61 Reforms to C-61, Day 54: E-Reserve Provisions Less Effective Than Fair Dealing

The Canadian library community has been one of the most outspoken critics of Bill C-61, expressing concern about (among other things) its impact on electronic delivery of materials.  The Canadian Library Association press release on C-61 notes that:

Bill C-61 ignores the fact that the 2004 CCH Supreme Court Judgment already allows Canadian libraries to do desktop delivery of interlibrary loan. Bill C-61 requires libraries to lock up interlibrary loans with DRM tools, something that most libraries would not have the resources to accomplish. Bill C-61 alone would force many libraries back to delivering interlibrary loan via paper copies.

The CLA raises two important issues – the use of fair dealing for e-reserve policies as well as the effective requirement on librarians to use DRM for electronic delivery of materials.  Today I will focus on fair dealing and e-reserve policies and save the DRM concerns for tomorrow.
E-reserves are the electronic equivalent of the traditional library book reserves – books or materials that a professor places on reserve in the library so that it is accessible to the entire class. In the aftermath of the LSUC v. CCH Supreme Court of Canada decision, which emphasized the need for a broad and liberal interpretation of the fair dealing provision, a growing number of universities began to establish (or consider establishing) e-reserve policies based on fair dealing. Most libraries had traditionally sought licenses for the use of electronic copies of these additional research and reading materials, yet the frustration of lengthy delays and the CCH case spurred many to think about a fair dealing based approach.  For example, the University of Calgary has established an e-reserve policy that links to accessible online content and scans print material that qualifies as fair dealing.

The move toward fair dealing based e-reserve policies have been gaining momentum in Canada, yet Bill C-61 tries to steer libraries in a different direction as the bill includes a specific provision that promotes a license-based approach.  Section 30.02(1) provides that:

Subject to subsections (3) to (5), it is not an infringement of copyright for an educational institution that has a reprographic reproduction licence under which the institution is authorized to make reprographic reproduc-
tions of works in a collective society’s repertoire for an educational or training purpose

(a) to make a digital reproduction – of the same general nature and extent as the reprographic reproduction authorized under the licence – of a paper form of any of those works;

Moreover, Section 30.02(7) and (8) create a statutory safe harbour that limits potential liability for libraries for digital communication of works under this section. 

So far, so good.  However, Section 30.02(3) sets out several requirements to qualify for the exception, including payment to the applicable copyright collective at 30.02(3)(a).  In other words, digital copying is permitted but only if the institution pays for the digital copies.  The institution has already paid for the work in print form and this is designed to extract additional revenue for the digital copy.  While some people may believe that is reasonable, the key point here is that the government is really just imposing a statutory deal on both parties – digital copies and a statutory safe harbour in return for payment and new DRM restrictions.  Some risk averse libraries and institutions may jump at the deal (with all of its restictions), but many other libraries will rightly conclude that they will be better off ignoring this new "right" altogether and opt for a fair dealing model that does not come with so many restrictions.


  1. Not necessarily fair
    A few points here. The SCC did NOT go this far and in fact the Chief Justice specifically said that impact on sales could be factor; and the court also focused its decision on photocopying. Here’s the other side of the argument: e-reserve basically leads to multiple copying of what can be quite extensive amounts of material. Buying one print copy of a book does not give you the right to then make it freely available to what might be thousands of students – think Soc or Psych 101. It didn’t with print reserves and is less likely to with e-reserve. Not a matter of extracting “additional revenue for the digital edition” but acknowledging that the digital edition will be widely distributed. If there’s disagreement on scope or price, the Copyright Board can make the decision.

    Universities charge fees – huge fees, in fact – and their faculty earn what many might think are generous salaries, like $120K++ for a U of Ottawa law prof. Paying fairly for access to learning materials should be part of that equation.

  2. Andrew Fernandes says:

    It isn\’t about \”Fair\”
    Jeepers – at least have the courage to use your name if you\’re going to sidewise-slander Geist!

    The point isn\’t really about what is \”fair\”; the point is that two parties are having a statutory deal pushed upon them. While it may seem nice that content providers get unconditional \”per copy\” payments, many may feel that, for their business model such an arrangement is unwanted. C-61 would stifle these new/different business from the start.

    Copyright is, above all, about balance. If you produce a copyrighted work, it has no value without content-consumers willing to pay for it. On the other hand, if consumers refuse to pay for their content, the quality and quantity of content will decline. Creators and consumers have a symbiotic, not parasitic relationship, and copyright reform needs to balance rights with responsibilities for BOTH parties to flourish.

  3. I’m not slandering him at all. This interpretation of CCH is not supported by what the judges said.

    Of course there needs to be balance. If consumers – here, universities – don’t want to pay to put books on e-reserve, I suspect that’s just fine with publishers. If they do, then payment is the flip side of balance. Nothing is being imposed. Libraries have a choice. So in fact do publishers because I think they can opt out of this arrangement.

  4. I agree with #2 post here. I read and reread CCH. OK it says flexible fair dealing, but there are lots of ways they qualified it. It doesn’t mean, anything goes. I’d be interested to hear what Professor Geist thinks is fair and what if anything he thinks consumers should pay for. So far, he has never supported payment for use.

  5. Michael Geist says:

    E-Reserve and CCH
    Interesting responses. I did not say that anything goes with respect to fair dealing. The fair dealing based e-reserve policies at some Canadian universities similarly don’t say anything goes. Rather, they look specifically at what the SCC said with respect to context, amount of copying, etc. In an education context, this will cover much of what is needed for e-reserves. Where it does not, the library will seek permission and pay the appropriate or applicable license.

    Given the limitations of C-61 (more on the limitations tomorrow), this is a better approach than opting for the new exception (and CCH makes clear that fair dealing is always available, notwithstanding the exception).

  6. E-reserve and CCH
    The point is the SCC didn’t say anything specific and that’s the problem with the decision. It was very vague on amount and extent, and it veered away from addressing multiple copying, which is in effect what e-reserve is. And as for a better approach, that must surely depend on which side of this street you stand. The exception/licensing approach is a really neat way to take care of most library needs, and the Copyright Board can make sure the price is right.

  7. licencing and copying
    Quoting from paragraph 70 of CCH:

    “The availability of a licence is not relevant to deciding whether a dealing has been fair. As discussed, fair dealing is an integral part of the scheme of copyright law in Canada.”

    In response to the first anonymous poster the decision was about fair dealing and its limits, not about photocopying. And availability of a licence from Access Copyright or Copibec doesn’t eliminate the possibility of a library using fair dealing.