FACT, FICTION, AND FALSEHOODS ABOUT THE “F WORD” IN
COPYRIGHT LAW
We must confront the “F word” in copyright law. It is not a dirty word. To the contrary, the Supreme Court of Canada went to great lengths in its landmark 2004 CCH v. LSUC decision to clearly describe the meaning of this word in the context of what it called “users’ rights”. That case involved the right of profit-seeking lawyers to engage in research on behalf of even their commercial clients. The CCH decision - arguably the Magna Carta of Canadian copyright law – was, in fact, all about the “F word”. The word, of course, is “fair”, as in “fair dealing” or “fair use”, as the Americans call their “kissing cousin” of our Canadian doctrine. Unfortunately, many who should relish and rely upon the word are afraid to do so or to even talk about it because they don’t understand, or haven’t been accurately told, what the word actually means.
A particularly disconcerting but hardly isolated example of this fear of “fair” dealing has recently come to light. Here is what the website of McMaster University, one of Canada’s more prominent research institutions, says on its FAQ concerning “Copyright in the Library – Course Reserves”:
The AUCC [Association of University and Colleges of Canada] Fair Dealing Policy states that library reserve must not substitute for the purchase of books, coursepacks or other published materials, which means that textbooks cannot be placed on reserve. (Emphasis added)
The emphasized portion is simply wrong. Let’s be clear. It is perfectly legal under copyright law to put any printed book on reserve for the simple reason that doing so involves no act of reproduction or anything else mentioned in the Copyright Act. Unfortunately, it seems that other university libraries also question whether they can put a required reading textbook or indeed ANY “textbook” on reserve.
It does not matter if the books are required reading. In fact, that is often the very reason why books are placed on reserve. It does not matter whether the book is a “textbook”, a “treatise”, a “reference”, simply an interesting book or falls into more than one of these categories. A book is a book. The professor requesting the “reserve” treatment and the librarian facilitating it are entitled to presume that the book will not be copied illegally.
Sadly, such incorrect views about library reserves are just the tip of an iceberg of other fictions in circulation concerning fair dealing and other users’ right. This particular misunderstanding does not come from any Copyright Board or court decision. Nor has the issue of putting printed books on reserve arisen in any of the cases currently before Canada’s Supreme Court. In fact, it does even not come from the AUCC policy, which is widely regarded as being much too restrictive, that McMaster purports to rely upon. The AUCC FAQ actually state that “The fair dealing policy does not apply to placing an original work on library reserve because no reprographic or electronic copy is made. There is nothing that would prevent putting the original work on library reserve.” It would seem that McMaster’s flawed reserve policy may have come from Access Copyright, the powerful reprography collective empowered by Canada’s Copyright Board. Access Copyright misstates on its website that:
The AUCC fair dealing policy clearly states that: …
Required course readings cannot be put on library reserve.
One wonders why this false statement by Access Copyright remains posted and, apparently, not contradicted. But while the AUCC got the “reserve” issue right, at least for “original works” (presumably meaning printed books, journals, etc.), its fair dealing policy may, however, be causing real problems in several other ways. Questions have arisen as to whether its provisions are unnecessarily arbitrary and limited. It is also regrettable that, rather than educating its members about their rights and encouraging them to exercise their freedoms to their fullest extent, the AUCC imposes restrictions that could arguably result in a gratuitous concession of key users’ rights confirmed in the 2004 CCH v. LSUC decision. Above all, there is serious concern that these guidelines could become the new “normal” in Canada and thereby be adopted by the Copyright Board and even the courts as indicative of what constitutes “fair” dealing.
Another recent example of a faulty position based upon a misunderstanding of users’ rights and fair dealing was the written policy of Library and Archives Canada that required the author of a thesis to obtain written permission from third party copyright owners for the inclusion of any excerpt from any copyrighted work. This policy was apparently oblivious to the fact that the quotation of a less than a “substantial part” of a copyrighted work requires no permission and that even a substantial part may be quoted without permission if it falls within “fair dealing”. Several universities were imposing this incorrect policy. I am pleased that the error seems to have been rectified following its exposure on my blog.
One is hearing time and again from conscientious academics, students, and the librarians who serve them that they are being seriously impeded in their pursuit of teaching, learning and innovation by a made in Canada copyright chill. In order to lessen this chill, educators need sound understanding of their freedoms and of what “fair” means in copyright law. The Supreme Court has clarified in the CCH decision that exceptions to copyright infringement are “perhaps more properly understood as users’ rights”, that “they must be given a large and liberal interpretation in order to ensure that users’ rights are not unduly constrained”, that allowable fair dealing purposes “should not be given a restrictive interpretation or this could result in the undue restriction of users’ rights, and that “User rights are not just loopholes”. Users need to be encouraged to use their rights, and not made afraid to do so. “Fair” dealing in copyright is about freedom, and not about fear. It should not be an “F word”.
Howard Knopf
© Howard Knopf 2012
Howard Knopf is Counsel to Macera & Jarzyna, LLP in Ottawa, Canada. He writes a blog on copyright issues called “Excess Copyright”. The views expressed herein a solely his own and are not legal advice.
PS - Yesterday, I received the following email from Anne Pottier of McMaster, which I am posting with her permission. The FAQ in question has now been updated.
"Anne Pottier"
Good afternoon Mr Knopf
The following entry in your blog was brought to my attention yesterday - http://excesscopyright.blogspot.com/2012/01/fact-fiction-and-falsehoods-about-f.html
We have a Copyright Working Group which when working on the implementation of the AUCC Fair Dealing Policy had interpreted the clause 16. c) "the use of library reserve must not substitute for the purchase of books, course packs or other published materials" too narrowly, failing to take full note of the introductory statement which reads:
15. This policy applies to paper copies made by a staff or faculty member for library reserve, and to electronic copies made by a staff member of the university library or other administrative unit from Published Works for a student of the university.
Once we realized this, we revised our Copyright in the Library - Reserve (FAQ) right away, on September 22nd. I was surprised to see that this information has not been updated on our university's copyright website. I have contacted the person responsible for this website asking that this information be updated as soon as possible.
We updated our library information and course reserves pages at the time, and sent email blasts to our professors and instructors.
I am sorry this information did not get updated right away, and that this has caused confusion beyond our own institution.
Please let me know if anything else is unclear.
Thanks
Anne
Anne Pottier
Associate University Librarian, Library Services
Associate University Librarian, Library Services
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