Access Copyright’s response has grown increasingly desperate. First it stopped offering transactional licences to educational institutions in the hope that those institutions would opt for the more expensive comprehensive licences instead. When the practice was publicly exposed, Access Copyright offered a laughable response that transactional licensing creates incentives to infringe. The Canadian educational institutions have filed a complaint with the Copyright Board in a case that will unfold over the summer.
Since the transactional licence gambit is likely to fail, Access Copyright has now released a note designed to scare the institutions away from relying on fair dealing. After months of issuing dire warnings that fair dealing would allow educational institutions to copy virtually everything without limits or compensation during the Bill C-32 debate (including claims that all educational licences were at risk), Access Copyright now ironically argues the opposite – that fair dealing is legally risky and should not be relied upon by educational institutions.
Fair dealing is a moving target. This is underscored by the fact that the Supreme Court of Canada will be revisiting the fair dealing test as described in CCH in two cases in the coming year. Fair dealing is always subject to judicial interpretation. Institutions must also understand that the AUCC Fair Dealing Policy is not sanctioned by rights holders or Access Copyright. The policy will be the subject of heated debate at the Copyright Board. The Board or the courts may determine that some of the copying activity sanctioned by the AUCC policy is not fair dealing. One important area for caution is that the AUCC Fair Dealing Policy does not reflect the proper legal tests.
In a little over 100 words, Access Copyright manages to conjure up no less seven “scary” possibilities – fair dealing could change, the SCC may revise it, it is subject to judicial interpretation, they don’t agree with AUCC, the Copyright Board might have a different view, courts could rule the AUCC is wrong, and the AUCC guidelines do not rely on proper legal tests. This kitchen sink approach is unlikely to persuade anyone. If anything, the AUCC guidelines are overly conservative in their interpretation of fair dealing and universities would be well advised to follow the CAUT guidelines instead.
Regardless, the prospect of Access Copyright suing anyone for copying less than 10 percent of a work for research purposes or single journal article for private study purposes, is incredibly remote given that the Supreme Court has already stated that “for the purpose of research or private study, it may be essential to copy an entire academic article or an entire judicial decision.” Indeed, an Access Copyright lawsuit would represent a far riskier strategy than educational institutions using fair dealing guidelines to exercise what the Supreme Court of Canada has characterized as their user rights.
Access Copyright concludes by stating:
A well-administered institutional user of copyright protected works will make appropriate use of exceptions in the Copyright Act in combination with the purchase of published works, the acquisition of direct licences and licences through consortia, and a comprehensive licence from Access Copyright.
This is simply false. As Access Copyright itself has noted, its comprehensive licence “only capture[s] what is being used but not otherwise authorized or permitted.” So long as Canadian education institutions are comfortable that the use of copyrighted materials on campus is authorized or permitted (typically through a combination of direct purchases, site licences, open access, fair dealing, and transactional licences), the comprehensive licence is not needed.