines 3-4]; ...tak[ing] a few pages from another resource, a different book, to assist the students[Transcript, page 11, lines 15-16]; and ...taking short excerpts from a different resource, and it is a very short excerpt...[Transcript, page 12, lines 23-24]. The issue before the Court, as framed by appellants counsel, therefore, was not whether the making of short excerpts from the core textbooks used, for example, in class sets, would qualify as uncompensable fair dealing. The definition of short excerpt provided in Copyright Matters! makes no distinction between supplementary works and core textbooks and makes no distinction between spontaneous and pre-planned systematic copying. The failure to make these important distinctions is but one reason that the Alberta (Education) decision provides no precedential support for the definition of short excerpt advanced by Objectors counsel in Copyright Matters! Copyright Matters defines short excerpt, inter alia, as one chapter from a book. That definition expressly contradicts Objectors counsels submission before the Supreme Court. When asked by the Court as to the nature of the copying that fell within the non-disputed royalty-triggering, compensable category of copying, Objectors counsel submitted, They would be things like chapters from a book; not short excerpts but long excerpts, if you want to continue the analogy that I began with that fair dealing deals with little bits [Transcript, page 17, lines 79]. The inclusion of one chapter of a book within the definition of short excerpt in Copyright Matters! is clearly unsupported by the decision in Alberta(Education) and is directly contrary to Objectors counsels oral submissions before the Supreme Court. Copyright Matters! also defines short excerpt as up to 10 % of a copyright -protected work. In her submissions to the Supreme Court, Objectors counsel submitted, The Appellants submission is not that this Court should set a mathematical formula [Transcript, page 18, lines 17-18]. Indeed, the Court set no such formula. However, Copyright Matters! purports to do what the Supreme Court declined to do, and this despite Objectors counsels submissions to that Court. As the Board and Supreme Court were well aware, the copying activities in question in Alberta (Education) were approximately 16.9 million pages made at a teachers initiative for the purpose of a students private study. The volume of pages in issue represented approximately 7% of the entire volume of copying that was in evidence before the Board. The Supreme Court accepted Objectors counsels characterization of the short excerpts represented by this 7% and remitted the matter to the Board for redetermination in accordance with the Courts reasons. There was no dispute before the Board or the Supreme Court in Alberta (Education) concerning the remaining 93% of the volume of copies reported in the volume study tendered into evidence. The Objectors conceded that over 200 million pages that had been captured in the volume study triggered the payment of a royalty. Neither the decision in Alberta (Education) nor the November 7, 2012 amendments to the Copyright Act altered the compensable nature of those copying activities.

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Therefore, the Supreme Court, in two separate decisions, declined to specify a particular percentage of copying of a work that would qualify as fair dealing. These decisions do not recognize an arbitrary bright-line definition of short excerpt for the purposes of fair dealing. Thus, for Objectors counsel to represent to the Objectors, teachers and the public that the proposed guidelines are in accordance with the Supreme Court decisions is simply incorrect. At the very least, there is considerable legal uncertainty as to the correctness of the Objectors legal position upon which the Objectors have based their decision to cease the payment of royalties to Access Copyright. Moreover, even assuming that the broad interpretation of users rights advanced in Copyright Matters! was supported by the jurisprudence - it is not each Ministry and School Board would have to nevertheless establish to the Boards or a Courts satisfaction that each school may avail itself of this interpretation in respect to each copy of a published work in Access Copyrights repertoire that teachers continue to make. In applying for this interim tariff, Access Copyright is not requesting the Board to make a decision on the merits or provide a ruling as to what constitutes fair dealing in the absence of a complete evidentiary record. That evidence will undoubtedly come before the Board at the hearing of the tariff proceedings. However, Access Copyright requires interim relief to counteract the Objectors pre-emptive, legally unwarranted decision to stop paying royalties. Given the submissions above, this decision can only be grounded in the Objectors hope of starving Access Copyright from royalties it ought to be receiving from non-exempted copying activities. Detriment to Access Copyright and its Affiliates/Principals Given the Objectors stated position, Access Copyright reasonably expects that it will cease to receive any further royalties from the Objectors for any period on and after January 1, 2013. The first instalment of those royalties is due to be paid April 30, 2013. Applying the status quo ante royalty rate of $4.81 per full-time equivalent student (or the reduced rate of $4.66 to reflect the November 7, 2012 amendment to section 29.4 of the Act); and assuming a continuing enrolment of 4 million students (excluding the Province of Quebec), the royalties for 2013 and subsequent years would provide Access Copyright in excess of 18 million dollars per annum. The elimination of this source of revenue which would amount to approximately 45 % of Access Copyrights 2012 and its projected 2013 revenues will, until the Proposed Tariff is certified, significantly impair Access Copyrights ability to carry out its mandate to the ultimate detriment of rightsholders on whose behalf it collects and distributes monies. At present, the hearing for the Proposed Tariff is scheduled to commence on April 29, 2014. Access Copyright does not expect to receive a final certified tariff for the 2013-2015 years until the third quarter of 2014 at the very earliest. In the interim, Access Copyright will suffer the deleterious effects arising from the Objectors decision to cease paying any royalties. Given the above, there will be a significant period of time during which the status quo ante will be significantly altered. Non-exempted copying of works within Access Copyrights repertoire will undoubtedly occur without the historical royalty payments for such copying that were made to the end of 2012.

