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Copyright Board rules that photocopied excerpts of textbooks for use in K-12 classrooms constitute fair dealing

As expected after the Supreme Court of Canada (the “SCC”) determined that an earlier Copyright Board decision was unreasonable, the Copyright Board held that photocopied excerpts of textbooks for use in elementary and high school classrooms did not require an Access Copyright licence.  The Board concluded that the Supreme Court was “clear and leaves no room for interpretation…Category 4 copies constitute fair dealing for an allowable purpose, and as such, are non-compensable.” (Category 4 dealt with photocopies of short excerpts from textbooks made by teachers and distributed to students as a complement to the main textbooks used by the students.)  

Given these developments, some commentators now question the utility of Access Copyright licences for two reasons.   First, royalties have been paid on the vast majority of photocopies without a licence from Access Copyright.   Second, the Supreme Court’s approach to fair dealing that exempts certain photocopies from licensing requirements may be applied to all copies, not only those considered before the SCC.  

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