Court File No.

: 33888 IN THE SUPREME COURT OF CANADA (ON APPEAL FROM THE FEDERAL COURT OF APPEAL) BETWEEN: THE PROVINCE OF ALBERTA AS REPRESENTED BY THE MINISTER OF EDUCATION AND OTHERS* Appellants (Applicants) AND: THE CANADIAN COPYRIGHT LICENSING AGENCY Operating as ACCESS COPYRIGHT Respondent (Respondent) AND: CANADIAN PUBLISHERS COUNCIL, ASSOCIATION OF CANADIAN PUBLISHERS AND CANADIAN EDUCATIONAL RESOURCES COUNCIL, CANADIAN ASSOCIATION OF UNIVERSITY TEACHERS AND CANADIAN FEDERATION OF STUDENTS, ASSOCIATION OF UNIVERSITIES AND COLLEGES OF CANADA AND ASSOCIATION OF CANADIAN COMMUNITY COLLEGES, CMRRA-SODRAC INC., THE SAMUELSONGLUSHKO CANADIAN INTERNET POLICY AND PUBLIC INTEREST CLINIC, CANADIAN AUTHORS ASSOCIATION, CANADIAN FREELANCE UNION, CANADIAN SOCIETY OF CHILDRENS AUTHORS, ILLUSTRATORS AND PERFORMERS, LEAGUE OF CANADIAN POETS, LITERARY TRANSLATORS ASSOCIATION OF CANADA, PLAYWRIGHTS GUILD OF CANADA, PROFESSIONAL WRITERS ASSOCIATION OF CANADA, and THE WRITERS UNION OF CANADA, CENTRE FOR INNOVATION LAW AND POLICY OF THE FACULTY OF LAW OF UNIVERSITY OF TORONTO (Interveners) FACTUM ON APPEAL (CANADIAN AUTHORS ASSOCIATION ET AL., (the WRITERS COALITION) (PURSUANT TO RULE 42 OF THE RULES OF THE SUPREME COURT OF CANADA)

ii

Hebb & Sheffer (in association) Barristers & Solicitors 1535A Queen Street West Toronto, ON M6R 1A7 Marian Hebb LSUC#:17788D marian@hebbsheffer.ca Warren Sheffer LSUC#: 46093F warren@hebbsheffer.ca Tel: 416-556-8187 Fax: 866-400-3215 - and Stockwoods LLP Barristers Royal Trust Tower 77 King Street West Suite 4130, P.O. Box 140 Toronto-Dominion Centre Toronto, ON M5K 1H1 Brendan van Niejenhuis LSUC#: 46752J brendanvn@stockwoods.ca Tel: 416-593-7200 Fax: 416-593-9345 Solicitors for the Intervener, Canadian Authors Association et al. ORIGINAL TO: The Registrar COPIES TO: Neil Finkelstein McCarthy Ttrault LLP P.O. Box 48, Suite 4700, T-D Bank Tower Toronto-Dominion Centre Toronto, Ontario M5K 1E6 Telephone: (416) 601-7611 Fax: (416) 868-0673 Solicitors for the Respondent, Access Copyright

Michael J. Sobkin Barrister & Solicitor 90 Boulevard de Lucerne Gatineau, Quebec J9H 7K8 Tel: (819) 778-7794 Fax: (819) 778-1740 msobkin@sympatico.ca Agent for the Applicants (Proposed Interveners)

Sally A. Gomery Norton Rose OR LLP Suite 1500 45 OConnor Street Ottawa, ON K1P 1A4 Tel: 613-780-8604 Fax: 613-230-5459 sally.gomery@nortonrose.com Agent for the Respondent, Access Copyright

iii

Wanda Noel Barrister and Solicitor 5496 Whitewood Avenue Ottawa, ON K4M 1C7 Tel: 613-794-1171 Fax: 613-692-1735 wanda.noel@bellnet.ca Solicitor for the Appellants

J. Aidan ONeill Ariel A. Thomas Fasken Martineau DuMoulin LLP 1300-55 Metcalfe Street Ottawa, ON K1P 6L5 Tel: 613-236-3882 Fax: 613-230-6423 aoneill@fasken.com Solicitors for the Appellants

Barry B. Sookman Steven G. Mason Daniel G. C. Glover McCarthy Ttrault LLP P.O. Box 48, Suite 4700, T-D Bank Tower Toronto-Dominion Centre Toronto, Ontario M5K 1E6 Telephone: (416) 601-7949 FAX: (416) 868-0673 Solicitors for the Interveners Canadian Publishers' Council, Association of Canadian Publishers, and Canadian Educational Resources Council

Colin S. Baxter Cavanagh Williams Conway Baxter LLP 1111 Prince of Wales Drive Suite 401 Ottawa, Ontario K2C 3T2 Telephone: (613) 569-8558 Fax: (613) 569-8668 E-mail: cbaxter@cwcb-law.com Agents for the Interveners Canadian Publishers' Council, Association of Canadian Publishers, and Canadian Educational Resources Council