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Maintenance of Status Quo Ante The applied-for interim tariff will thus serve to maintain a relationship that has endured for nearly two decades and the financial status quo ante that has existed between the parties up to the end of December 2012. The interim tariff will provide continuity and certainty for all parties. To the extent royalties are not paid for non-exempted copying of works within Access Copyrights repertoire, the interim tariff will provide Access Copyright with tariff enforcement remedies under the Act, should such proceedings become necessary, thereby relieving Access Copyright of the deleterious combined effects of the Objectors legally unwarranted decision and the delay associated with the proceedings. No Adverse (or Minimal) Effects To Objectors The Boards issuance of the requested approved interim tariff will not adversely affect the Objectors. The Objectors have presumably satisfied themselves that their employees are not copying works within Access Copyrights repertoire or are engaged solely in conduct exempt from an infringement claim. Accordingly, the issuance of an approved interim tariff should be of no consequence to the Objectors as they have publicly represented that the Objectors are no longer operating under the [Previous Tariff]. Of course, Access Copyright disputes the factual and legal conclusions advanced by the Objectors. Regardless, given the Objectors position, they ought not object to the issuance of the requested interim tariff. The alteration in the status quo ante arising from the Objectors decision to cease the payment of royalties effective January 1, 2013 is a marked departure from their longstanding recognition that their employees copying activities trigger an obligation to pay for such copying. Since the interim tariff would essentially extend the Previous Tariff, its issuance would not necessitate elevated payments or impose new reporting obligations upon the Objectors. If the interim tariff is issued, each of the Objectors would be obligated to continue making royalty payments for their non-exempted copying of works within Access Copyrights repertoire. These payments constitute a small percentage of their overall budgets. By way of example only, there are, according to the Toronto District School Board (TDSB) website, approximately 250,000 students enrolled in its elementary and secondary schools. The continuing payment of the royalty under the Previous Tariff would amount to approximately 1.2 million dollars in 2013. This payment would amount to 0.04% of the reported TDSBs 2012 revenues, an immaterial impact upon the TDSB but a significant impact upon Access Copyright. In the aggregate, the loss of all royalty payments from the elementary and secondary school sector would constitute a significant impairment to Access Copyrights ability to fulfill its mandate as a collective society.

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Avoidance of Legal Void and Promotion of Legal Certainty The issuance of the requested interim tariff will prevent a legal void and will promote legal certainty. Elementary and secondary school teachers with whom Access Copyright representatives have had marketplace interactions since January 1, 2013 have expressed uncertainty about what they are not authorized to do and how they are to operate starting upon that date. Many have disavowed any knowledge about the position that they are not...operating under the [Previous Tariff]. Many continue their copying activities as before on the assumption that their activities remain licensed under the Previous Tariff. Apart from this uncertainty among the Objectors employees, these interactions underscore the fact that demonstrably insufficient education and due diligence has been undertaken to inform and educate teachers about their permissible copying behaviour. Regardless, given the thousands of separate locations at which copying activities take place (cf. CCH) the ability of the Objectors to effectively enforce any policy or guidelines is non-existent. Hence, an interim tariff as requested will provide certainty in the marketplace and preserve the status quo ante until the Proposed Tariff is certified. Issuance of Interim Tariff Grounded in Board Precedents The Board has consistently issued interim decisions in the form of an interim tariff to accomplish several recognized objectives: a) to provide temporary relief, accompanied by an enforceable legal mechanism, to address the deleterious effects of the duration of the proceedings; b) to prevent a legal vacuum which exists when someone uses a repertoire without authorization or when copyright owners(or their agents) and users disagree on the need for a license; c) to ensure that what may be in breach of copyright definitely not be so, thereby avoiding the need for a copyright owner to resort to lengthy and costly infringement proceedings; and d) to maintain the status quo while preventing a legal vacuum even when the Act provides for the automatic continuation of an existing tariff on an interim basis.1 As previously determined by the Board in paragraph 74 of the Reprographic Reproduction, 2011-2013 file, an approved tariff may be both interim or final. Under section 68.2(1) of the Act, Access Copyright may, for the period specified in an approved tariff, collect the royalties specified in the tariff and, in default of their payment, recover them in a court of competent jurisdiction. The period specified by the Previous Tariff has expired.

SODRAC v. MusiquePlus inc.(22 November 1999) Copyright Board Decision; SODRAC v. Les chanes Tl Astral and Teletoon Inc. (14 December 2009) Copyright Board Interim Decision; Access Copyright Post Secondary Educational Institutions 2011-2013 (16 March 2011) Copyright Board Decision; and SODRAC v. ARTV (5 January 2012) Copyright Board Interim Decision.

