The two main areas of interest continue to be Canada's long-discussed Copyright Modernization Act and the ongoing difficulties with Access Copyright. A further development, with potentially far-reaching implications in both of these areas, is the July 12th announcement by the Supreme Court of Canada of its decisions in five copyright-related cases. All five decisions (2012 SCC 34 - 2012 SCC 38) are detailed rulings on complex matters of law, and much time and care will be needed to consider their interpretation and application within the daily realities of higher education, but there can be little doubt that the Court has strongly reaffirmed its support for the principle, first articulated in its landmark 2004 CCH ruling, that fair dealing is to be considered a users' right and must not be interpreted restrictively.
1) The Copyright Modernization Act
The Act has now passed the House of Commons and the Senate, and has received Royal Assent. Though now on the books as Chapter 20 of the Statutes of Canada: 2012, application of the Act remains in limbo, since it has not yet been proclaimed in force. The federal Cabinet is expected to issue an Order in Council bringing the Act into force within the next few months.
The implications of the new Act for universities will take some time to analyze, but it is important to emphasize one point right away: the inclusion of "education" as a category of fair dealing does NOT mean (as opponents of this provision claimed) that members of the university community can now make unlimited print and/or digital copies of published materials (e.g. books, journal issues, videos, sound recordings, etc.) for use on-campus or on-line without regard to possible copyright infringement. Similarly, nothing in the just-announced Supreme Court copyright decisions should be interpreted as giving carte blanche for the unrestricted reproduction of copyrighted materials. For guidance on best practice, we continue to refer users to the CAUT Guidelines for the Use of Copyrighted Material and our own Fair Copying Guidelines; we are also pleased to discuss questions or concerns directly.
2) Access Copyright
Without notice, and amid some controversy, the Association of Universities and Colleges of Canada announced in mid-April that it had concluded a new "model license" with Access Copyright, after which it abruptly withdrew from proceedings before the Copyright Board, where it had been battling for over a year against Access Copyright's much-criticized proposed Post-Secondary Tariff. Like the Tariff (still uncertified by the Copyright Board, and expected to remain so for some time), the model license has been widely criticized by faculty and student groups, library associations, and many copyright experts as being overpriced, intrusive, and legally dubious, attempting to claim, without basis in law, licensing jurisdiction over activities such as Web linking. It also ignores such 21st Century realities as the site licensing of electronic databases and journals and jurisprudence -- including the 5 just-announced Supreme Court rullings -- clearly articulating fair dealing as a users' right.
Though a June 30th deadline announced by Access Copyright for AUCC member universities to receive "discounts" on retroactive payments by signing the model licence has now passed, fewer than 20 universities have indicated they will sign licenses; an almost-identical number of institutions have said they will *not* sign licenses with AC, while several have publicly indicated they want more time to study the issue. A great many institutions, including UPEI, have not made any public announcement at all, and are still weighing their options.
[* In a July 9th article in University Affairs, Access Copyright claims that about two-thirds of eligible universities have elected to sign the model license, but provides no listing; a running tally being maintained on the blog of IP lawyer Ariel Katz identified only 15 universities that had signed the model license, as of the first week of July; in addition, two schools, University of Toronto and Western University, had announced their own arrangements with Access in January.]
In any event, the Robertson Library plans to continue with the course it adopted even before Access Copyight's last license with UPEI lapsed at the end of 2010: working to educate members of the University community on their rights and responsiblities under the Copyright Act, and offering what advice and assistance we can in matters of copyright compliance. As part of our ongoing due diligence efforts in this area, we will be updating some Library procedures (details will be announced shortly), and updating and expanding the information available on our Copyright site.