(Pursuant to Rule 37 of the Rules of the Supreme Court

Court File No.: 33888
IN THE SUPREME COURT OF CANADA
(ON APPEAL FROM THE FEDERAL COURT OF APPEAL)
BETWEEN:
THE PROVINCE OF ALBERTA AS REPRESENTED BY THE MINISTER OF
EDUCATION (AND OTHERS*)
Appellants (Appellants)
-and-
THE CANADIAN COPYRIGHT LICENSING AGENCY
Operating as "ACCESS COPYRIGHT"
Respondent (Respondent)
-and-
CANADIAN PUBLISHERS' COUNCIL, ASSOCIATION OF CANADIAN PUBLISHERS
AND CANADIAN EDUCATIONAL RESOURCES COUNCIL, CANADIAN
ASSOCIATION OF UNIVERSITY TEACHERS AND CANADIAN FEDERATION OF
STUDENTS, ASSOCIATION OF UNIVERSITIES AND COLLEGES OF CANADA,
ASSOCIATION OF CANADIAN COMMUNITY COLLEGES, CMRRA-SODRAC INC.,
SAMUELSON-GLUSHKO CANADIAN INTERNET POLICY AND PUBLIC INTEREST
CLINIC, CANADIAN AUTHORS ASSOCIATION, CANADIAN FREELANCE UNION,
CANADIAN SOCIETY OF CHILDREN'S AUTHORS, ILLUSTRATORS AND
PERFORMERS, LEAGUE OF CANADIAN POETS, LITERARY TRANSLATORS'
ASSOCIATION OF CANADA, PLAYWRIGHTS GUILD OF CANADA,
PROFESSIONAL WRITERS ASSOCIATION OF CANADA AND WRITERS UNION OF
CANADA AND THE CENTRE FOR INNOVATION LAW AND POLICY OF THE
FACULTY OF LAW UNIVERSITY OF TORONTO
Interveners
MEMORANDUM OF ARGUMENT OF THE INTERVENERS
THE CANADIAN PUBLISHERS' COUNCIL, THE ASSOCIATION OF CANADIAN
PUBLISHERS, AND THE CANADIAN EDUCATIONAL RESOURCES COUNCIL
(Pursuant to Rule 37 of the Rules of the Supreme Court of Canada)
McCarthy Tetrault LLP
Suite 5300
Toronto-Dominion Bank Tower
Toronto, ON M5K 1E6
Cavanagh Williams Conway Baxter LLP
Suite 401
1111 Prince ofWales Drive
Ottawa, ON K2C 3T2
Barry B. Sookman
Daniel G.C. Glover
Tel: (416) 601-7949
Fax: (416) 868-0673
E-mail: bsookman@mccarthy.ca
Colin S. Baxter
Tel: (613) 780-2011
Fax: (613) 569-8668
Solicitors for the Interveners Canadian
Publishers' Council, the Association of
Canadian Publishers, and the Canadian
Educational Resources Council
Ottawa Agent for the Interveners
ORIGINAL TO:
THE REGISTRAR
COPIES TO:
I Party
The Province of
Alberta as represented
by the Minister of
Education (and
others*), Appellants
I Counsel
I Agent
Fasken Martineau DuMoulin LLP
Suite 1300
55 Metcalfe Street
Ottawa, ON K1P 6LS
J. Aidan O'Neill
Ariel A. Thomas
Tel.: (613) 236-3882
Fax: (613) 230-6423
aoneill@fasken.com
Wanda M. Noel
5496 Whitewood Ave.
Ottawa, ON K4M 1C7
Tel.: (613) 794-1171
Fax: (613) 692-1735
wanda.noel@bell.net
The Canadian
Copyright Licensing
Agency Operating as
"Access Copyright",
Norton Rose OR LLP
Norton Rose OR LLP
Suite 2500
1 Place Ville Marie
Montreal, Quebec H3B 1R1
Suite 1500
45 O'Connor Street
Ottawa, Ontario K1P 1A4
Claude Brunet
Tel.: (51 4) 847-4539
Fax.: (514) 286-5474
claude.brunet@nortonrose.com
Sally A. Gomery
Tel.: (613) 780-8604
Fax.: (613) 230-5459
sally.gomery@nortonrose.com
Respondent
McCarthy Tetrault LLP
Toronto Dominion Bank Tower
66 Wellington Street, Suite 5300
Toronto, ON M5K 1E6
Neil Finkelstein
Tel.: (416) 601-7611
Fax: (416) 868-0673
nfinkelstein@mccarthy.ca
I Party
Canadian Association
of University Teachers
and Canadian
Federation of Students
Association of
Universities and
Colleges of Canada and
Association of
Canadian Community
Colleges
CMRRA-SODRAC Inc.
Samuelson-Glushko
Canadian Internet
Policy and Public
Interest Clinic
I Counsel
I Agent
Torys LLP
79 Wellington Street West
Suite 3000
Toronto, ON MSK 1N2
Osler, Hoskin & Harcourt LLP
340 Albert Street
Suite 1900
Ottawa, ON K1R 7Y6
Wendy Matheson
Andrew Bernstein
Tel.: (416) 865-8133
Fax.: (416) 865-7380
wmatheson@torys.com
Patricia J. Wilson
Tel.: (613) 787-1009
Fax.: (613) 235-2867
pwilson@osler.com
Osler, Hoskin & Harcourt LLP
340 Albert Street
Suite 1900
Ottawa, ON K1R 7Y6
Osler, Hoskin & Harcourt LLP
340 Albert Street
Suite 1900
Ottawa, ON K1R 7Y6
Marcus A. Klee
Glen A. Bloom
Tel.: (613) 787-1049
Fax.: (613) 235 -2867
mklee@osler.com
Patricia J. Wilson
Tel.: (613) 787-1009
Fax.: (613) 235-2867
pwilson@osler.com
Cassels Brock & Blackwell LLP
Scotia Plaza
Suite 2100,40 King Street West
Toronto, ON MSH 3C2
McMillan LLP
50 O'Connor Street
Suite 300
Ottawa, ON K1P 6L2
Casey M. Chisick
Timothy Pinos
Jason Beitchman
Tel.: (416) 869-5403
Fax.: (416) 644-9326
cchisick@casselsbrock.com
Eugene Meehan, Q.C.
