• Judicial Review of the Copyright Board's Decision Granted in Part
  • March 24, 2017 | Authors: Jillian Brenner; Adrian J. Howard; Beverley Moore; Chantal Saunders
  • Law Firm: Borden Ladner Gervais LLP - Ottawa Office
  • Canadian Copyright Licensing Agency (Access Copyright) v. British Columbia (Education), 2017 FCA 16

    The Canadian Copyright Licensing Agency, operating as Access Copyright, sought judicial review of a decision of the Copyright Board, certifying the royalty rates to be collected by Access for the reproduction of works in its repertoire by elementary and secondary educational institutions (K-12 schools) represented by twelve provincial and territorial ministries of education (outside of Québec) and all Ontario school boards (collectively the Consortium) during the 2010-2012 (First Tariff) and 2013-2015 (Second Tariff) tariff periods.

    The issues for review were grouped into two categories. First, with respect to what works should be included in Access' repertoire, Access contested the Board's decision to disregard any errors in coding made in the volume study in respect of who owned the copyright, as well as its decision to exclude from the volume of compensable exposures any copying of a book that included less than one or two pages per copying event on the basis that these events did not involve the reproduction of “a substantial part” of the work within the meaning of the Copyright Act (the "Act").

    On the latter part of the repertoire issue, the Court of appeal found that, in the particular circumstances of this case, and considering the mandate of the Board under the Act, it was not unreasonable for the Board to infer that the copying of one or two pages of a book did not constitute reproduction of a "substantial part of the work" within the meaning of section 3 of the Act. The Court cautioned that such an inference would rarely be within the range of acceptable outcomes when there is evidence produced about each work at issue and would normally constitute an overriding and palpable error in the context of civil litigation proceedings where infringement is at issue.

    On the first part of the repertoire issue, the Court of appeal found that the Board had failed to consider that 1) expert evidence had been filed to estimate the degree of the underestimation of Access' repertoire, 2) Access had chosen to correct the underestimation and 3) Access had explained in detail why it had not done so before. The Court of Appeal found that this constituted a reviewable error that justified reconsideration by the Board. The Court granted the application in part and referred the matter back to the Board for reconsideration of this issue.

    The second category of issues related to the deductions made to the total number of compensable exposures on the basis of fair dealing in respect of books, newspapers and periodicals, including the methodology used by the Board to quantify those deductions, which Access argued was procedurally unfair and fundamentally flawed. The Court concluded that there was not breach of procedural fairness in this matter, and that the Board's methodology was reasonable. Furthermore, the Court found no reviewable errors concerning specific issues raised in respect of the Board's assessment of four of the six CCH factors, namely, the amount of the dealing, the character of the dealing, the effect of the dealing and the alternatives available at the relevant time.