Post Tagged with: "fair dealing"

Copyright Users’ Rights in Canada Hits Ten: The Tenth Anniversary of the CCH Decision

As Meera Nair noted last week, today marks the tenth anniversary the Supreme Court of Canada’s landmark CCH Canadian v. Law Society of Upper Canada. A decade after its release, the case has grown in stature as the leading the users’ rights copyright decision by a high court in the world. Writing for a unanimous court, Chief Justice McLachlin stated:

the fair dealing exception is perhaps more properly understood as an integral part of the Copyright Act than simply a defence. Any act falling within the fair dealing exception will not be an infringement of copyright. The fair dealing exception, like other exceptions in the Copyright Act, is a user’s right. In order to maintain the proper balance between the rights of a copyright owner and users’ interests, it must not be interpreted restrictively. As Professor Vaver, supra, has explained, at p. 171: ‘User rights are not just loopholes. Both owner rights and user rights should therefore be given the fair and balanced reading that befits remedial legislation.’

The articulation of fair dealing as a users’ right represented a remarkable shift, emphasizing the need for a copyright balance between the rights of creators and the rights of users. While this approach unquestionably strengthened fair dealing, the immediate reaction to the CCH was somewhat mixed.

March 4, 2014 — 2 comments — News

Copyright Board of Canada on Copying a Few Pages: It’s Insubstantial and Not Compensable

The Copyright Board of Canada has issued a series of questions to Access Copyright in the tariff proceedings involving Canadian post-secondary institutions. Once Canada universities and colleges quit the proceedings, the Board was left to play a more aggressive role in questioning Access Copyright’s claims. Its questions focus on several important issues (discussed further below), but perhaps most noteworthy is its preliminary conclusion on what constitutes insubstantial or de minimis copying.

In establishing the scope of copyright rights, the law refers to “the sole right to produce or reproduce the work or any substantial part thereof.” Since the rights only arise once the full work or a substantial part of it are used, anything less than that – ie. an insubstantial part – is not subject to the rights identified in the Copyright Act. While some rights holders have argued that the standard for a substantial is very low (the National Post recently argued in a case that “even the reproduction of a small number of words in a newspaper article can be an impermissible reproduction”), the Copyright Board says that its preliminary view is that “copying of a few pages or a small percentage from a book that is not a collection of short works, such as poems, is not substantial.” With respect to the tariff application, the Board says this excludes more than 2.5% of coursepack copying.

February 26, 2014 — 4 comments — News

Toronto and UWO Confirm the Obvious: Access Copyright Licence Provides Little Value for Education

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:

December 11, 2013 — 4 comments — News

UBC Sets the Record Straight on University Spending on Copyright Materials

UBC President Stephen Toope has written an important letter responding to criticism from the Writers’ Union of Canada over his university’s reliance on fair dealing. Consistent with many universities across the country, UBC has moved away from the Access Copyright licence, focusing instead on a combination of fair dealing, open access, and site licences. The Toope letter notes how much the university community still pays for copyright materials and how little course pack sales are in relationship to overall spending:

UBC pays in the neighbourhood of $25 million to publishers and authors every year. In fiscal 2011/12, UBC spent approximately $2 million on book acquisitions, $2 million on print serials, and $10 million on digitally licensed subscriptions for students and faculty to access through its library system. UBC also sold approximately $14 million of books directly to students and faculty (for which UBC paid publishers about $10 million). In the same period, total course pack sales were about $1 million, less than 4% of the total spent on learning materials. Responsive to the needs of today’s students, UBC’s faculty members are increasingly utilizing online modes of content delivery, which means that course pack production volumes will form an even smaller percentage over time.

September 16, 2013 — Comments are Disabled — News

Canadian Universities Navigate Learning Curve for New Copyright Rules

As students and faculty prepare to head back to campus this week, many will be greeted by new copyright guidelines that clarify how materials may be used without the need for further permission or licensing fees. Just over a year after the Supreme Court of Canada released five landmark copyright decisions in a single day and the Canadian government passed copyright reform legislation over a decade in the making, the education community has begun to fully integrate the new copyright landscape into campus policies.

My weekly technology law column (Toronto Star version, homepage version) notes the new rules are significant since they grant teachers and students far more flexibility to use portions of materials without the need for copyright collective licences. The changes come as a result of the expansion of fair dealing, the Canadian equivalent of the U.S. fair use rules. The government expanded the scope of fair dealing to explicitly include education as a recognized purpose in 2012, while the Supreme Court has repeatedly emphasized the importance of a broad, liberal interpretation to fair dealing in order to ensure an appropriate balance in copyright law.

With those developments in hand, Canadian educational institutions crafted a general fair dealing policy last year confirming that educators can rely on fair dealing to use up to ten percent of a copyright-protected work (or a single article, a chapter from a book, a newspaper article, or a poem or photograph taken from a larger collection) without the need for a licence provided they meet a six-factor test.

September 4, 2013 — 1 comment — Columns