Wendy Matheson/Andrew Bernstein Torys LLP 79 Wellington Street West Suite 3000 Toronto, Ontario M5K 1N2 Telephone: (416) 865-8133 FAX: (416) 865-7380 E-mail: wmatheson@torys.com

Patricia J. Wilson Osler, Hoskin & Harcourt LLP 340 Albert Street Suite 1900 Ottawa, Ontario K1R 7Y6 Telephone: (613) 787-1009 FAX: (613) 235-2867 E-mail: pwilson@osler.com

Solicitors for the Interveners Canadian Association Agents for the Interveners Canadian of University Teachers and Canadian Federation

iv

of Students

Association of University Teachers and Canadian Federation of Students Patricia J. Wilson Osler, Hoskin & Harcourt LLP 340 Albert Street Suite 1900 Ottawa, Ontario K1R 7Y6 Telephone: (613) 787-1009 FAX: (613) 235-2867 E-mail: pwilson@osler.com Agents for the Interveners Association of Universities and Colleges of Canada and Association of Canadian Community Colleges Eugene Meehan, Q.C. McMillan LLP 50 O'Connor Street Suite 300 Ottawa, Ontario K1P 6L2 Telephone: (613) 232-7171 FAX: (613) 231-3191 E-mail: eugene.meehan@mcmillan.ca Agents for the Interveners CMRRASODRAC Inc.

Marcus A. Klee Glen A. Bloom Osler, Hoskin & Harcourt LLP 1900-340 Albert Street Ottawa, Ontario K1R 7Y6 Telephone: (613) 787-1049 FAX: (613) 235-2867 E-mail: mklee@osler.com Solicitors for the Interveners Association of Universities and Colleges of Canada and Association of Canadian Community Colleges Casey M. Chisick Timothy Pinos Jason Beitchman Cassels Brock & Blackwell LLP Scotia Plaza 2100 - 40 King Street West Toronto, Ontario M5H 3C2 Telephone: (416) 869-5403 FAX: (416) 644-9326 E-mail: cchisick@casselsbrock.com Solicitors for the Interveners CMRRA-SODRAC Inc. David Fewer Universit d'Ottawa Centre for Law, Technology and innovation (CIPPIC) 57 Louis Pasteur St. Ottawa, Ontario K1N 6N5 Telephone: (613) 562-5800 Ext: 2558

FAX: (613) 562-5417 Solicitors for the Samuelson-Glushko Canadian Internet Policy and Public Interest Clinic Howard P. Knopf Macera & Jarzyna 427 Laurier Avenue West, Suite 1200 Ottawa, Ontario K1R 7Y2 Telephone: (613) 238-8173 FAX: (613) 235-2508 E-mail: howard.knopf@macerajarzyna.com Solicitors for Centre for Innovation Law and Policy of the Faculty of Law University of Toronto

* THE PROVINCE OF BRITISH COLUMBIA as represented by the MINISTER OF

EDUCATION; THE PROVINCE OF MANITOBA as represented by the MINISTER OF EDUCATION, CITIZENSHIP AND YOUTH; THE PROVINCE OF NEW BRUNSWICK as represented by the MINISTER OF EDUCATION; THE PROVINCE OF NEWFOUNDLAND AND LABRADOR as represented by THE MINISTER OF EDUCATION; THE NORTHWEST TERRITORIES as represented by the MINISTER OF EDUCATION, CULTURE AND EMPLOYMENT; THE PROVINCE OF NOVA SCOTIA as represented by the MINISTER OF EDUCATION; THE TERRITORY OF NUNAVUT as represented by the MINISTER OF EDUCATION; THE PROVINCE OF ONTARIO as represented by the MINISTER OF EDUCATION; THE PROVINCE OF PRINCE EDWARD ISLAND as represented by the MINISTER OF EDUCATION; THE PROVINCE OF SASKATCHEWAN as represented by the MINISTER OF EDUCATION; THE YUKON TERRITORY as represented by the MINISTER OF EDUCATION; THE AIRY AND SABINE DISTRICT SCHOOL AREA BOARD; THE ALGOMA DISTRICT SCHOOL BOARD; THE ALGONQUIN AND LAKESHORE CATHOLIC DISTRICT SCHOOL BOARD; THE ASQUITH-GARVEY DISTRICT SCHOOL AREA BOARD; THE ATIKOKAN ROMAN CATHOLIC SEPARATE SCHOOL BOARD; THE AVON MAITLAND DISTRICT SCHOOL BOARD; THE BLOORVIEW MACMILLAN SCHOOL AUTHORITY; THE BLUEWATER DISTRICT SCHOOL BOARD; THE BRANT HALDIMAND NORFOLK CATHOLIC DISTRICT SCHOOL BOARD; THE BRUCE-GREY CATHOLIC DISTRICT SCHOOL BOARD; THE CAMPBELL CHILDRENS SCHOOL AUTHORITY; THE CARAMAT DISTRICT SCHOOL AREA BOARD; THE CATHOLIC DISTRICT SCHOOL BOARD OF EASTERN ONTARIO; THE COLLINS DISTRICT SCHOOL AREA BOARD; THE CONNELL AND PONSFORD DISTRICT SCHOOL AREA BOARD; THE CONSEIL DES COLES CATHOLIQUES DU CENTRE-EST DE