Tel.: (613) 232-7171
Fax.: (613) 231-3191
eugene.meehan@mcmillan.ca
David Fewer
Universite d'Ottawa Centre for
Law, Technology and innovation
(CIPPIC)
57 Louis Pasteur St.
Ottawa, ON K1N 6NS
Tel.: (613) 562-5800 Ext: 2558
Fax.: (613) 562-5417
dfewer@uottawa.ca
I Party
Canadian Authors
Association, Canadian
Freelance Union,
Canadian Society of
Children's Authors,
Illustrators and
Performers, League of
Canadian Poets,
Literary Translators'
Association of Canada,
Playwrights Guild of
Canada, Professional
Writers Association of
Canada and Writers
Union of Canada
Centre for Innovation
Law and Policy of the
Faculty of Law
University of Toronto
I Counsel
I Agent
Hebb & Sheffer
1535A Queen Street West
Toronto, ON M6R 1A7
Michael J. Sobkin
90 blvd. de Lucerne, Unit #2
Gatineau, Quebec J9H 7K8
Marian Hebb
Warren Sheffer
Tel.: ( 416) 556-8187
Fax.: (866) 400-3215
mhebb@sympatico.ca
Tel.: (819) 778-7794
Fax.: (819) 778-17 40
msobkin@sympatico.ca
Macera & Jarzyna
427 Laurier Avenue West
Suite 1200
Ottawa, ON K1R 7Y2
Howard P. Knopf
Tel.: (613) 238-8173
Fax: (613) 235-2508
howard.knopf@macerajarzyna.com
*THE PROVINCE OF BRITISH COLUMBIA AS REPRESENTED
BY THE MINISTER OF EDUCATION;
THE PROVINCE OF MANITOBA AS REPRESENTED
BY THE MINISTER OF EDUCATION,
CITIZENSHIP AND YOUTH;
THE PROVINCE OF NEW BRUNSWICK AS REPRESENTED
BY THE MINISTER OF EDUCATION;
THE PROVINCE OF NEWFOUNDLAND AND LABRADOR
AS REPRESENTED BY THE MINISTER OF EDUCATION;
THE NORTHWEST TERRITORIES AS REPRESENTED
BY THE MINISTER OF EDUCATION,
CULTURE AND EMPLOYMENT;
THE PROVINCE OF NOV A SCOTIA AS REPRESENTED
BY THE MINISTER OF EDUCATION;
THE TERRITORY OF NUNAVUT AS REPRESENTED
BY THE MINISTER OF EDUCATION;
THE PROVINCE OF ONTARIO AS REPRESENTED
BY THE MINISTER OF EDUCATION;
THE PROVINCE OF PRINCE EDWARD ISLAND AS
REPRESENTED BY THE MINISTER OF EDUCATION;
THE PROVINCE OF SASKATCHEWAN AS REPRESENTED
BY THE MINISTER OF EDUCATION;
THE YUKON TERRITORY AS REPRESENTED
BY THE MINISTER OF EDUCATION;
THE AIRY AND SABINE DISTRICT SCHOOL AREA BOARD;
THE ALGOMA DISTRICT SCHOOL BOARD;
THE ALGONQUIN AND LAKESHORE CATHOLIC DISTRICT SCHOOL BOARD;
THE ASQUITH-GARVEY DISTRICT SCHOOL AREA BOARD;
THE ATIKOKAN ROMAN CATHOLIC SEPARATE SCHOOL BOARD;
THE AVON MAITLAND DISTRICT SCHOOL BOARD;
THE BLOORVIEW MACMILLAN SCHOOL AUTHORITY;
THE BLUEWATER DISTRICT SCHOOL BOARD;
THE BRANT HALDIMAND NORFOLK CATHOLIC DISTRICT SCHOOL BOARD;
THE BRUCE-GREY CATHOLIC DISTRICT SCHOOL BOARD;
THE CAMPBELL CHILDREN'S SCHOOL AUTHORITY;
THE CARAMAT DISTRICT SCHOOL AREA BOARD;
THE CATHOLIC DISTRICT SCHOOL BOARD OF EASTERN ONT ARlO;
THE COLLINS DISTRICT SCHOOL AREA BOARD;
THE CONNELL AND PONSFORD DISTRICT SCHOOL AREA BOARD;
THE CONSEIL DES ECOLES CATHOLIQUES DU CENTRE-EST DE L'ONTARIO;
THE CONSEIL DES ECOLES PUBLIQUES DE L'EST DE L'ONT ARlO;
THE CONSEIL DES ECOLES SEPAREES CATHOLIQUES DE DUBREUIL VILLE;
THE CONSEIL DES ECOLES SEPAREES CATHOLIQUES DE FOLEYET;
THE CONSEIL SCOLAIRE DE DISTRICT CATHOLIQUE CENTRE-SUD;
THE CONSEIL SCOLAIRE DE DISTRICT CATHOLIQUE DE L'EST ONTARIEN;
THE CONSEIL SCOLAIRE DE DISTRICT CATHOLIQUE DES AURORES BOREALES;
THE CONSEIL SCOLAIRE DE DISTRICT CATHOLIQUE DES GRANDES RIVlERES;
THE CONSEIL SCOLAIRE DE DISTRICT CATHOLIQUE DU NOUVEL-ONTARIO;
THE CONSEIL SCOLAIRE DE DISTRICT CATHOLIQUE FRANCO-NORD;
THE CONSEIL SCOLAIRE DE DISTRICT DES ECOLES CATHOLIQUES DE SUDOUEST;
THE CONSEIL SCOLAIRE DE DISTRICT DU CENTRE SUD-OUEST;
THE CONSEIL SCOLAIRE DE DISTRICT DU GRAND NORD DE L'ONTARIO;
THE CONSEIL SCOLAIRE DE DISTRICT DU NORD-EST DE L'ONTARIO;
THE DISTRICT SCHOOL BOARD OF NIAGARA;
THE DISTRICT SCHOOL BOARD ONT ARlO NORTH EAST;
THE DUFFERIN-PEEL CATHOLIC DISTRICT SCHOOL BOARD;
THE DURHAM CATHOLIC DISTRICT SCHOOL BOARD;
THE DURHAM DISTRICT SCHOOL BOARD;
THE FOLEYET DISTRICT SCHOOL AREA BOARD;
THE GOGAMA DISTRICT SCHOOL AREA BOARD;
THE GOGAMA ROMAN CATHOLIC SEPARATE SCHOOL BOARD;
THE GRAND ERIE DISTRICT SCHOOL BOARD;
THE GREATER ESSEX COUNTY DISTRICT SCHOOL BOARD;
THE HALTON CATHOLIC DISTRICT SCHOOL BOARD;
THE HALTON DISTRICT SCHOOL BOARD;
THE HAMILTON-WENTWORTH CATHOLIC DISTRICT SCHOOL BOARD;
THE HAMILTON-WENTWORTH DISTRICT SCHOOL BOARD;
THE HASTINGS & PRINCE EDWARD DISTRICT SCHOOL BOARD;
THE HORNEPAYNE ROMAN CATHOLIC SEPARATE SCHOOL BOARD;
THE HURON PERTH CATHOLIC DISTRICT SCHOOL BOARD;
THE HURON-SUPERIOR CATHOLIC DISTRICT SCHOOL BOARD;
THE JAMES BAY LOWLANDS SECONDARY SCHOOL BOARD;
THE KA W ARTHA PINE RIDGE DISTRICT SCHOOL BOARD;
THE KEEWATIN-PATRICIA DISTRICT SCHOOL BOARD;
THE KENORA CATHOLIC DISTRICT SCHOOL BOARD;
THE LAKEHEAD DISTRICT SCHOOL BOARD;
THE LAMBTON KENT DISTRICT SCHOOL BOARD;
THE LIMESTONE DISTRICT SCHOOL BOARD;
THE MISSARENDA DISTRICT SCHOOL AREA BOARD;
THE MOOSE FACTORY ISLAND DISTRICT SCHOOL AREA BOARD;
THE MOOSONEE DISTRICT SCHOOL AREA BOARD;
THE MOOSONEE ROMAN CATHOLIC SEPARATE SCHOOL BOARD;
THE MURCHISON AND LYELL DISTRICT SCHOOL AREA BOARD;
THE NAKINA DISTRICT SCHOOL AREA BOARD;
THE NEAR NORTH DISTRICT SCHOOL BOARD;
THE NIAGARA CATHOLIC DISTRICT SCHOOL BOARD;
THE NIAGARA PENINSULA CHILDREN'S CENTRE SCHOOL AUTHORITY;
THE NIPISSING-P ARRY SOUND CATHOLIC DISTRICT SCHOOL BOARD;
THE NORTHEASTERN CATHOLIC DISTRICT SCHOOL BOARD;
