COPYRIGHT BOARD OF CANADA

Access Copyright Elementary and Secondary School Tariff

(2010-2012, 2013-2015)

REPLY LEGAL ARGUMENTS

of the

OBJECTORS

In Response to the June 6, 2014 Notice of the Board

Wanda Noel Jordan Snel

5496 Whitewood Ave. Ottawa, ON K4M 1C7

Tel: 613-692-9232 Fax: 613-692-1735

wanda.noel@bell.net jordan.snel@bell.net

and

J. Aidan O’Neill

Ariel Thomas Fasken Martineau DuMoulin LLP

55 Metcalfe St., Suite 1300 Ottawa, ON K1P 6L5

Tel: 613-236-3882 Fax: 613-230-6423

aoneill@fasken.com athomas@fasken.com

Counsel to the Objectors

August 29, 2014

Fair Dealing

(i) Copying of short excerpts by a teacher and subsequent distribution to students is fair dealing for the purpose of research and private study

1. The Objectors agree with Access Copyright that the disputed copying behaviour placed before the Supreme Court in Alberta v. Access Copyright1 was the copying of 16.9 million pages of copyright-protected works.2 The Supreme Court’s decision, however, consists of general principles that are not limited to those 16.9 million pages‒even though counsel had stated that the issue was limited. This suggests that the Supreme Court was aware that its decision would have a broad effect. The Court found that, in general, the copying of short excerpts by a teacher, and subsequent distribution to all the students in the class with instructions to read the excerpts, is fair dealing for the purpose of research and private study. In this proceeding, the Board needs to determine the meaning of “short excerpt”.

(ii) In 2009, the Copyright Board found that teachers copy “short excerpts”

2. The evidence that formed the basis of the Board's 2009 decision is the same 2006 Study relied on in this proceeding. In reviewing the 2006 Study data, the Board in its 2009 decision concluded that “… teachers generally limit themselves to reproducing relatively short excerpts from a work to complement the main textbook.”3 Thus, the copies reported in the 2006 Study‒not only the 16.9 million that were in dispute before the Supreme Court‒are generally of short excerpts.

(iii) The Fair Dealing Guidelines are “qualitative” as well as “quantitative”

3. Access Copyright asserts that the Fair Dealing Guidelines “presumptively fix as ‘fair’ the copying of all or portion of a work provided the amount copied does not exceed an arbitrary percentage (10%) or other quantitative segment (e.g. a chapter or an article) of the work as published, without any qualitative assessment of the importance of the portion copied.”4

4. The Objectors strongly disagree. The Fair Dealing Guidelines include the following qualitative requirements, in addition to their quantitative limits:

1. copying must be by a teacher or a person under the authority of the educational

institution; 2. the copy must be made for a student; 3. the student must be enrolled in a class in the educational institution; 4. the educational institution must be non-profit ; 5. copying must be for one of the purposes enumerated in the Copyright Act; 6. when copying for the purpose of news reporting, criticism or review, the source

and, if given in the source, the name of the author or creator of the work must be mentioned;

7. each student may only receive a single copy; 8. copying cannot involve multiple short excerpts from the same copyright-protected

work in order to get around the quantitative limits in section 4; 9. the uses of fair dealing copies are specified: (1) a class handout, (2) a posting to a

course management system that is password-protected or otherwise restricted to students or (3) as part of a course pack;

10. schools must not make any profit from selling material copied under fair dealing; and

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11. teachers are to consult a supervisor if they have any questions or are uncertain about whether or not the Fair Dealing Guidelines apply.

(iv) The Fair Dealing Guidelines are the only practical and reasonable way to implement the 2012 changes to Canada’s copyright law

5. It is not possible for teachers to be, or become, experts in the application of fair dealing in the way that Access Copyright suggests. Access Copyright argues that teachers should apply the two-step test and the six fairness factors in CCH v. LSUC5 every time they copy. This is not practical or reasonable. Staff of the Great Library were provided with rules (the Access to the Law Policy) describing the copying that was permitted without any kind of individualized fair dealing analysis. The Supreme Court considered the Access to the Law Policy in CCH‒a significantly less detailed and cautious policy than the Fair Dealing Guidelines‒to be a safe harbour. Copying requests within the safe harbour were “satisfied as a matter of routine.”6 The Objectors’ Fair Dealing Guidelines use the same approach.