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While section 70.18 of the Act provides for the permissive continuation of the ability to pay and collect royalties under the Previous Tariff, until the Proposed Tariff is approved, it provides no express right to Access Copyright to pursue recovery of the royalties, in default of their payment, in a court of competent jurisdiction. Such a remedy only expressly appears in section 68.2 of the Act which grants a collective the right to collect royalties for the period specified in any approved tariff. The interim tariff requested herein, to remain in force for the period January 1, 2013 until the final tariff is approved, is such an approved tariff. As determined by the Board in paragraph 77 of the Reprographic Reproduction, 2011-2013 file, the existence of a dispute as to the meaning of the relevant provisions of the Act is in itself sufficient to create a legal void justifying the adoption of an interim tariff. In addition, as found in paragraph 79 of that decision, the fact that copyright owners can sue for copyright infringement in the absence of an approved tariff does not remove the existence of a legal void. The fact that, in the absence of an approved tariff, a copyright owners only resort may be to bring proceedings for copyright infringement, may, in and of itself, justify the issuance of an interim tariff. Even if recourse to the courts is available to Access Copyright, through the operation of section 70.18 of the Act or otherwise, the availability of such alternative recourses does not disqualify its request for an interim decision in the form of the interim tariff as requested herein. Relief Requested For the reasons set out above, Access Copyright submits that the objectives recognized in previous interim decisions are met by the issuance of an interim tariff as applied for herein. Access Copyright will be spared the deleterious effects of the duration of the proceedings. The legal uncertainty introduced by the Copyright Matters! publication will be avoided. The maintenance of the status quo ante will prevent a legal void while preserving all parties rights to seek a decision on the merits of their respective positions at the certification hearing. Access Copyright thus requests that the Board exercise the discretion vested in it under section 66.51 of the Act and issue an interim tariff that: 1. Continues to license the Objectors for all activities described in the Proposed Tariff at the status quo rate of $ 4.66 per full - time equivalent student (a rounded 3 % deduction has been applied to the status quo rate of $4.81 to account for the amendment to section 29.4 of the Act which became effective November 7, 2012); 2. Requires the Objectors to comply with all the obligations imposed by the Previous Tariff relating to recordkeeping, payments, auditing and sampling; 3. Provides that any payments made by the Objectors in accordance with the interim tariff are to be made without prejudice to: a) the right of Access Copyright to demand payment of further royalty amounts; and b) the right of the Objectors to demand re-imbursement of monies paid under the interim tariff, as appropriate, once the final tariff is certified;

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4. Provides that any step taken under the interim tariff shall be without prejudice to the positions of the parties to be advanced in the proceedings leading to a final certified tariff; and 5. Provides such further and other relief as any party may subsequently request and which the Board, in its discretion, sees fit to grant. Should the Board require further submissions from Access Copyright before acting upon its application, Access Copyright would be pleased to supplement these submissions. Access Copyright also reserves the right to reply to any submissions made by the Objectors in response to this application.

Yours very truly,

Arthur Renaud Of Counsel AR/jt

APPENDIX A

Wanda M. Noel
Barrister & Solicitor
5496 WHITEWOOD AVENUE OTTAWA, ONTARIO K4M 1C7 BY EMAIL OFFICE: (613) 794-1171 FAX: (613) 692-1735 EMAIL: wanda.noel@bell.net

December 5, 2012 Ms. Roanie Levy General Counsel Access Copyright The Canadian Copyright Licensing Agency One Yonge Street Suite 800 Toronto, Ontario K1J 7T2 Dear Ms. Levy, Re: Access Copyright Elementary and Secondary School Tariff, 2005-2009 This letter is to advise Access Copyright that the provincial and territorial Ministries of Education comprising the Council of Ministers of Education, Canada (CMEC) Copyright Consortium, together with the school boards in Ontario, will not be operating under the Access Copyright Elementary and Secondary School Tariff, 2005-2009 as of January 1, 2013. The provinces and territories comprising the CMEC Copyright Consortium and the school boards in Ontario, on behalf of which I am writing this letter, are listed in Appendix A. Any future communications with respect to this matter should be directed to my office. Yours truly,

