Fair Dealing Week 2026: Online Must-See Events for February 25, 2026

 

(University of Alberta)

Once again, it’s  Fair Dealing week. Here are a couple of worthwhile Canadian online events for February 25, 2026:

·       Peter K. Yu at 1 PM ET presented by CARL: Webinar: User Rights in the Age of Generative AI: https://www.carl-abrc.ca/event/user-rights-in-the-age-of-generative-ai/

·       David Vaver at 4 PM ET presented by CAUT: Fair Dealing Week 2026: User rights then and now: https://www.caut.ca/event/fair-dealing-week-2026-user-rights-then-and-now/

Don’t forget to register!

BTW, speaking of fair dealing, it’s interesting to note that Access Copyright is now getting more aggressive about pursuing businesses for licences.

It’s worth remembering that the Supreme Court of Canada made it very clear in the landmark CCH v. LSUC decision in 2004 that “Lawyers carrying on the business of law for profit are conducting  research within the meaning of s. 29 of the Copyright Act.”

51  The fair dealing exception under s. 29 is open to those who can show that their dealings with a copyrighted work were for the purpose of research or private study.  “Research” must be given a large and liberal interpretation in order to ensure that users’ rights are not unduly constrained.  I agree with the Court of Appeal that research is not limited to non-commercial or private contexts. The Court of Appeal correctly noted, at para. 128, that “[r]esearch for the purpose of advising clients, giving opinions, arguing cases, preparing briefs and factums is nonetheless research.”  Lawyers carrying on the business of law for profit are conducting  research within the meaning of s. 29 of the Copyright Act. (highlight and emphasis added) 

See: CCH Canadian Ltd. v. Law Society of Upper Canada, 2004 SCC 13 (CanLII), [2004] 1 SCR 339, <https://canlii.ca/t/1glp0>

Why should commercial businesses other than law that must engage in research not be entitled to the “users’ right” of fair dealing?

BTW, for a deep dive into the significance of the CCH decision, see the replay of the September 19 & 20, 2025 anniversary conference here.

HPK

Objections Filed re Access Copyright Proposed Post-Secondary Tariff for 2021-2023 and Update re 2011-2017

Some objections have been filed to the Access Copyright (“AC”) proposed Post-Secondary tariff for 2021-2023. These were due December 9, 2019.

Interestingly, by remarkable coincidence, the Board finally issued its decision in the more than nine-year-old AC Post-Secondary proposed tariff file for 2011-2017 only on Friday December 6, 2019 at the end of the day – the eve of the due date for objecting to the 2021-2023 proposed tariff. For the moment, suffice it so say that the decision is extremely expensive, extremely retroactive and, among many other things, it sidesteps any determination about fair dealing or whether tariffs are mandatory.

Access Copyright – Post-Secondary Educational Institution Tariffs (2011-2014 and 2015-2017)

Reasons (December 6, 2019)

Tariffs (December 7, 2019)

Fact Sheet (December 6, 2019)

The AUCC (now Universities Canada) withdrew from the proceedings and indeed withdrew its objections in 2012. I wrote about the AUCC model licence and its withdrawal at the time. The ACCC (now Colleges and Institutes Canada)  withdrew from the proceedings and withdrew its objections in 2013.  

After all of this time, and more than six years after this became an effectively default proceeding, the Board basically relies on the 2012 AUCC model licence and the 2015 Three- Year Premium licence. In the Board’s own words from its Fact Sheet:

The royalty rates in the tariffs are primarily based on two model licences negotiated with the Association of Universities and Colleges Canada (AUCC, now Universities Canada), which formed the basis for agreements that Access Copyright signed with universities – the 2012 AUCC Model Licence, and the 2015 Three-Year AUCC Premium Licence. The Board is satisfied that both agreements are reflective of a functioning market and market price.

I will have more to say about this recent decision in due course.

Meanwhile, back to the future proposed tariff. It would, of course, be useful if the Copyright Board were to post the new round of objections. As I have noted, the Copyright Board has spent $757,548.50 on website stuff since April 1, 2018 with no noticeable improvement to it. Publishing objections would be a very simple, useful and cost-free way to start the improvement process.

However, since this is unlikely to happen any time soon, I will do so here. These are, by their nature, public documents. I have thus far been provided with the following objections:

Athabasca University

CARL

CAUT/CFS

Colleges and Institutes Canada

COPPUL 

Mount Royal University 

Ryerson University

Simon Fraser University

University of Alberta, University of Calgary and University of Lethbridge

Universities Canada Objection

Universities Canada Letter

There may be others, which I’ll be happy to post if and when provided.

