Access Copyright’s Desperation: From Fair Dealing Allows Everything to It’s Too Risky to Rely Upon

The battle over competing visions of educational copyright licensing in Canada is coming to a conclusion. One on side, there is Access Copyright, which argues that a comprehensive collective licence is an essential part of an institutional copyright policy. On the other, are the Canadian education institutions, who believe that a more flexible, cost-effective alternative lies in relying on the combination of purchasing works, site licences, open access, fair dealing, and transactional licensing. Having first faced a proposal for a massive increase in Access Copyright licensing fees and later weeks of costly, unnecessary Copyright Board interrogatories, the educational institutions are clearly ready to break away from the Access Copyright comprehensive licence.

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.

For example, it states:

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.


  1. And yet, only a few weeks ago, this very same blog remarked that the Federal Court of Appeal decision in the K-12 licensing matter confirmed that fair dealing was unlikely to be applicable in the context of systemic multiple copying. Nothing like being consistent.

    Also, the SSC in CCH went on to say that copying of entire acedemic articles might not pass their fair dealing tests. And that, note, was in the context of a lawyer or librarian making just a single copy.

  2. From the sidelines says:

    What is being overlooked here is that the Part A comprehensive licence in its current form is not very important. Where most of AC revenue comes from is the Part B coursepack licence. This is effectively transactional, as universities only report and pay for what they consume. The Copyright Board could decouple these, though it declined to do so on an earlier occasion. But even if it did, and required AC to offer transactional licences for activity not covered by Part B, it could set rates that covered the true cost of processing these licences – which are really intended to apply to multiple handouts, for which a fair dealing claim would be a stretch – and at the end of the day the cost to universities could be greater than it is now. It’s a great pity that so much is being written about all this based on so little understanding of the facts, and a blatant willingness to distort the facts that are known.

  3. Marchetto says:

    The comment by ‘From the sidelines’ that ‘the cost to universities could be greater than it is now’ seems very doubtful in view of the small amount AC has been distributing and the large amount AC has been paying for internal administration and external legal services. Pooling their resources, universities (and colleges) could well be much more efficient than AC.

  4. At this point…
    can anyone point out the difference to me between Access Copyright and a Mob protection racket?

  5. can anyone point out the difference to me between “Dr.” Michael Geist and a $2 an hour prostitute?

  6. can anyone point out the difference to me between “Dr.” Michael Geist and a $2 an hour prostitute?
    Was it really useful to say something like it ?

  7. pedestrian says:

    “Part A comprehensive licence in its current form is not very important.” It is important, not as a revenue stream, but because of the anti-competitive restrictions it provides AC with- in essence even if you are not a member and what nothing to do with AC , AC will still collect money on ‘your behalf’ and then redistribute the money to people known to AC.

  8. While its very true that what fair dealing encompasses could change in the future, the whole idea is that whatever it becomes, it would still be considered “fair”… and in fact, if fair dealing wasn’t permitted, then the long and the short of it is that most people would conclude for themselves that the restrictions are unreasonable and ignore them, privately or otherwise… and regardless of the consequences (and their conclusion would be legitimate, since if fair dealing is not permitted, then by definition the law is unfair).

    And of course, taking some unreasonably small subset of fair dealing and simply packaging that under the label of fair dealing is no better, since again… the whole idea is that fair dealing is supposed to be “fair”… equitable for both the publisher *AND* the consumer.

    Laws that are not fair to their population do not get obeyed indefinitely.

  9. Replying to Bon. I think that this decision was based on different facts and uses of copyrighted materials in the K-12 institutions. Systematic multiple copying would come closer to post secondary course packs and usually campus bookstores research, pay fees and get licensing for materials used in course packs. This is very different from students copying an article from a print journal for their own research (fair dealing). Also, for digital content from databases, printing is usually covered under existing licenses from providers. Finally, in terms of e-books, most simply have the copyright restrictions built in and will not allow someone to copy over fair dealing amounts. I’m still not sure that I understand Access Copyright’s argument.

  10. Sorry – when talking about e-books, I meant print not copy