Wanda Noel

Appendix A Alberta Education, British Columbia Ministry of Education, New Brunswick Department of Education and Childhood Development, Newfoundland and Labrador Department of Education, Northwest Territories Department of Education, Culture and Employment, Nova Scotia Department of Education, Nunavut Department of Education, Manitoba Education, Ontario Ministry of Education, Prince Edward Island Department of Education and Early Childhood Development, Saskatchewan Ministry of Education, Yukon Department of Education and the following Ontario school boards: Algoma District School Board, Algonquin and Lakeshore Catholic District School Board, Avon Maitland District School Board, Bloorview School Authority, Bluewater District School Board, Brant Haldimand Norfolk Catholic District School Board, Bruce-Grey Catholic District School Board, Campbell Children's School Authority, Catholic District School Board of Eastern Ontario, Conseil des coles publiques de l'Est de l'Ontario, Conseil scolaire de district catholique Centre-Sud, Conseil scolaire de district catholique de l'Est ontarien, Conseil scolaire de district catholique des Aurores borales, Conseil scolaire de district catholique des Grandes Rivires, Conseil scolaire de district catholique du Centre-Est de l'Ontario, Conseil scolaire de district catholique du Nouvel-Ontario, Conseil scolaire de district catholique Franco-Nord, Conseil scolaire de district des coles catholiques du Sud-Ouest, Conseil scolaire Viamonde, Conseil scolaire de district du Grand Nord de l'Ontario, Conseil scolaire de district du Nord-Est de l'Ontario, District School Board of Niagara, District School Board Ontario North East, DufferinPeel Catholic District School Board, Durham Catholic District School Board, Durham District School Board, Grand Erie District School Board, Greater Essex County District School Board, Halton Catholic District School Board, Halton District School Board, Hamilton-Wentworth Catholic District School Board, Hamilton-Wentworth District School Board, Hastings and Prince Edward District School Board, Huron Perth Catholic District School Board, Huron-Superior Catholic District School Board, the James Bay Lowlands Secondary School Board, John McGivney Children's Centre School Authority, Kawartha Pine Ridge District School Board, Keewatin-Patricia District School Board, Kenora Catholic District School Board, KidsAbility School Authority, Lakehead District School Board, Lambton Kent District School Board, Limestone District School Board, London District Catholic School Board, the Moose Factory Island District School Area Board, the Moosonee District School Area Board, Near North District School Board, Niagara Catholic District School Board, Niagara Peninsula Children's Centre School Authority, Nipissing-Parry Sound Catholic District School Board, Northeastern Catholic District School Board, Northwest Catholic District School Board, Ottawa Catholic District School Board, Ottawa Children's Treatment Centre School Authority, Ottawa-Carleton District School Board, Peel District School Board, the Protestant Separate School Board of the Town of Penetanguishene, Peterborough Victoria Northumberland and Clarington Catholic District School Board, Rainbow District School Board, Rainy River District

School Board, Renfrew County Catholic District School Board, Renfrew County District School Board, Simcoe County District School Board, Simcoe Muskoka Catholic District School Board, St. Clair Catholic District School Board, Sudbury Catholic District School Board, Superior North Catholic District School Board, Superior-Greenstone District School Board, Thames Valley District School Board, Thunder Bay Catholic District School Board, Toronto Catholic District School Board, Toronto District School Board, Trillium Lakelands District School Board, Upper Canada District School Board, Upper Grand District School Board, Waterloo Catholic District School Board, Waterloo Region District School Board, Wellington Catholic District School Board, Windsor-Essex Catholic District School Board, York Catholic District School Board and York Region District School Board.

Copyright Matters!

APPENDIX B

Some Key Questions & Answers for Teachers

Wanda Noel & Jordan Snel, Barristers and Solicitors

rd

Edition

2012 Council of Ministers of Education, Canada Canadian School Boards Association Canadian Teachers Federation This document may be freely reproduced without obtaining the permission of the authors, provided that no changes whatsoever are made to the text. Available at www.cmec.ca, www.cdnsba.org and www.ctf-fce.ca ISBN: 978-0-88987-225-7

TABLE OF CONTENTS
1. What is the purpose of this booklet?............................................. 1 2. Why is copyright important?........................................................... 1 3. What is fair dealing?......................................................................... 2 4. Can a teacher copy for instruction?.............................................. 4 5. Can a teacher copy for tests and examinations?........................ 4 6. Can teachers and students use statutes, regulations, and court decisions? ................................................ 5 7. What rights do students with perceptual disabilities have? .... 5 8. What rights do school libraries have?........................................... 6 9. Can teachers play a sound recording or turn on a radio for students to listen to, or turn on a television for students to watch?............................................................................................. 7 10. Can students perform a work protected by copyright, such as a play, on school premises?.............................................. 8 11. Can teachers copy or print musical scores without the copyright owners permission?. ............................................... 8 12. Can music be performed without the copyright owners permission?. ......................................................................... 9 13. Can students and teachers use copyright-protected works to create new works?. ......................................................... 12 14. Can teachers copy news and news-commentary programs from radio or television?............................................. 13 15. Can teachers copy radio and television programs that are not news or news commentary?.................................. 13

16. Can teachers show an audiovisual work (such as a DVD or video) on school premises without infringing copyright? ...................................................... 15 17. Can teachers copy an audiovisual work at home and show it in the classroom?...................................................... 15 18. Can lessons be streamed live to students or recorded and made available on-line for students at a time of their choosing?............................................................................ 16 19. Can teachers copy computer software for educational use?........................................................................ 17 20. Can teachers and students copy from the Internet?............... 18 21. Can teachers and students break digital locks to use copyright-protected materials they have the legal right to use?. ............................................................................ 19 22. Are student-created works protected by copyright?.............. 19 23. Where can I get more information on copyright?. .................. 20

 Introduction
The publication of this 3rd Edition of Copyright Matters! takes into account key changes that have occurred in the area of copyright since the 2nd Edition, published in 2005. Copyright law continues to evolve in response to existing and emerging technologies, international agreements, and the need for reasonable balance between users and creators of copyright-protected works. We hope that teachers will continue to find this edition of Copyright Matters! a valuable tool in acquainting themselves with basic copyright rules. This booklet is a starting point for increasing the awareness of your rights and obligations, as a teacher, in selecting and using copyright-protected materials at your educational institution. The authors have sought to simplify a very complex subject. The booklet is not a substitute for legal advice, which should be sought in cases where the application of general principles is unclear.

