My Fair Dealing Week series of posts on Canadian copyright, fair dealing, and education concludes with a few thoughts on the role of fair dealing within Canadian universities and colleges. Copyright lobby groups have spent years perpetuating multiple myths, including the false notion that today’s fair dealing policies are largely a function of 2012 reforms (they actually stem chiefly from two decades of Supreme Court jurisprudence) and that fair dealing has resulted in universities refusing to licence content (prior posts have covered this disinformation, citing the millions spent on site licensing, transactional licensing , the disappearance of course packs, and the growth of open textbooks).
The reality – as noted in this week’s Law Bytes podcast features Western librarian Stephen Spong – is that fair dealing is both essential and fair, but also limited in the role it plays in providing access to course materials on university campuses. The evidence from the past decade leaves no doubt that universities spend more than ever on licensing materials despite the existence of fair dealing. Fair dealing is foundational to ensuring a fair copyright balance that benefits both creators and users, but it does not come close to a full substitute for licensing. What has replaced the Access Copyright licences are largely other licences, not fair dealing. The digital market now offers licences with far great flexibility that provide both access to works and the ability to use them as course materials. Access Copyright’s limited licence is dependent on obtaining the works in the first place and then sets limitations on how they can be further used. Simply put, the licence is not competitive with other licensing alternatives.
If copyright lobbyists were correct in their claims that fair dealing replaces licensing, we would expect the data to show a decline in licensing and increase in the reliance on fair dealing. Yet the opposite is true. Not only has licensing increased dramatically over the past decade, but universities report that fair dealing use has remained steady or declined in recent years. For example, the University of British Columbia advised that they have licensed more material and relied less on fair dealing over the past 10 years, a trend that only increased during the pandemic. University of Guelph data similarly says that they are sourcing more electronic course materials overall and their proportionate use of fair dealing among these e-materials has declined.
As this series has shown, institutions have a range of options for clearing copyright, far beyond the traditional models of textbooks, course packs and photocopying. Given the diversity of institutions and programs across Canada, there will never be a “one size fits all” approach for every post-secondary student and the materials they need. Not everyone is studying Canadian literature. In fact, few do. It is stating the obvious that the materials for a university nursing student fundamentally differs from what students in a college automotive program needs during their studies. The nursing student may rely on digital e-books, while the automotive student will need access to the latest technical manuals on working with electric vehicles. This means that where their respective institutions go to find the best materials to support their learning will likely be different as well.
This range of options allows institutions to assess the available benefits, value and flexibility to learners and educators when they decide what is the best way to source materials. This can mean spending more on library acquisitions, looking to digital and transactional licensing options, leveraging available open access resources, and using fair dealing. Each of these play a vital role in providing materials that support accessible and high-quality education in Canada.
As the government faces lobbying pressure to re-open the contentious copyright reform debate, the entirety of this landscape must be properly considered. The data is clear: institutions are not using fair dealing as a loophole to avoid compensating creators for their work. In fact, they’re often spending more on library acquisitions and overall, they’re spending differently. Reduced revenue for copyright collectives reflects an inability for these collectives to evolve with an educational environment that has firmly turned towards other options, such as those highlighted throughout this series. Those groups want to narrow or eliminate fair dealing for education, but doing so won’t reverse any of these trends. It will only impoverish students and diminish a critical user right that has been consistently re-affirmed by the Supreme Court of Canada.