THE NORTHERN DISTRICT SCHOOL AREA BOARD;
THE NORTHWEST CATHOLIC DISTRICT SCHOOL BOARD;
THE OTTAWA CHILDREN'S TREATMENT CENTRE SCHOOL AUTHORITY;
THE OTTAWA-CARLETON CATHOLIC DISTRICT SCHOOL BOARD;
THE OTTAWA-CARLETON DISTRICT SCHOOL BOARD;
THE PARRY SOUND ROMAN CATHOLIC SEPARATE SCHOOL BOARD;
THE PEEL DISTRICT SCHOOL BOARD;
THE PETERBOROUGH VICTORIA NORTHUMBERLAND AND CLARINGTON
CATHOLIC DISTRIC SCHOOL BOARD;
THE RAINBOW DISTRICT SCHOOL BOARD;
THE RAINY RIVER DISTRICT SCHOOL BOARD;
THE RED LAKE AREA COMBINED ROMAN CATHOLIC SEPARATE SCHOOL BOARD;
THE RENFREW COUNTY CATHOLIC DISTRICT SCHOOL BOARD;
THE RENFREW COUNTY DISTRICT SCHOOL BOARD;
THE SIMCOE COUNTY DISTRICT SCHOOL BOARD;
THE SIMCOE MUSKOKA CATHOLIC DISTRICT SCHOOL BOARD;
THE STCLAIR CATHOLIC DISTRICT SCHOOL BOARD;
THE SUDBURY CATHOLIC DISTRICT SCHOOL BOARD;
THE SUPERIOR NORTH CATHOLIC DISTRICT SCHOOL BOARD;
THE SUPERIOR-GREENSTONE DISTRICT SCHOOL BOARD;
THE THAMES VALLEY DISTRICT SCHOOL BOARD;
THE THUNDER BAY CATHOLIC DISTRICT SCHOOL BOARD;
THE TORONTO CATHOLIC DISTRICT SCHOOL BOARD;
THE TORONTO DISTRICT SCHOOL BOARD;
THE TRILLIUM LAKELANDS DISTRICT SCHOOL BOARD;
THE UPPER CANADA DISTRICT SCHOOL BOARD;
THE UPPER GRAND DISTRICT SCHOOL BOARD;
THE UPSALA DISTRICT SCHOOL AREA BOARD;
THE WATERLOO CATHOLIC DISTRICT SCHOOL BOARD;
THE WATERLOO REGION DISTRICT SCHOOL BOARD;
THE WELLINGTON CATHOLIC DISTRICT SCHOOL BOARD;
THE WINDSOR-ESSEX CATHOLIC DISTRICT SCHOOL BOARD;
THE YORK CATHOLIC DISTRICT SCHOOL BOARD;
and
THE YORK REGION DISTRICT SCHOOL BOARD
TABLE OF CONTENTS
pART I
-OVERVIEW .............................................................................................................. -
1-
pART II -QUESTION IN ISSUE ······························································································· - 1 -
pART III -STATEMENT OF ARGUMENT················································································- 2 A.
Fair Dealing and Education Have Always Been Distinct .............................. - 2B.
Only the Purpose of the Copier Is Relevant to Questions of Fair Dealing .. - 4C.
The Cumulative Effects of Copying Must Be Considered in Assessing the
Fairness of a Dealing............................................................................................................. - 7 The Ministers Overstate the Meaning of"User Rights" ............................... - 9D.
PARTIV -COSTS ................................................................................................................. -10PART v- ORDER SOUGHT ................................................................................................... -10PART VI -TABLE OF AUTHORITIES .................................................................................... - 11 PART VII- STATUTES RELIED ON ...................................................................................... -14PART VIII -PROVISIONS IN ISSUE ...................................................................................... - 15-
PART I -
1.
OVERVIEW
As this Court has recognized, the Copyright Act (the "Act") embodies dual goals. On the
one hand, it is intended to promote the encouragement and dissemination of works of the arts and
intellect. On the other, it is intended to guarantee a just reward for the creator.
2.
In this appeal, the Appellants seek to alter the copyright balance by expanding fair
dealing to permit mass uncompensated copying. They argue that the purpose of the copier, the
educational institution seeking to save money, is irrelevant in determining if a dealing is fair.
They invite this Court to disregard the cumulative economic effects of their copying on
publishers. They argue for a test that would not even permit courts to consider whether such
copying would undermine entire markets for educational works.
3.
If given effect to by this Court, these principles would radically rewrite copyright law and
its system of incentives. They would expand fair dealing to destroy any real expectation of
copyright in educational settings. They would weaken the ability of rights holders to license and
to be paid for their works. This would result in fewer investments by publishers in educational
materials to meet the diverse cultural needs of Canadians. In the long run, such a decision would
hurt publishers, school systems, students, and the public at large.
PART II -
4.
QUESTION IN ISSUE
The question before this Court is whether the Copyright Board (the "Board") reasonably
decided that the dealings of K-12 schools in respect of Category 4 copies were unfair. The
Interveners submit that the Board came to a reasonable conclusion on this issue after conducting
a detailed assessment of the facts in accordance with the CCH fairness factors. On the facts, it
was perfectly reasonable for the Board to make the factual finding that when teachers make
copies of works for distribution to students in class with instructions to read them, the purpose of
the dealing is classroom instruction and not private study. It was also reasonable for the Board to
look at the overall impact of the copying and to make the factual determination that it was unfair.