vi

LONTARIO; THE CONSEIL DES COLES PUBLIQUES DE LEST DE LONTARIO; THE CONSEIL DES COLES SPARES CATHOLIQUES DE DUBREUILVILLE; THE CONSEIL DES COLES SPARES CATHOLIQUES DE FOLEYET; THE CONSEIL SCOLAIRE DE DISTRICT CATHOLIQUE CENTRE-SUD; THE CONSEIL SCOLAIRE DE DISTRICT CATHOLIQUE DE LEST ONTARIEN; THE CONSEIL SCOLAIRE DE DISTRICT CATHOLIQUE DES AURORES BORALES; THE CONSEIL SCOLAIRE DE DISTRICT CATHOLIQUE DES GRANDES RIVIRES; THE CONSEIL SCOLAIRE DE DISTRICT CATHOLIQUE DU NOUVEL-ONTARIO; THE CONSEIL SCOLAIRE DE DISTRICT CATHOLIQUE FRANCO-NORD; THE CONSEIL SCOLAIRE DE DISTRICT DES COLES CATHOLIQUES DE SUD-OUEST; THE CONSEIL SCOLAIRE DE DISTRICT DU GRAND NORD DE LONTARIO; THE CONSEIL SCOLAIRE DE DISTRICT DU NORD-EST DE LONTARIO; THE DISTRICT SCHOOL BOARD OF NIAGARA; THE DISTRICT SCHOOL BOARD ONTARIO NORTH EAST; THE DUFFERIN-PEEL CATHOLIC DISTRICT SCHOOL BOARD; THE DURHAM CATHOLIC DISTRICT SCHOOL BOARD; THE DURHAM DISTRICT SCHOOL BOARD; THE FOLEYET DISTRICT SCHOOL AREA BOARD; THE GOGAMA DISTRICT AREA SCHOOL BOARD; THE GOGAMA ROMAN CATHOLIC SEPARATE SCHOOL BOARD; THE GRAND ERIE DISTRICT SCHOOL BOARD; THE GREATER ESSEX COUNTY DISTRICT SCHOOL BOARD; THE HALTON CATHOLIC DISTRICT SCHOOL BOARD; THE HALTON DISTRICT SCHOOL BOARD; THE HAMILTON-WENTWORTH DISTRICT SCHOOL BOARD; THE HASTINGS & PRINCE EDWARD DISTRICT SCHOOL BOARD; THE HORNEPAYNE ROMAN CATHOLIC SEPARATE SCHOOL BOARD; THE HURON PERTH CATHOLIC DISTRICT SCHOOL BOARD; THE HURON-SUPERIOR CATHOLIC DISTRICT SCHOOL BOARD; THE JAMES BAY LOWLANDS SECONDARY SCHOOL BOARD; THE KAWARTHA PINE RIDGE DISTRICT SCHOOL BOARD; THE KEEWATINPATRICIA DISTRICT SCHOOL BOARD; THE KENORA CATHOLIC DISTRICT SCHOOL BOARD; THE LAKEHEAD DISTRICT SCHOOL BOARD; THE LAMBTON KENT DISTRICT SCHOOL BOARD; THE LIMESTONE DISTRICT SCHOOL BOARD; THE MISSARENDA DISTRICT SCHOOL AREA BOARD; THE MOOSE FACTORY ISLAND DISTRICT SCHOOL AREA BOARD; THE MOOSONEE DISTRICT SCHOOL AREA BOARD; THE MOOSONEE ROMAN CATHOLIC SEPARATE SCHOOL BOARD; THE MURCHISON AND LYELL DISTRICT SCHOOL AREA BOARD; THE NAKINA DISTRICT SCHOOL AREA BOARD; THE NEAR NORTH DISTRICT SCHOOL BOARD; THE NIAGARA CATHOLIC DISTRICT SCHOOL BOARD; THE NIAGARA PENINSULA CHILDRENS CENTRE SCHOOL AUTHORITY; THE NIPISSING-PARRY SOUND CATHOLIC DISTRICT SCHOOL BOARD; THE NORTHEASTERN CATHOLIC DISTRICT SCHOOL BOARD; THE NORTHERN DISTRICT SCHOOL AREA BOARD; THE NORTHWEST CATHOLIC DISTRICT SCHOOL BOARD; THE OTTAWA CHILDRENS TREATMENT CENTRE SCHOOL AUTHORITY; THE OTTAWA-CARLETON CATHOLIC DISTRICT SCHOOL BOARD; THE OTTAWA-CARLETON DISTRICT SCHOOL BOARD; THE PARRY SOUND ROMAN CATHOLIC SEPARATE SCHOOL BOARD; THE PEEL DISTRICT SCHOOL BOARD; THE PETERBOROUGH VICTORIA NORTHUMBERLAND AND CLARINGTON CATHOLIC DISTRICT SCHOOL BOARD; THE RAINBOW DISTRICT SCHOOL BOARD; THE RAINY RIVER DISTRICT SCHOOL BOARD; THE RED LAKE AREA COMBINED ROMAN CATHOLIC SEPARATE SCHOOL BOARD; THE

