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Access Copyright's Desperate Declaration of War Against Fair Dealing

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Tuesday April 09, 2013
Months after the Supreme Court of Canada delivered a stinging defeat to Access Copyright by ruling for an expansive approach to fair dealing and the government passed copyright reforms that further expanded the scope of fair dealing, the copyright collective responded yesterday with what amounts to a desperate declaration of war against fair dealing. In the aftermath of the court decisions and legislative reforms, a consensus emerged within the Canadian education community on the scope of fair dealing. The fair dealing policies used guidance from the Supreme Court to establish clear limits on copying and eliminate claims that the law was now a free-for-all.  In developing those fair dealing policies, however, many institutions no longer saw much value in the Access Copyright licence.

Access Copyright has decided to fight the law - along with governments, educational institutions, teachers, librarians, and taxpayers - on several fronts. It has filed for an interim tariff with the Copyright Board in an effort to stop K-12 schools from opting out of its licence and it has filed a proposed post-secondary tariff that would run well after most Canadian schools will have opted out of its licence. Most notably, it has filed a lawsuit against York University over its fair dealing guidelines, which are similar to those adopted by educational institutions across the country. While the lawsuit has yet to be posted online [Update: Statement of Claim posted here], the Access Copyright release suggests that the suit is not alleging specific instances of infringement, but rather takes issue with guidelines it says are "arbitrary and unsupported" and that "authorize and encourage copying that is not supported by the law." 

Most of Access Copyright's longstanding arguments were dismissed by the Supreme Court this past summer. In previous instances, Access Copyright suggested that its licence was the only way to ensure compensation for authors, yet as schools spend millions on site licences for access to works and governments invest millions in open access materials that can be freely used (coincidentally, on the same day as the Access Copyright lawsuit, the BC government announced that the first group of free, open textbooks will be online by September), those claims now ring hollow. 

On the legal front, it argued that there are billions of copies being made and that the aggregate amount of copying should be considered in a fair dealing analysis (it told the Supreme Court that "there is no sound reason for assessing the fairness of the amount of a dealing on an individual basis only"). The Supreme Court rejected the Access Copyright argument, ruling that "the 'amount' factor is not a quantitative assessment based on aggregate use, it is an examination of the proportion between the excerpted copy and the entire work, not the overall quantity of what is disseminated."

Alternatively, it built its business model on classroom copies, arguing that copies made by teachers for students for classroom use was not fair dealing. The Supreme Court rejected those arguments as well, concluding that "the teacher/copier therefore shares a symbiotic purpose with the student/user who is engaging in research or private study. Instruction and research/private study are, in the school context, tautological" as well as finding that "the word 'private' in 'private study' should not be understood as requiring users to view copyrighted works in splendid isolation. Studying and learning are essentially personal endeavours, whether they are engaged in with others or in solitude."  

Having lost on the legal and legislative fronts, that seems to leave Access Copyright with just one claim: that the amount of copying supported in the guidelines go beyond that permitted by fair dealing. The York guidelines state that the copy must be a short excerpt, defined as:

10% or less of a Work, or
no more than:
(a)  one chapter from a book;
(b)  a single article from a periodical;
(c)  an entire artistic work (including a painting, print, photograph, diagram, drawing, map, chart and plan) from a Work containing other artistic works;
(d)  an entire newspaper article or page;
(e)  an entire single poem or musical score from a Work containing other poems or musical scores; or
(f)  an entire entry from an encyclopedia, annotated bibliography, dictionary or similar reference work,
whichever is greater.

Yet it is hard to see how this approach can be fairly characterized as arbitrary and unsupported. First, the amount of the copying is only one of six factors, many of which will favour the education institutions. Second, while the amount is always context dependent, ten percent is a fairly common starting point in the United States (in Israel, educational guidelines go as high as 20 percent). Third, the amount is based on the Supreme Court's guidance. In CCH, it stated:

the quantity of the work taken will not be determinative of fairness, but it can help in the determination. It may be possible to deal fairly with a whole work. As Vaver points out, there might be no other way to criticize or review certain types of works such as photographs: see Vaver, supra, at p. 191. The amount taken may also be more or less fair depending on the purpose. For example, for the purpose of research or private study, it may be essential to copy an entire academic article or an entire judicial decision. However, if a work of literature is copied for the purpose of criticism, it will not likely be fair to include a full copy of the work in the critique.