1. What is the purpose of this booklet?

This booklet gives teachers user-friendly information on copyright law, covering items from the Canadian Copyright Act and its regulations, contractual and tariff arrangements with copyright collectives, and court decisions. This booklet is available in print and on-line. The on-line version will be updated as changes in the copyright law take place. It provides information about copyright law and copyright collectives and how they relate to the use of resources on and off school premises. More detailed information is available from many printed sources, from the Internet, and from your ministry or department of education. A list of sources appears at the end of this booklet. Education departments and ministries, as well as school boards across the country, encourage awareness of and respect for copyright in our education systems.

2. Why is copyright important?

Just as you would want to protect anything that you own, creators want to protect their works. As students, we were all taught the value of original thinking and the importance of not plagiarizing the works of others. Since teachers use copyright-protected materials as well as educate the copyright owners and users of tomorrow, they have a unique responsibility to set the right example. The works of others should not be used without their permission unless the use is permitted by the Copyright Act. Teachers must be cognizant of the copyright status of resource materials in their possession.

Copyright Matters!

3. What is fair dealing?

The Copyright Act provides that it is not an infringement of copyright to deal with a work for the purposes of research, private study, criticism, review, news reporting, education, satire, and parody, provided the dealing is fair. The guidelines below describe the activities that are permitted under fair dealing in non-profit K12 schools and provide reasonable safeguards for the owners of copyright-protected works in accordance with the Copyright Act and decisions of the Supreme Court.

FAIR DEALING GUIDELINES

1. Teachers, instructors, professors, and staff members in non-profit educational institutions may communicate and reproduce, in paper or electronic form, short excerpts from a copyright-protected work for the purposes of research, private study, criticism, review, news reporting, education, satire, and parody. 2. Copying or communicating short excerpts from a copyrightprotected work under these Fair Dealing Guidelines for the purpose of news reporting, criticism, or review should mention the source and, if given in the source, the name of the author or creator of the work. 3. A single copy of a short excerpt from a copyright-protected work may be provided or communicated to each student enrolled in a class or course a. as a class handout; b. as a posting to a learning or course-management system that is password protected or otherwise restricted to students of a school or postsecondary educational institution; c. as part of a course pack.

Copyright Matters!

4. A short excerpt means: a. up to 10 per cent of a copyright-protected work (including a literary work, musical score, sound recording, and an audiovisual work); b. one chapter from a book; c. a single article from a periodical; d. an entire artistic work (including a painting, print, photograph, diagram, drawing, map, chart, and plan) from a copyright-protected work containing other artistic works; e. an entire newspaper article or page; f. an entire single poem or musical score from a copyrightprotected work containing other poems or musical scores; g. an entire entry from an encyclopedia, annotated bibliography, dictionary, or similar reference work. 5. Copying or communicating multiple short excerpts from the same copyright-protected work with the intention of copying or communicating substantially the entire work is prohibited. 6. Copying or communicating that exceeds the limits in these Fair Dealing Guidelines may be referred to a supervisor or other person designated by the educational institution for evaluation. An evaluation of whether the proposed copying or communication is permitted under fair dealing will be made based on all relevant circumstances. 7. Any fee charged by the educational institution for communicating or copying a short excerpt from a copyrightprotected work must be intended to cover only the costs of the institution, including overhead costs.

Copyright Matters!

4. Can a teacher copy for instruction?

A teacher can copy (or take any other necessary action) in order to display a work protected by copyright. This permits the use of whiteboards and similar tools, overhead projection using a device such as an LCD screen, overhead, opaque, or slide projector, provided the work is used for the purpose of education and training and is not already commercially available in a medium that is appropriate for this purpose.

5. Can a teacher copy for tests

and examinations?
Yes. Teachers in Canada may copy, translate, communicate electronically, show, or play any copyright-protected work for a test or examination, provided the work is not already commercially available in an appropriate medium for the purpose of a test or examination.

Copyright Matters!

6. Can teachers and students

use statutes, regulations, and court decisions?
Teachers and students can copy and communicate the text of federal, provincial, and territorial statutes, regulations, and judicial decisions for educational purposes from every province and territory except Manitoba, Quebec, and Nunavut.

7. What rights do students with

perceptual disabilities have?
Students with perceptual disabilities, including blind and visually impaired students as well as students with learning disabilities and other physical disabilities, are provided with alternative formats through production centres scattered across Canada. The alternative formats may include audiobooks, Braille, and e-text. Students, and educational institutions on behalf of students, may make a copy in an alternative format of a literary, dramatic, musical, or artistic work (but not an audiovisual work) in a format designed for a person with a perceptual disability. Translation, adaptation, and performance in public for the purpose of serving students with perceptual disabilities, as long as the work is not already commercially available in that format, are permitted. Educational institutions may not make a large-print book for a student with a perceptual disability without permission from the copyright owner.