vii

RENFREW COUNTY CATHOLIC DISTRICT SCHOOL BOARD; THE RENFREW COUNTY DISTRICT SCHOOL BOARD; THE SIMCOE COUNTY DISTRICT SCHOOL BOARD; THE SIMCOE MUSKOKA CATHOLIC DISTRICT SCHOOL BOARD; THE ST CLAIR CATHOLIC DISTRICT SCHOOL BOARD; THE SUDBURY CATHOLIC DISTRICT SCHOOL BOARD; THE SUPERIOR NORTH CATHOLIC DISTRICT SCHOOL BOARD; THE SUPERIOR-GREENSTONE DISTRICT SCHOOL BOARD; THE THAMES VALLEY DISTRICT SCHOOL BOARD; THE THUNDER BAY CATHOLIC DISTRICT SCHOOL BOARD; THE TORONTO CATHOLIC DISTRICT SCHOOL BOARD; THE TRILLIUM LAKELANDS DISTRICT SCHOOL BOARD; THE UPPER CANADA DISTRICT SCHOOL BOARD; THE UPPER GRAND DISTRICT SCHOOL BOARD; THE UPSALA DISTRICT SCHOOL AREA BOARD; THE WATERLOO CATHOLIC DISTRICT SCHOOL BOARD; THE WATERLOO REGION DISTRICT SCHOOL BOARD; THE WELLINGTON CATHOLIC DISTRICT SCHOOL BOARD; THE WINDSOR-ESSEX CATHOLIC DISTRICT SCHOOL BOARD; THE YORK CATHOLIC DISTRICT SCHOOL BOARD; and THE YORK REGION DISTRICT SCHOOL BOARD

viii

TABLE OF CONTENTS PART I - OVERVIEW ................................................................................................................... 1 PART II - APPELLANTS QUESTIONS IN ISSUE .................................................................... 3 PART III - ARGUMENT AND THE LAW ................................................................................... 4 The nature of Copyright as an Incentive Scheme ....................................................................... 4 Copyright as a creature of statute ................................................................................................ 7 International Consistency ............................................................................................................ 8 PART IV - COSTS ....................................................................................................................... 10 PART V - ORAL ARGUMENT................................................................................................... 10 PART VI - TABLE OF AUTHORITIES ..................................................................................... 11 PART VII - TABLE OF LEGISLATION .................................................................................... 12

PART I - OVERVIEW 1. As first owners of copyright, the authors represented by the Writers Coalition are the first to

be impacted by changes to copyright law. Their ability to create new works, exploit their copyrights in the marketplace and make a living doing so is directly impacted by changes to copyright law. They are, moreover, the very people targeted by the incentive scheme of the Copyright Act (the ") "Act . This Factum represents their position on the issues in this appeal. 2. The Appellants' ambitious position in this appeal flows directly from this Court's adoption

of the metaphor of "user's rights" in its decision in CCH Canadian Ltd. v. Law Society of Upper ( Canada,[2004] 1 S.C.R. 339 "CCH"). The Appellants ask the Court to elaborate on this metaphor and, in effect, make substantive changes to copyright law in Canada that are solely within the purview of Parliament.l The metaphor of"user's Nights" is arguably useful in explaining that statutory exceptions to

3.

copyright, including the "fair dealing" exception, are integral to the concept of copyright and not mere "loopholes". But. this metaphor cannot be used to justify substantive, judge-created

amendments to the law of copyright such as those sought by the Appellants. This Court should clarify that "user's rights" are not afree-standing set of principles or policy from which new doctrine can be fashioned, and discourage this and other. attempts to create new exceptions to copyright that are at odds with both the text and the fundamental purpose of the Act.
'Specifically, the Appellants request declarations that amount to default rules for educational institutions, specifically (1) declaring that when a teacher makes copies of short excerpts ofcopyright-protected works for students in his or her class, the relevant purpose ofthe dealing is that of the student, not the teacher;(2)declaring that when a teacher makes copies of short excerpts of copyright-protected works for students in his or her class, the amount ofthe dealing is to be assessed on an individual, not an aggregate, basis; (3) declaring that when a teacher makes copies of short excerpts of copyright-protected works for students in his or her class for the purpose of research, private study, criticism or review, the dealing is fair regardless of whether the student requests the copy, or the teacher instructs the student to read the copied material.