6. It is unreasonable to expect teachers, who are not versed in copyright law, to conduct a legal analysis of all the CCH factors, learn all of the relevant case law, and interpret the appropriate limits of a complex statutory right. Even lawyers have difficulty applying these tests and factors and do not always come to the same conclusions. The Objectors submit that a set of Fair Dealing Guidelines describing what is fair is the only practical and reasonable way to implement fair dealing in institutional settings, such as libraries and schools.

7. Access Copyright asserts that the Fair Dealing Guidelines encourage copying by teachers.7 The Objectors submit that the opposite is true. The K to 12 sector refers to copying within the Guidelines as “inside the safe harbour.” The Fair Dealing Guidelines do not encourage copying; they actually limit it. The approach suggested by Access Copyright would have the opposite effect‒it would create legal uncertainty and prevent users from exercising their fair dealing rights.

(v) A copy does not have to be “transformative” to be fair

8. Access Copyright argues that copying should be “transformative” in order to be fair.8 This supposed transformation requirement seems to originate in U.S. case law. It is correct that U.S. Supreme Court decisions in non-education contexts have emphasized the importance of the transformative nature of the use in assessing the purpose and character of the use. A requirement for the copying to be transformative in an education context, however, was expressly rejected by the U.S. Supreme Court in Campbell v. Acuff-Rose Music, Inc. 9 This decision was explicitly followed in 2012 in Georgia State University.10

9. The notion that copying must be "transformative" does not exist in Canadian jurisprudence or in the Copyright Act. This is a U.S. fair use criterion that Canadian courts have never accepted and which was indeed explicitly rejected by the Supreme Court of Canada in SOCAN v. Bell. In that case, SOCAN relied on U.S. jurisprudence to argue that musical previews as a marketing tool to sell ringtones was not “transformative.” The Supreme Court concluded that “transformativeness” is not a requirement for fair use in the U.S. or in Canada.11

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(vi) A copy does not have to be made “spontaneously” to be fair

10. Access Copyright strongly implies that copying must be "spontaneous" in order to be fair.12 This supposed “spontaneity” requirement likely originates in An Agreement on Guidelines for Classroom Copyright in Not-For-Profit Educational Institutions with respect to books and periodicals (the “Agreement”), which was negotiated by representatives of U.S. publishers, authors and educational institutions in 1976. The Agreement provides that copying under fair use must meet a “spontaneity” test.13

11. In Canada, there is no “spontaneity” requirement in legislation, case law or by agreement. Contrary to Access Copyright’s assertions, in Alberta, the copies at issue were not spontaneous at all‒there was no such categorization in the 2005-2006 Survey. The copies were required reading‒students were given instructions to read the materials copied. Assigning required reading to a student is not spontaneous, but planned. In CCH, the copying was also not spontaneous. Legal research was conducted and copies of selected materials were requested through an established procedure at the Great Library. Even in the U.S., the spontaneity requirement was also rejected in Georgia State University, in which the Court found the 1976 Agreement “very restrictive” and did not apply the spontaneity requirement.14 Georgia State University established new legal guidelines for the educational application of fair use that resemble the Fair Dealing Guidelines in significant ways.

(vii) There is no legal duty to police or enforce fair dealing

12. In paragraph 71 of its submissions, Access Copyright asserts that the Objectors' Fair Dealing Guidelines must ensure that the prescribed copying limits are followed, controlled, monitored and enforced. Access Copyright further submits that without such evidence, the Board is in no position to decide that the Guidelines are presumptively fair.

13. First, the Objectors submit that Access Copyright's position contradicts CCH on this point. The Supreme Court emphasized that the language of section 29 of the Copyright Act is general, and provides the opportunity to develop a general practice or system that is fair.15

14. Second, the Objectors acknowledge their responsibility to ensure that teachers obey and respect the law. Respect for the law‒any law‒is taken seriously in K to 12 schools and is a core value taught by teachers to students.

