any reproduction, in any material form whatever, including a Digital Copy, that is made by or as a consequence of any of the following activities
(k) posting a link or hyperlink to a Digital Copy.
Critics argue that this provision gives the AUCC no value as there is simply no need to license such activities. The inclusion of the provision means students will be paying something – there must some notional part of the $26 annual fee that covers this section – for nothing. Supporters of the deal, including AUCC, claim otherwise. Indeed, the AUCC FAQ has two questions and answers on point:
A. Despite the ruling of the Supreme Court of Canada in a recent defamation case, Crookes v. Newton, it is still an open issue in Canadian law whether posting a hyperlink could make a person liable for authorizing the copying of the digital work. The definition of â€œCopyâ€ in the model licence makes the licence and the indemnity very broad in scope. Another provision in the model licence clarifies that AUCC has accepted this definition on a â€œwithout prejudiceâ€ basis and reserves the right to take a different position on the meaning of the term in any other proceeding.
7.Q Would it have been better to wait until after Bill C-11, the Copyright Modernization Act, becomes law and the Supreme Court of Canada rules on fair dealing in K-12 schools before AUCC settled with Access Copyright?
A Bill C-11 and the upcoming Supreme Court decision on fair dealing are unlikely to affect the need to secure a licence for copying required readings for students for inclusion either in course packs or on course websites. Required readings is the principal category of copying covered by the model blanket licence agreement.
The AUCC position raises two issues: first, that the issue of linking still poses a risk under Canadian law, and second, that Bill C-11 will not alter the legal implications. The AUCC is wrong on both counts.
On the Supreme Court of Canada’s approach to liability for linking, the court has unquestionably provided a strong foundation for arguing that there is no liability for linking to content. In Crookes v. Newton, a case focused on defamation and linking, Justice Abella states:
Hyperlinks thus share the same relationship with the content to which they refer as do references. Both communicate that something exists, but do not, by themselves, communicate its content. And they both require some act on the part of a third party before he or she gains access to the content. The fact that access to that content is far easier with hyperlinks than with footnotes does not change the reality that a hyperlink, by itself, is content-neutral – it expresses no opinion, nor does it have any control over, the content to which it refers.
Control over the content rests with the site that has made the content available online. Merely linking to such content does not implicate copying that would or should require permission or a licence.
The even bigger error comes from its analysis of Bill C-11, which it examines solely from the perspective of the expanded fair dealing provision. The bill includes at least two other provisions that are directly relevant to parts of the model licence, including the issue of linking to online materials. The most obvious provision is one that AUCC has spent years lobbying for (thus making its omission from the FAQ shocking) – section 30.04 on publicly available materials on the Internet. The provision states:
30.04 (1) Subject to subsections (2) to (5), it is not an infringement of copyright for an educational institution, or a person acting under the authority of one, to do any of the following acts for educational or training purposes in respect of a work or other subject-matter that is available through the Internet:
(a) reproduce it;
(b) communicate it to the public by telecommunication, if that public primarily consists of students of the educational institution or other persons acting under its authority;
(c) perform it in public, if that public primarily consists of students of the educational institution or other persons acting under its authority; or
(d) do any other act that is necessary for the purpose of the acts referred to in paragraphs (a) to (c).
The subsections that follow create several conditions, including attribution, the absence of a digital lock, and no clear opt-out notification (that is more than just a copyright notice). The whole point of the provision is to provide education with legal certainty in the use of online materials without the need for further permissions or payment. If the provision permits reproduction, communication, or performance of a work that available online, it surely means there is no legal risk in merely linking to such a work that can be freely reproduced.
In addition to the publicly available materials exception, the non-commercial user generated content provision may also prove relevant for some electronic casebooks that incorporate some materials to create a new work for non-commercial purposes. The UGC provision (Section 29.21) includes four conditions including an analysis of “substantial adverse effect”, but the provision may allow for the development of new materials where the evidence suggests that the new works actually increase (or at least do not substantially adversely affect) the original works.
In sum, Bill C-11 offers education far more than just an expanded fair dealing provision. While there are still problems with the bill – particularly with respect to digital locks and restrictions on lessons – there are provisions that have implications for issues such as linking to content that confirm the Access Copyright deal provides no real benefits in this regard. For AUCC to ignore these provisions in its FAQ is highly misleading and presents an inaccurate picture of one of the touchstone issues in the model licence. It also raises questions about whether AUCC has fully analyzed the impact of the forthcoming changes to Canadian copyright law, which places it in a far stronger position that it seems to realize.