HPK

PS - I've just added Ryerson University on December 12, 2019 and Mount Royal University on December 13, 2019

PS - I've added Athabasca and COPPUL on December 18, 2019 and SFU in December 24, 2019

Update on Access Copyright's Proposed Educational Tariffs at the Copyright Board

This is an update regarding the pending Access Copyright hearings scheduled at the Copyright Board.

Regarding the Access Copyright (“AC”) proposed Post-secondary tariff, the most noteworthy point at this time is that the proceeding has become a default event. AUCC and ACCC withdrew long ago. CIPPIC (representing CAUT and CFS) has now withdrawn. Prof. Ariel Katz, has also decided not to file a Statement of Case, though he sent a letter making some very important submissions, as is explained below. The only objector who has submitted a Statement of Case and who plans to appear is a student named Sean Maguire, who makes some perceptive points. However, the Board cannot realistically treat this hearing as anything other than a default proceeding. That such an important Board hearing with so much at stake is proceeding by default is unprecedented and raises many very important and even troubling questions.

It will be recalled that the Board has rejected Prof. Katz’s request that the overwhelming “elephant in the room” issue about whether any tariff in this matter can be “mandatory” be referred to the Federal Court of Appeal, pursuant to an established procedure that can be used in such a situation. Such a reference would have been a very good idea from every point of view. Indeed, even Access Copyright did not disagree with making such reference, and there were only some minor semantic points of distinction between it and Prof. Katz over the proposed wording of the reference question, and there were really no facts in dispute. It seemed like the perfect case for a reference. However, the Board declined to seek this reference, and issued some fairly explicit hints that it may devise a tariff that is supposedly not mandatory. However, a tariff can appear to be optional in form but effectively be mandatory in substance.

Nonetheless, the fact is that the dozens of post-secondary institutions have concluded, based upon careful analysis and advice, that they don’t need an AC license in view of the extensive licensing deals that they already have in place, the new legislation, the three SCC decisions on fair dealing in the last nine years, and the measures that they have taken to comply with the current legal regime as they see it. They will find any tariff certified by the Board at any price to be unacceptable if it is “mandatory” in any sense.  Even a tariff for a nominal rate or some other scheme that lies between the extreme of all or nothing would still be highly problematic because of the inevitably “onerous obligations such as auditing, accounting and reporting”. There could very well be consequential legal and political repercussions if the Board certifies any tariff under these circumstances, unless such a tariff is truly and explicitly optional. And even then, it will be of interest to institutions only if it offers something clearly of value upon reasonable terms and conditions.

There is a lot at stake in this default proceeding. To mention just a few obvious points:

• Whether any final certified tariff can be “mandatory”, either in form or in substance
• Tens of millions of taxpayers’ and/or students’ dollars per year
• Whether AC’s limited vision of fair dealing, its denial of the impact of SCC and relevant jurisprudence from other jurisdictions, its restrictive views on academic freedom and access to knowledge, and its agenda that is inimical to research and teaching have any legal foundation
• Whether such views will adversely affect the quality of post-secondary education in Canada, the competitiveness of Canadian students, researchers and teachers, and, ultimately, even the ability of Canadians to innovate
• The very existence of AC (i.e. if its clients see insufficient value in it licenses and these licenses are not legally “mandatory”, why would any rational institution sign on? OTOH, even if the licences are somehow ultimately held to be “mandatory” by the Courts but provide insufficient value, can government intervention be far behind?)
• Whether the professors and instructors who provide most of the material that is used in Canada’s post-secondary institutions may see the need or the utility of forming their own collective that might be more efficient and responsive to the needs of Canada’s post-secondary educational system, something I have been talking and writing about for at least 15 years. 
• The future of the Board itself, since an unacceptable result could provoke the Government to implement regulations sooner rather than later and eventually, if necessary, legislation that might deal with some of the problems that have arisen in this proceeding that are not simply attributable to the controversial withdrawal of the two essential institutional objectors.