15. Third, the Fair Dealing Guidelines in section 6 provide a procedure to be followed in cases where the intended copying falls outside the “safe harbour” described in the Guidelines. In practice, the procedure in section 6 will not be used frequently because teachers "generally copy short excerpts" which is permitted under the Guidelines without further inquiry by the teacher. The Ontario Policy and Program Memorandum is an example of how section 6 of the Fair Dealing Guidelines has been implemented in Ontario.16

16. Fourth, teachers are employees of school boards. If a teacher does not follow the rules and policies, she is subject to established disciplinary processes.17

17. Fifth, in support of its conclusion, Access Copyright refers to the "strict procedure that controlled the nature and extent of the copying behavior" in the Great Library in CCH.18

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This "strict procedure" is footnoted to paragraph 3 of the Federal Court decision in CCH19 which simply states that: "The Law Society asserts that its guidelines are now strictly enforced." This is a slim reed upon which to conclude that the Board is "in no position" to decide that the Objectors' Fair Dealing Guidelines are fair.

(viii) Changes in a vast education system do not happen overnight

18. Access Copyright asserts that the Objectors’ past behaviour demonstrates that the Fair Dealing Guidelines will not be followed.20 The second version of Copyright Matters! prohibited copying of sheet music and consumables, but teachers did copy both genres according to the 2006 Survey data. Access Copyright uses this past behaviour to support its assertion that the only reasonable inference for the Board to draw is that none of the Objectors’ practices, systems or policies can ever be presumptively fair.

19. The 2006 Survey was conducted during a time when the Objectors were operating under the terms of Access Copyright's 1999 to 2004 licence. It is correct that, during that time, limited resources were dedicated to copyright compliance initiatives. There was no policing of compliance with the Access Copyright licence beyond the annual bibliographic sampling conducted by Access Copyright. Even so, there were no complaints from Access Copyright during that same time period about breaches of the copying limits in the licence based on the data collected by the annual bibliographic sampling.

20. This changed in December 2012 because of the changes to copyright law. Implementing changes in a large education system located in 12 provinces and territories, with approximately 400 school boards, 12,000 schools, and 256,000 teachers, takes time. In the two years since 2012, the Objectors have undertaken many copyright awareness initiatives to communicate the changes in the law.21 In 2012, a Consortium communications strategy was approved to inform teachers, schools, school boards and staff in ministries of education about the new law.

21. First, in the summer of 2012, information was circulated within Consortium education ministries and school boards relating the soon-to-be-proclaimed changes to the Copyright Act and the decision of the Supreme Court in Alberta. This information explained the implications the changes would have for teaching practices in the classroom.

22. Second, an updated version of Copyright Matters! was prepared and published to provide information about the changes to the law that impacted teachers, schools, school boards and staff in ministries of education. This included materials to support the implementation of the Fair Dealing Guidelines, as well as other new users’ rights for teachers and students.

23. Third, a communications initiative to distribute as widely as possible both Copyright Matters! and posters setting out the Fair Dealing Guidelines was undertaken between December, 2012 and March, 2013. These materials were distributed to schools, school boards, and ministries of education. Copyright Matters! and the poster were made available on-line for free download. More than enough copies of Copyright Matters! were printed for every teacher in the Consortium jurisdictions to have a paper copy. More than enough posters were printed to provide every school with sufficient copies for posting near every photocopier and printing station in the school. Every teacher was urged to obtain a copy of Copyright Matters! and visit the Consortium website for more information. New

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presentation and workshop materials were developed to explain the Fair Dealing Guidelines and the new educational users’ rights described in Copyright Matters!.

24. Fourth, in August, 2013, and continuing to the present, a teacher-focused outreach initiative designed to raise awareness of the changes to Canada’s copyright law and how these changes have impacted teachers’ classroom practices has been occurring. This initiative includes the webpage of copyright information resources promoted within the K to 12 education sector at http://www.cmec.ca/copyrightinfo, presentations and workshops conducted for educators, teacher unions and teachers, PowerPoint presentations, and template print materials.22

Insubstantial copying

(i) The Board should assess insubstantiality by using a quantitative limit instead of examining the qualitative importance of each excerpt

25. The right to make “insubstantial copies” is an important limit on copyright. As the dissenting panel of the Board found in Breakthrough Films & Television Inc., this limit on copyright should ensure that “[a] copyright owner ‘cannot control every particle of her work, any little piece the taking of which cannot affect the value of her work as a whole’.”23

26. Access Copyright’s misinterpretation of insubstantiality‒as a portion of a work that is “unimportant” or “de minimus”24‒ would destroy the practical existence of the right to copy insubstantial portions of works and thus ignore Parliament’s clear words in subsection 3(1) of the Copyright Act.

