The Ontario Public School Board Association last week advised school boards across the province that they should prepare to stop using the Access Copyright licence effective next year. The advisory indicates that the Counsel of Ministers of Education, Copyright, which represents education ministers across the country, has received a legal opinion that confirms that K-12 schools no longer require the Access Copyright licence since they can rely on fair dealing for the small percentage of copying in schools that is unlicensed or copied without permission. A 2005 study of copying in Canadian K-12 schools conducted for Access Copyright found that 88% of copying of copyright works already had the necessary permissions without the need for an additional licence. The Access Copyright portion covered as little as 6% of the total copying and given the recent Supreme Court of Canada decisions, the schools believe that this copying is covered by fair dealing.

The advisory to the school boards includes the following (the fair dealing guidelines, which are very similar to the fair dealing policy adopted by the ACCC, can be found here):

The CMEC Copyright Consortium has received a legal opinion stating that any copying of short excerpts by teachers for the use of their students now qualifies as fair dealing and does not require compensation through the current certified Access Copyright Tariff. This legal opinion further states that Ministries and school boards no longer require the current certified Access Copyright tariff as most copying by teachers will qualify as “fair dealing”. The legal opinion states that Ministries and school boards have an obligation to inform staff and students of copying parameters that qualify for fair dealing. Therefore, Fair Dealing Guidelines have been developed by CMEC’s legal counsel to provide advice on the legal definition of “short excerpts” and set parameters for the types of copying that qualify as fair dealing in an educational setting.

The Fair Dealing Guidelines describe a “safe harbour”, not absolute limits. Copying or communicating a copyright-protected work within the prescribed limits will, according to the advice of legal counsel, almost certainly be fair. Copying beyond those limits may or may not be fair.

An earlier Supreme Court of Canada decision regarding copyright and fair dealing held that adopting institutional guidelines on fair dealing that provide safeguards to copyright owners is an important element in establishing whether copies are “fair”. Therefore, the Fair Dealing Guidelines also set out safeguards for copyright owners that will help school board staff deal fairly with copyright protected material. A copy of the Fair Dealing Guidelines is attached.

It is important that school boards implement these Fair Dealing Guidelines in order to claim the full benefit of fair dealing. Therefore, these Guidelines must be incorporated into school board policies and communicated to all schools prior to December 31 2012 in order for a school board to ensure that it has fulfilled its obligations and can opt out of paying the current certified Access Copyright Tariff. The Ontario Ministry of Education will begin the process to have these guidelines officially incorporated into a PPM. However, as the Ministry’s PPM will take some time to be developed, and member boards need to have policies updated and shared with schools by December 31 2012, OPSBA is sharing the guidelines now.

With K-12 schools (via CMEC) and the Association of Canadian Community Colleges both concluding that the Access Copyright licence is no longer needed, the reverberations from this summer’s Supreme Court of Canada decision continues. The AUCC, which urged its members to sign a model licence with Access Copyright before the release of the SCC decisions, is now the last major education organization to address the issue.