Michael Geist

[Posted to MichaelGeist.ca, (CC-BY)]  Months after the Supreme Court of Canada delivered a stinging defeat to Access Copyright by ruling for an expansive approach to fair dealing and the government passed copyright reforms that further expanded the scope of fair dealing, the copyright collective responded yesterday with what amounts to a desperate declaration of war against fair dealing. In the aftermath of the court decisions and legislative reforms, a consensus emerged within the Canadian education community on the scope of fair dealing. The fair dealing policies used guidance from the Supreme Court to establish clear limits on copying and eliminate claims that the law was now a free-for-all.  In developing those fair dealing policies, however, many institutions no longer saw much value in the Access Copyright licence.

Access Copyright has decided to fight the law – along with governments, educational institutions, teachers, librarians, and taxpayers – on several fronts. It has filed for an interim tariff with the Copyright Board in an effort to stop K-12 schools from opting out of its licence and it has filed a proposed post-secondary tariff that would run well after most Canadian schools will have opted out of its licence. Most notably, it has filed a lawsuit against York University over its fair dealing guidelines, which are similar to those adopted by educational institutions across the country. While the lawsuit has yet to be posted online, the Access Copyright release suggests that the suit is not alleging specific instances of infringement, but rather takes issue with guidelines it says are “arbitrary and unsupported” and that “authorize and encourage copying that is not supported by the law.”

Most of Access Copyright’s longstanding arguments were dismissed by the Supreme Court this past summer. In previous instances, Access Copyright suggested that its licence was the only way to ensure compensation for authors, yet as schools spend millions on site licences for access to works and governments invest millions in open access materials that can be freely used (coincidentally, on the same day as the Access Copyright lawsuit, the BC government announced that the first group of free, open textbooks will be online by September), those claims now ring hollow.

On the legal front, it argued that there are billions of copies being made and that the aggregate amount of copying should be considered in a fair dealing analysis (it told the Supreme Court that “there is no sound reason for assessing the fairness of the amount of a dealing on an individual basis only”). The Supreme Court rejected the Access Copyright argument, ruling that “the ‘amount’ factor is not a quantitative assessment based on aggregate use, it is an examination of the proportion between the excerpted copy and the entire work, not the overall quantity of what is disseminated.”

Alternatively, it built its business model on classroom copies, arguing that copies made by teachers for students for classroom use was not fair dealing. The Supreme Court rejected those arguments as well, concluding that “the teacher/copier therefore shares a symbiotic purpose with the student/user who is engaging in research or private study. Instruction and research/private study are, in the school context, tautological” as well as finding that “the word ‘private’ in ‘private study’ should not be understood as requiring users to view copyrighted works in splendid isolation. Studying and learning are essentially personal endeavours, whether they are engaged in with others or in solitude.”

Having lost on the legal and legislative fronts, that seems to leave Access Copyright with just one claim: that the amount of copying supported in the guidelines go beyond that permitted by fair dealing. The York guidelines state that the copy must be a short excerpt, defined as:

10% or less of a Work, or
no more than:
(a)  one chapter from a book;
(b)  a single article from a periodical;
(c)  an entire artistic work (including a painting, print, photograph, diagram, drawing, map, chart and plan) from a Work containing other artistic works;
(d)  an entire newspaper article or page;
(e)  an entire single poem or musical score from a Work containing other poems or musical scores; or
(f)  an entire entry from an encyclopedia, annotated bibliography, dictionary or similar reference work,
whichever is greater.

Yet it is hard to see how this approach can be fairly characterized as arbitrary and unsupported. First, the amount of the copying is only one of six factors, many of which will favour the education institutions. Second, while the amount is always context dependent, ten percent is a fairly common starting point in the United States (in Israel, educational guidelines go as high as 20 percent). Third, the amount is based on the Supreme Court’s guidance. In CCH, it stated:

the quantity of the work taken will not be determinative of fairness, but it can help in the determination. It may be possible to deal fairly with a whole work. As Vaver points out, there might be no other way to criticize or review certain types of works such as photographs: see Vaver, supra, at p. 191. The amount taken may also be more or less fair depending on the purpose. For example, for the purpose of research or private study, it may be essential to copy an entire academic article or an entire judicial decision. However, if a work of literature is copied for the purpose of criticism, it will not likely be fair to include a full copy of the work in the critique.

Consider again how the Supreme Court characterized fair dealing this summer:

CCH confirmed that users’ rights are an essential part of furthering the public interest objectives of the Copyright Act. One of the tools employed to achieve the proper balance between protection and access in the Act is the concept of fair dealing, which allows users to engage in some activities that might otherwise amount to copyright infringement. In order to maintain the proper balance between these interests, the fair dealing provision “must not be interpreted restrictively”

The emphasis on a non-restrictive approach to fair dealing points to a policy such as York’s that, in the words of the Supreme Court in CCH, is “research-based and fair.” And that is all an institution needs to be able to rely on fair dealing.  From CCH:

Section 29 of the Copyright Act states that “[f]air dealing for the purpose of research or private study does not infringe copyright.” The language is general. “Dealing” connotes not individual acts, but a practice or system. This comports with the purpose of the fair dealing exception, which is to ensure that users are not unduly restricted in their ability to use and disseminate copyrighted works. Persons or institutions relying on the s. 29 fair dealing exception need only prove that their own dealings with copyrighted works were for the purpose of research or private study and were fair. They may do this either by showing that their own practices and policies were research-based and fair, or by showing that all individual dealings with the materials were in fact research-based and fair.

To suggest that a modest fair dealing policy based on Supreme Court jurisprudence and legislative reforms is “arbitrary and unsupported” is more than just rhetoric masquerading as legal argument. It is a declaration of war against fair dealing.