The ACP’s [Mis]Statement of Principles on Fair Dealing in Education

The Associations of Canadian Publisher’s (“ACP”) has worked hard and apparently spent lots of money over the years fighting against fair dealing. It has fought against fair dealing twice in the Supreme Court of Canada and lost both times. The ACP is also a very active lobbyist in Ottawa, as a search of the lobbyist registry readily shows, seeking on the one hand to get grants from the Government and on the other hand “lobbying to amend the Copyright Modernization Act…to limit fair dealing exemption for education”. That lobbying against fair dealing also didn’t work. Again, the ACP lost badly.

So, it seems that the ACP has reverted to more blunt tactics. It has recently been sending out this document dated December 2013 to post-secondary institutions entitled “STATEMENT OF PRINCIPLES ON FAIR DEALING IN EDUCATION”. It provides seven (7) principles of fair dealing that are at best misleading and are, at worst, clearly wrong.  The document might more accurately be entitled “[MIS]STATEMENT OF PRINCIPLES ON FAIR DEALING IN EDUCATION”.

Don’t just take my word for this. As everyone knows, there are have been three Supreme Court of Canada (“SCC”) decisions on fair dealing since 2004 and the word “education” is now included as one of the recognized general allowable purposes of fair dealing in the statute. Despite the monumental and concerted efforts of the ACP and their colleagues, the word “education” has not been defined or limited by Parliament.

Despite all the disinformation and denial from the ACP and others, the law of fair dealing in Canada is actually now remarkably straightforward due to Parliament and the acclaimed jurisprudence of the SCC. However, it’s taking a long time for this clarity to sink in, at least in ACP circles.

Parliament has said – and this is the now law, like it or not:

29. Fair dealing for the purpose of research, private study, education, parody or satire does not infringe copyright. (Emphasis added)

There were many ingenious and some rather disingenuous attempts to limit or qualify the addition of the word “education” in 2012 when the fair dealing amendment was being debated in Parliament – but the attempts failed. The legislative history will confirm that those opposed to the word “education” feared its very broad coverage. They now need to live with consequences of these dire predictions and they may be haunted by their own words in any litigation attempting to limit the meaning of the word “education”. As I always say to copyright maximalists, “be careful what you wish for”. And the addition of the word “education” was passed and given Royal Assent even BEFORE the SCC ruled in the K-12 case and the iTunes previews case. 

And, the SCC made it clear in the CCH case in 2004 that that, once the use is determined to be for a legitimate “purpose”, such as “of research, private study, education”, then there are six factors to consider to see if it is really “fair”.  These are:

60 To conclude, the purpose of the dealing, the character of the dealing, the amount of the dealing, the nature of the work, available alternatives to the dealing and the effect of the dealing on the work are all factors that could help determine whether or not a dealing is fair. These factors may be more or less relevant to assessing the fairness of a dealing depending on the factual context of the allegedly infringing dealing. In some contexts, there may be factors other than those listed here that may help a court decide whether the dealing was fair.

It should be noted that:

-          No single factor has priority

-          Not all factors need be satisfied

-          There may be additional relevant factors

-          These factors closely resemble the American four factors, which are: (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work.

So – with all this in mind, let’s look at the ACP’s astonishing misstatements about Canadian copyright law. What ACP says is in Blue. My comments follow in Red.

1. Quantitative limits on fair dealing are not at the heart of defining what is fair. In the absence of a permission negotiated with copyright owners or their representatives, an arbitrary amount becomes a guideline for unfair copying: regardless of the purpose or impact of copying, the analysis starts and ends with calculating a quantity. That is not fair.

HPK: This is seriously misleading. Fair dealing – by definition – does not require “a permission negotiated with copyright owners or their representatives”.  There is nothing wrong with “guidelines” that suggest quantitative norms in line with “best practices” in Canada and comparable jurisdictions and which indicate, as in the case of the U of T fair dealing guidelines, that the application of these suggestions (e.g. “up to 10% of a copyright-protected work (including a literary work, musical score, sound recording, and an audiovisual work)” may “vary depending on the exact nature of the work being used, and of the use itself, all in the context of consideration and application of the fair dealing factors”. Quantitative guidelines are useful so that users can enjoy their rights without having to “negotiate” every use. There will be cases where these guideline suggestions are too high – or too low. Training, experience and good faith will prevail. The existence of good fair dealing policy guidelines is a key element in any institution’s copyright approach. Indeed the Law Society’s “Access Policy” was repeatedly mentioned by the SCC in the CCH decision, and was instrumental in the LSUC’s successful defence.