4.

The default rules for educators sought by the Appellants in this case would, if adopted,

unjustifiably disrupt the incentive scheme embodied in the Act. The Act is intended to promote both the creation and the dissemination of works by authors. A "fair dealing" exception is an integral part of the Act's concept of copyright because, without such an exception, copyright might serve as a barrier to the creation of new works or as an unreasonable barrier to their dissemination. 5. Aside from being unanchored in the legislative language, the Appellants' approach does not

persuasively explain how a categorically different treatment of copying by teachers furthers, or is even consistent with, the overriding incentive nature of copyright. Furthermore, the Appellants' approach falls short of the applicable international standards

6.

on permissible exceptions to which Canada has agreed, such as article 9(2) of the Berne
Convention. Nor is their approach consistent with the decisions by the English and American courts

from which this Court has adopted a good deal of its "fair dealing" analysis.
CCH at paras. 52 and 53 citing Hubbard v. Vosper, [1972] 1 All E.R. 1023 and U.S. doctrine of fair use.

7.

There can be no question that copyright law is a "creature of statute" or, put another way,

"[c]opyright consists only of what is in the statute." This appeal illustrates the tendency of the metaphor of "user's rights" to tempt litigants away from the statutory interpretation exercise that necessarily lies at the heart of any dispute about the scope of fair dealing, and to divert them towards the pursuit of new substantive rules that favour the economic interests of"users".
Compo Co. Ltd. v. Blue Crest Music et al.,[1980] 1 S.C.R. 357 at 373. D. Gervais and E. Judge, Intellectual Property: The Law in Canada (Toronto: Thomson Carswell, 2005) at p. 12.

8.

The Writers Coalition therefore respectfully submits that this Court should clarify the limits

of the concept of "user's rights" and affirm the central importance of interpreting the Act by reference, in particular, to its nature as a mechanism designed to encourage the labour of authorship and the dissemination of creative works. "Fair dealing" is an integral part of copyright law that is worthy of protection in large measure because, without such an exception, some types of new works of authorship could be obstructed. Access to copyright materials at a reasonable cost fully satisfies the public policy objectives of the Appellants and those found within the Act. PART II - APPELLANTS' QUESTIONS IN ISSUE
9.

The Writers Coalition takes the following positions on the Appellants' questions in issue: (i) Whose Purpose: The Appellants argue that it is "only the consumer's purpose that is relevant in determining whether a dealing is fair". The Writers Coalition disagrees. Fairness is a question of fact, and necessarily focuses on the fairness of the co in . In cases such as CCH, where the librarian copiers seemingly served merely as "agents" of the consumer, it may be fair to conclude that the library user's purpose is dominant. The Appellants' approach would exclude analysis of the copier's purpose even where the copier and the end user do not share the same purpose, or even where the end user has no independent purpose other than as guided by the copier. Fair dealing cannot categorically shelter the copier's purpose behind what would be a "fair" purpose for the end user; such an approach would undermine the incentive scheme that is copyright's raison d'etre. (ii) Amount of Dealing: The Appellants ask for a different application of this factor in an educational context. The Writers' Coalition disagrees. There is no justification to be found in the Act for such a differential approach simply because "education" is involved. (iii) Teachers making Copies For Students in his or her Class: The Appellants ask for a unique -rule deeming copying by teachers to be "fair" insofar as short excerpts of copyrightprotected works are concerned, regardless of whether the student requests the copy, or whether the teacher instructs his or her students to read the material. It is obvious that such a rule regarding multiple copying, whether for a single class or for classes in the aggregate as a result of unrelated copying transactions, would favour the economic interests of the Appellants. But there is nothing in the Act to support such a differential approach based on

L'~

the "educational context", and such a theory is directly at odds with the underlying incentive nature ofthe scheme in the Act. PART III - ARGUMENT AND THE LAW The nature of Copyright as an Incentive Scheme 10. The Appellants' argument rests in significant measure on the attractive metaphor of"user's

rights", which this Court has held "must not be interpreted restrictively". Without disrespect to this Court or its decision in CCH, the Writers Coalition submits that this useful metaphor must be restrained within the bounds of the language and the underlying policy of the Act, and that this appeal provides both the opportunity and an illustration of why it is important for this Court to say
f.Y~a

11.

