I delivered a keynote speech titled Taking User Rights Seriously: The Two Weeks That Changed Canadian Copyright as part of the 3rd Global Congress on IP and the Public Interest at the University of Cape Town.
Two weeks changed Canadian copyright for the foreseeable future. In a single day, the Supreme Court of Canada’ ruled on five copyright cases. This was just weeks after the Canadian government passed long-awaited copyright reform legislation. This talk examines the decade-long process that resulted in a seismic shift in Canadian copyright law toward user rights.
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The University of Toronto and the University of Western Ontario, the two Ontario universities that were quick to sign a copyright collective licence with Access Copyright before the conclusion of Bill C-11 and the Supreme Court of Canada’s fair dealing decisions, have announced that starting next year they will no longer operate under a licence from the copyright collective. The moves come after many other prominent Canadian universities operated without an Access Copyright licence, relying instead the millions of dollars being spent on site licences, open access materials, fair dealing, and transactional licensing for specific works that are otherwise unavailable or whose use would not constitute fair dealing.
The fair dealing aspect of the strategy has attracted considerable criticism from Access Copyright and its allies, who implausibly argue that despite multiple Supreme Court of Canada decisions and an expansion of fair dealing by the Canadian government, that there is still much uncertainty about its application. The reality is that a fair dealing consensus has emerged in Canada within the education community that is relatively conservative in scope. For example, the Canadian guidelines speak to the use of 10 percent of a work as fair dealing. By comparison, a recent settlement in Israel between universities and a major publisher identifies 20 percent of a work as fair.
While Access Copyright argued immediately after its release that the 2012 Supreme Court decision left “copyright licensing in the education sector alive and well”, it was obvious that this was just not the case. In fact, Access Copyright warned the Supreme Court that:
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