2. “Textbook-like collections” are created by instructors during their course planning and are most often presented as course outlines. For any resource that appears as required material on an instructor’s course outline, copyright owners should be paid. Although the copying of short excerpts to complement core resources may be fair, fair dealing is not intended to enable the assembly of textbook-like collections, whether digitally or on paper. That is not fair.

HPK: This is wrong. The SCC has explicitly ruled that the fact that a teacher takes the initiative to tell a student what to be read does NOT ipso fact preclude that material from being “fair dealing”. When it is fair dealing, the user does NOT need permission and the copyright owner does NOT get paid. That’s the whole point about fair dealing.

3. Fair dealing is intended to facilitate transformative uses of copied material, such as new research, criticism, and satire. When copying is simply duplication for distribution, it is not fair dealing.

HPK:  This is wrong. The term “transformative” use can be found in American case law, but is only one of many potentially relevant aspects. It is NOT an essential requirement of American fair use, much less Canadian fair dealing. Copying that is “simply duplication for distribution” may very well be fair dealing, if it is for one of the recognized purposes and meets the SCC’s factors.

4. Fair dealing is intended to enable situational uses of copyright-protected material, in support of free expression, expanded discourse, and creativity. Fair dealing is spontaneous—not planned, organized, coordinated for maximum value gained, or designed specifically to avoid payment. If copying is not spontaneous, it is not fair dealing.

HPK: This is wrong. Most fair dealing will involve careful analysis as to whether the dealing meets the requirements of the statute and the SCC factors. That is why all educational institutions are disseminating guidelines and educating their communities. Would intelligent copyright owners want it any other way? The use of fair dealing to minimize costs and maximize quality of education and research is the fundamental part of the foundation of copyright law and is the reason why the SCC tells us that is a “users’ right” that must be given a “large and liberal” interpretation.

5. Fair dealing depends on copying from a legal source. Copying from an illegally acquired original is not fair dealing.

HPK:  There’s no basis for this statement as such a general and categorical proposition. It’s conceivable that “copying from an illegally acquired original” might be an additional factor above and beyond the SCC’s six factors in some hypothetical instance in determining whether the copied material involved fair dealing – but equally conceivable that it may not be.

6. Fair dealing is not intended to exclude paying for the work of authors and all those involved in the original publishing of the material when those doing the copying are being paid for their work, or when students are being charged for the materials. That is not fair.

HPK: This is wrong and very seriously misleading. The SCC clearly ruled in the CCH decision that lawyers have the right to engage in fair dealing for the purpose of research. Lawyers normally get paid for their work. Professors and teachers also get paid for their work. And it’s OK to charge students for materials incorporating copying that is fair dealing, as long as it’s on a not-for-profit cost recovery basis.

7. Fair dealing is not intended to cause damage to the markets for works, along with the livelihoods of authors and publishers, and their ability to create new works. Depending on the work, such damage can occur at any level of copying, but damage is very likely when large amounts of a work are copied, or when multiple copies are made. If copying damages the market for a work, it is not fair dealing.

HPK: This is very seriously misleading. There is nothing in Canadian law that prevents the making of multiple copies, if such copying meets the requirements of the statute and the SCC fair dealing factors. Even If there are thousands of students in a MOOC, the provision of material to each and every one can be fair dealing, if the purpose is for education or another allowable purpose and the SCC’s factor test is satisfied.

Conclusion:

Those in the educational community should ignore the ACP misstatements – or perhaps use them as a teaching tool about how NOT to inform the Canadian public accurately about copyright law.

Those in the educational community should acquaint themselves with good fair dealing guidelines that apply in their context. While the basic underlying principles are the same for everyone, there may be some differences between certain types of institutions and situations. K-12 is obviously not quite the same environment as and advanced research university – though there is more in common than not when it comes to fair dealing. Overall, I am partial to the U of T fair dealing guidelines, which are nuanced, sophisticated and yet very clear and logical. I should reiterate, as I have previously disclosed, that I had some involvement in their creation.