27. Access Copyright argues that because K to12 teachers value the ability to copy, and the portions copied are qualitatively useful in teaching, “the portions must be presumed to represent a key portion of the author’s skill and judgment […]” and as such “are not ‘unimportant’ or ‘de minimus’.”25 This is a new phrasing of the oft-repeated “misconception” that “the chosen excerpts must be important precisely because they are being used”. 26

The Board found in its Pointe-à-Callière decision that this misconception would cause “the principle according to which a non-substantial part of a work can be [copied] without the author’s blessing [to] lose all meaning”.27

28. Access Copyright argues that, in Satellite Radio, the Board determined “substantiality” by assessing the quality that was taken rather than the quantity.28 This does not take into account that the 4 to 10 second buffer copies of digital audio files, as a rolling buffer, covered each entire musical work.29 Further, the same user‒the satellite radio subscriber‒copies the entire musical work, in sequentially arranged copies, within a few minutes.30 Somewhere in that entire musical work, there would have been 4 to 10 seconds that were more important than other parts of the musical work, but the Board found that none of them were substantial. Ultimately, only 4 to 10 seconds were copied at any particular time, they were copied for one particular user, and retained for the amount of time that was necessary.

29. The quality of the copies made in Satellite Radio‒the fact that the buffer copies were “byte soup”‒ is irrelevant for two reasons.. First, a qualitative analysis of substantiality should examine the quality of the portion of the original work, and not the quality of the copy. The

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quality of the copy has nothing to do with how substantial the copied portion of the original work is. Second, the technical format in which the buffer copies were made is not relevant because those copies were fully readable by the satellite radio receiver.

30. The Objectors submit that insubstantiality should be assessed by using a quantitative limit instead of examining the qualitative importance of each excerpt. The Objectors do not dispute that a qualitative assessment is useful‒although it is more important in cases such as Cinar Corporation v. Robinson31 which involve non-literal copying. In this case, however, it would be so time-consuming for the parties and the Board to track down the original works and perform that analysis case-by-case that it would be effectively impossible. The Board must handle legal issues such as insubstantial copying in a way that is fair and equitable to rightsholders, to users, and to the public.

31. Access Copyright’s proposed solution to this problem is to simply deny the Objectors their right to make insubstantial copies. The Objectors’ proposed solution is a quantitative limit that is meant to represent a rough average. Within the 2005-2006 Survey data, there are likely to be instances where 1% of the work was copied but it was substantial, and instances where 10% of the work was copied but it was insubstantial. The Objectors’ quantitative limit is an attempt to take account of this in a fair and reasonable way.

Access Copyright’s Repertoire

(i) Access Copyright should not be permitted to claim that non-affiliated rightsholders “re-ratify” their agency relationship every year

32. Access Copyright argues that its repertoire for the purposes of the 2010-2012 and 2013-2015 tariffs includes published works owned by non-affiliated rightsholders who ratified agency relationships with Access Copyright when they cashed royalty cheques. Access Copyright justifies its claim by arguing that it continued to distribute royalties on the basis of the 2005-2006 Survey data during the years 2010 to 2012.

33. Access Copyright should not be permitted to claim that non-affiliated rightsholders have “re-ratified” their agency relationship every year, because doing so does not take account of those rightsholders’ conduct in not becoming affiliates despite having all the necessary information.32 This would permit Access Copyright to claim a larger repertoire than it actually has simply by distributing royalties to the same set of rightsholders from 2006 over and over again.33 The Board explicitly determined in its 2009 decision that the implied agency was “limited to only those copies that were captured in the study.”34

34. Access Copyright should also not be permitted to stretch rightsholders’ ratification indefinitely into the future. Ratification that retroactively creates an agency relationship must be done within a reasonable period of time35, yet the copying on which Access Copyright bases its claim was done eight years ago. “The mere lapse of time may often make [ratification] inequitable, particularly when ‘a modest degree of prejudice is magnified by delay.’”36 Every year in which Access Copyright claims to have received “re-ratification” for the same copying events from non-affiliated rightsholders magnifies the prejudice to the Objectors.

