February 2018 Copyright Watch — Focus on Fair Dealing

In celebration of Fair Dealing Week 2018 (February 26 - March 2), the Library is pleased to offer a new instalment in our ongoing Copyright Watch series.

1) Parliamentary Review of the Copyright Modernization Act

Canada’s 2012 Copyright Modernization Act, though not without its shortcomings, brought many significant benefits to educational users of copyrighted material. These included provisions making it easier to show video and online content for educational purposes on-campus, a so-called “mash-up” or “Youtube” exception to facilitate non-commercial creative use of copyrighted material, and a significant reduction of statutory damages allowable in cases of non-commercial infringement. Perhaps the most high-profile change occasioned by the Act, however, was the addition of several allowable purposes, including education, for fair dealing. Fair dealing allows the use of material from a copyright protected work (literature, musical scores, audiovisual works, etc.) without permission when certain conditions are met. Although many libraries — including this one — had been encouraging users to exercise their fair dealing rights prior to 2012, using the “research and private study” purposes already available, the addition of education as an allowable purpose was, nevertheless, an important symbolic victory. It also recognized the trend of Supreme of Canada jurisprudence since the 2004 CCH decision to recognize fair dealing as a user’s right. The Copyright Modernization Act mandated a five-year Parliamentary review. Some Canadian educational publishers and allied stakeholders, in anticipation of the review, lobbied the federal government heavily and also campaigned publicly to have educational fair dealing reversed, claiming that this provision was hurting their business model. To date, no evidence for this harm has been adduced — beyond a single, much-criticized 2015 study commissioned by rights-holder collective Access Copyright — and such claims have been comprehensively rebutted (see, for example, the Canadian Association of Research Libraries document Fair Dealing in Canada Myths and Facts). While some Canadian publishers and authors may indeed be facing economic difficulty, students and educators exercising the rights afforded them by the courts and Parliament are not to blame.

At time of writing, it is too early to say what the impact of the Parliamentary review might be. The federal ministers of Industry, Science and Economic Development and Heritage only announced the review in December, 2017, and no details on its scope or process have been provided to date. It is important to note that there is unanimity in Canadian higher education on the value of fair dealing, as seen in statements from the following stakeholders:

Canadian Federation of Library Associations 

Canadian Federation of Students

Canadian Alliance of Student Associations

Canadian Association of Research Libraries 

Canadian Association of University Teachers 

Universities Canada 


2) Copyright Board Reform

In Canada, copyright licensing is overseen by a federal regulator, the Copyright Board of Canada. Complaints about the Board -- especially regarding the length of time it takes to issue rulings, and the lack of transparency in its proceedings -- have been long-standing, and the Senate Standing Committee on Banking, Trade and Commerce made an “urgent” recommendation late in 2016 that “the mandate, practices and resources of the Copyright Board of Canada be the subject of in-depth study during the forthcoming statutory review of the Copyright Act.” Instead, the Government elected to expedite this process, launching consultations on Copyright Board reform this past summer, months before the Copyright Act review was announced. As with the broader Copyright Act review, it is too early to say what the outcome of the Copyright Board consultations might be. It is disappointing to note, however, that groups such as Access Copyright and the Association of Canadian Publishers have — rather than recognizing that most educational copying is covered by fair dealing or by various licensing/permissions arrangement — provided written submissions demanding mandatory, blanket copying tariffs to be applied to all Canadian educational institutions. Given that the Government has already indicated that it is seeking procedural improvements and efficiencies for the Board, not a radical remake of the copyright landscape, it seems unlikely that overreaching calls for mandatory payments will succeed. Even so, groups such as CAUT, CASA, and various library associations are watching proceedings closely, and have presented written submissions of their own.


3) Access Copyright v. York University

The July, 2017 Federal Court ruling in Access Copyright’s lawsuit against York University represented a surprising departure from the prevailing trend that Canadian copyright jurisprudence has followed ever since the Supreme Court’s landmark CCH decision in 2004. Justice Phelan’s decision found overwhelmingly in favour of Access Copyright, and was harshly critical of York’s copyright practices. Of particular concern, the decision argued that a 2010 interim tariff certified by the Copyright Board had mandatory effect for York, and, further, that York’s Fair Dealing Guidelines -- which were based on Universities Canada guidelines adopted at many Canadian post secondary institutions -- did not, in fact, reflect fair dealing. Access Copyright, unsurprisingly, issued a jubilant announcement, and at least one publisher -- Canadian Scholars Press -- immediately e-mailed faculty at numerous Canadian universities claiming that the decision: “will have a dramatic and immediate impact on how you handle your course materials for this fall  … Using your institution’s fair dealing guideline is no longer an option.” This inclination to “pick up the York decision and run with it” was an unfortunate foretaste of the claims made by Access Copyright and others in their submissions to the Copyright Board consultations a few months later (as noted in section 2 above).

Fortunately, however, such claims do not appear to have gained much traction in Canadian higher education. Most universities and colleges across the country seem to be “staying the course”, remaining generally committed to an educative, fair dealing-based approach, and with little sign of any significant move back to more restrictive copyright regimes. It is also notable that Access Copyright does not yet seem to be using the decision to pressure institutions without AC licenses into re-signing. York filed notice of its intent to appeal with the Federal Court of Appeal in September, 2017. With many stakeholders -- including CARL and CAUT -- expressing interest in pursuing intervenor status in this proceeding, plus the near-certainty that any Federal Court of Appeal decision will be appealed up to the Supreme Court, it may be as long as several years before the (legally) final outcome of Access Copyright v. York is known. Several copyright scholars -- most notably Ariel Katz — have predicted that the appeals process will ultimately reverse Justice Phelan’s ruling, citing numerous errors in his written decision.

-- February 28, 2018