Last month, the Canadian Federation of Library Associations released a much-needed statement that sought to counter the ongoing misinformation campaign from copyright lobby groups regarding the state of Canadian copyright and the extensive licensing by libraries and educational institutions. I had no involvement whatsoever with the statement, but was happy to tweet it out and was grateful for the effort to set the record straight on what has been a relentless misinformation campaign that ignores the foundational principles of copyright law. Lobby groups have for years tried to convince the government that 2012 copyright reforms are to blame for the diminished value of the Access Copyright licence that led Canadian educational institutions to seek other alternatives, most notably better licensing options that offer greater flexibility, access to materials, and usage rights. This is false, and when the CFLA dared to call it out, those same groups then expressed their “profound disappointment” in the library association.
Yet what has been disappointing is that despite repeated Supreme Court of Canada decisions that have eviscerated the foundation of those groups’ claims, they insist on running back the same failed strategy again and again. The reality of Canadian copyright isn’t complicated: libraries and the education community spend more than ever before on licences that provide the right to access and use materials for teaching, course materials, text and data mining, and a myriad of other purposes. When combined with the gradual disappearance of course packs, the emergence of open access materials, and a reasonable interpretation of fair dealing consistent with Canadian jurisprudence, education and libraries are fulfilling their mandate by responsibly using public dollars to maximize public access, enable student learning, and ensuring fair compensation for authors.
The lobbying efforts to convince government to restrict fair dealing by requiring unnecessary licences would increase student costs, make education less affordable, and render Canada less competitive. Further, it would mean less access to materials for Canadian students. Universities spend hundreds of millions of dollars on licences that grant both access to materials (purchasing physical books has declined dramatically) and the ability to use them. The outdated Access Copyright licences only grant rights to use already acquired works for a limited series of purposes. Reverting back to the unnecessary Access Copyright licence would mean access to fewer works and reduced investment by the education sector and libraries in new works.
I wrote a six-part series on these issues earlier the year including posts on setting the record straight, the shift to electronic licensing, transactional licences, the disappearance of course packs, the emergence of open text books, and a fair reading of fair dealing. Once you get past the rhetoric, the data leaves little doubt that education and libraries are still actively paying for copyright materials through licensing and the claims of mass illegal copying in education in 2023 is a fabrication unsupported by the evidence.
Meanwhile, the rhetoric now features an attempt to re-interpret the Supreme Court’s 2021 Access Copyright v. York University ruling. The copyright lobby groups accuse the CFLA of misstating legal history, stating “the lower courts’ findings on issues of fair dealing, which were informed by mountains of supporting evidence, remain unequivocally conclusive that the copying guidelines and practices at issue were not fair.” The truth is that the Court left no doubt that the lower court fair dealing analysis was incorrect, calling it tainted and citing several errors. A direct quote from the decision:
The main problem with their [Federal Court of Appeal] analysis was that they approached the fairness analysis exclusively from the institutional perspective. This error tainted their analysis of several fairness factors. By anchoring the analysis in the institutional nature of the copying and York’s purported commercial purpose, the nature of fair dealing as a user’s right was overlooked and the fairness assessment was over before it began.
After re-affirming the importance of the copyright balance and fair dealing, the court notes:
In other words, contrary to the Federal Court of Appeal’s view, in the educational context it is not only the institutional perspective that matters. When teaching staff at a university make copies for their students’ education, they are not “hid[ing] behind the shield of the user’s allowable purpose in order to engage in a separate purpose that tends to make the dealing unfair”.
It was therefore an error for the Court of Appeal, in addressing the purpose of the dealing, to hold that it is only the “institution’s perspective that matters” and that York’s financial purpose was a “clear indication of unfairness” (paras. 238 and 241). Funds “saved” by proper exercise of the fair dealing right go to the University’s core objective of education, not to some ulterior commercial purpose (see Lisa Macklem and Samuel Trosow, “Fair Dealing, Online Teaching and Technological Neutrality: Lessons From the COVID-19 Crisis” (2020), 32 I.P.J. 215, at p. 238). The purpose of copying conducted by university teachers for student use is for the student’s education. But in every case, all relevant facts must be taken into account in order to determine the fairness of the dealing.
This was not the only error in the lower court fair dealing analysis. The analysis on aggregate copying was one of the most obvious errors in that decision and the Supreme Court hones in on the issue:
the trial judge’s criticism of York’s Guidelines on the basis that different portions of a single work could be distributed to different students, such that an author’s entire work could end up being distributed in the aggregate, is also contradicted by SOCAN, which held that “[s]ince fair dealing is a ‘user’s’ right, the ‘amount of the dealing’ factor should be assessed based on the individual use, not the amount of the dealing in the aggregate”.
And while it is true that “aggregate dissemination” is “considered under the ‘character of the dealing’ factor” (SOCAN, at para. 42; see also CCH, at para. 55; Alberta (Education), at para. 29), as this Court cautioned in SOCAN, “large-scale organized dealings” are not “inherently unfair” (para. 43). In SOCAN, where copies could easily be distributed across the internet in large numbers, this Court warned that focussing on the “aggregate” amount of dealing could “lead to disproportionate findings of unfairness when compared with non-digital works” (para. 43). By extension, the character of the dealing factor must be carefully applied in the university context, where dealings conducted by larger universities on behalf of their students could lead to findings of unfairness when compared to smaller universities. This would be discordant with the nature of fair dealing as a user’s right.
For the copyright lobby to insist that this language left the lower court rulings untouched is make-believe fairy dust. As it well knows, the only reason the Court did not go further is that the case did not turn on fair dealing since it had already dismantled Access Copyright’s other arguments regarding tariffs (which it found are not mandatory) and expressing doubt that the collective even had the right to bring a copyright infringement claim.
After multiple failed lawsuits involving fair dealing, the groups now seek to re-write history and implausibly claim that “author and publisher groups do not contest genuine fair dealing.” The reality is plain to see. There has been no bigger opponent of fair dealing in Canada as the repeated litigation has forced educational institutions and libraries to divert huge sums to defend their reasonable practices. Those practices have been repeatedly upheld as legal by the Supreme Court of Canada, which has for decades emphasized the importance of balance and user rights in copyright. To try to upend that balance and effectively deny what the Court says lies at the foundation of copyright law should be called out for what it is: the very definition of anti-copyright.