Copyright Matters!

8. What rights do
School libraries can:

school libraries have?

make a copy for the purpose of cataloguing, internal record keeping, for insurance purposes, or police investigation; make a copy for the purpose of restoration; use digital technology to deliver an interlibrary loan copy of a copyright-protected work.

Provided a replacement copy is not commercially available in a medium and of a quality that is appropriate for these purposes, school libraries can also: make a copy of a work if the original is rare or unpublished and is deteriorating, damaged, or lost; make a copy of a fragile document or recording for on-site consultation if the original cannot be viewed, handled, or listened to because of its condition; make a copy if the original is in an obsolete format, or is in danger of becoming obsolete, or the technology to use the original is unavailable or is in danger of becoming obsolete.

Copyright Matters!

9. Can teachers play a sound

recording or turn on a radio for students to listen to, or turn on a television for students to watch?

Yes, you can play sound recordings and turn on televisions and radios in the classroom, subject to all of the following conditions: it must take place on the premises of an educational institution; it must be for educational or training purposes; it must not be for profit; it must take place before an audience consisting primarily of students of the educational institution, persons acting under its authority, or any person who is directly responsible for setting a curriculum for the educational institution; and it must not involve a motive of gain.

This users right does not apply to recorded radio and television programs, but only to playing radio and television programs while they are being transmitted (over-the-air broadcast, cable, satellite, or over the Internet). Where music is performed for a non-educational objective, SOCAN and Re:Sound tariffs apply. Examples that require royalty payments include music performed for extracurricular activities such as an assembly, background music, a school dance, or a fashion show. Current statements of applicable fees can be found on the SOCAN Web site at www.socan.ca and on the Re:Sound Web site at www.resound.ca.

Copyright Matters!

10. Can students perform a

work protected by copyright, such as a play, on school premises?

Yes. An example is the performance of a play in a drama class. The same five conditions as those cited for playing sound recordings, listening to the radio, or watching television listed in the answer to the previous question must be met before this users right applies.

11. Can teachers copy or print

musical scores without the copyright owners permission?
No. Copying an entire musical score that is not in a copyrightprotected work containing other musical scores is not permitted. Permission must be obtained. Normally, the music publisher can provide permission. Sometimes the right to copy music is given when music is purchased. The music books or sheets will have a notice stating that copying is permitted. In this case, music can be copied without the copyright owners permission in accordance with the terms of the notice. Fair dealing permits limited educational dealings with musical scores. First, copying an entire single musical score from a copyrightprotected work containing other musical scores is permitted. Second, up to 10 per cent of a musical work can be copied under fair dealing. See the Fair Dealing Guidelines under question 3.

Copyright Matters!

12. Can music be performed

without the copyright owners permission?
The Copyright Act permits educational institutions to perform music, whether recorded or live, without payment or permission from the owner of the copyright. A person acting under the authority of a non-profit educational institution can: perform a musical work live if the performance is primarily by students of the educational institution; play sound recordings containing a musical work; and play radio and television programs containing a musical work while the program is being transmitted (over-the-air broadcast, cable, satellite, or over the Internet).

The following conditions apply. The performance must: take place on the premises of an educational institution; be for educational or training purposes; not be for profit; and take place before an audience consisting primarily of students of the educational institution, persons acting under its authority, or any person who is directly responsible for setting a curriculum for the educational institution.

The Copyright Act permits the public performance of music in schools when it is in furtherance of an educational object. Performances that are not in furtherance of an educational object must be authorized by the copyright owner, or by a collective that represents the owner.

Copyright Matters!

The following uses of live and recorded music are permitted by the Copyright Act and therefore do not require permission and payment: in school assemblies (e.g., a recording of O Canada); by a student in a presentation to other students, teachers, assessors, or parents (e.g., as part of a presentation during music class); in demonstration activities by students, primarily for other students, teachers, assessors, or parents, and for which any admission fee charged covers costs but does not make a profit (e.g., a concert by the school choir, gymnastic routines, shows by school bands); during school hours for teaching/learning (e.g., music/dance/ dramatic arts classes); and before and after school, and during recess, if the use is for educational purposes (e.g., school radio operated by students for credit and supervised by a teacher).

The following uses of live and recorded music are not permitted by the Copyright Act and therefore require permission and payment: at school dances; at school sporting events; while people are on hold when they telephone the school; at an event where the admission fee is intended to make a profit; and on school premises for no other reason than as background music (e.g., in the classroom, cafeteria, halls, over the PA system, at school events such as fairs, carnivals, sociocultural events).

SOCAN and Re:Sound can provide licences to schools and school boards across Canada. Applicable rates can be found on the SOCAN Web site at www.socan.ca and on the Re:Sound Web site at www.resound.ca.

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The following uses of live and recorded music are not permitted by the Copyright Act, and SOCAN and Re:Sound cannot provide licences to schools and school boards for music used: in a play performed live (e.g., a drama classs production of My Fair Lady). In this case, the educational institution must obtain copyright authorization from a theatrical agent; in performances on school premises by outside performers (e.g., invited singers, magicians, etc.). In this case, obtaining copyright authorization is the responsibility of the outside performers; and in activities held in school facilities that are rented or are provided free of charge to outside groups. In this case, obtaining copyright authorization is the responsibility of the outside group.