The Act provides exclusive property rights to authors in their original works as an incentive

for their creation. Users, or more broadly, members of the public, benefit from the dissemination of the resulting works of creative authorship. This simple principle has long been seen to lie at the heart of the Act:
The Copyright Act is usually presented as a balance between promoting the public interest in the encouragement and dissemination of works of the arts and intellect and obtaining a just reward for the creator (or, more accurately, to prevent someone other than the creator from appropriating whatever benefits may be generated).... This is not new. As early as 1769 it was said by an English judge: It is wise in any state, to encourage letters, and the painful researches of learned men. The easiest and most equal way of doing it, is, by securing to them the properly of their own works.... He who engages in a laborious work, (such, for instance, as Johnson's Dictionary,) which may employ his whole life, will do it with more spirit, if, besides his own glory, he thinks it may be a provision for his family.(Millar v. Taylor (1769),4 Burr. 2303, 98 E.R. 201,per Willes J., at p. 218) Theberge v. Galerie d'Art du Petit Champlain inc.,[2002] 2 S.C.R. 336, 2002 SCC 34 at para. 30,per Binnie J.

12.

The United States Supreme Court has concisely articulated the same principle on many

occasions:
By establishing a marketable right to the use of one's expression, copyright supplies the economic incentive to create and disseminate ideas. This Court stated in Mazer v. Stein, 347 U. S. 201, 209(1954): "The economic philosophy behind the clause empowering Congress to grant patents and copyrights is the conviction that encouragement of individual effort by personal gain is the best way to advance public welfare through the talents of authors and inventors in 'science and useful Arts."' And again in Twentieth Century Music Corp. v. Aiken: "The immediate effect of our copyright law is to secure a fair return for an 'author's' creative labor. But the ultimate aim is, by this incentive, to stimulate [the creation of useful works] for the general public good." 422 U.S. at 422 U. S. 156(1975).
Harper &Row v. Nation Enterprises, 471 U.S. 539(1985)

13.

There is plainly a broad public interest in the dissemination of authors' works, and therefore

in maximizing access to those works. The Appellants' position, while it undoubtedly promotes that aspect of the public interest, simply ignores the danger that an exclusive focus on access to works through the lens of"user's rights" -will erode the incentive to create works. The incentive scheme of the Act operates not just to promote access to existing works, but more importantly to promote the continued generation of new ones. This is why an effective law of copyright is understood to be in the public interest. 14. Authors are keenly sensitive to the erosion of these incentives. Few authors are rich; and it

frequently takes an author years to research and write a book, or a journalist many months to write an investigative article. Writers depend on both direct and secondary licensing (including licensing through collectives such as Access Copyright) to sustain their ongoing efforts. Collective licensing enables writers to rely on a myriad of small transactions that are individually difficult to capture, but are cumulatively of great significance to the individual writer's ability to sustain his or her craft.

15.

The Appellants' attacks come in an economic context for the creative industries of which Emerging Internet-based methods of transmission of works

this Court should be mindful.

(including audio, video and text-based works) have been referred to as the "celestial jukebox" by Professor Goldstein, who observes:
The celestial jukebox can also be expected to reduce, or at least change the role of today's book publishers and motion picture and record producers, offering authors a more central place in the creation and distribution of literary and artistic works. Economies of scale in production facilities have long placed these institutions at the center of cultural life, but tomorrow's author, artist, or composer who has access to a networked computer most will can bypass not only these corporate entities, but also libraries and retail outlets, to communicate directly with his intended audience....The technologies of the Internet will, in any event, make authors' migration from the margins of copyright all but inevitable. Paul Goldstein, Copyright's Highway, From Gutenberg to the Celestial Jukebox,(Palo Alto: Stanford Law and Politics, an imprint of Stanford University Press, 2003) at pp. 213-214, 216

16.

While these emerging changes hold the promise to encourage the dissemination of new and

diverse works of authorship, it is already challenging to regulate the legitimate use of these new digital markets. Overemphasis of the concept of "user's rights" that has accompanied the Internet explosion risks killing this opportunity at the root. Effective methods of protecting copyright in the Internet age and thereby protecting the public interest in generating new and valuable works of authorship will never develop if the law encourages consumers of copyright material to view their consumption as a "right" arising simply from the desire to use that material, or justified by their laudable end-purpose (whether educational or otherwise). The Act not only recognizes these concerns; it embodies them as its fundamental public

17.

policy. It must be interpreted in a way that furthers the unambiguous incentive scheme that it is so clearly intended to implement. This includes the interpretation of the exceptions to copyright infringement in s. 29 of the Act.

Copyright as a creature ofstatute 18. The law is clear that copyright is a purely statutory creation in Canada. The Act "simply

creates rights and obligations upon the terms and in the circumstances set out in the statute." The fundamental exercise in interpreting the Act(and thus in assessing the Appellants' arguments) is to read the words of the Act "in their entire context, and in their grammatical and ordinary sense, harmonious with the scheme of the Act, the object of the Act and the intention of Parliament".
Compo Co. v. Blue Crest Music Inc.,[1980] 1 S.C.R. 357 at 373. Bishop v. Stevens,[1990]2 S.C.R. 467 at 477. Theberge at para 5. CCH at para 9, citing Bell Express Vu Limited Partnership v. Rex,[2002] 2 S.C.R. 559, 2002 SCC 42, at para. 26

19.