5.
The Appellants seek to circumvent the Board's factual findings by proposing new legal
presumptions. These presumptions are inconsistent with the Act, its legislative history, the CCH
decision, and international law, including Canada's international treaty obligations. In particular:
(a)
There is a clear and well-recognized distinction between copying for research, private
study, criticism or review purposes and copying for educational or teaching purposes.
(b)
Any assessment of the purpose of a dealing must be premised on the copier's objective
primary purpose, not the hypothetical purposes of other persons.
(c)
In assessing the fairness of a dealing, the cumulative impacts of the dealing need to be
examined. A dealing cannot be fair if the overall effect ofthe dealing would conflict with
a normal exploitation of a work such as where it enters into economic competition with it.
(d)
The concept of "user rights" is an important metaphor for understanding the importance
of the statutory fair dealing defence. However, these user interests do not trump exclusive
rights in determining the copyright balance.
PART III- STATEMENT OF ARGUMENT
A.
Fair Dealing and Education Have Always Been Distinct
6.
The modem approach to statutory interpretation requires terms "to be read in their entire
context and in their grammatical and ordinary sense harmoniously with the scheme of the Act,
the object of the Act, and the intention of Parliament". Legislative history and international treaty
commitments also guide interpretation. 1 A careful review shows that from the outset, Parliament
has distinguished between listed fair dealing purposes on the one hand such as research and
private study, and educational purposes on the other.
7.
Canada's fair dealing provisions have their source in the UK Copyright Act, 1911.
Section 2 of that Act categorized fair dealing and schools exceptions separately, the latter
imposing careful restrictions on copying for use in a school setting? Canada adopted both
exceptions verbatim in 1921. As in the 1911 UK Act, Parliament categorized the exceptions
separately. The schools exception was limited in nature, and remains so. 3
1
CCH Canadian Ltd. v. Law Society of Upper Canada ( "CCH''), [2004] I S.C.R. 339 at para. 9, Interveners'
Authorities ("lA"), Tab 9; Theberge v. Galerie d'Art du Petit Champlain inc., [2002] 2 S.C.R. 336 at para. 6 lA
25; Bishop v. Stevens ("Bishop ''), [1990] 2 S.C.R. 467 at 473 lA 3.
2
Copyright Act, 1911, s. 2 lA 50; MacGillivray, Copyright Act 1911 Annotated, at 34-35 lA 33.
3
CCH Canadian Ltd. v. Law Society of Upper Canada, 2004 FCA 278 ("CCH FCA" ) at paras. 129,296 lA 10;
Copyright Act 1921, ss. 16(1)(i), (iv) lA 43. The "short passages" provision remains ins. 30 ofthe Act lA 42.
-2-
8.
In 1997, Parliament added new exceptions to address what copies may be made by an
"educational institution" on its "premises". These exceptions specify who can copy, where copies
may be made, and for what purposes. For example, s. 29.4 is an exception for "reproduction for
instruction". The only copies allowed are for overhead projection or handwritten display. The
only persons entitled to make them are "an educational institution or a person acting under its
authority". These single copies are only non-infringing when made "for the purposes of
education or training on the premises of an educational institution". 4
9.
The history and structure of the Act, therefore, demonstrate that Parliament did not intend
copying by an educational institution for the purpose of education or training to be confused with
copying for private study or research purposes. It intended only the latter to be a purpose that
could be a fair dealing. This Court has recognized that the rights separately enumerated ins. 3(1)
of the Act are "distinct. .. in theory and in practice". So too should separately enumerated
exceptions be interpreted to achieve independent purposes. 5
10.
The dichotomy between copying for the listed fair dealing purposes and copying for
educational purposes has long been recognized in case law and legislation throughout the
Commonwealth. Applying this distinction, courts have routinely rejected efforts by institutional
or commercial copiers to brand their copying as fair dealing for research or private study. 6
4
Copyright Act, ss. 2 ("educational institution", "premises"), 29.3, 29.4-29.9, 30.3-30.4, 32.2(3), 45(1) lA 42.
Bishop at 477 lA 3.
6
CCH FCA, paras. 129,296 lA 10; Sillitoe v McGraw-Hill Book Co Ltd, [1983] F.S.R. 545 at 558 lA 23; University
of London Press Ltd. v. University Tutorial Press Ltd., [1916] 2 Ch. 601 at 613-14 lA 27; Hager v. ECW Press Ltd.
(1999), 85 C.P.R. (3d) 289 at para. 53 lA 14; Haines v. Copyright Agency Ltd. , [1982] 64 FLR 184 at 191 (F.C.A.
App.) IA 15; Copyright Licensing Ltd v University ofAuckland, [2002] 3 NZLR 76 at paras. 15-16, 31, 36, 51-53 ,
60 (H. C.) lA 11; Longman Group Ltd v Carrington Technical Institute Board of Governors, [ 1991] 2 NZLR 574 at
586, 588-89 (H.C.) lA 18; United Kingdom, Copyright, Designs and Patents Act 1988, ss. 29-30, 32-36A lA 51 ;
Australia, Copyright Act 1968, ss. 10, 40-4 1,44, 83 lA 48; New Zealand, Copyright Act 1994, ss. 42-49 lA 49;
Boudreau v. Lin (1997), 75 C.P.R. (3d) 1 at 12 lA 6; Robie-Leger at 29.4 lA 37; Fox at23-10 and 23-11 lA 34.
5
-3-
11.
Last, it is worth noting that this Court has consistently exercised caution when asked to
insert into ambiguous language an exception already on Parliament's legislative agenda. 7
B.
Only the Purpose of the Copier Is Relevant to Questions of Fair Dealing
12.
The Appellants ask this Court to focus solely on the possible purposes of an individual
student rather than the purpose of the educational institution in assessing the fairness of a
dealing. But there is no basis in copyright to exclude from consideration the real purpose of the
copier and to thereby give the copier a defence where the copying is for someone else. 8
Accepting this proposition would vastly alter the copyright balance by permitting intermediaries
to reap economic benefits from acts of copying without having allowable purposes of their own.
13.
The structure of the Act shows that fair dealing is a defence to the defendant's own
dealings with a work, not a defence to a dealing for someone else. Where Parliament intended to
depart from this normal rule and create exceptions that would extend to copying for the purposes
of others, it did so expressly. 9
14.
In determining the purpose of a dealing at both the first 10 and second steps 11 ofthe fair
dealing analysis, the courts have always sought to make an objective assessment of the user's
real purpose or motive in using the copyright work. This focus has always been on the person
7
Bill C-60, s. 18 lA 44; Bill C-61, s. 18 lA 45; Bill C-32, ss. 21,23-27 lA 46; Bill C-11 , ss. 21,23-27 lA 47. Also
see Bishop at 483-84 lA 3, where this Court refused to read into the Act an ephemeral exception for broadcasters:
"Given the policy issues raised and the repeated consideration of the matter by Parliament and its legislative
adjuncts, it is my view that it would be inappropriate for this Court to interfere."