The factors to consider when determining whether music use requires permission include: Did the music use occur during school hours? Will the student be graded on the activity involving the music use? Does the music use involve a demonstration by a student or teacher for other students, teachers, assessors, or parents? Is it reasonable to consider the music use to be for educational purposes? The phrase educational purposes is not defined in the Copyright Act but can be described as an activity that is planned and where the objective is for students to meet one or more subject or program outcomes. Was the music used on school premises? If admission was controlled, was it free? Was the music use for a non-profit purpose?

If the answer to the majority of these questions is yes, then the performance of the music is most likely permitted by the Copyright Act.

Copyright Matters!

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13. Can students and teachers

use copyright-protected works to create new works?
The Copyright Act contains a users right permitting anyone, not just students and teachers, to use copyright-protected works to create new works. This users right is referred to in the Copyright Act as non-commercial user-generated content. This users right can be found in section 29.21 of the Copyright Act as amended by the Copyright Modernization Act. The following conditions apply to the creation of non-commercial user-generated content: 1. It can only be used for non-commercial purposes. 2. The original source must be mentioned, if it is reasonable to do so. 3. The original work used to generate the content must have been acquired legally. 4. The resulting user-generated content does not have a substantial adverse effect on the market for the original work. This users right permits students to use copyright-protected works to create videos, DVDs, or mash-ups, as long as the conditions above are all met. The users right permits user-generated content created under provision of the Copyright Act to be disseminated. Dissemination includes uses such as posting a video to YouTube or a Web site.

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14. Can teachers copy news

and news-commentary programs from radio or television?

Yes. An educational institution or a person acting under its authority may make a single copy of a news or news-commentary program (excluding documentaries) and show that copy before an audience consisting primarily of students of the educational institution on its premises for educational and training purposes. The copy can be made only at the time the program is aired by the broadcaster or communicated over the Internet.

15. Can teachers copy radio

and television programs that are not news or news commentary?

Yes. A person acting under the authority of a non-profit educational institution may make a single copy of other types of broadcast programs (i.e., those that are not news or news-commentary programs). The copy can be made only at the time the program is aired by the broadcaster or communicated over the Internet. A teacher may examine the copy for up to 30 days to determine whether the copy will be used on the premises of an educational institution for educational purposes. If the copy is shown on school premises at any time (including within the 30-day evaluation period), or if it is not erased after 30 days, a royalty payment must be made. The educational institution is required to provide information related to the making, erasing, showing, and method of identification of the copy to the copyright owner or a collective representing the owner.

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A copy may be viewed only by an audience consisting primarily of students of the educational institution and is subject to terms and conditions relating to the use of the copy and to payment, whether or not it is ever used. The Educational Rights Collective of Canada (ERCC) is the collective that collects copyright royalties for off-air recordings: http://www.ercc.ca. In 2002, the Copyright Board of Canada set the ERCC tariff for the copying of radio and television programs. The rates are unchanged as of the date of publication. Educational institutions can choose between a transactional (pay-per-use) and a comprehensive royalty payment for the right to copy and play a radio or television program in the classroom. Transactional payment: Elementary and secondary schools pay $0.13 per minute for a radio program and $1.60 per minute for a television program. Postsecondary institutions pay $0.17 per minute for a radio program and $2.00 per minute for a television program. Comprehensive payment: Elementary and secondary schools pay an annual fee based on the number of full-time equivalent (FTE) students in their institution. Elementary and secondary schools pay $1.73 annually per FTE, and postsecondary institutions $1.89 per FTE.

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16. Can teachers show an

audiovisual work (such as a DVD or video) on school premises without infringing copyright?

The Copyright Act permits showing an audiovisual work such as a DVD or video as long as the work is not an infringing copy or the person responsible for the showing has no reasonable grounds to believe it is an infringing copy. Teachers can show audiovisual works purchased or rented from a retail store, a copy borrowed from the library, a copy borrowed from a friend, and a YouTube video. Showing movies from subscription services in the classroom is governed by the terms of the agreement between the subscriber and the subscription service. If the agreement provides that use is limited to personal or household use, for example, then classroom use is not permitted under the agreement.

17. Can teachers copy an

audiovisual work at home and show it in the classroom?

No. Teachers cannot copy an audiovisual work at home and then show it in the classroom. Teachers can, however, show a legally obtained copy in the classroom. A legally obtained copy includes a copy purchased or rented from a retail store, a copy borrowed from the library, a copy borrowed from a friend, and a YouTube video.

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18. Can lessons be streamed live

to students or recorded and made available on-line for students at a time of their choosing?

Yes. Educational institutions can transmit lessons to students in real time over the Internet or make a recording of a lesson available on-line. For example, a student in one school is able to access an on-line course containing copyright-protected material offered in a different school. The student is permitted to make a copy of the lesson and keep the copy until 30 days after the final evaluation (final report card) is received. Both the student and the educational institution are required to destroy any recording of copyright-protected material contained in an on-line lesson within 30 days after the students who are enrolled in the course receive their final evaluations.