The final paragraph of the ACP document is particularly ironic:

As long-term, effective partners in education, Canadian-owned higher-education publishers are open to discussion and negotiation on the limits of fair dealing. We propose that copyright users adopt policies based in the principles we outline here, an approach that recognizes that authors, publishers, professors, learners, universities, colleges and schools are partners, not adversaries, in education.

One may well ask how parallel efforts in seeking a mandatory tariff, suing a major university, and disseminating wrong and misleading statements of principle are likely to promote a relationship of “partners, not adversaries, in education”.

HPK

Access Copyright Responds To York Pleading: Why Concerned Canadian Educators Will Be Considering Their Options

Here is Access Copyright’s Reply and Defence to York’s Counterclaim.  All I will say at this point publicly, now that the pleadings are complete, is more or less what I said in a recent interview for the Law Times (September 23, 2013 – not available online).

• York apparently has no intention of attacking AC’s pleadings and has, instead, “pleaded over” to a number of issues that might have called for a motion to strike.
•  York is apparently going to allow this lawsuit to morph into a de facto infringement action, even though AC has no legal status to bring an infringement action.
• York appears to have effectively conceded that the inevitable final tariff, when certified by the Copyright Board, will be “mandatory”. Its main defence in this litigation seems focussed on the notion that the tariff is merely “interim”. It does not confront the “elephant in the room” question as to whether any final tariff for reproduction of literary works – and a fortiori (even more so) an interim tariff – can be “mandatory” in the “one copy of one work” sense espoused by AC and endorsed by the Copyright Board. 
• York appears to be willing to let its fair dealing guidelines, which are arguably irrelevant to the “mandatory” tariff issue, be put on trial. If this happens, there is a danger that AC will ask for “findings of fact” that could, as such, be bullet-proof on appeal. 
• York appears to be willing to engage in prolonged, extensive, and expensive discovery that could be disruptive to a large community at York. Among other consequences of this strategy, the York University Faculty Association has posted that “On June 28, 2013, all YUFA members received a memo entitled “Document Preservation Notice” from Harriet Lewis, University Counsel. YUFA believes that this memo fear mongers in its lack of contextualization. Further, in several respects the memo overreaches in what it requires or potentially requires of our members. In response the YUFA Executive unanimously passed a motion to file a policy grievance.”

This lawsuit may go on for years, not counting possible appeals. Even if York wins the battle on the relatively narrow point of an “interim” tariff not being mandatory, the Canadian educational community’s war will be lost if the Copyright Board imposes a final “mandatory” tariff to which there has been no effective opposition.  It should be recalled that  AUCC abruptly withdrew its objections and withdrew from that hearing in April of 2012, leaving its member universities unrepresented and after having spent about $1.7 million.

While some institutions may be willing to leave their fate in York’s hands and support York’s strategy, other Canadian educational institutions ranging from K-12 to elite research universities may be very concerned about the way this litigation is unfolding and how they could be adversely affected by its potentially negative outcome. They will also want to consider whether they wish to operate under a Sword of Damocles while York proceeds in the manner it has apparently chosen. Thus, they will be considering their options.

HPK

John Willinsky of Stanford & UBC on "The Intellectual Properties of Learning and Changing Political Economy of Technology in Canada"

Everyone who reads this blog will want to watch a talk by  John Willinksy, a Canadian, who is now a Professor of education at Stanford but who keeps some ties with UBC and is a Fellow of the Royal Society of Canada. He looks at the issue of open access, IP, etc. from high up in the sky but with very high-resolution vision.

It's a really excellent lecture just given at U Vic entitled "The Intellectual Properties of Learning and Changing Political Economy of Technology in Canada".

It deals with open access, CRKN, Access Copyright, course packs, STEM cell research, etc. etc. It gets really interesting at about the 44+ minute mark on Access Copyright, the SCC decision, etc. He gets some of the legal details a bit wrong but not seriously so. Overall, it's terrific, impassioned, well-informed and - above all - addressed to educators, researchers, librarians, policy makers and those who really matter (i.e. not copyright lawyers).

There's an interesting question at the end from the Associate Dean of Engineering about the threat of "predatory journals" and funding issues - and a somewhat testy interchange. Willinksy gets the better of it, I think.

Here’s the link.

On the issue of “predatory journals”, see this important recent piece in Nature. If these predatory journals are a really serious problem, I am confident that the academy will quickly marginalize them and that there will be strong disincentives to publishing in them or citing to them.

HPK