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Fair Dealing Consensus Emerges Within Canadian Educational Community

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Wednesday November 14, 2012
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 “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 the University
c. as part of a course pack

4. A “short excerpt” 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.
Comments (8)add comment

Crockett said:

...
"Moreover, with Bill C-11 creating a $5,000 cap on statutory liability for non-commercial infringement"

That's quite interesting, I had always equated that limit with individuals rather institutions, maybe it was that "Downloaders will have a $5000 licence to steal" schtick we kept hearing.

So in the case of colleges & universities we are putting them in the non-commercial category? What about private colleges? Just a thought.
November 14, 2012

Michael said:

...
My read is that he $5000 cap only applies at the option of the copyright holder, just as previously was the case for the $20000 cap for commercial infringement. This just adds a separate cap for non commercial infingement. The copyright holder can still seek damages under Section 35, just as before. But it is at the option of the rightsholder, not the infringer. So the "cap" whether for commercial infringement ($20000) or non-commmercial infringement ($5000)does not apply unless the copyright holder chooses to go that route.
November 14, 2012

Michael Geist said:

@Michael
The law provides two paths for the rights holder. They can either rely on statutory damages ($5000 cap for non-commercial or $20,000 per infringement for commercial) or seek actual damages. If they seek actual damages, they must tender evidence demonstrating their actual damages from the infringement.
November 14, 2012

Michael said:

...
Agreed, and that is no change except the statutory option now exists for non commercial infringement, but still at the option of the rights holder. So I'm not sure I would agree with the statement "the actual liability for educational institutions has been massively reduced by legal reform".
November 14, 2012

Michael Geist said:

@Michael
The rights holder can choose actual or statutory damages. However, if they choose statutory damages, they are limited to $5000 maximum for all infringements. If they choose actual, they face a significant burden of demonstrating actual damages. Rights holders rarely, if ever, select actual damages given this choice. The threat of $20,000 per infringement represented a major risk for educational institutions. A cap of $5000 or actual damages does not.
November 14, 2012

Rebecca said:

...
Does the implementation of fair dealing under Bill C-11 negate the need to pay for institutional site licenses for motion pictures? This would include licenses under Audio-Cine and Criterion Pictures.
November 20, 2012

Ryan said:

...
Wouldn't a university be considered commercial infringement insofar as they are using the copyrighted work to generate profit via the communication of said work to their tuition paying students?
December 19, 2012

Grad Student said:

Sure, but does this fair dealing policy have any solid legal basis?
Its 2013 now and I've been looking at this model copyright policy language (as described above for UofT) now that a bunch of Canadian universities are now adopting and quoting as their new fair dealing policy. It seems reasonable when you first look at it, but unless I am missing something obvious (which is highly probable), my gut tells me this emerging consensus is not a sure legal thing.

Can somebody clarify the bases of the legal opinion that said these terms constitute fair dealing? [Per this post that refers to a counsel to the ACCC who proposed the terms: http://www.michaelgeist.ca/content/view/6644/125/ - I can't get what ever the document is to download, so I am not sure if it spells things out in detail.]

The reason I am curious is that, from what I can tell, the fair dealing policy being touted by these institutions appears to derive almost verbatim from the model licence that AUCC & Access Copyright agreed to in the spring of 2012. Correct me if I'm wrong here, but weren't those uses of copyrighted material (over which AC claimed jurisdiction) described and licensed in the context of the institutions paying AC $26 per FTE student? That is, the conditions that are part of the fair dealing policy were derived from similar terms that were drawn up in the context of a paid license to AC. They are not fair dealing terms that were independently prescribed by a court, statute or other legally binding body. Now that AC isn't getting paid anything, there is nothing to stop them from litigating against an institution for those uses as not being fair use. In fact, they've said just this, in reference to the similar ACCC policy: http://www.accesscopyright.ca/media/30562/ the_accc_copyright_policy_does_not_meet_the_supreme_cou
rt.pdf

I'm certainly no fan of Access Copyright or their antagonistic interpretation of fair dealing and balance between content owners and users that has been clearly expanded by the SCC and CMA, but I think they are right on this point. The Copyright Act, CMA and SCC decisions (in CCH and Alberta particularly) point out that fair use has to be assessed in each circumstance. While the current policy that institutions are adopting may seem fair to them (and me as a grad student at major Canadian university), AC has a right to beg to differ, and I suspect the way they will do that is by litigation. Just because the academic institutions have developed a consensus does not automatically mean its legally viable, does it?

Even their revised 'constructive' stance on the issue reads like a warning - they talk about how not paying the licence breaks some idyllic 'virtuous circle' of payment and benefit with a vicious cycle of 'confrontation that can only lead to negative consequences.' (http://www.accesscopyright.ca/media/30979/k_12_statement_final_10_31_2012.pdf )Its hard not to read that note as 'maintain the status quo and keep paying the license or we will litigate.'

Just wondering if this is a closed issue now, or if its just the tranquil receding waters preceding the litigation tsunami?
January 13, 2013

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