The implications of last week's Supreme Court of Canada copyright decisions seem readily apparent to just about everybody - other than Access Copyright. There have been numerous posts analyzing the decisions, all of which recognize the expansion of fair dealing. Yet in a release posted hours after losing at Canada's highest court, the copyright collective implausibly claimed that the decision "will have a limited impact on the importance of the Access Copyright licence to the education community" and that it "leaves copyright licensing in the education sector alive and well." To support the claim, Executive Director Maureen Cavan argued that the specific case only covered about seven percent of the copying done in K-12 schools.
The strategy of claiming that little has changed may have worked with some institutions after the 2004 CCH copyright decision, but it is very unlikely to do so this time.
It is true that the specific case involved a small percentage of overall K-12 school copying, but the court's fair dealing analysis applies to all copying, not just the copies at issue. In this specific case, the court ruled the Copyright Board's analysis of the fair dealing six factor test was unreasonable, an unmistakable signal to reverse its ruling. More broadly, the decision eviscerates the current Access Copyright business model that is heavily reliant on educational revenues. The decision does not create a free-for-all - schools will continue to spend hundreds of millions of dollars every year on books, database licences, and transactional licences - but the need for an additional Access Copyright licence for schools at all levels is now unquestionably in doubt.
Just how badly did Access Copyright fare at the Supreme Court?
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