CMEC On Fair Dealing

The Council of Ministers of Education, Canada has published its third bulletin on copyright reform, this time explaining why it believes fair dealing is insufficient for its needs and that an Internet exception for education is the better approach.  The bulletin highlights again how CMEC and its allies have failed to fully appreciate the Supreme Court of Canada's CCH v. LSUC decision on fair dealing which ruled that the provision is a user right that must be interpreted in a broad and liberal manner.  The CCH case represents an enormous win for the education community, providing great flexibility where materials are used for research and private study purposes (indeed, some groups have called on the government to legislatively scale back the CCH decision).

Yet for CMEC the decision isn't good enough.  In fact, it argues that there remains so much uncertainty in the law that educators and students find themselves in a legal limbo "awaiting some future court ruling to clarify more precisely the notion of 'fair dealing'."  What utter nonsense.   While there is no absolute certainty with fair dealing (or fair use for that matter), the state of Canadian law provides so much flexibility that it is very unlikely that a publisher or web site owner would sue an educational institution for most reasonable uses.  That doesn't mean that education gets to use works for any purpose whatsoever, but why should it?  Where the use extends well beyond what is fair, there should be compensation.

The CMEC and AUCC's decision to create a divide among education groups by failing to target a more flexible fair dealing provision (which would address many of its concerns) not only undermines a pro-education copyright reform agenda, but surrenders the moral high ground.  Canadians would unquestionably support fair access to educational materials, whether for research, private study or in the classroom.  The way to accomplish that is through a flexible fair dealing provision, not through an Internet exception that argues that education alone is entitled to free use.


  1. R. Bassett Jr. says:

    Is what you are refering to here something similar to say, an average joe going to the library and having to pay to read certain books, where as a teacher or student would be able to read the book for free? Or is this issue more like the average joe would have to pay royalties on music played at a “pay per admission” dance party, where as an educational institution would not, even though the dance party had nothing to do with education?

    Is it the open access to information that’s being questioned or is it the renumeration for the manner in which information is used once accessed that’s being questioned?

  2. Chris Brand says:

    To use your analogy, the CMEC are asking for a law that says “educational institutions don’t have to pay to use the library” (an “educational exemption”). That’s fine in itself, except that it implies that everybody else *does* have to pay.
    What Prof Geist is asking for then, would be for them to instead ask for legal clarification that using the library is free for everybody.

  3. Too many cooks cookin’ Ed
    One recipe please… Most teachers know that flexibility is key to learning. And, where there are shades of grey in interpretation of any subject, it is best to go with what works in the best interest of maximizing intelligence gained. An appropriate fair dealing provision in this domain is one that is pro-education as defined across its’ broadest brush of institutional variance, and proffers the best possibilities for successful learning outcomes.

  4. CMEC
    Palonek: I think the CMEC thinks they can argue and in turn perhaps ignore the supreme court of Canada. This is just one junction where our rights to learn and have the flexibility of learning are perhaps being curbed. Education is not a privilege, instead it should be our right!. [ link ]

  5. Where is the classroom?
    I think that much material is marked as copyrighted, but one can often contact the creator for clarification or special permissions. However, I can see that a teacher would feel unsure about the internet. Much teaching nowadays is what is called “distance learning”. So, when a teacher used to pass out 100 photocopies of a page from a book and call it fair use, he is now sending out electronic copies via email, or perhaps posting it on the web. To me that feels quite different.

    Just supposing you are teaching a course in cartooning, and wish to illustrate something with copies of Mickey Mouse. How about a music course with clips of popular artists? Will proposed content filters catch this? The problem is that using the net is not as private as the old classroom used to be, and some of these rights holders have shown themselves to be pretty ornery. I don’t blame teachers for being unsure in this new territory.

  6. No, the real problem for CMEC and the AUCC is that fair dealing does NOT cover classroom use. And Prof Geist, when he talks about “flexible” fair dealing really means he wants a new definition of fair dealing in the Copyright Act. At least CMEC is being upfront about this. And CCH v LSUC is not exactly a perfect decision. It didn’t say “anything goes” – specifically what it said is that “research” should have a broader meaning than just non-profit research, and they also said that it didn’t matter who made the actual photocopy. As I remember, they were very careful in also saying that the decision didn’t cover all types of material or all types of copying, and that if there was a financial impact of the copying then maybe it wouldn’t be fair dealing. Along the way they also ignored the pretty clear wording of the legislation. So to say CCH is a slamdunk really isn’t right.

  7. Dont the CMEC and AUCC represent big education groups? Why is it wrong for them to speak on behalf of education?

  8. A danger, I think, with the CMEC’s proposal: a student does some research and creates a report, or poster or something. Handing it in at school and getting a grade is fine. Taking it home and sticking it to the refrigerator door is infringement and liable for whatever the statutory penalties have been run up to by then.