8
Copinger on Copyright at 565 lA 30; Tamaro, 2011 Copyright Act at 552-53 lA 39; Productions Avanti CineVideo inc. v. Favreau (1999), I C.P.R. (4th) 129 at 149-50 (Q.C.A.) lA 21.
9
CCH, para. 48 lA 9; Copyright Act, ss. 30.2(1), (2), (5) lA 42.
1
CCH at paras. 48, 54 lA 9; Ashdown v Telegraph Group Ltd, [2001] EWCA Civ 1142 at para. 61 (C.A.) lA 1; De
Garis v Neville Jeffress Pidler Pty Ltd (1990), 37 F.C.R. 99 at 105 (F.C. Austl.) lA 12; Hyde Park Residence Ltd v.
Yelland, [2000] EWCA Civ 37 at para. 21-22, 32 (Eng. C.A.) lA 17. The Board incorrectly stated in obiter at para.
88 that if a use has mixed purposes, and the predominant purpose is not an allowable purpose, the dealing should
nonetheless be considered an allowable purpose (Appellants' Record ("AR"), Tab 3). This approach is
inconsistent with CCH and could result in (a) a trace or ancillary presence of an allowable purpose curing a clearly
forbidden purpose, putting undue weight on the second stage, and (b) nullifying the threshold test and transforming
it into an open-ended, unstructured evaluation of fairness factors, resulting in considerable uncertainty for creators
and users alike.
11
CCH at para. 54 lA 9; Zamacois at 30 I lA 29; Favreau at I 49-50 lA 21 ; Hyde Park at para. 3 7 lA 17.
°
- 4-
who causes the copy to be made, not those of other persons who might eventually read it or use
it.
12
For example, in Longman, the High Court ofNew Zealand rejected an attempt to classify
reproductions by a tutor of copyrighted drawings and text for classroom instruction as being for
the purpose of private study of students. 13 In Auckland, the High Court of New Zealand rejected
the claim that a university's practice of copying materials into class sets for use by students was
a fair dealing for criticism or review. It held that, absent a specific request by a student, "the
obvious purpose of the copying is[ ... ] to provide students with source material for the course
being undertaken". 14 In Sillitoe, the UK High Court of Justice rejected the argument that the
publisher of Coles Notes could claim it was engaged in research or private study because the end
user readers might use them for such purposes. 15
15.
CCH did not depart from this well-accepted analytical framework. In CCH, this Court
applied an objective test to determine the primary purpose of the Great Library. On the facts, the
Great Library never acted until after legal researchers requested single copies of works "for
specific purposes, identified in advance". The Great Library had no independently identifiable
purpose. It made no copies at its own discretion. It did not "perform this task for its own
economic benefit". As this Court recognized, "[t]here is no other purpose for the copying". 16
16.
Applying the objective approach mandated in CCH, a completely different result is
dictated on the facts for the Category 4 works. The Appellants set the curriculum and select the
textbooks used for instructions. They exclusively decide what to copy. The only purpose at the
12
Sillitoe at 558, lA 23; London at 613-14 IA 27; De Garis at 105 lA 12.
Longman at 588 lA 18; also see Boudreau at 12, lA 6.
14
Auckland at paras. 34-36, 48-54, IA 11; Universities UK Ltd v Copyright Licensing Agency Ltd, [2002] E.M.L.R.
35 at paras. 31-35, 39 lA 26.
15
Sillitoe at 558, lA 23; Boudreau at 12, lA 6; London at 613 lA 27; Blackwell Publishing Inc. v. Excel Research
Group LLC, 92 USPQ2d 1743 at 1748 (E.D. Mich. 2009) lA 4.
16
CCH at paras. I, 61, 64 lA 9; CCH FCA at paras. 132, 143 lA 10 (explaining that, on the facts, "the Law Society
can vicariously claim an individual end user's fair dealing exemption, and to step into the shoes of its patron").
13
- 5-
time ofthe copying is that of the maker, the teacher/educational institution. At the time the
copies are made, the eventual student readers are unaware of their existence. The copies are also
substitutes for the texts which are available for purchase in the market. The Appellants seek to
copy them for free to achieve their other intended purpose, which is to reduce costs by
purchasing fewer books. Their copying is for their own economic benefit as they profit from the
exploitation of the copyright works by not paying the customary price for them. 17
17.
Accepting the test proposed by the Appellants that their purposes are the purposes of their
students would hollow out the intended closed categories of allowable purposes in the Act. It
would subject all unauthorized copying for others that might be for their research, private study,
criticism, review or news reporting purposes into an allowable purpose for the copier, greatly
expanding the scope of the fair dealing exception. It would require courts to ignore a copier's
actual purposes and pay regard only to the possible allowable purposes of another person. Thus
the fair dealing provision would shelter intermediaries who act on their own initiative and do not
themselves have an allowable purpose. In digital environments where works can easily be copied
and made available for mass distribution over internal or external networks like the Internet by
educational institutions, commercial entities and anyone else, this expansion of fair dealing
would severely curtail exclusive rights and make enforcement of copyright uncertain, expensive
and extremely difficult. 18
18.
In the educational sector, it would lead to extensive uncompensated copying over digital
networks, as institutions would claim practically all of their copying was for a listed exception
and was "fair". Moreover, if institutions could rely on their students' purposes to claim the
exception, then even if many student uses tum out not to be for a listed purpose, the institutions
17
Harper & Row v. Nation Enterprises, 471 U.S. 539, 562 (1985) lA 16; Testimony of Pilon and de 1a Cheneliere,
pp. 63, 79-80 AR 10; Testimony of Hammond, MacDonald, Lambert and Hatcher pp. 109-13, 130 AR II.
18
Sookman and Glover, "Why Canada Should Not Adopt Fair Use" (2009), 2 Osgoode Hall Rev.L.Pol'y 139 lA 38.
- 6-
would still claim a defense by arguing that their "practices or systems" were for those purposes
and were fair.
19
This would result in even more significant uncompensated copying even in
circumstances in which neither the student nor the institution engage in an allowable activity.
C.
The Cumulative Effects of Copying Must Be Considered in Assessing the Fairness of
a Dealing
19.
The Appellants seek to obscure the real impacts of their copying by proposing another
legal test that would turn copyright law upside down. Building upon their proposition that they
can rely on another' s purpose when they copy, they argue that each act of copying should be
separately assessed for the purpose of determining their liability. This test masks the economic
significance and overall aggregate impacts of their copying and risks putting publishers to death
by a million cuts.
20.