Consider again how the Supreme Court characterized fair dealing this summer:

CCH confirmed that users' rights are an essential part of furthering the public interest objectives of the Copyright Act. One of the tools employed to achieve the proper balance between protection and access in the Act is the concept of fair dealing, which allows users to engage in some activities that might otherwise amount to copyright infringement. In order to maintain the proper balance between these interests, the fair dealing provision "must not be interpreted restrictively"

The emphasis on a non-restrictive approach to fair dealing points to a policy such as York's that, in the words of the Supreme Court in CCH, is "research-based and fair." And that is all an institution needs to be able to rely on fair dealing.  From CCH:

Section 29 of the Copyright Act states that "[f]air dealing for the purpose of research or private study does not infringe copyright." The language is general. "Dealing" connotes not individual acts, but a practice or system. This comports with the purpose of the fair dealing exception, which is to ensure that users are not unduly restricted in their ability to use and disseminate copyrighted works. Persons or institutions relying on the s. 29 fair dealing exception need only prove that their own dealings with copyrighted works were for the purpose of research or private study and were fair. They may do this either by showing that their own practices and policies were research-based and fair, or by showing that all individual dealings with the materials were in fact research-based and fair.

To suggest that a modest fair dealing policy based on Supreme Court jurisprudence and legislative reforms is "arbitrary and unsupported" is more than just rhetoric masquerading as legal argument. It is a declaration of war against fair dealing.
Comments (11)add comment

Crockett said:

Mark 2:22
When I read their press release, I took note of their call for a return to balanced discussion. The overall tone of the letter though reverted to more of an ultimatum, somewhat flaccid at that.

There must be a better way for two sides of an issue to move forward. It seems to me the current groundwork of copyright is incapable of adjusting to the realities of the digital age, where anyone could be their own publisher & distributor. You can only put some many patched on an old wineskin.

Eventually a new framework will be developed. Already there are calls from significant players for a reduction in term lengths and a more liberal interpretation of fair use. These shifts though should not operate in a vacuum, we all want content and thus need to support creators. It is the methods to do so that must change, and they are starting to do just that as crowd funding has shown.

http://news.cnet.com/8301-1023_3-57578565-93/crowdfunding-raises-$2.7-billion-worldwide-in-2012/

While Canadians can participate in these ventures outside our borders, we need to modernize our laws and frameworks to promote more of it here. No, this is not a panacea for all ills, but a glimpse of the needed changes to come.
April 09, 2013

Crockett said:

You can only put some many patched on an old wineskin
I have to stop doing this from my cell phone ... DYAC!

April 09, 2013

Doubtful said:

Mr Geist you must have one hell of a personal beef with Access Copyright
Access Copyright's Desperate Declaration of War Against Fair Dealing???

but I just read:
The Federal Court of Appeal recently ruled that the Crown is bound by the Copyright Act In Manitoba v. Canadian Copyright Licensing Agency (Access Copyright),2013 FCA 91 the Court made it clear that the structure of the Act,its legislative history and evolution all lead to this conclusion:

"Having carefully examined the wording of section 12 in its overall context, including the structure of the Act, its legislative history and evolution, and other provisions, such as section 89, I agree with the Board that the words “[w]ithout prejudice to any right or privilege of the Crown” set out in section 12 are intended to refer to and preserve the Crown’s rights and privileges of the same general nature as copyright that may not fall within the meaning of the rest of this provision. These rights and privileges could otherwise be excluded by the general principle set out in section 89 which provides that no person is entitled to copyright otherwise than under and in accordance with the Act or any other Act of Parliament.
In my view, the references in the Act to very strict conditions, to tariffs fixed by the Board, to the consent of the copyright owners, and to the power of the court when the defendant is an “educational institution”, including a federal or provincial government department, all point to only one logical and plausible conclusion as to the intent of Parliament: the Crown is bound.
I have considered that the Act, unlike other statutes such as the Patent Act, R.S.C., 1985, c. P-4, s.2.1, does not contain an “expressly binding” clause at the beginning, as was recommended in the 1985 report entitled A Charter of Rights for Creators. I am still irresistibly drawn to the conclusion that Parliament clearly intended to bind the federal and provincial Crowns by the express language of the Act and through logical inference."
April 09, 2013

Paul Jones said:

...
Doubtful, could you please explain the relationship between Michael Geist's post and the Federal Court of Appeal decision you reference? I'm not seeing an immediate connection.
April 09, 2013

Scott Leslie said:

statement of claim now available
Undoubtedly you will see this and write a follow up, but AC's statement of claim has now been placed online http://www.scribd.com/doc/1349...78-13-Doc1 and it does actually contain specific references to alleged copying acts that in AC's claim should not be covered under fair dealing.
April 09, 2013

