Supreme Court decision widely misunderstood
Last week, the Supreme Court of Canada issued five landmark decisions on copyright, including one that will have an impact on the learning materials available to children in schools. How much of an impact is a matter of debate. Rarely has a decision of the highest court been so eagerly misunderstood.
There are “copy-free” advocates, including some teachers’ unions, student associations, and even a university president, who regard the ruling as a means to save tens of millions of dollars for the Canadian school system, based on their interpretation that royalties no longer need to be paid in exchange for copying the hundreds of millions of pages of student texts that are used in K-12 classrooms every year.
This interpretation is inaccurate, for nowhere in its latest ruling does the Supreme Court say that copying for education is copying for free.
The case before the Supreme Court involved only a small proportion of what gets copied by teachers on behalf of students — that portion deemed to be for purposes of “research and private study.” In the aggregate, Canada’s primary and secondary schools photocopy more than 250 million copyright protected pages annually. The Supreme Court ruling covered less than 7% of this number.
Because the Supreme Court examination was restricted to this relatively small proportion of what was actually being copied, it found that such limited copying does not have an impact on the market for textbooks, and so meets one of the critical tests of fairness. Were the decision to be applied to all copying of texts, it would be hard to imagine education publishers having any market left at all.
Unfortunately even this narrower interpretation will have an impact on the market. Authors and publishers operate in an industry with slim margins where any drop in revenue hurts. Education publishers produce the Canadian-made learning resources that play an important role in supporting students and teachers achieve results that are among the highest in international rankings.
While Canadian-made textbooks are an essential resource, the market for them is small and fragmented, with each province developing its own curriculum. Entire textbooks must be designed to respond to the strict curriculum requirements of each jurisdiction but with no guarantee that these learning resources will be acquired for the students for whom they are intended. Thanks to copying, fewer and fewer textbooks have been purchased by schools in recent years. Royalties on copying help keep the industry sustainable.
Some education stakeholders that were not parties to the case have wasted no time in embracing the “copy-free” interpretation of the ruling. Canada’s university student unions were quick to assert, incorrectly, that universities no longer need licences to copy, and one president has said the ruling vindicates his institution’s decision not to pay royalties to Access Copyright, the Canadian agency that collects them on behalf of creators and publishers, remarking that “The court is saying that teachers, educators, have the right to copy for their students.” This is simply not the case.
What the Supreme Court has said is that when copying is for research and private study it is irrelevant whether teachers make copies or students do. And it has sent the entire matter of determining appropriate compensation for copying done for these purposes in K-12 schools back to the Copyright Board.
In the meantime, however, there will be confusion, market disruption, and possibly decades more of costly litigation, a process that may prove beneficial to lawyers, but will not improve the lot of Canadian students or help Canada’s education system maintain its level of international competitiveness.