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19. Can teachers copy computer

software for educational use?
Owners of legal copies of computer programs may make a single reproduction of these programs in only two situations: 1. An owner of a legitimate copy of a computer program may make one backup copy of that program. The person must be able to prove that the backup copy is erased as soon as he or she ceases to be the owner of the copy of the computer program from which the backup was made. 2. An owner of a legitimate copy of a computer program may also make a single copy of that program by adapting, modifying, or converting the computer program or translating it into another computer language, provided that: (i) the reproduction is essential for the of the program with a particular computer; compatibility

(ii) the reproduction is solely for the persons own use; and

(iii) the copy is erased when the person ceases to be the owner of the copy of the program from which the copy was made.

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20. Can teachers and students

copy from the Internet?
Yes. Educational institutions, teachers, and students may save, download, and share publicly available Internet materials, as well as use that material in the classroom and communicate it to students or others within their education circle. Publicly available materials are those posted on-line by content creators and copyright owners without any technological protection measures, such as a password, encryption system, or similar technology intended to limit access or distribution, and without a clearly visible notice prohibiting educational use. Routine classroom uses may be made of publicly available Internet materials, such as incorporating on-line text or images into homework assignments, performing music or plays on-line for peers, exchanging materials with teachers or peers, or reposting a work on a restricted-access course Web site. To encourage copyright awareness and respect in all circumstances, students and educators are required to cite the source of the Internet materials they use.

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21. Can teachers and students

break digital locks to use copyright-protected materials they have the legal right to use?

No. A digital lock is a technological protection measure (such as encryption or a password) that restricts the ability of users of digital content from sharing or copying the content. The Copyright Act prohibits breaking a digital lock even for educational uses that are otherwise permitted by the Copyright Act. For example, the encryption on most commercial DVDs, or the serial-key validation required by many software programs, protects these DVDs and software programs from unauthorized use. These protections cannot be broken even if the purpose of the use is otherwise allowed.

22. Are student-created

works protected by copyright?

Yes. Any original work created by a student be it in the form of an essay, a video or DVD, a sound recording, Web site, or art work is protected. The student or if the student is a minor, the students parent or legal guardian must authorize the further use of a students work, such as its use in a school publication, a teaching workshop, a student exemplar, or in a Web posting.

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23. Where can I get more

information on copyright?

Copyright can be, and often is, very complicated. This booklet provides the basics to point you in the right direction toward increasing your own copyright awareness. Exploring additional resources to obtain more in-depth information on the topics that are covered in this booklet will increase your knowledge. Awareness of copyright is important because you are educating the copyright owners and users of tomorrow. More detailed information is available from the following sources:

WEB SITES
http://www.cmec.ca/139/Programs-and-Initiatives/Copyright/ Overview/index.html The Council of Ministers of Education, Canada (CMEC) site contains an electronic version of Copyright Matters! and information about CMECs copyright activities. http://cdnsba.org/resources/canadian-copyright-reform The Canadian School Boards Association http://www.ctf-fce.ca/ The Canadian Teachers Federation http://www.pch.gc.ca/progs/ac-ca/progs/pda-cpb/index_e.cfm The Department of Canadian Heritage site on copyright issues and developments

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http://www.2learn.ca/ydp/copyrightabout.aspx A useful site on obtaining copyright permissions, written from a teachers perspective http://laws-lois.justice.gc.ca/eng/acts/C-42/index.html Canadas Copyright Act http://www.ic.gc.ca/eic/site/cipointernet-internetopic.nsf/eng/ wr02393.html A guide to copyright basics from the Canadian Intellectual Property Office http://www.ted.com/ Thousands of free video lectures on a wide variety of subject matter that are usable by teachers in the classroom http://www.cla.ca/AM/Template.cfm?Section=Copyright_ Information&Template=/CM/HTMLDisplay.cfm&ContentID=12584 Copyright tools for librarians and educators from the Canadian Library Association http://www.collectionscanada.gc.ca/education/008-1020-e.html A guide to citing copyright materials, tools for detecting plagiarism, and other copyright-related links for educators from Library and Archives Canada http://www.tdsb.on.ca/_site/ViewItem.asp?siteid=41&menuid=16 688&pageid=14761 Copyright resource links and links to freely available materials from the Toronto District School Board http://www.canadianteachermagazine.com/free_resources. shtml Links to freely available educational resources from Canadian Teacher Magazine

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PRINT RESOURCES
Dryden, J. (2001). Demystifying Copyright: A Researchers Guide to Copyright in Canadian Libraries and Archives. Ottawa: Canadian Library Association. ISBN: 0-0-88802-298-0, $21.00. Harris, E.L. (2012). Canadian Copyright Law, Fourth Edition. Wiley. ISBN-13: 978-1118078518, $39.95. Murray, L.J. & Trosow, S.E. (2007). Canadian Copyright: A Citizens Guide. Toronto: Between the Lines. ISBN-13: 9781897071304, $24.95.

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