Gary H. Pon said:

...
Doubtful is just regurgitating Barry Sookman's blog post:

http://www.barrysookman.com/2013/04/05/crown-bound-by-copyright-act-goverment-of-manitoba-and-access-copyright/

here is the link to the FCA decision cited:

http://canlii.ca/en/ca/fca/doc/2013/2013fca91/2013fca91.html

Justice Gauthier introduces:

"[1] The governments of the Provinces of Manitoba, New Brunswick, Nova Scotia, Prince Edward Island and Saskatchewan (the Applicants) seek judicial review of the decision of Copyright Board of Canada (the Board) dismissing their objection that the Board has no jurisdiction to establish a tariff that would apply to them in respect of the reprographic reproduction of copyrighted works in the repertoire of the Canadian Copyright Licensing Agency, operating as “Access Copyright” (Access).

[2] Before the Board, the Applicants and a number of other provinces and territories who are not parties to this application argued that by virtue of section 17 of the Interpretation Act, R.S.C. 1985, c. I-21, they are entirely immune from the Copyright Act, R.S.C. 1985, c. C-42 (the Act)."

So, the governments were trying to skip the entire discussion of fair dealing by implying that the Crown was not subject to the Copyright Act. The judge emphatically disagreed. So, the Copyright Board is free to impose tariffs that apply to copying by those governments (or schools funded by those governments).

But those fees only apply if those government services (schools) do not pass the fair dealing tests in making copies. Access Copyright's new lawsuit is an attempt to undermine those fair dealing tests, and the FCA case cited has zero applicability to that discussion.
April 09, 2013

Darryl Moore said:

@Scott
You appear to have a rather vague definition of the word specific. The only thing specific was dropping the names of a few professors.

Other than that they claim that 'The purely mathematical' formula used for the guideline is not "encompassed without fair dealing' and that since professors will regularly exceed this guideline anyway, then it is also not fair dealings, amongst other very vague specific claims.

Geist is right. They are declaring war on fair dealings, and the sooner the court tosses this out the better, before it scares too many other institutions (which I am sure is the whole point).
April 09, 2013

Scott Leslie said:

we aren't in disagreement
Daryl, I wasn't pointing to the AC statement of claim in support of it, only that it was now available, and does list specific professor's names, and indicates they wish access to records in order to procure additional ones. So of course they are trying to be specific.

But you are right, they are also claiming in general that York's current efforts to educate on fair dealing are in and of themselves insufficient and thus grounds for a claim. I absolutely agree, this is a desperate attempt to attack recent judgements that expand fair dealing rights which have rendered much of what AC does of little value. I was only attempting to point to the filing and the fact that they are accompanying this general attack with specifics. I agree wholeheartedly that the "sooner the court tosses this out the better" and failing that, am advocating for other Canadian institutions to rally round York's defence, as this is clearly an attempt to intimidate the entire sector, not just a single institution.
April 10, 2013

martha said:

language monitor
I understand your criticism of Access Copyright. I do not think it is a "war" on fair dealing and I think it is unhelpful to characterize it as such Michael. (With thanks to Bill Patry for writing a book on how unhelpful this rhetoric and Pat AufderHeide for documenting how it silences creators.) From where I sit I think for the Ministry of Education to suggest that borrowing a copy of a dvd from the library and then showing it in the country is fair, in every case, is hugely problematic. From the point of view of some of the 1000's of Canadian independent documentary film and video makers (and non profit independent distributors who remain the ONLY source for much of this material) this is anything BUT fair. Unfortunately few of the non profits I work with or the creators I know have the capacity to challenge the unilateral assertion by educational institutions that seem less interested in fair than they do in controlling their budgets where they can. As you and I both know. Sigh.
April 11, 2013

Arby said:

War. Attitude. Hostility. Whatever
Michael's post was well presented and well argued. Personally, I think he characterized Access Copyright's move quite fairly. Too many special interests these days make trouble for others who don't have their pull and they reveal what they're really about when the so readily break rules to get what they want. Or they declare war on them. If conditions are right, they will ignore them - because they are so keen on law and order, as we see by their support for law & order governments.
April 28, 2013

Peter Whittaker said:

UofO still charging access copyright licence fees - what recourse do we have?
I just noticed that the University of Ottawa invoice for my daughter's fall session includes an access copyright licence fee.

It's not much, but based on the above, it should not be there at all.

What recourse do we have? It smacks of money-grabbing.
August 06, 2013

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