So it seems like there will be no puff of white smoke from Universities Canada (“UC”) about its new long-awaited fair dealing guidelines that were announced at the recent ABC conference on April 30, 2025. A spokesperson for UC then suggested that we would see the guidelines in a week of two.
UC has
been working on fair dealing for better or worse – mostly for worse IMHO– for
decades. I’ve written about this at great length on my blog, including several posts when
UC was called AUCC. For a long time, AUCC – now UC – actually used the same law
firm as CanCopy – now called Access Copyright. AUCC/UC’s strategies and
published documents on fair dealing very nearly resulted in snatching defeat from the jaws of victory
in the York University saga, which finally ended with a win for York in 2021. That win was frankly based significantly on intervener
submissions by Sana Halwani on behalf of Prof. Ariel Katz and
myself on behalf of CARL.
Anyway,
it seems that UC has finally sent out its final guidelines to various institutions but
has, for whatever reason, refrained from publishing them on its website.
Apparently, there was a long consultation and at least two law firms were
involved. If the guidelines were really good and UC was really confident about
them, why wouldn’t the document be published UC on its website?
IMHO,
which is NOT a legal opinion, the
guidelines are arguably not really good. In fact, they are arguably quite
problematic. Here’s a few reasons why:
There
is no discussion of the concept of “substantial”, which is a key threshold
built into s. 3 of the Copyright Act. It’s
also a threshold issue for any discussion of copyright in the academy. If what
is copied is not “substantial”, there’s no need to even think about copyright
and fair dealing, much less to waste the time of expert librarians or copyright
counsel. For example, a few sentences or even a few paragraphs out of a book or
journal article are rarely, if ever, going to be “substantial”. It’s always a question of degree and context. Of
course, there must always be proper citation – but plagiarism and copyright
infringement are two different things which may, but do not necessarily,
overlap – which any good guidelines should make clear.
A key
part of these guidelines makes no logical or grammatical sense, i.e.:
1. The copy must
be a “Short Excerpt” containing no more of a Work than is required in
order to achieve
the Allowable Purpose, which is either:
(a) up to 10% of a Work; or
(b) no more than:
(i) one chapter
from a book;
(ii) a single article from a periodical;
(iii) an entire
artistic work (including a painting, print, photograph, diagram, drawing, map,
chart and plan) from a Work containing other artistic works;
(iv) an entire
newspaper article or page;
(v) an entire entry from an
encyclopedia, annotated bibliography, dictionary or similar reference
work,
whichever is greater.
(highlight and
emphasis added)
How,
for example, I wonder, how it makes any sense to say that one can copy “up to 10% of a Work” OR
“a single
article from a periodical” or
“up to 10% of a Work”
OR an “an entire entry from an encyclopedia” - whichever is
greater?
Another
issue is this:
5. Teaching Staff and Other Staff may not obtain a Work for copying under these Fair Dealing Guidelines by circumventing a technological protection measure (commonly referred to as digital locks), such as a paywall.
This
appears to ignore, or at least greatly oversimplify, an important recent ruling
of the Federal Court which holds that:
It is hereby
declared that the licit acquisition and use of a password, if it is otherwise a
technological protection measure, does not constitute the circumvention of the
technological protection measures of the Copyright Act.
See
1395804 Ontario Ltd. (Blacklock's Reporter) v. Canada (Attorney
General), 2024 FC 829 (CanLII), <https://canlii.ca/t/k4zfr>. That
decision is under appeal, but I would frankly be very
surprised if the appeal were to succeed.
Another
issue, not even addressed, is that merely linking, without more, should not
entail copyright concerns. The Supreme Court of Canada has ruled that merely
linking is NOT publication. This was in the context of defamation, but there’s
no reason to assume that the principle would not apply to copyright
infringement. Linking to something
posted legally should be safe. See Crookes v. Newton, 2011 SCC 47
(CanLII), [2011] 3 SCR 269, <https://canlii.ca/t/fngpv>.
Still
another issue arises from this:
3. A single copy
of a Short Excerpt from a Work may only be provided to students registered, enrolled or engaged
in a course, unit or program of academic, continuing, professional or
vocational study administered or hosted by the University, which may
include a person who is granted deferred standing in a course, as follows:
a) as a class
handout;
(b) as a posting
to a learning or course management system that is password protected or
otherwise restricted to, and accessible only by, students in the specific
university course, unit or program (in each case, a “LMS”); or
(c) as part of a
course pack compiled by the University bookstore or another entity or
department controlled by the University,
and it is
recommended (if practical) that each such copy, or the LMS, includes a notice
indicating that Short Excerpts are being copied in reliance on the Fair Dealing
Right, and advising students to only use materials for their personal Allowable
Purposes, and not to communicate or share materials with others.
(highlight and emphasis added)
I
fail to understand why a university student or professor cannot publicly post outside
the realm of the academy, for example on a blog or in a journal or any other public
forum, anything that is permitted by fair dealing.
Overall,
these guidelines seem to be a step backwards, even from the 2012 U of T Fair Dealing Guidelines, with
which I was very much involved. It is now 2025 and the York decision,
which strongly encouraged guidelines, is now nearly four years old. One might expect to see fair dealing
actualization motivated by the concepts of safe harbours and enablement, rather
than inhibited by excessive risk
aversion, caution, and deference to now illusory threats. In that decision,
Justice Abella stated:
At the end of the
day, the question in a case involving a university’s fair dealing practices is
whether those practices actualize the students’ right to receive course
material for educational purposes in a fair manner, consistent with the
underlying balance between users’ rights and creators’ rights in the Act.
(emphasis added)
Universities
Canada is a worthy and important organization. But it is not the only
organization concerned with copyright and post secondary education in Canada.
Other organizations may wish to look at guidelines for actualizing fair
dealing. And, of course, individual institutions can show unilateral initiative,
as did U of T in 2012 under the leadership its former President David Naylor
and General Counsel Steven Moate, both now retired.
Whether
we actually even need “guidelines” in light of the several user friendly
decisions from the Supreme Court of
Canada is a potentially interesting question and inspired me to title my recent
talk and blog “To “Actualize” Users’ Fair Dealing Rights:
Guidelines If Necessary But Not Necessarily Guidelines”. However, there seems to be a
strong appetite for guidance through guidelines. It would seem obvious that
whatever may or may not emerge should surely be good guidelines.
HPK. Not legal advice.
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