Some key recent documents and links are provided below: 

• On December 9, 2013, the Board denied Prof. Katz’s request for the reference to the Federal Court of Appeal, even though AC did not disagree with the idea and there was really nothing more than a semantic difference between it and Prof. Katz on the proposed wording. 
• On December 11, 2013 both U of T and Western announced that they would NOT be renewing their agreements with AC set to expire at the end of 2013. 
• On December 13, 2013, two days after the announcement that U of T would not be renewing its license, AC asked the Board to allow it to file, several months later than its deadline for its “Statement of Case”, certain new “evidence” allegedly based upon data provided to it by U of T.  Since this attempt by AC to put this material on the record is the subject of unresolved dispute, I will not provide a link to the material itself that AC wishes to file and which may not get to be on the record as “evidence” in the proceedings.
• On December 18, 2013 U of T and others objected to the filing of this new material.  
• On December 19, 2013, AC replied to these objections and agreed to U of T’s request to have until January 13. 2014 to provide further submissions on whether the proposed new material could be filed as evidence, to which the Board has agreed. 
• On December 20, 2013, CIPPIC (on behalf of CAUT and CFS) withdrew, stating that “The experience of CAUT and CFS to date in these proceedings has led them to conclude that their resources will be more productively deployed elsewhere in support of student and teacher authors and learners.” 
• On December 20, 2013 Prof. Katz filed a lengthy and very important letter with supporting documents explaining why he feels compelled to withdraw from this hearing but seeks to place some very important material on the record that the Board could use, if the Board is so inclined, to test some basis assertions of AC, for example with respect to its repertoire claims. Prof. Katz offers another constructive suggestion to the Board in his presumably parting submission, which is backed up by the documents that he is attempting to file. That suggestion is, essentially, that the Board should refuse to certify any tariff because AC has fundamentally failed to provide sufficient evidence as to its repertoire to warrant the certification of a tariff. The Board itself has refused to certify a tariff on one occasion where SOCAN filed virtually no evidence on key points. I was pleased to have made key submissions at the hearing that led to the FCA upholding the Board on that particular occasion. BTW, this is yet another viable lifeline that Prof. Katz has offered in this proceeding that would enable the Board to ensure that the public interest is protected. He had earlier suggested inviting the Commissioner of Competition to intervene on the transactional license issue, which was a perfectly reasonable suggestion that the Board tersely rejected. 
• Late on December 20, 2013, the Board invited comments from AC on Prof. Katz's request to put on the public records some documents that AC has designated as confidential. 
• AC has replied on January 8, 2014 to Prof. Katz’s submission – notably objecting to allowing its list of affiliates to become public, even though it is asking for tens of millions of dollars per year on their behalf. 
• Prof. Katz has responded in turn on January 10, 2014, offering an excellent summary of the law on why AC’s list of affiliates should be treated as a public document.

BTW, virtually all of the above is also at stake in the K-12 hearing that is scheduled to commence on April 29, 2014.  AC has recently filed its statement of case for this hearing.  AC’s Statement of Case in the K-12 proceeding contains the following formulation of a “mandatory tariff”, which is notable not only for its breadth and scope but for its astonishing assertion about the burden on institutional objectors to prove that “every act of copying in K-12 schools during each year covered by the Proposed Tariffs was for an allowable purpose and was fair”.

10. A legal and factual issue in this proceeding will be the effect of the fair dealing exception under s. 29 of the Act. As of January 1, 2013, the Objectors have taken the position that all copying authorized under the Proposed Tariffs is “fair dealing” and they therefore are not obligated to pay a royalty to Access Copyright for any such copying. The Objectors have the legal burden of establishing that every act of copying in K-12 schools during each year covered by the Proposed Tariffs was for an allowable purpose and was fair. Access Copyright submits that the Objectors will be unable to discharge that burden. Simply, the copying at issue in this proceeding is not fair. Access Copyright bears the evidential burden in respect to one of the recognized fair dealing factors – the effect of the dealing on the published works. Access Copyright will discharge that burden by tendering the expert and factual testimony identified in Part V below.

(highlight added)

The K-12 proceeding will be defended by the school boards, which will be represented by experienced counsel.

HPK

AUCC and Excess Access Copyright

In the past, the Association of Universities and Colleges of Canada (“AUCC”) has usually been less aggressive in its dealings with Access Copyright (“AC”) than many would have liked to see. Things may now be changing.

Publicly available figures indicate that AC apparently receives about $11 million a year from post secondary institutions. AC distributes less because it has substantial administrative expenses of more than 18% of its revenues. By far, most of this comes from coursepacks. But close to $2 million appears to come from per capita FTE payments from colleges and universities. Much or most of this would come from universities - and in turn from the pockets of university students, since virtually all of the course pack costs ($0.10) per page are passed on to students, as are usually the per FTE (full time equivalent) student charges - currently $3.38 per year.