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(ii) Foreign RROs have the same proportion of affiliates as they do in their own countries

35. With regard to foreign rights owners, the Objectors agree that the principle of National Treatment requires them not to be treated differently under Canadian law than Canadian rights owners. The purpose of the Objectors' submission that foreign RROs have the same proportion of affiliates (in relation to all the rights owners whose works were copied) is an attempt to treat foreign rights owners equally.

36. The Objectors agree with Access Copyright’s submissions37 that all Australian rights owners may effectively be considered affiliates of Australia’s Copyright Agency because of the compulsory licence in that country's Copyright Act. The RROs of the United Kingdom and the United States, however, operate on substantially the same basis as Access Copyright in distributing royalties to non-affiliated rightsholders.

Procedural Issues Raised by Access Copyright

(i) Parties may challenge a collective's repertoire based on evidence tendered in other Board proceedings

37. Access Copyright asserts that the Board’s “previous substantive findings of fact and law are binding on the parties in these proceedings.”38 Access Copyright has advanced this claim in respect of the Objectors’ position on the scope of Access Copyright’s repertoire of non-affiliated rightsholders, as well as in respect of the Objectors’ reanalysis of the 2005-2006 Survey data. In essence, Access Copyright argues that both are findings of fact in the Board’s 2009 decision that cannot be challenged or reassessed in the absence of any evidentiary, legislative, or jurisprudential changes that have occurred since the 2007 hearing.

38. However, the Board did not hold in its 2009 decision that Access Copyright’s repertoire includes, by way of implied agency, works owned by non-affiliated rightsholders who have cashed royalty cheques from Access Copyright. Instead, the Board was very clear that, by cashing a royalty cheque, non-affiliated rightsholders “performed an act confirming” that Access Copyright had the “right to authorize reproduction of the rightsholder’s work for the sole purpose of the copy captured by the volume study.”39

39. Regarding the 2005-2006 Survey data, the Objectors retained Dr. Piotr Wilk of the University of Western Ontario to review the analysis conducted in the earlier K to 12 proceeding. Dr. Wilk identified various methodological weaknesses which he has brought to the Board’s attention. Access Copyright’s argument seems to be that, not only are the Objectors barred from raising these methodological weaknesses, but that the Board is itself prevented from considering Dr. Wilk's evidence at all.

40. If the Board were to do this, it would be fettering its own discretion to assess this new evidence and improperly closing its mind to Dr. Wilk’s analysis. As a legal matter, the Board cannot do this. Maple Lodge Farms Ltd. v Canada40 emphasizes the importance of administrative tribunals maintaining and exercising their discretion. As this current proceeding is separate and distinct from the 2007 hearing, the Board must consider all of the relevant evidence and arguments proffered by the parties on a completely de novo

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basis. Indeed, the Board found in its Private Copying 2008-2009 [Preliminary Motions] decision of July 19, 2007 that issue estoppel is “largely inapplicable” to Board proceedings:

Estoppel and abuse of process are largely inapplicable to Board proceedings. Tariffs settle matters only for the period during which they apply. Issues are regularly re-examined or re-litigated before us.41

41. The case law generated by the Board over the years contains examples of the Board reversing conclusions reached in earlier proceedings.42 It is entirely proper that the Board make each of its decisions on the basis of the evidence that is put before it in a particular proceeding and not be bound by its own prior findings of fact, as Access Copyright suggests.

(ii) Parties may rely on their own interrogatory responses

42. Access Copyright asserts that the Objectors are legally precluded from relying on the interrogatory responses provided by schools to Access Copyright and filed with the Board.43 These responses related to the copying behaviour of teachers in the 120 sampled schools. Essentially, Access Copyright argues that the rules of evidence bar a party from relying on its own interrogatory responses, unless supported by a witness whose credibility may be challenged by the other party.

43. This issue has also been previously addressed by the Board. In the Board’s Re:Sound Tariff 8 proceeding in 2012, Re:Sound applied to the Board for an order striking documentary evidence from an interrogatory response from the Board’s record on essentially the same basis as Access Copyright’s current argument.

