Four months after the Supreme Court of Canada issued its landmark series of copyright decisions, a consensus on the scope of fair dealing has begun to emerge within the education community. While Access Copyright has been sending threatening letters to institutions that seek to rely on fair dealing with claims that the decisions are being misinterpreted, roughly similar policies have now been developed by K-12 school boards, community colleges, and universities that plainly reject the views of the copyright collective.
As discussed in my post on the ACCC fair dealing policy, the breadth of fair dealing raises obvious questions about the necessity of an Access Copyright licence. All educational institutions already spend millions on licensed materials. Indeed, the Access Copyright study on K-12 institutions found that 88% of copying was permitted without the need for either an Access Copyright licence or reliance on fair dealing. Given the scope of fair dealing as articulated by the Supreme Court of Canada, many are concluding that the Access Copyright licence offers little additional value to Canadian educational institutions.
The latest fair dealing guideline comes from the University of Toronto, which has adopted guidelines that closely mirror the ACCC and Ontario school board guidelines. It includes excerpts of a chapter from a book, an article, or 10% of a work for class handouts, course management systems, or coursepacks. The emerging consensus on educational fair dealing seems likely to be implemented by educational institutions across the country. While Access Copyright may continue to threaten litigation, the Supreme Court decisions demonstrate the serious risks the collective faces in dragging the issue back to the courts. Moreover, with Bill C-11 creating a $5,000 cap on statutory liability for non-commercial infringement, the actual liability for educational institutions has been massively reduced by legal reform.
The University of Toronto was the first to sign an Access Copyright licence earlier this year. By adopting this fair dealing guideline, it seems likely to drop the licence at the first opportunity in 2013. The University of Toronto fair dealing guidelines include the following:
1. Faculty and other members of the teaching staff, as well as other University staff supporting the educational activity may communicate and reproduce, or otherwise deal with, in paper or electronic form, short excerpts (as defined below) from a copyright-protected work (including literary works, musical scores, sound recordings and audio-visual works) for the purposes of research, private study, education, parody, satire, criticism, review, or news reporting. In some limited circumstances, such as with a photograph or drawing, an entire work may be copied.
2. Copying or communicating short excerpts from a copyright-protected work for the purpose of news reporting, criticism or review must mention the source and, if given in the source, the name of the author or creator of the work.
3. Subject always to the consideration and application of the fair dealing factors referred to above, a copy of a â€œshort excerptâ€ from a copyright-protected work may be provided or communicated to each student enrolled in a class or course:
a. as a class handout
b. as a posting to a learning or course management system that is password protected or otherwise restricted to students of the University
c. as part of a course pack
4. A â€œshort excerptâ€ can mean (but is not limited to and may vary depending on the exact nature of the work being used, and of the use itself, all in the context of consideration and application of the fair dealing factors):
a. up to 10% of a copyright-protected work (including a literary work, musical score, sound recording, and an audiovisual work)
b. one chapter from a book
c. a single article from a periodical
d. an entire artistic work (including a painting, print, photograph, diagram, drawing, map, chart, and plan) from a copyright-protected work containing other artistic works
e. an entire newspaper article or page
f. an entire single poem or musical score from a copyright-protected work containing other poems or musical scores
g. an entire entry from an encyclopedia, annotated bibliography, dictionary or similar reference work, provided that in each case you copy no more of the work than you need to in order to achieve the allowable purpose.
5. Copying or communicating multiple different short excerpts from the same copyright-protected work, with the intention of copying or communicating substantially the entire work, will generally not be considered fair dealing.
6. Copying or communicating that exceeds the limits in these Fair Dealing Guidelines will require further analysis, including additional scrutiny of the principles enunciated in CCH and the other Supreme Court cases referred to above. If you find yourself in this situation you should seek guidance from a supervisor or other person designated by the University for evaluation. An evaluation of whether the proposed copying or communication is permitted under fair dealing will be made based on all relevant circumstances.
7. Any fee charged by the University for communicating or copying a short excerpt from a copyright-protected work must be intended only to cover the University’s costs, including overhead costs.