The Appellants argue that the purpose of the end user should be the only purpose assessed

for "fairness" even though the copier's own purpose is instructing students. This suggests that any type of copying for any purpose not allowable under sections 29 to 29.2 of the Act, regardless of the context in which it occurs, would become excepted from copyright if it could be associated with an end user's allowable purpose. 20. "User's rights" are arguably a useful way to express that the Canadian concept of copyright

includes the limitations upon it that are set out in the Act. That is, the concept of fair dealing is an integral part of copyright, and not simply a "loophole" provision that permits de minimis uses, or discourages frivolous litigation by over-sensitive authors. The Writers' Coalition submits that "fair dealing" is necessary in order to ensure that authors may make use of the works of others. Sometimes this involves making copies for research or private study, resulting in public discussion, refinement of the ideas expressed in the original work, and new works of authorship. It is submitted that this purpose is the fundamental nature of "fair dealing", if it is to be harmonious with the incentive scheme of the Act.

See CCH at paras. 12, 48.

21.

What should not be suggested is that the concept of"user's rights" is intended to encourage

consumers of copyright-protected works to push the limits of the law, or to encourage the introduction of new and innovative exceptions to copyright, as though the Act were trying to create an incentive for users to consume protected material. There is no doubt that a strong public policy exists (as manifested in Provincial legislation) in favour of the Appellants' purpose of educating young people. But that policy is not to be found in the Copyright Act. Thus, the Writers' Coalition submits that this appeal illustrates the need for this Court to

22.

express some refinement of the concept of"user's rights", and clarify that it is simply a metaphor to be used in emphasizing that the "fair dealing" exception is integral to the nature of copyright. The use of this concept can neither add rights to the Act, nor can it change its policy objectives in vesting sole rights in authors, as circumscribed by explicit exemptions.
International Consistency

23.

The Appellants' position also raises concerns about Canada's adherence to international law.

In particular, exceptions to copyright must adhere to the so-called "three step test" embodied in Article 9(2) of the Beene Convention and echoed in the North America Free Trade Agreement and in the TRIPS Agreement. These provisions require that statutory exceptions to exclusive rights be confined to (1) certain special cases that (2) do not conflict with a normal exploitation of the work and (3) do not unreasonably prejudice the legitimate interests of the author. Professor von Lewinski has explained:
....the three step test in the TRIPS Agreement...has been widely understood as a safety net against an overly broad interpretation of the permitted exceptions and limitations under the Berne Convention.

G~

S. von Lewinski, "General Report: "Exceptions: General View of the Three-Step Test" in The Author's Place in XXI Copyright, ALAI Congress 2007.

24.

This Court has previously commented on the importance of the Berne Convention and the

harmonization of Canadian and international copyright law, as well as harmonization with "other like-minded jurisdictions".

Theberge at para. 6.

25.

The Appellants urge this Court to expand the purposes of fair dealing for research and

private study so that it would be very far from being "a certain special case" (the first step of the Berne test) and would form the basis of new exceptions not currently in the Act. Rather than interpret the Act in such a manner, the Writers Coalition respectfully urges this

26.

Court to place importance on avoidance of conflict with "a normal exploitation of the work" (the second step of the Berne test) in order to harmonize the interpretation of the Act with the approach of other like-minded jurisdictions, including the very jurisdictions to which this Court looked in articulating its analytical framework in CCH. In the United Kingdom, the Court of Appeal in the Paddy Ashdown case emphasized that, in

27.

identifying fair dealing, "by far the most important factor is whether the alleged fair dealing is in fact commercially competing with the proprietor's exploitation of the copyright work, a substitute for the probable purchase of authorised copies, and the like."
The Right Honourable Paddy Ashdown, MP PC v Telegraph Group Ltd, [2001] EWCA Civ 1142, citing Laddie, Prescott &Vitoria, The Modern Law of Copyright and Designs, 3rd ed.

28.

The United States also prioritizes the importance of the market and the incentive scheme

underlying copyright. In Eldred v. Ashcroft, 123 S.Ct. 769 (2003), the U.S. Supreme Court

10

discussed the relationship of market incentives to the public interest: "[C]opyright law celebNates the profit motive, recognizing that the incentive to profit from the exploitation of copyrights will redound to the public benefit by resulting in the proliferation of knowledge.... The profit motive is the engine that ensures the progress of science."

29.