This approach has been consistently rejected by courts, which focus on the real impacts
of the copying on the work. In the U.S., courts examine not only the market harm caused by the
particular actions of the alleged infringer, but also whether the challenged use would adversely
impact the potential market if it became widespread. The courts recognize that "Isolated
instances of minor infringements, when multiplied many times, become in the aggregate a major
inroad on copyright that must be prevented." The courts have thus rejected fair use defences that
would have the effect of"supplanting the copyright holder's commercially valuable right." 20
19
The Board Decision at para. 84 rejected that educational institutions had a fair practice or system AR 3; CCH at
para. 63 lA 9.
2
°CCH at para. 68 lA 9; Boudreau at 12, lA 6; Breen v. Hancock House Publishers (1985), 6 C.P.R. (3d) 433 at
436-37 (F.C.T.D.) lA 7; Tamaro at 554-55 lA 39; Ashdown at para. 70 lA 1; Sillitoe at 564, lA 23; Harper & Row
at 562, 568-69 lA 16; Campbell v. A cuff-Rose Music, 510 U.S. 569 at 590-94 (1994) lA 8; Sony Corp. v Universal
City Studios 464 U.S. 417 at 451, 482 (1984) lA 24; Basic Books Inc. v. Kinko's Graphics Corp., 18 USPQ2d 1437
at 1443-44 (S.D.N.Y. 1991) lA 2; Mulcahy v. Cheetah Learning LLC, 72 USPQ2d 1814 at 1818 (8th Cir. 2004) lA
19; National Association of Boards of Pharmacy v. University of Georgia, 86 USPQ2d 1683 at 1703-4 (M.D.Ga.
2008) lA 20.
-7-
21.
In this case, the Appellants seek to undermine the "effect of the dealing on the work"
factor. They do so even though the Board found as a fact that the Appellants' copying was
"sufficiently important to compete with the original to an extent that makes the dealing unfair"
and a practice that "conflict[s] with the normal exploitation of the work or unreasonably
prejudice[s] the legitimate interests of rights holders". 21
22.
In the USA, the Supreme Court has called the effect on the market factor "undoubtedly
the single most important element of fair use". Fair use cannot apply to copying which materially
impairs the marketability of the work which is copied. 22 In the UK, "by far the most important
factor is whether the alleged fair dealing is in fact commercially competing with the proprietor's
exploitation of the copyright work, a substitute for the probable purchase of authorized copies,
and the like. If it is, the fair dealing defense will almost certainly fail". 23
23.
In Canada, all exceptions, including fair dealing, must meet Canada's obligations under
the Berne Convention and the Agreement on Trade-Related Aspects oflntellectual Property
Rights (TRIPs). This includes consistency with the "Three-Step Test". Accordingly, a dealing
cannot be fair ifthe "effect of the dealing on the work" rises to a level where it would "conflict
with a normal exploitation" of the work" or "unreasonably prejudice" the legitimate interests of
rights holders. A dealing rises to this level, inter alia, if it enters into economic competition with
the exercise ofthe right of reproduction by the rights owner.
24
Given the Board's clear findings,
it would have been correct to find the dealing unfair on this ground alone.
21
Board Decision, paras. 111, 113-114 AR 3; Testimony of Pilon and de Ia Cheneliere, AR 10-11, pp. 56, 58, 63,
67, 79-80; Testimony of Hammond, MacDonald, Lambert and Hatcher pp. 109-13, 130.
22
Harper & Row at 566-69 lA 16; Nimmer on Copyright, Vol. 4, §13 .05[A][4] lA 35.
23
Ashdown at para. 70 lA 1.
24
Theberge at para. 6 lA 25; Bishop at 473 lA 3; Taking Forward the Cowers Review at 9 lA 40; Berne
Convention, Art. 9(2) lA 52; TRIPs Agreement, Art. 13 lA 53; WIPO Guide at BC-9.21 to 9.29 lA 41; Ficsor at
284-87 lA 31; WTO Panel Report at para. 6.229 lA 28.
-8-
24.
In CCH, this Court stated that if"the reproduced work is likely to compete with the
market for the original work, this may suggest that the dealing is not fair". It also stated that the
"effect of the dealing on the work" is not the "most important" fair dealing factor. This may
apply where the overall economic impacts of the dealing are de minimis. But in a case like this,
where copying enters into economic competition with rights holders, the harm rises to a level
where it "conflicts with a normal exploitation" of the work and the dealing must be regarded as
unfair. To hold otherwise would place Canada at risk of violating the Three-Step Test. 25
D.
The Ministers Overstate the Meaning of "User Rights"
25.
The Appellants and other Interveners rely extensively on the concept of"users' rights" to
promote a view of fair dealing that would substantially curtail copyright holders' rights and
permit extensive copying on behalf of others. Their use of the term to justify this severe
curtailment of exclusive rights illustrates the dangers of treating the word "user rights" literally,
rather than as a metaphor to express the importance of user interests.
26.
Fair dealing falls within Part III of the Act under the heading "Exceptions". Exceptions
create no rights. Exceptions simply provide that if the relevant acts are a fair dealing, they will
not infringe copyright. In order "to maintain the proper balance in copyright between the rights
of a copyright owner and users' interests, it must not be interpreted restrictively". 26
27.
When considering the objects ofthe Act, this Court should not accept submissions that focus
solely on interpreting the fair dealing exceptions "liberally" to enable institutional users to avoid
obligations to pay for making copies of books and other works simply because it happens in an
25
The Court may wish to clarify its two comments about the effect of the dealing on the work factor. The Pro
Sieben case cited states only at 613 lA 22 that this factor "is a very important consideration, but not the only
consideration". To be consistent with the Three Step Test, a dealing must be unfair where it competes with the
original or would otherwise conflict with a normal exploitation of the work or unreasonably prejudice the legitimate
interests of rights holders. Board Decision, para. 113 AR 3, Ficsor at 91-92, lA 31; Ricketson at §13.11-13.25 lA
36; Daniel Gervais, "The Purpose of Copyright Law in Canada" (2005), 2 UOL TJ 315 at 322-23 IA 32.
26
CCH at para. 48 (emphasis added) lA 9.
-9-
educational setting. 27 Vastly extending fair dealing in this manner would unfairly force publishers to
subsidize the costs of education. 28 Copyright policy should not underestimate the importance of
exclusive rights because of the critical role they play in creating incentives to invest in and produce
new works, stimulate creative activity, and promote competition in the public interest. 29
28.
This is a critically important case to the long-term health of Canadian publishing and the
education system. It will be applied beyond the K-12 setting. This Court should ensure that the
short-term interests of certain users do not outweigh the long-term interests of society as a
whole. 30
PART IV 29.
The Interveners do not seek costs and ask that no costs be awarded against them.
PART V 30.
COSTS
ORDER SOUGHT
The Interveners respectfully request that this appeal be dismissed.
