From our perspective the biggest weakness in the bill is the addition of the word â€˜education’ to the purposes of â€œfair dealingâ€ without clear legislative guidance on how this amended provision of the Copyright Act will work in conjunction with other, more specific exceptions for education. We think that this new fair dealing provision will result in serious damage to the cultural sector and to Canada’s embryonic knowledge economy and, together with other new exceptions, negatively affect Canada’s professional writers.
The letter adds “we see that without further clarification of some provisions there will be unintended consequences and years of costly litigation.”
It is important to emphasize again that this is fear mongering that is simply inaccurate.
There is no real uncertainty about how the addition of education will work in conjunction other exceptions such as research and private study. The courts have ruled that the exceptions should be interpreted broadly, so that education – like research and private study – will be broadly defined.
However, the courts have also ruled that the assessment of fair dealing is a two-part test. First, does the dealing qualify under one of the categories of the fair dealing? With the C-32 reform, the few remaining educational activities currently outside of the scope of fair dealing will almost certainly qualify as a potential fair dealings. But that alone is not enough. The second part of the test is whether the dealing itself is fair. This involves a fairness inquiry with a six part analysis identified by the courts. The reforms in C-32 do not affect this part of the test. This was recently confirmed by the Federal Court of Appeal, which, in discussing C-32, concluded that the education fair dealing reform “serves only to create additional allowable purposes; it does not affect the fairness analysis.”
So there is no real uncertainty or likelihood of serious damage here. The reforms will expand the scope of fair dealing categories such that some additional educational uses will qualify for a fairness analysis. The fairness analysis does not change with this bill, however. It is always possible that there will be litigation on fair dealing – Access Copyright just won a major case on the issue – but the norms will not change with C-32 and there is no reason to believe that the bill will open fair dealing litigation floodgates (unlike the digital lock provisions, which are likely to face a constitutional challenge).
Opposition to the inclusion of education is therefore based on fears that there are currently educational uses that fall outside the current list of categories that a fairness analysis would determine are fair uses. A balanced copyright approach – not to mention the Supreme Court of Canada – dictate that these uses should not require prior permission or compensation. If the writers groups are against fairness and balance in copyright, they should say so, rather than trumpeting misleading claims about the effects of the fair dealing reforms.