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Educational Fair Dealing Policy Shows Why the Access Copyright Licence Provides Little Value

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Monday October 01, 2012
Last month, I reported that Association of Canadian Community Colleges had received a legal opinion concluding that the Access Copyright model licence had "little value" for educational institutions. The opinion recommended that ACCC members not sign the Access Copyright model licence and that those operating under the Access Copyright interim tariff cease to do so. While it did not receive much attention, the same counsel also provided a model fair dealing policy. The policy does an effective job of demonstrating why the Access Copyright licence provides very little value to education as fair dealing covers much of what the copyright collective currently offers educational users.

The core elements of the model fair dealing policy include the following:

1. Teachers, instructors, professors and staff members in non-profit educational institutions may communicate and reproduce, in paper or electronic form, short excerpts from a copyright-protected work for the purposes of research, private study, criticism, review, news reporting, education, satire and parody.

2. Copying or communicating short excerpts from a copyright-protected work under this Fair Dealing Policy for the purpose of news reporting, criticism or review should mention the source and, if given in the source, the name of the author or creator of the work.

3. A single copy of a short excerpt 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 a school or post-secondary 
educational institution
c. as part of a course pack

4. A short excerpt means:
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

The policy reflects Supreme Court of Canada jurisprudence by clarifying that fair dealing may be applied to course packs and class handouts with excerpts that include a single article, chapter or at least ten percent of a work.

Comparing the scope of the copying rights under fair dealing and the Access Copyright licence provides a good sense of why the licence now provides little value. Note that before considering either fair dealing or the Access Copyright licence, educational institutions will first rely on hundreds of site licenses that grant access to millions of articles and other materials or on the millions of open access works that are freely available online. Moreover, in the case of K-12 schools, an Access Copyright backed study found that 88% of books and other printed materials are copied with permission and without the need for a fair dealing analysis or an Access Copyright licence. For the remaining works, compare fair dealing with Access Copyright's licence:

Issue
 Access Copyright Model Licence
 ACCC Fair Dealing Policy
Amount of Copy
 Access Copyright hereby grants a licence to the Licensee which entitles any Authorized Person, for any Authorized Purpose, to
(i) make a Copy of up to ten per cent (10%) of a Repertoire Work;
(ii) make a Copy of up to twenty per cent (20%) of a Repertoire Work as part of a Course Collection;
(iii) make a Copy of a Repertoire Work that is
A. an entire newspaper or periodical article,
B. an entire page of a newspaper or periodical,
C. a single short story, play, poem, essay or article from a Published Work that contains other Published Works,
D. an entire entry from an encyclopaedia, annotated bibliography, dictionary or similar reference work,
E. an entire reproduction of an artistic work (including any drawing, painting, print, photograph or other reproduction of a work of sculpture, architectural work or work of artistic craftsmanship) from a Published Work that contains other Published Works, or
F. one chapter, provided it is no more than twenty per cent (20%) of a book,
provided that in each case that the Copy is made in accordance with the conditions in sections 4, 5 and 6.
 A single copy of a short excerpt 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 a school or post-secondary educational institution
c. as part of a course pack
A short excerpt means:
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
Repertoire
 “Repertoire Work” means a Published Work in which Access Copyright collectively administers the rights, as authorized by the copyright owner or by another collective management organization, whether by assignment, licence, agency or otherwise, and includes any Copy of a Repertoire Work. For clarity, Repertoire Works consist of Published Works that have a print equivalent and are not on the Exclusions List and Published Works in born-digital format that are identified on the Inclusions List.
 Any published work
Reporting Requirements
 The Licensee shall maintain records of all Copies made by the Licensee for use in paper Course Collections, which records shall specify, for each of such Copies made, the title, excerpt title, publisher, author or authors (where known), the ISBN/ISSN number (where known), the number of pages in the Published Work, the specific pages Copied, the total number of pages Copied and the number of sets made. Each Academic Year during the Term, the Licensee shall provide copies of such records to Access Copyright as follows:
(i) for Copies made between September 1 to December 31 by no later than January 31,
(ii) for Copies made between January 1 to May 30 by no later than June 30, and
(iii) for Copies made between June 1 and August 31 by no later than September 30.
 None
Cost
 For each Academic Year during the term of this agreement, the Licensee shall pay to Access Copyright a royalty calculated by multiplying the number of its Full-time-equivalent Students, as of the FTE Determination Date for that Academic Year, by the royalty rate of $26.00 CAD (the “Royalties”). For any months in the Term that fall outside of an Academic Year, the Licensee shall pay to Access Copyright the Royalties prorated by the number of months in that period.
 Any fee charged by the educational institution for communicating or copying a short excerpt from a copyright-protected work must be intended to cover only the costs of the institution, including overhead costs.
Attribution
 Copies made pursuant to this agreement shall include, where reasonable, on at least one page, (a) a credit to the author, artist or illustrator, and to the source; and (b) a notice stating “Copied under Permission from Access Copyright. Further reproduction, distribution or transmission is prohibited, except as otherwise permitted by law.”
 Copying or communicating short excerpts from a copyright-protected work under this Fair Dealing Policy for the purpose of news reporting, criticism or review should mention the source and, if given in the source, the name of the author or creator of the work.

The question for educational institutions is not whether to pay for copying (the schools already spend millions on licensing), but whether the Access Copyright licence provides sufficient additional value beyond existing copying rights to merit the significant additional expenditure. Given the Supreme Court's ruling on the broad scope of fair dealing and the resulting fair dealing policies, it is not surprising to find that many are concluding it does not.
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darryl said:

very interesting
The similarities between the AC license and the fair dealing policy is striking. I look forward to seeing how Degen and Sookman dismiss it.
October 01, 2012

Bob said:

...
I imagine that they'll start by pointing out that absolutely nothing in the SCC decision dealt with compilations of longer excerpts, and that if course packs aren't considered fair use in the US, they probably aren't fair dealing in Canada. And if it ever does get litigated, market impact will be much easier to prove.
October 02, 2012

Bob said:

...
They may also point out that course packs are designed as part of the learning resources for a course and not, as in the K-12 case, supplementary materials to illustrate class discussion.
October 02, 2012

darryl said:

Course Packs
Sorry Bob, I forgot to mention your dismissal too. ;-) You do make an interesting point about course packs though. That may be one point where their policy is a little to liberal. Now, since classroom handouts are legitimate, I would expect including a portion of course packs as fair use to also be legitimate. I.E. supplemental materials included within the course pack.

It would be interesting to hear more from Geist or Knopf regarding course packs, because I agree, I don't see them as being totally covered by fair dealings. None the less, there is a lot here which is covered by fair dealings, and that certainly does reduce the value of an AC license.
October 02, 2012

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