ALL OF WHICH IS RESPECTFULLY SUBMITTED THIS 21st DAY OF NOVEMBER, 2011
10862665
27
Auckland at para. 24 lA 11; Universities UK at para. 39 lA 26; Longman at 586 lA 18; Campbell at 584 lA 8
("the mere fact that a use is educational and not for profit does not insulate it from a finding of infringement").
28
Sony Corp. at 478 lA 24.
29
BMG Canada Inc. v. Doe, 2005 FCA 193 at para. 40 lA 5 ("Copyright law provides incentives for innovatorsartists, musicians, inventors, writers, performers and marketers- to create ... "); Eldred v. Ashcroft, 123 S.Ct. 769,
785n.l8 (2003) lA 13 ("individual effort by personal gain is the best way to advance public welfare through the
talents of authors and inventors").
30
Universities UK at paras. 39-40 lA 26 ("In declining to create a wide generalised defence for educational
establishments the legislature has struck a balance between the interests of copyright owners on the one hand, and
the interests of education and scholarship on the other. A healthy publishing industry is important in general, but of
particular importance to those in education. Wholesale exemption from the copyright laws for educational
establishments would be damaging to the publishing industry, and in consequence damaging to education.")
- 10-
PART VI- TABLE OF AUTHORITIES
No. Authority
Paras. Cited
1.
Ashdown v Telegraph Group Ltd, [2001] EWCA Civ 1142 (C.A.)
14,20,22
2.
Basic Books Inc. v. Kinko's Graphics Corp., 18 USPQ2d 1437 (S.D.N.Y.
1991)
20
3.
Bishop v. Stevens, [1990] 2 S.C.R. 467
6,9,11,23
4.
Blackwell Publishing Inc. v. Excel Research Group LLC, 92 USPQ2d 1743
(E.D. Mich. 2009)
14
5.
BMG Canada Inc. v. Doe, 2005 FCA 19
27
6.
Boudreau v. Lin (1997), 75 C.P.R. (3d) 1 (Ont. S.C.)
10, 14,20
7.
Breen v. Hancock House Publishers et al., (1985), 6 C.P.R. (3d) 433
(F.C.T.D.)
20
8.
Campbell v. Acuff-Rose Music, 510 U.S. 569 (1994)
20,27
9.
CCH Canadian Ltd. v. Law Society of Upper Canada, [2004] 1 S.C.R. 339
6, 13, 14, 15,
20,24,26
10.
CCH Canadian Ltd. v. Law Society of Upper Canada, 2004 FCA 278
7, 10, 15
11.
Copyright Licensing Ltd v University ofAuckland and Others, [2002] 3
NZLR 76 (H.C.)
10, 14,27
12.
De Garis v Neville Jeffress Fidler Pty Ltd (1990), 37 F.C.R. 99 (F.C.
Austl.)
14
13.
Eldred v. Ashcroft, 123 S.Ct. 769 (2003)
27
14.
Hager v. ECW Press Ltd. (1999), 85 C.P.R. (3d) 289 (F.C.)
10
15.
Haines v. Copyright Agency Ltd., [1982] 64 FLR 184 (F.C.A. App.)
10
16.
Harper & Row v. Nation Enterprises, 471 U.S. 539 (1985)
16,20,22
17.
Hyde Park Residence Ltd v. Yelland, [2000] EWCA Civ 37 (Eng. C.A.)
14
18.
Longman Group Ltd v Carrington Technical Institute Board of Governors,
[1991] 2 NZLR 574 (H.C.)
10, 14,27
19.
Mulcahy v. Cheetah Learning LLC, 72 USPQ2d 1814 (8th Cir. 2004)
20
20.
National Association of Boards of Pharmacy v. University of Georgia, 86
USPQ2d 1683 (M.D. Ga. 2008)
20
- 11 -
21.
Productions Avanti Cine-Video Inc. v. Favreau (1999), 1 C.P.R. (4th) 129
(Q.C.A.)
12
22.
Pro Sieben Media AG v Carlton UK Television Ltd, [1999] 1 W.L.R. 605
(C. A.)
24
23.
Sillitoe v McGraw-Hill Book Co Ltd, [1983] F.S.R. 545 (Ch.)
10,14, 20
24.
Sony Corp. v. Universal City Studios, 464 U.S. 417 (1984)
20,27
25.
Theberge v. Galerie d'Art du Petit Champlain inc., [2002] 2 S.C.R. 336
6,23
26.
Universities UK Ltd v Copyright Licensing Agency Ltd, [2002] E.M.L.R.
35 (Copyright Trib.)
14,27, 28
27.
University of London Press Ltd. v. University Tutorial Press Ltd., [1916] 2
Ch. 601 (Ch.D.)
10, 14
28.
World Trade Organization, Report of the Panel, United States- Section
110(5) ofthe US Copyright Act
23
29.
Zamacois v. Douville (1943), 2 C.P.R. 270 (Ex. Ct.)
14
30.
Garnett, Davies and Harbottle, Copinger and Skone-James on Copyright,
161h Ed. London: Sweet & Maxwell, 2011 at 565
12
31.
Mihaly Ficsor, The Law of Copyright and the Internet (Oxford: Oxford
University Press, 2002)
23,24
32.
Daniel Gervais, "The Purpose of Copyright Law in Canada" (2005), 2
UOLTJ 315
24
33 .
E.J. MacGillivray, The Copyright Act, 1911, Annotated (London: Stevens
and Sons, 1912)
7
34.
John McKeown, Fox on the Law of Copyright and Industrial Design
(Toronto: Carswell, looseleaf, 2011)
10
35 .
Melville and David Nimmer, Nimmer on Copyright (Newark: LexisNexis,
looseleaf, 2007)
22
36.
Sam Ricketson and Jane C. Ginsburg, International Copyright and
Neighbouring Rights. (Oxford: Oxford University Press, 2006)
24
37.
Robie-Leger, Canadian Copyright Act Annotated. (Toronto: Thomson
Carswell, looseleaf, 2011)
10
38.
Barry Sookman and Daniel Glover, "Why Canada Should Not Adopt Fair
Use" (2009), 2 Osgoode Hall Rev.L.Pol'y 139
17
39.
Normand Tamaro, 2011 Annotated Copyright Act (Toronto: Carswell,
12, 20
- 12-
2010)
40.
UK Intellectual Property Office, Taking Forward the Gowers Review of
Intellectual Property: Proposed Changes to Copyright Exceptions
(Newport: Concept House, 2008)
23
41.
World Intellectual Property Organization, Guide to the Copyright and
Related Rights Treaties Administered by WIPO. (Geneva: WIPO, 2003)
23
- 13-
PART VII- STATUTES RELIED ON
No.
Authority
Paras. Cited
42.
