Canadian Lawyer InHouse

7 CANADIANLAWYERMAG.COM/INHOUSE JULY 2015 A roundup of legal department news and trends He adds a key aspect of the decision is whether any copying is considered "substantial." "Under the Canadian Copyright Act there is no infringement unless a substantial portion of the work is taken," he says. "In many cases, in provinces and educational institutions, you're not taking the entirety of a work. The board took a hard look at that and really reduced the pool of compensable works by virtue of there not being substantial copying." The decision will alter the economics of other tariffs and that of future negotiations between users, adds Biernacki. "If you're a user and Access Copyright or any collective society is seeking a royalty from you, you're going to look to this decision to inform you on what you think a reasonable price is. I think the effect of this decision is going to put a significant downward pressure on that price," he says. The board reached its decision by giving fair dealing, a user's right, a liberal interpretation, in accordance with the Supreme Court of Canada's decisions. The evidence indicated that two types of copying are most common in governments: printing from electronic files and making digital copies by scanning, e-mailing, and posting. As proposed by Access Copyright, the tariff covers printing from electronic files only for the 2010-14 period. Furthermore, the tariff does not cover digital copies for all of its duration, i.e., 2005-2014. The board found a typical government employee made an average of under two cop - ies per year that are compensable in 2005-09 and 22 copies per year during 2010-14. In a statement, Gilles McDougall, sec- retary general of the board, said: "The amounts of royalties that are likely to be generated by the Tariff are approximately $14,000 per year for the 2005-2009 period and $60,000 per year for 2010-2014." These amounts do not account for the governments of Ontario and the Northwest Territories, which withdrew from the proceeding. On its web site, Access Copyright indicated it is reviewing the decision and assessing all appeal options, noting it is "deeply concerned" with the decision. However, Erin Finlay, director of legal and government relations and general coun - sel at Access Copyright indicated the collec- tive remains positive there will be a different outcome when the board reviews the situa- tion with the Canadian education market. "While we're disappointed in the Copyright Board decision, it has little bearing on our other cases," says Finlay. "The Copyright Board in the case law is very clear that fair dealing remains a matter of impression. In the provincial tariff, the board was of the impression that some of the copying behaviour of government employees was fair. The copying behaviour in K-12 schools, colleges, and universities is vastly different than that of provincial government employees and we remain confident the positions taken by the educational sector are incorrect and unfair." IH Dedication, knowledge and creativity. Henein Hutchison draws its power from experience and its talent from a team of rising stars. The firm's associate ranks include three clerks of the Supreme Court of Canada and one clerk of the Court of Appeal for Ontario. Experience and depth. More experience. More defence. | www.hhllp.ca E N O U G H TA L E N T TO F I L L A R O O M . Untitled-3 1 14-04-30 12:44 PM

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