Those concerned with Canada's competitiveness may wish to note that there is no similar mechanism or payment requirement in the USA, to take the most obvious example. Another minus for Canadian competitiveness and a plus for those associated with AC particularly managers lawyers, and consultants.

Fears in the post-secondary world that AC would attempt to parlay its recent victory at Copyright Board in the K-12 (CMEC) case into vastly greater demands on the post-secondary sector are being confirmed.

According to an AUCC memo dated December 1, 2009 that I have obtained, even back in 2003 AC tried to boost these figures to $15 per FTE student per year (the “Part A” license) and $0.276 cents per age (the Part B license) - a whopping 444% and 276% respectively of the current amounts - and that was in 2003!

Since 2003 two important events have occurred:

1. The watershed CCH v. LSUC was rendered by the Supreme Court of Canada on March 4, 2004, which greatly expanded the potential reach of the fair dealing exceptions in Canadian copyright law, and made clear that they are “users’ rights” which must be given a “large and liberal” interpretation and should be looked at in preference where possible to the many specific little exceptions that follow in the legislation.

2. Notwithstanding that decision, and based upon an arguably very inadequate record before it, the Copyright Board issued a decision more than doubling the previously negotiated rate in the K-12 system to $5.16 per FTE, notwithstanding that the rate was negotiated prior to CCH v. LSUC and the decision was issued more than five years later on June 26, 2009. I've blogged about this before. One might have thought that the rate should have gone down after the CCH v. LSUC decision - but that's not what happened. Instead, as indicated, it more than doubled. Moreover, quite apart from problems with the evidentiary record such as those resulting from CMEC’s too late recognition of the significance of the CCH decision, the Board also made several sweeping and arguably incorrect legal pronouncements. An application for judicial review of this Board decision will be heard by the Federal Court of Appeal in the weeks or months ahead. (I should disclose that I have recently filed a motion for leave to intervene in this application on behalf of the Canadian Association of University Teachers.)

Now, it seems that AUCC may be seriously questioning AC. It has sent out the above mentioned memo to Access Copyright License Administrators in the universities outlining the current status of the AC university licensing situation. The memo points out that AC will likely be asking for even more money than in 2003. This is, course, notwithstanding the CCH decision and presumably buoyed by the unfortunate Copyright Board decision from earlier this year. From what I’ve seen, it seems that AC also wants to enforce a sampling regime for the Part A license - which would mean even more copyright bureaucracy in post secondary institutions and fodder for a Copyright Board confrontation. So far, in its one contested case, AC has done extremely well at the Copyright Board.

AC also wants to license digital activity that would normally be fair dealing or otherwise allowed - in which case no license is needed, thank you very much. However, licensing - or attempting or purporting to license - that for which no license is necessary and/or for which AC has no rights has always been a key element of AC’s business plan. AC is also backing away from its controversial “indemnity” scheme which, whatever one can say about it and the very awkward questions it raised, had a certain appeal to some copyright administrators.

The AUCC memo points out the importance of CCH and refers to many new alternatives to dealing with AC. The memo includes a questionnaire that asks some very pertinent and perceptive questions indeed:

Question 1

Are copying practices for teaching and research in your institution evolved significantly away from photocopying and towards the use of digital resources?

Question 2

Is photocopying still an important activity for teaching and research?

Question 3

Could your institution substitute the use of licensed digital works, open access journals, and the Internet for photocopying under the Access Copyright licence?

Question 4

Does your institution still need a Part A and/or Part B licence from Access Copyright?

Question 5

Is it feasible for your institution to operate without a Part A and/or Part B licence? Would your institution be prepared to do so?

Given the great concern in the post-secondary realm about AC’s strategy and next moves following its K-12 victory at the Copyright Board, AUCC’s initiative in, among other things, questioning AC’s relevance and necessity is both an interesting and timely development.

Could it be that the times, they are a'changin at AUCC? And that excessive demands by Access Copyright on the educational sector will begin to meet more effective resistance?

HK

Murray and Trosow on Canadian Copyright - A "Must" for educators and librarians

There is a very useful new book entitled Canadian Copyright on Canadian copyright published late in 2007 that I really ought to have mentioned earlier, but I’ve been very busy lately with litigation, some of which readers will have heard about.

