1. Ontario Federation of Public Libraries: Copyright Update May 28, 2014
Wanda Noel
Barrister & Solicitor
5496 Whitewood Avenue
Ottawa, ON
K4M 1C7

2. Recent Copyright Activities
Most of the recent copyright activities centre on the interpretation of fair dealing.
Review activities of:
Education sector
Access Copyright
Association of Canadian Publishers (ACP)
Canadian Educational Resources Council (CERC)
Canadian Copyright Institute (CCI)
The Writers’ Union of Canada (TWUC)

3. Education Sector
The education community is engaged in a defense of its interpretation of the fair dealing provision and what it means in the classroom.
In the York University lawsuit, the post-secondary sector is defending the copying of articles for use in course packs.
At the Copyright Board tariff hearings, the K to 12 sector is defending its interpretation of “short excerpts” at a hearing that ended on May 9, 2014.
The post-secondary tariff hearing was postponed (maybe permanently) by the Copyright Board itself in January of this year.

4. Access Copyright
Access Copyright initiated legal proceedings against York University, criticizing the education sectors’ interpretation of fair dealing.
Access Copyright participated in a K-12 tariff proceeding hearing at the Copyright Board of Canada this month where it argued against the Fair Dealing Guidelines adopted by K to 12 schools.
For background on Access Copyright’s current focus, here is a link to its Fall 2013 statement to members:
30_member_update_sept_2013_final.pdf  
Access Copyright issued a press release describing its strategy: “Canada's writers and publishers take a stand against damaging interpretations of fair dealing by the education sector”
08_ac_statement.pdf

5. Association of Canadian Publishers (ACP)
The ACP released a December 2013 “Statement of Principles on Fair Dealing in Education.” HigherEd-Statement-FairDealing-December pdf.
University of Toronto and Western University cancelled their licences with Access Copyright in December 2013.
Here is a link to the ACP news releases containing commentary about non-renewal of licences: Statement-AC-licences.pdf

6. Canadian Educational Resources Council (CERC)
CERC represents education publishers that represent 80% of the market in K-12 educational materials sold in Canada.
CERC has expressed concern that educators’ interpretation of fair dealing is not compatible with the sustainability of education publishing in Canada.
CERC believes that the educators’ interpretation of fair dealing will result in more copying in schools than before.
There have been direct overtures from CERC to meet with CMEC to reach a consensus on the interpretation of fair dealing provision.

7. Canadian Copyright Institute (CCI)
CCI is an umbrella group of Access Copyright, Canadian publishers, newspapers, writers, and copyright owners.
CCI issued an opinion paper in Fall 2013, “A Fair and Better Way Forward”, in which it criticizes educators’ interpretation of fair dealing.
Here is a link to the CCI opinion paper:
content/uploads/2014/03/A-FAIR-AND-BETTER-WAY- FORWARD.pdf
CCI sent this document to MPs and government officials.
The CCI is calling for a national dialogue with the education community to arrive at a consensus on fair dealing.
A press release issued in December 2013 called for formal talks to begin early 2014.

8. The Writers’ Union of Canada (TWUC)
TWUC has been vocal in its opposition to educators’ interpretation of fair dealing.
TWUC contends that a copyright license is still required by educational institutions because the Supreme Court did not define the amounts of copyright that are fair.
The TWUC policy position is found here:
Further commentary can be found here:
TWUC representatives have been on Parliament Hill to advance their argument with MPs.
TWUC provided results of an opinion piece poll: "Survey of Canadian Authors on Educational Copying:
of%20Canadian%20Authors%20on%20Educational%20Copying.pd f

9. Cross-Border Price Differential
Public libraries search for the best prices for books.
This can lead to unfavourable press when books are purchased from a foreign supplier because the price is lower. (e.g. Recent case involving the Nova Scotia Government)
It is possible that the federal government may legislate or regulate cross-border price differentials if/when Canadian consumers are being gouged.
Book purchases may be a part of this initiative.

10. E-lending
“Exhaustion” is the principle whereby a rightsholder loses the right to control further distribution of the copy of the work following the first sale of a physical object (such as a print book.)
After the first sale, the rightsholder cannot prevent actions such as lending and resale of the physical object.
The question which is increasingly being considered is whether there can be digital exhaustion which would give a purchaser of an eBook the same rights to lend and sell a copy in the same way as a physical book is treated.
As more e-books are purchased by libraries, the differing ways in which e-books are made available to libraries through licensing (the norm to date) or through sale will be important.
E-books purchases are currently restricted by burdensome contractual licence agreements and technological protection measures that prohibit library lending.