44. In denying Re:Sound’s application on August 9, 2012, the Board made two rulings. First, that “the Board accepts documents without any witness support as a matter of course.”44 Second, that Re:Sound was free to test the evidence filed by the other party; it could file rebuttal evidence; and that, “[w]ith the Board’s permission, it can ask that a party be required to provide witnesses that can speak to the authenticity and reliability of the information.”45 The Board concluded by ruling that “whether the information contained in a document is sufficiently reliable for the Board to use” … “is one for the panel to decide, after considering the evidence.”46

45. The interrogatory responses in Exhibits Objectors‒11 to 17 were filed with the Board as part of the Objectors’ Statement of Case on March 19, 2014. Moreover, they were specifically referred to in paragraphs 38 and 39 of this Statement of Case. However, in Access Copyright’s Reply Case, which was filed on April 16, 2014, no objection or request for witnesses was made. Given the number of schools sampled to answer Access Copyright’s interrogatories, this would, in any case, have been impossible. Instead, Access Copyright waited until Dustin Chodorowicz’s testimony had concluded on May 8, 2014, to object to the Objectors’ reliance on these interrogatory responses.

46. The Objectors submit that these interrogatory responses provide relevant and valuable information that, like any other evidence submitted by a party, the Board must consider and weigh. Moreover, there is no reason to believe that the many more interrogatory responses that Access Copyright has introduced into the Board’s record are more reliable and credible

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simply because Access Copyright prefers these particular responses to those filed by the Objectors.

(iii) It is inappropriate to enter into a debate as to the relative objectivity of one expert witness over another in legal submissions

47. Access Copyright raises the issue of conflicts in the evidentiary record and argues that the evidence of Michael Dobner should be preferred over that of Dustin Chodorowicz.47 Access Copyright suggests that Mr. Chodorowicz’s “non-objective” and “partisan” evidence contravenes common law rules that require expert witnesses to provide unbiased opinion matters within their field of expertise.

48. It is entirely inappropriate, within the context of written legal submissions, to enter into a debate as to the relative objectivity of one expert witness over another. It is for the Board to decide in considering all of the evidence tendered by the two parties. The objectivity of expert witnesses, and the weight that should be given to their evidence, is best addressed by legal counsel in making their oral submissions to the Board.

Other Users’ Rights

49. Access Copyright argues48 that the Objectors have incorrectly applied three other users’ rights: subsection 29.4(1), display in class; subsection 29.4(2), reproduction for tests and examinations; and section 30.04, works available through the Internet.

50. In general, Access Copyright exaggerates the actual effect on the number of compensable exposures affected by projection in class and tests and exams by ignoring the fact that many users’ rights overlap in the analysis. The actual impact of each of these users’ rights on the Objectors’ analysis is more limited, since many of these transactions also fall under the Objectors’ criteria for fair dealing and other users’ rights.

51. Display in class: Access Copyright argues that the users’ right in section 29.4 of the Copyright Act does not apply to multiple copies. However, there is no such limitation found within section 29.4. This is entirely fabricated. Access Copyright has no evidence to contradict the copiers’ indication on the logging sticker that the purpose of the copying is for display in class. It is entirely reasonable that teachers may require multiple copies for display for organizational or backup purposes when teaching multiple classes the same material, or for modes of display that do not involve the use of a single projector.

52. Consumables used in tests and examinations: the Objectors disagree that consumables are necessarily in a medium appropriate for a test or exam. Some workbooks may include answers in the back or examples and guidance that make them inappropriate for testing purposes. Moreover, simply as a practical matter, many workbooks are likely too large or cumbersome, in a class of twenty or thirty students, for teachers to distribute and collect for grading. Workbooks are usually intended and designed for practice or homework purposes, not for tests or exams, and Access Copyright has introduced no evidence to support its view otherwise.

53. Works available on the Internet: Access Copyright disputes the categorization of five transactions as falling within the ambit of section 30.04 asserting that “[o]n the evidence,

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five of the transactions… were made available though [sic] the Internet without the authority of the copyright owner.” However, it is only required that users know or should know that the work was posted without permission in order for this users’ right to be inapplicable, not that users actually investigate or prove the work was posted with permission. Access Copyright has provided no evidence that teachers should have known these works were posted without permission, let alone any evidence that these works were actually posted without permission. Access’s sole submission on this point was its own incredulity that a National Geographic article could have been posted with permission on what appears to be an Armenian news website.49

The Objectors’ Supposed Burden of Proof

54. Access Copyright asserts that the Objectors bear the burden of proof in establishing fair dealing, and can only do so by proving that “all individual dealings with the works in Access Copyright’s repertoire are fair.”50 Access Copyright also claims that the Objectors should have tendered unspecified evidence of fairness in support of the various CCH factors, and argues that the Objectors carry this burden because these are “adversarial proceedings”.51

55. The mere fact that the Copyright Board’s proceedings are adversarial does not transform this hearing into civil litigation. This is a tariff proceeding, not an action for copyright infringement. Access Copyright has no right to an award of damages in this proceeding, and the Objectors have no legal need to “defend” themselves.

