However, in the true spirit of academia and more immediately regarding the inevitable concerns of various university counsel, librarians, copyright officers, etc., there are good reasons to question these guideline documents. This is especially so if they are intended to “enhance York’s defence against the Access Copyright lawsuit”. The stakes are very high. If York suffers a significant and irreversible setback in that litigation, many if not most of all the victories achieved in the Supreme Court of Canada and Parliament in the past decade by those who favour a “large and liberal” view fair dealing and “user’s rights” could effectively be lost.
- Is the AUCC approach once again excessively cautious? If so, will wide acceptance and adoption by universities of these documents lead the Courts to conclude that the community’s own view of “fairness” is narrower than that of the Supreme Court of Canada and Parliament, with the result that these guidelines could become a ceiling rather than the foundation or ground floor of fair dealing?
- Are these documents excessively complicated? Is it really necessary to have nine (9) documents for various groups and issues within the university community when the SCC made it quite clear by using words such as “symbiotic” and “tautological” that teachers and students are normally engaged in the same ultimate purpose – be it research or private study – and now, of course, the even wider purpose of “education”? Support staff and librarians are clearly part of the university community, just as the librarians who helped the lawyers do their research in the CCH case. Why do we need nine (9) documents?
- Why do these documents make concessions on fundamental legal issues that are far from being clearly resolved? For example, the AUCC documents state that “Any copying and/or distribution restrictions contained in a licence that permits access to a copyright-protected work will take precedence over the Fair Dealing Policy.” That is arguably far from clear under Canadian law, especially vis à vis students and professors who have not signed onto and may not be bound by the terms of these licenses. In fact, there is a 1986 Supreme Court of Canada decision, applied several times since then and in recent jurisprudence involving education, that affirms that when a statutory provision has been enacted “in the public interest”, then the “long standing rule against contracting out or waiver should apply to it”. Given the Chief Justice’s resounding affirmation in the CCH decision of “users’ rights” and their importance, and Parliament’s decision to include “education” as one of the cornerstone fair dealing purposes, there would seem to be no doubt that fair dealing “user’s rights” were enacted “in the public interest”.
- Why would AUCC concede that “The Fair Dealing Policy does not permit the circumvention of digital locks to obtain access to copyright-protected works? In order to circumvent a digital lock it is necessary to obtain the permission of the copyright holder.”? Unlike other exceptions in the Act that are expressly made unavailable where there is a TPM in place, s. 29 is conspicuously and eloquently silent on this point.
- Why would these apparently gratuitous concessions be made before these issues have been tested in the Courts? Since Access Copyright seems determined to use its dwindling revenues to litigate in any event, there is no assurance that any concession on such issues will serve as effective appeasement – and such concessions could indeed backfire in subsequent or maybe even current litigation.
- Why do these guidelines send those who may wish transactional licensing permission to an American collective? It should be noted that AUCC did attempt to address the AC’s position on transactional licenses in a costly, problematic and not surprisingly unsuccessful bid for a remedy on this issue in the Federal Court of Appeal.
these documents fully account for the SCC’s important ruling in the ESAC v. SOCAN
last year that severely restricted the importance of the “communication right”,
when it ruled that:
Therefore, the term “communicate” in s. 3(1)(f), which has historically been linked to the right to perform, should not be transformed by the use of the word “telecommunication” in a way that would capture activities akin to reproduction. Such transformation would result in abandoning the traditional distinction in the Act between performance-based rights and rights of reproduction. There is no evidence either in 1988 or in subsequent amendments to the Act that Parliament intended such abandonment. 
- Do these guidelines fully account for the very empowering language from the Supreme Court of Canada over the past decade – language the resulted from some hard fought battles, all based on the law before Parliament added the word “education” in s. 29 of the Copyright Act?
- Do the documents adequately explain the hierarchy of “users’ rights” that the Supreme Court has so generously confirmed, and the explicit confirmation by the Court that one need look no further than the “large and liberal” s. 29 “fair dealing” provisions, which are “always available”, if these are sufficient? In the few instances that educational institutions are provided with some additional rights via special exceptions, the additional conditions may create more problems than the exceptions would solve, e.g. the need for “book burning” of “lessons” at the end of each term.
- Do these documents adequately reflect the very significant inclusion in Bill C-11 of the word “education” in s. 29 – and without any definition, qualification or limitation as urged upon Parliament by Access Copyright and others but rejected? The SCC rendered its landmark judgments last year based upon the old law – without the addition of the word “education” to s. 29. And Parliament added that word before it knew what the SCC was going to say. So – it is very clear that the addition of the word “education” can only be empowering and enabling and may even add substantially to the “users’ rights” now confirmed by the SCC to exist in Canada.
- Also, why is there no discussion of the potential importance of the new “user generated content” (“UGC”) provisions in the Act, which almost certainly will empower students and quite possibly teachers to have much more scope to creatively copy in some respects than even the “large and liberal” fair dealing provisions? These provisions have far more potential than simply enabling the making of mash-up “dancing baby” and “cute cat” videos for YouTube, not that such activity is unimportant in its own right.