Canada's Act should be no different in this regard. It does not attempt to prescribe how or to

what extent an author may be compensated for his or her work, or what a just reward may be; instead, it leaves those determinations to the marketplace, in which collective societies play a useful role when they capture, for authors, important economic value created by many small transactions such as those in issue in this case. The Appellants' interpretation of the Act would disrupt those incentives both on the facts of this case, and by inviting their further erosion through over-emphasis of the concept of "user's rights". A note of restraint should be sounded by this Court, lest the interpretation ofthe Act begin to undermine its very objects.

PART IV -COSTS 30. The Writers Coalition seeks no costs, but asks that no costs be awarded against it.

PART V ORAL ARGUMENT 31. The Writers Coalition seeks permission to present oral argument often (10) minutes.

ALL OF WHICH IS RESPECTFULLY SUBMITTED this 21st day of November, 2011 by:

-~-peg: Hebb &Sheffer Marian Hebb and Warren Sheffer

Solicitors for the Writers Coalition

1
Brendan van Niejenhuis Stockwoods LLP Barristers

11

PART VI TABLE OF AUTHORITIES

AUTHORITY 1. CCH Canadian Ltd. v Law Society of Upper Canada,[2004] 1 S.C.R. 339, 2004 SCC 13

Paia.
2,6, 18, 20 7, 18 7

2. 3.

Compo Co. Ltd. v. Blue Crest Music et al.,[1980] 1 S.C.R. 357

D. Gervais E. Judge,Intellectual Property: The Law in Canada(Toronto: Thomson Carswell, 2005), p. 12
&

4.

Theberge v. Galerie d'Art du Petit Champlain Inc., [2002] 2 S.C.R. 336, 2002 SCC 34 Harper &Row v. Nation Enterprises, 471 U.S. 539(1985)(Supreme Court)
P. Goldstein, Copyright's Highway From Gutenberg to the Celestial Jukebox, p. 213-214, 216
:

11, 18, 23

5.
(.

12 15

7.
$.

Bishop v. Stevens, 1990] 2 S.C.R. 467

[

1g

S. von Lewinksi, "General Report Exceptions :General View of the ThreeStep Test" in The Author's Place in XXI Copyright, ALAI Congress 2007
:

22

9.

The Right Hon. Paddy Ashdown, M.P., P.C. v. Telegraph Group Ltd., [2001] E.W.C.A. Civ. 1142 Eldred v. Ashcroft, 123 S.Ct. 769(2003)(Supreme Court)

26

10.

27

12

PART VII TABLE OF LEGISLATION

COPYRIGHTACT,R.S.C. 1985, C. C42,ss. 29,29.1, 29.2

RESEARCH OR PRIVATE STUDY
29. Fair dealing for the purpose of research or private study does not infringe copyright.

LOISUR LE DROIT D'AUTEUR, L.N.R. 1985, C. C-42, SS. 29, 29.1, 29.2
ETUDE PRIVEE OU RECHERCHE
29. L'utilisation equitable dune oeuvre ou de tout autre objet du droit d'auteur aux fins d'etude privee ou de recherche ne constitue pas une violation du droit d'auteur.

CRITICISM OR REVIEW
29.1 Fair dealing for the purpose of criticism or review does not infringe copyright if the following are mentioned: (a)the source; and

CRITIQUE ET COMPTE RENDU

29.1 L'utilisation equitable dune oeuvre ou de tout autre objet du droit d'auteur aux fins de critique ou de compte rendu ne constitue pas une violation du droit d'auteur la condition que soient mentionnes A)dune part, la source;
B)d'autre part, si ces renseignements figurent dans la source

(b)if given in the source, the name of the

(i) author, in the case of a work, (ii) performer, in the case of a performer's performance, (iii) maker, in the case of a sound recording, or (iv) broadcaster, in the case of a communication signal.

(i) dans le cas dune oeuvre, le nom de 1'auteur, (ii) dans le cas dune prestation, le nom de 1'artiste-interprete, (iii) dans le cas d'un enregistrement sonore, le nom du producteur, (iv) dans le cas d'un signal de communication, le nom du radiodiffuseur.

NEWS REPORTING
29.2 Fair dealing for the purpose of news reporting does not infringe copyright if the following are mentioned: (a)the source; and

COMMUNICATION DES NOUVELLES

29.2 L'utilisation equitable dune oeuvre ou de tout autre objet du droit d'auteur pour la communication des nouvelles ne constitue pas une violation du droit d'auteur la condition que soient mentionnes A)dune part, la source;
B)d'autre part, si ces renseignements figurent dans la source
a

(b)if given in the source, the name of the

(i) author, in the case of a work, (ii) performer, in the case of a performer's performance, (iii) maker, in the case of a sound recording, or (iv) broadcaster, in the case of a communication signal.

(i) dans le cas dune oeuvre, le nom de

13

1'auteur, (ii) dans le cas dune prestation, le nom de 1'artiste-interprete, (iii) dans le cas d'un enregistrement sonore, le nom du producteur, (iv) dans le cas d'un signal de communication, le nom du radiodiffuseur.