56. This, of course, inures very much to Access Copyright's benefit, as Access Copyright would bear the burden of proving each individual instance of infringement on a balance of probabilities in such a lawsuit. Despite this fact, Access Copyright has failed to prove any infringement at all in the tariff periods at issue, relying instead on a much earlier survey of photocopying to estimate current copying behaviour.

57. Copyright Board tariffs deal with copying in the abstract, not with individual instances of alleged infringement. Individual instances are, instead, simply a proxy to estimate current copying behaviour for the purpose of setting a tariff rate. This is why both Access Copyright and the Objectors must argue about the fair dealing factors, and other considerations, in general terms. Broad, quantitative rules need to be developed for this very reason.

58. This is why insubstantial copying, for example, can be measured quantitatively as a flat percentage, even if in an action for copyright infringement, qualitative factors would also be relevant. The percentage measure is not a determination of actual insubstantiality for each individual transaction, but rather, an estimate of the total amount of insubstantial copying in the overall volume of copying, now and in the future.

59. Even if, for the sake of argument, the Objectors do bear the burden of proving fair dealing, the Objectors submit that they have met this burden in the evidence adduced from educators and experts, and the legal arguments that they have submitted. The Supreme Court was explicit in CCH that fair dealing can be proved as "a practice or system" not just as "individual acts",52 a point which Access Copyright has repeatedly and deliberately ignored in its submissions. It is also clear that no amount or quality of evidence could ever meet the onerous burden of proof which Access Copyright has attempted to impose on the Objectors.

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*********************

ALL OF WHICH IS RESPECTFULLY SUBMITTED, this 29th day of August, 2014.

Wanda Noel Jordan Snel

5496 Whitewood Ave. Ottawa, ON K4M 1C7

Tel: 613-692-9232 Fax: 613-692-1735

wanda.noel@bell.net jordan.snel@bell.net

and

J. Aidan O’Neill Ariel Thomas

Fasken Martineau DuMoulin LLP 55 Metcalfe St., Suite 1300

Ottawa, ON K1P 6L5 Tel: 613-236-3882

Fax: 613-230-6423 aoneill@fasken.com

athomas@fasken.com

Counsel to the Objectors

ENDNOTES

1 Alberta (Education) v. Canadian Copyright Licensing Agency (Access Copyright), 2012 SCC 37, [2012] 2 S.C.R 345 (“Alberta”). 2 Access Copyright's legal arguments, August 8, 2014, at para. 59(a) (“Access Submissions”). 3 Copyright Board 2009 decision, at para. 104. 4 Access Submissions, at para. 107. 5 CCH Canadian Ltd. v. Law Society of Upper Canada, [2004] 1 S.C.R. 339, 2004 SCC 13 (“CCH”). 6 Section 4 of the Access to the Law Policy. 7 Access Submissions, at para. 152. 8 Access Submissions, at para. 95. 9Campbell v. Acuff-Rose Music, Inc., 510 US 569 (1994) at 579: “The obvious statutory exception to this focus on transformative uses is the straight reproduction of multiple copies for classroom distribution.” 10 Cambridge University Press; Oxford University Press, Inc., Sage Publications Inc., v. Mark P. Becker et al, online: http://www.tc.umn.edu/~nasims/GSU-opinion.pdf [“Georgia State University”], page 50: The plaintiffs in that case argued that the non-transformative nature of the excerpts, described as mirror images of parts of the books, meant that the purpose and the character of the use was not fair. The argument was rejected, citing Campbell with approval. 11 Society of Composers, Authors and Music Publishers of Canada v Bell Canada, 2012 SCC 36, at para 24. 12 Access Submissions, at para. 60. 13Reproduction of Copyrighted Works by Educators and Librarians, Agreement on Guidelines for Classroom Copying in Not-For-Profit Educational Institutions with respect to books and periodicals, page 6: the ‘spontaneity’ test is as follows: “i. The copying is at the instance and inspiration of the individual teacher, and ii. The inspiration and decision to use the work and the moment of its use for maximum teaching effectiveness are so close in time that it would be unreasonable to expect a timely reply to a request for permission.” http://www.copyright.gov/circs/circ21.pdf. 14 The Court also did not apply the 1976 Agreement’s requirements regarding 'brevity' or 'cumulative effect'. 15 CCH, at para. 63. 16 Ontario Policy and Program Memorandum Exhibit AC-4D at page 3 "Uses outside Permitted Provisions." 17 Jim Giles, Hearing Transcript Volume 6, at p. 1252. 18 Access Submissions, at para. 68.

