Appeared in the Toronto Star on August 31, 2013 as Schools Navigate Learning Curve for New Copyright Rules
As students and faculty prepare to head back to campus this week, many will be greeted by new copyright guidelines that clarify how materials may be used without the need for further permission or licensing fees. Just over a year after the Supreme Court of Canada released five landmark copyright decisions in a single day and the Canadian government passed copyright reform legislation over a decade in the making, the education community has begun to fully integrate the new copyright landscape into campus policies.
The new rules are significant since they grant teachers and students far more flexibility to use portions of materials without the need for copyright collective licences. The changes come as a result of the expansion of fair dealing, the Canadian equivalent of the U.S. fair use rules. The government expanded the scope of fair dealing to explicitly include education as a recognized purpose in 2012, while the Supreme Court has repeatedly emphasized the importance of a broad, liberal interpretation to fair dealing in order to ensure an appropriate balance in copyright law.
With those developments in hand, Canadian educational institutions crafted a general fair dealing policy last year confirming that educators can rely on fair dealing to use up to ten percent of a copyright-protected work (or a single article, a chapter from a book, a newspaper article, or a poem or photograph taken from a larger collection) without the need for a licence provided they meet a six-factor test.
After Access Copyright, a copyright collective, launched a lawsuit against York University over its reliance on fair dealing for much of its copying, the Association of Universities and Colleges of Canada (AUCC), the leading university association, asked Osler, Hoskin & Harcourt, a top Canadian law firm, to develop a series of application guidelines that offer more detailed, specific recommendations for many common copyright uses within education environments.
The new guidelines were completed earlier this month and provide useful information for both teachers and students. The university community believes that consistent application of the guidelines will reduce the likelihood of infringement and enhance York’s defence against the Access Copyright lawsuit, suggesting that near-identical guidelines will be used across the country.
While all the documents start from the same position – fair dealing – each provides specific guidance for a user group or use. For example, teachers and professors are advised that they may provide up to 10 per cent of a work as a handout to students, email a copy of the work to students enrolled in a class, post a copy of the work on a password-protected website that is accessible only to students, or display a copy of the work in a class presentation.
New application guidelines also specifically address two of the most popular ways materials are provided to students: course packs and online learning management systems. Fair dealing can be relied upon for course packs, which are customized printed compilations of readings. However, the guidelines require that no profit be made in the production or sale of course packs and that they be sold to students directly by the university.
Fair dealing also applies to online learning management systems, though the AUCC adopts a fairly restrictive approach by requiring the university to operate or control the system (services such as Dropbox are excluded), password-protect the site, and conduct regular audits to ensure that the fair dealing guidelines are being applied appropriately.
The AUCC guidelines confirm that the benefits of the user rights approach articulated by the Supreme Court of Canada are emerging as an integral part of campus copyright policies. For teachers and students alike, the new policies will mean greater flexibility in the use of copyrighted materials, fewer restrictive reporting requirements, and access to more materials as universities reallocate funds from unnecessary collective licences to digitization of materials and wider access to electronic databases.
Michael Geist holds the Canada Research Chair in Internet and E-commerce Law at the University of Ottawa, Faculty of Law. He can reached at firstname.lastname@example.org or online at www.michaelgeist.ca.