The Council of Ministers of Education, Canada has published its third bulletin on copyright reform, this time explaining why it believes fair dealing is insufficient for its needs and that an Internet exception for education is the better approach. The bulletin highlights again how CMEC and its allies have failed to fully appreciate the Supreme Court of Canada's CCH v. LSUC decision on fair dealing which ruled that the provision is a user right that must be interpreted in a broad and liberal manner. The CCH case represents an enormous win for the education community, providing great flexibility where materials are used for research and private study purposes (indeed, some groups have called on the government to legislatively scale back the CCH decision).
Yet for CMEC the decision isn't good enough. In fact, it argues that there remains so much uncertainty in the law that educators and students find themselves in a legal limbo "awaiting some future court ruling to clarify more precisely the notion of 'fair dealing'." What utter nonsense. While there is no absolute certainty with fair dealing (or fair use for that matter), the state of Canadian law provides so much flexibility that it is very unlikely that a publisher or web site owner would sue an educational institution for most reasonable uses. That doesn't mean that education gets to use works for any purpose whatsoever, but why should it? Where the use extends well beyond what is fair, there should be compensation.
The CMEC and AUCC's decision to create a divide among education groups by failing to target a more flexible fair dealing provision (which would address many of its concerns) not only undermines a pro-education copyright reform agenda, but surrenders the moral high ground. Canadians would unquestionably support fair access to educational materials, whether for research, private study or in the classroom. The way to accomplish that is through a flexible fair dealing provision, not through an Internet exception that argues that education alone is entitled to free use.