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19 CCH, at para. 3. 20 Access Submissions, at para. 70. 21 Chris George Witness Statement Exhibit Objectors-3 at p. 4 and Exhibit Objectors-3B, Objectors-3C, Objectors-3D, Objectors-3E, Objectors-3F, and Objectors-3G. 22 An example of one of these PowerPoint presentations for teachers and school staff was filed with the Board as Exhibit Objectors-3D. 23 Licence Application by Breakthrough Films & Television for the Reproduction Through Off-Camera Narration of Book Extracts in a Television Program, Copyright Board of Canada dissenting reasons of Mr. Justice William J. Vancise and Mr. Stephen J. Callary, March 6, 2006 at 14 [Breakthrough Films]. 24 Access Submissions, at paras. 52-53. 25 Access Submissions, at paras. 52-53. 26 Breakthrough Films at para. 16. 27 Licence Application by Pointe-à-Callière, Montreal Museum of Archaeology and History for the Reproduction of Quotations, Copyright Board of Canada decision, March 29, 2004 at 3 [Pointe-à-Callière]. 28 Access Submissions, at para. 44. 29 See Copyright Board decision at para. 88; Federal Court of Appeal decision at para. 49. 30 Access Copyright might characterize this buffer as “compound copying” of the most extreme kind. 31 Cinar Corporation v. Robinson 2013 SCC 73. 32 Non-affiliated rightsholders, many of whom are publishing companies, were notified about Access Copyright and given materials explaining how to join with the first cheque; Exhibits AC-79 and AC-103. 33 The purpose of allowing ratification is to give effect to the parties’ real intentions: G.H.L. Fridman, Fridman’s Law of Agency, 6th Ed., Toronto: Butterworths, 1990 at p. 75; if rightsholders have not affiliated themselves with Access Copyright by now, despite having been repeatedly given the opportunity to do so, perhaps they have never intended to become affiliates. 34 2009 Decision, at para. 133. 35 Peter Watts & F.M.B. Reynolds, Bowstead & Reynolds on Agency, 19th Ed. (London: Thomson Reuters, 2010) [Bowstead] at 95. 36 Bowstead at 98, quoting Smith v. Henniker-Major & Co. [2002] EWCA Civ 762; [2003] Ch. 162 at [73].

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37 Access Submissions, at para. 17. 38 Access Submissions, at paras. 6 to 9 and 27 to 31. 39 2009 Decision at para. 134. 40 1982 SCJ No 57. 41 Private Copying 2008-2009 [Preliminary Motions] Decision at para. 53 (emphasis added). 42 For example, in the Board’s decision of June 19, 2009 on SOCAN Tariff 16, the Board adopted an approach in relation to multiple uses of SOCAN’s repertoire that it described as a reversal of its position from its earlier 1996 SOCAN Tariff 16 decision. Another example is the Board’s January 30, 1998 SOCAN Tariff 2 decision that introduced a modified blanket licence for commercial television broadcasters, a step it had expressly rejected in its earlier 1993 decision. 43 Access Submissions, at paras. 33 to 37 and Exhibits Objectors‒11 to 17. 44 Re:Sound Tariffs 8.A and 8.B, Ruling of the Board, August 9, 2012 at http://www.cb-cda.gc.ca/avis-notice/index-e.html#resound4-09082012. 45 Ibid. 46 Ibid. 47 Access Submissions, at paras. 38 to 43. 48 Access Submissions, at paras. 153-155. 49 Hearing Transcript, at pp. 1169 to 1172. 50 Access Submissions, at para. 65. 51 Access Submissions, at para. 88. 52 CCH at para. 63.