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:
In other words, it readily acknowledged that its system of educational licensing was on the line before the Supreme Court. Yet as I chronicled after the decision, the Court rejected every major Access Copyright argument. There was no uncertainty about what was at stake – the collective itself made that clear and the Court had little trouble in determining that the copying at issue was fair dealing.
Rather than adapt to the current environment (many Canadian universities license Canadian publications through a U.S. collective because it offers an easier method of transactional licensing), Access Copyright and its allies now seem content to raise unfounded, plainly false, and somewhat bizarre rhetoric:
- Access Copyright says “fair dealing requires clarification.” Yet the Supreme Court just ruled on fair dealing and the government expanded fair dealing despite Access Copyright urging it not to do so. At committee hearings on Bill C-11, Access Copyright noted how the Supreme Court has adopted a “large and liberal interpretation” for fair dealing.
- The Canadian Educational Resources Council now argues that fair dealing is limited to “spontaneous, situational uses” even though there is no such limitation in either the law or court decisions.
- The Association of Canadian Publishers claims that “fair dealing is intended to facilitate transformative uses of copied material, such as new research, criticism, and satire. When copying is simply duplication for distribution, it is not fair dealing”. Not only is this not what the Supreme Court said, but the Court’s findings on fair dealing involved copying that was duplication for distribution. Moreover, the Court has ruled that fair dealing is a users’ right, not one limited to transformative uses.
- The Writers’ Union of Canada suggests that the university policies encourage “the wholesale cannibalization of books without permission or payment” despite the fact that the fair dealing policies do not cover entire books, but rather a limited percentage that is consistent with the Supreme Court’s ruling that fair dealing can cover an entire article.
- The Professional Writers Association of Canada claims that the universities “have been persuaded by the most fanatical ideologues in their midst that the recent reform of copyright law in Canada gives them free rein to copy at will without any regard for the realities of the marketplace.” As noted above, no one is claiming free rein to copy anything without limitation and any copying is based on sound copyright principles developed by Parliament and the Supreme Court of Canada.
Moving past the rhetoric and distortions of the law, the reality remains that educational institutions spend millions on copyright works every year. The decision to move away from Access Copyright is simply a matter of dropping a licence that provides little value and instead relying on a strategy that combines payments to authors and publishers through site and transactional licensing with permitted uses through open access and fair dealing. That approach is fair to all: payment to authors where appropriate and compliance with the law consistent with the rulings from the Supreme Court and legislative reforms from Parliament.