Post Tagged with: "fair dealing"

Educational Fair Dealing Policy Shows Why the Access Copyright Licence Provides Little Value

Last month, I reported that Association of Canadian Community Colleges had received a legal opinion concluding that the Access Copyright model licence had “little value” for educational institutions. The opinion recommended that ACCC members not sign the Access Copyright model licence and that those operating under the Access Copyright interim tariff cease to do so. While it did not receive much attention, the same counsel also provided a model fair dealing policy. The policy does an effective job of demonstrating why the Access Copyright licence provides very little value to education as fair dealing covers much of what the copyright collective currently offers educational users.

The core elements of the model fair dealing policy include the following:

1. Teachers, instructors, professors and staff members in non-profit educational institutions may communicate and reproduce, in paper or electronic form, short excerpts from a copyright-protected work for the purposes of research, private study, criticism, review, news reporting, education, satire and parody.

2. Copying or communicating short excerpts from a copyright-protected work under this Fair Dealing Policy for the purpose of news reporting, criticism or review should mention the source and, if given in the source, the name of the author or creator of the work.

3. A single copy of a short excerpt from a copyright-protected work may be provided or communicated to each student enrolled in a class or course:
a. as a class handout
b. as a posting to a learning or course management system that is password â€¨protected or otherwise restricted to students of a school or post-secondary â€¨educational institution
c. as part of a course pack

4. A short excerpt means:
a. up to 10% of a copyright-protected work (including a literary work, musical score, sound recording, and an audiovisual work)
b. one chapter from a book
c. a single article from a periodical
d. an entire artistic work (including a painting, print, photograph, diagram, drawing, map, chart, and plan) from a copyright-protected work containing other artistic works
e. an entire newspaper article or page
f. an entire single poem or musical score from a copyright-protected work â€¨containing other poems or musical scores
g. an entire entry from an encyclopedia, annotated bibliography, dictionary or â€¨similar reference work

October 1, 2012 — 4 comments — News

Copyright Board: Supreme Court Copyright Decision is “Clear and Leaves No Room for Interpretations”

The Copyright Board of Canada has ruled that the copies that were at issue before the Supreme Court of Canada (roughly 7% of copies) constitute fair dealing and do not require compensation. The Board’s decision does not come as a surprise given the Supreme Court’s strong endorsement of fair dealing […]

September 20, 2012 — 7 comments — News

The Supreme Court of Canada Speaks: How To Assess Fair Dealing for Education

With the start of the school year less than two weeks away, the Canadian education community is increasingly thinking about copyright and the implications of Bill C-11 and the Supreme Court of Canada’s five copyright decisions. While Access Copyright argues that little has changed (in recent correspondence to the Copyright Board it even objected to a six-month delay in formulating a school survey on copying practices to fully account for Bill C-11 and the decisions), most recognize that the law has undergone a dramatic change that confirms significant flexibilities for educational uses.

I’ve posted several pieces on these issues (fair use in Canada, technological neutrality, impact on Access Copyright), but given the ongoing efforts to mislead and downplay the implications of the decisions, this long post pulls together the Supreme Court’s own language on how to assess fair dealing. The quotes come directly from the three major fair dealing decisions: CCH Canadian, Access Copyright, and SOCAN v. Bell Canada.

Note that this post is limited to the Court’s decisions and does not focus on the changes in Bill C-11. The legislative reforms provide additional support for education as they include the expansion of fair dealing to include education as a purposes category, a cap of $5000 on statutory damages for all non-commercial infringement, a non-commercial user generated content provision, an education exception for publicly available on the Internet, a new exception for public performances in schools, and a technology-neutral approach for the reproduction of materials for display purposes that may apply both offline and online.

August 22, 2012 — 5 comments — News

Why the End of Access Copyright K-12 Licensing for Is Not The End of Payment for Educational Copying

The reaction to last month’s Supreme Court of Canada copyright decisions with Access Copyright continues to play out with its supporters seeking to downplay the likely impact. I’ve already written several posts on the decision, including one explaining why the decision eviscerates Access Copyright’s business model. The short version of that post is that the Court rejected each Access Copyright key fair dealing arguments, in the process greatly expanding fair dealing in the education context such that the Access Copyright licence – which typically only covers 10 percent of a work – will rarely add value beyond what is permitted under fair dealing.

In light of the decisions and recent copyright law reforms, K-12 schools are likely to conclude that they do not need an Access Copyright licence. While the collective and its supporters will react by claiming that this will greatly harm Canadian publishers and authors, the reality is that schools have permission to reproduce the overwhelming majority of materials without Access Copyright or fair dealing.

Access Copyright has argued that the case only focused on 7% of copies, but the truth is that it involved an even smaller amount. The 7% figure stems from the copies for which Access Copyright seeks payment. In fact, the Access Copyright sponsored study that lies at the heart of the K-12 case found that schools already had permission to reproduce 88% of all books, periodicals, and newspapers without even conducting a copyright analysis or turning to the Access Copyright licence.

August 16, 2012 — 10 comments — News

Supreme Court Shakes the Foundations of Canadian Copyright Law

I have posted several pieces on the recent Supreme Court of Canada copyright decisions (an immediate overview, a piece on why Canada has shifted to fair use, an analysis of the inclusion of a technological neutrality principle, and a discussion on the implication for Access Copyright). My weekly technology law column (Toronto Star version, homepage version) also focused on the decision. It noted that copyright cases only reach the Supreme Court of Canada once every few years, ensuring that each case is carefully parsed and analyzed. Last week, the court issued rulings on five copyright cases in a single day, an unprecedented tally that will keep copyright experts busy for many months to come.

While the initial coverage unsurprisingly focused on the specific outcomes for the litigants, including wins for Apple (no fees for song previews on services such as iTunes), the entertainment software industry (no additional payment for music included in downloaded video games), and the education community (copying materials for instructional purposes may qualify as fair dealing), the bigger story are three broad principles that lie at the heart of the court’s decisions.

July 20, 2012 — 19 comments — Columns