Laura Murray, a professor of English Literature at Queen's and Sam Trosow, a law professor at Western, have jointly written a very fine little book of major importance that will appeal to and be indispensable to a broad spectrum of those who are concerned about Canadian copyright law and policy. Indeed, its subtitle is "A Citizen's Guide." Murray’s ability to communicate with a non-legal audience and Trosow’s knowledge of both Canadian and American copyright law (together with his professional qualifications as a librarian) are a potent combination and the result is very positive.

This book takes a stand on issues where taking a stand is necessary and inevitable, such as CMEC’s proposed special exception for educational use of the internet (pp. 124-125). But it also provides basically accurate and useful analysis and references. It is quite up to date - at least to the middle of last year. There is no reference to the Euro v. Kraft decision of the Supreme Court which was released on July 26, 2007 - but that’s not too serious given the main audience for this book, which will be the educational community in the largest sense but not necessarily the business community. Besides, I imagine that the book was probably well into production by July 26, 2007.

The book is eminently readable, which is unusual for any quality book about copyright law. It has a very useful index and bibliography. And I’m honoured to have been mentioned in this work including in the credits.

And it even has some good cartoons. It also has some box summaries of key cases, which are useful for non-experts.

This book is by far the most useful and reliable publication now available on basic legal and policy issues of importance aimed at the thousands of students, educators, librarians, teachers and academics across Canada who need to deal with copyright on a day to day basis. It is not excessively cautious in its approach. Unlike certain other previous publications aimed at such a general audience, it assumes a reasonable degree of intelligence and responsibility on the part of its readers, who will benefit from learning about how to use copyright law to their advantage. It provides a reasonable degree of detail about key recent legal cases, and even provides a quick guide on how to find Canadian and American case law.

It is a welcome antidote to and replacement for certain previous publications aimed at non-lawyers, which tended to be excessively cautious and risk averse to the point where teachers and librarians, for example, who rely on such publications too literally, might be unable to do their job as well as they could and should.

For example, a publication that is apparently oblivious to the empowering possibilities of the CCH v. LSUC decision does not help teachers and librarians to be more effective in their work.

By way of another example, I’ve previously written about how SFU has seriously misinformed its graduate students on copyright issues pertaining to their theses and pointed them in turn to a publication that contained serious errors of omission in terms of case law at the time when it was published, but which SFU describes as “"the indispensable guide for publishers, web professionals, writers, artists, filmmakers, teachers, librarians, archivists, curators, lawyers and business people."

Murray and Trosow have now gone beyond these problematic past approaches. Even experienced copyright lawyers will find this book to be interesting and useful in the policy context. While not as comprehensive or authoritative for legal research or litigation citation purposes as David Vaver’s 2000 publication, it is more up to date and has potentially a much broader audience. It will also be more useful than Vaver’s book in many respects in terms of dealing with the forthcoming wars over the new legislation.

One suggestion for the next edition - which I hope to see after the dust has settled someday on the expected new legislation - would be expanded treatment of collectives and the Copyright Board. Of course, one of the ironies of Canadian collectives and the Board is that there is little opportunity for "citizen" participation. The collectives are generally not very democratic or transparent. And meaningful participation in Copyright Board hearings is normally very expensive and time consuming.

Frankly, the major educational and library advocacy entities involved in copyright reform and policy should be distributing this book in quantities to their staff and bringing it to the attention of their many ultimate members, i.e. working professionals. These entities include ACCC, AUCC, CAUT, CLA, CARL, and last, but not least, CMEC.

The publisher is missing a great opportunity if it does not actively bring this book to the attention of the thousands of students, teachers (at all levels), school board officials, civil servants and librarians who could immediately benefit from it. But, thankfully, Amazon steps at least partially into the breach and the book is available here at discounted price of $15.72.

A bargain at several times the price.

HK

CAUT Copyright Position

The CAUT (Canadian Association of University Teachers) has sent a very good letter dated November 30, 2007 about copyright reform to Ministers Prentice and Verner and several influential MPs.

CAUT, which represents Canada’s university professors, calls for:

1. Inclusive treatment of fair dealing, i.e. clarifying that listed exceptions are not meant to be exhaustive.

2. No new sector specific exceptions, i.e. educational internet exception not necessary because fair dealing is more equitable and less complex.

3. Anticircumvention provisions to apply only to infringing activity and not be aimed at devices.

4. Notice and Notice regime for ISPs

5. Good faith belief in fair dealing as a defence to statutory damages

6. Standard form contracts not to override statutory users’ rights

7. No term extension.

When there is a link to this letter, I’ll provide it.

Update: here's the letter.

HK