Canada, Copyright Act, c. C-42
7, 8, 9, 13
43.
Canada, Copyright Act, 1921 , 11-12 Geo. 5
7
44.
Canada, Bill C-60, An Act to amend the Copyright Act (first reading), 5354 Elizabeth II, 2004-2005
11
45.
Canada, Bill C-61 , An Act to amend the Copyright Act (first reading), 5657 Elizabeth II, 2007-2008
11
46.
Canada, Bill C-32, An Act to amend the Copyright Act (first reading), 59
Elizabeth II, 20 10
11
47.
Canada, Bill C-11, An Act to amend the Copyright Act (first reading), 60
Elizabeth II, 2011
11
48.
Australia, Copyright Act 1968, Act. No. 63 of 1968
10
49.
New Zealand, Copyright Act 1994, 1994 No. 143
10
50.
United Kingdom, Copyright Act, 1911, I & 2 Geo. 5. c. 46
7
51.
United Kingdom, Copyright, Designs and Patents Act 1988, ch. 48
10
52.
Berne Convention for the Protection of Literary and Artistic Works (Paris
Act, 1971)
23
53.
Agreement on Trade-Related Aspects of Intellectual Property Rights
(Annex 1C to the Agreement Establishing the World Trade Organization,
1994)
23
- 14-
PART VIII -
PROVISIONS IN ISSUE
HxCEM'Rl"''ll
EXCEf'T!ONS
Fair Deallng
Utilisation ~ab{t
29. fair dealing for the pnl'J>OSC of re$Carob
or private study does not infringe oopyrigbf.
19. L'utillsation equitable d'une a:uvre ou
de tour a\JUC llbj tt du drolt d'autear aux fins
d'etudc pri~ ou de recherche ne oon:sritue pas
une violation du droitd'aui(Ur.
R$., 198$. c:, C-4:1. J. l!r, R.S .• t<JHS., c. il) (41h SI.!Jlp.). 4c
1-. 1994,~ . 47,s. 61 ; 1997, .:. N, s. IS.
~llri .......
~-"'
t,..R ( 19il$), eh. C-f2, art. 29; l..ll (19'35), elL 10 (4•
.l*qlpl.}, m . 7; 1994, dt41. art. 61; 1997,
C.ritkiJmor
nmc.-
i9~ t Pair dealing for the purpose of criticism
or review does not infrin&c copyright lf Cbe followin.g arc· mentioned:
19.1 Vutilisatian equitable d'une reuvre ou
de rout autre Qbjet du droit. d'auleur aux. fins de
critique ou de rompl'e re:ndu ne COI:I$tituc pas
Wle violation du droit d'a.uteur i Ia e<m.dition
que' .soii!nt mcntioones:
(a) the source ~ and
(b) .if given in the source, the name ofthe
Cri6qoo"
.....pt• ....Jt.
a) d'u:nc pan, Ia source;
(i) author, in the case of a work,
b) d'iil:itre pan, sl ces
gunmt dans Ia source :
(ii) performer. in the ~See of a peafonuer's
performance,
renselgnemcmts fl-
(i) dl&lls le cas d'u.ne o:uwe, lc nom de
Panteur,
(iii) maker, in the case of a sound record-
ing, ·()!'
(iv) broadcaster. in the <:ase of a
m.Z4, Itt. IS.
(ll) dans te cu d'une prestatioo, lc nom
de T'artiste~interprece,
co:mmu~
nic:arion signal.
(IIi} dans lc cas d'un ~:nreglstrement
note, te nom du J)fQducteur,
1997, <., 24, s. lS.
(iv) dalls le c.as d'u.n siin!il de
so-
Qonntuini~
cati¢n, le nom du rllidiooi.ffuscm.
1997, dl. :!l.C, art. 18.
-~
29.2 L'uti:Hsation &fuitablc d'unc <ruvre ou
d.e tout a\JUC <lbjet du droit d'auteur pour 1a
!Xlmmunkation des nouvel.les ne conslitue ru
une violatkm du droit d'auteur i Ia condition
que soient mentionues: :
29..2 .Fatr deailng for the purpi»c ofncws reporting docs not infringe copyright if the foll~;>wing arc mentioned:
{a) ihe $0Ul'Ce; and
(b) If given in the
soL~tC>e.,
clie name U'fthe
a} d 'une part,la aouroc;
(i) author, in trul Cw:l ofa. work,
(ii) performer. in the case· of a performer's
b) d'aulte part, si ces renseignemmts flgurent dans Ia souue :
pe:rformanc:c,
(i) c41m le cas d'une a:uvre, lc oom de
l'autcDT,
(iii) maker, in the case of a sound record-
ing. or
(li) dans le cas d ' une prestation, le nom
(iv) l;m;JadCll$!~, in the case of a CQmm,_
nicati<ln signal.
de l'artlst~interprete,
(iii) dans lee (35 d"un enregistrement so-
nore, le nom du producteur,
!997,.:. 24 • •. 18.
(rv) dans 1e cas d'un signal d.e communicartion, le oom du mdiodiffuseur.
J997, dd,4, Alt. l&.
- 15 -
ca. •.-.....,u..
Court File No. 33888
IN THE SUPREME COURT OF CANADA
(ON APPEAL FROM THE FEDERAL COURT OF APPEAL)
BETWEEN
THE PROVINCE OF ALBERT A AS REPRESENTED BY THE MINISTER OF
EDUCATION (AND OTHERS*)
Appellants (Appellants)
-and-
THE CANADIAN COPYRIGHT LICENSING AGENCY
Operating as "ACCESS COPYRIGHT"
Respondent (Respondent)
-and-
CANADIAN PUBLISHERS' COUNCIL, ASSOCIATION OF CANADIAN
PUBLISHERS AND CANADIAN EDUCATIONAL RESOURCES COUNCIL
(AND OTHERS)
Interveners
MEMORANDUM OF ARGUMENT OF THE INTERVENERS
THE CANADIAN PUBLISHERS' COUNCIL, THE ASSOCIATION OF
CANADIAN PUBLISHERS, AND THE CANADIAN EDUCATIONAL
RESOURCES COUNCIL
(Pursuant to Rule 37ofthe Rules of the Supreme Court of Canada)
McCarthy Tetrault LLP
Box 48, Suite 5300
Toronto Dominion Bank Tower
Toronto, ON M5K IE6
Barry B. Sookman I Daniel G.C. Glover
Tel: (416)601-7949
Fax: (416) 868-0673
Solicitors for the Interveners
******************************
Cavanagh Williams Conway Baxter LLP
Barristers and Solicitors
401 -Ill Prince of Wales Drive
Ottawa, ON K2C 3T2
Colin S. Baxter
Tel: (613) 780-2012
Fax: (613) 569-8668
Email: cbaxter@cwcb-Iaw.com
Agent for the Appellants
#10862665