Friday, November 12, 2010

A Short Quiz: Guess the Source of this Fair Dealing "Guidelines" Document

This document purports to provide "guidelines" to Canadian universities about fair dealing. Readers may be interested in guessing when and from where it emanates. I shall provide two important hints.

Hint #1:

The source is one of the following:

- Access Copyright (“AC”)
- Association of Universities and Colleges Canada (“AUCC”)
- Canadian Association of Research Libraries ("CARL")
- Council of Ministers of Education Canada ("CMEC")

Hint #2:

The landmark Supreme Court of Canada decision dealing with fair dealing, namely CCH. v. LSUC, was rendered on March 4, 2004.

This document begins as as follows:
Fair Dealing Policy

I. Copying Guidelines

1. Except where otherwise stated, these guidelines apply to the making by a university [of] a single copy from a work protected by copyright for the purposes of private study or research [sic] in circumstances in which the consent of the owner of copyright has not been secured and is not required by reason of the fair dealing exception in the Copyright Act. Permission from a copyright holder may be required where the copy falls outside of these guidelines.
A few preliminary notes:

- The correct phraseology is “research or private study” and NOT “private study or research.” The phraseology as above (i.e. “private study or research”) is simply wrong. We amended the legislation a long time ago to make the word “private” modify the word “study” and not the word “research”. Details such as this can matter very much in court cases and clearly do matter in the context of the university.

- The document is not even internally consistent on the foregoing point. At one point, it uses the correct phrase “research or private study”.

- I’ve highlighted some of the more restrictive points on what is supposedly permissible according to the document.

Readers are asked to guess who penned the linked document and when it was written. Guesses and comments can be posted below, anonymously if so wished. Even I won’t know who is the source of the comment, if provided anonymously. As always, I will block or remove defamatory, tasteless or baseless comments. Be constructive.



  1. It couldn't be AUCC: there are far too many solecisms.
    It couldn't be AC. According to AC's Website, 'Whether or not a use is fair dealing is determined on a case by case basis':

  2. And just what are creators being reimbursed for by AC? In particular, what do the millions of titles in AC's 'repertoire' include? I just attempted to get permission from CCC (which is an affiliate of AC) to make a copy from a book I wrote. Unlike AC, CCC has a searchable repertoire list online. According to CCC, the original publisher is the 'rightsholder.' However, the original publisher has not been the book's publisher for more than a decade. In the meantime, all the rights have reverted to me and I have made the book available online for all the world to use as they will through my university's digital repository. AC had no problem when I submitted it to their new registry last April, nor did Google books last January. Don't any of these organizations communicate with each other or verify information among their own members? WTF!

  3. To Anon. @ 10:24:

    AC did have a "license wizard" at one point, but it's now "under construction."

    It did seem rather dysfunctional. I pointed out last year that it was happy to accept payment for making copies of public domain material from Shaw's Pygmalion. See

    Come to think of it, whatever became of the much vaunted "Public Domain Registry"?


  4. I think the public domain registry was always going to be hard to do. The reality is that there are far more works in the public domain than still under copyright. The correct thing for AC to do, if it were really just trying to get paid what it was owed rather than on the backs of someone elses creativity, would be to support a registry for works still covered by copyright.

  5. Curious,

    Is it cheating to have skimmed 5+ years ago a paper by Meera Nair that discussed this topic, and included a survey on fair dealing policies?

  6. im guessing AUCC penned this in a rush .... and shouldn't have

  7. Among the weirdest components of AC's proposal is the requirement that AC gain access to university computer systems, seemingly to verify use of AC's 'repertoire.'

    A problem here is that such a requirement would be counter to worldwide ethics of academic freedom and librarians' confidentiality, not to mention existing privacy law.

    E.g., Ontario's Freedom of Information and Protection of Privacy Act (FIPPA) is pretty explicit on this topic, precluding access to information re: certain legal proceedings, labour negotiations, adoption records, as well as information concerning research and teaching at post-secondary institutions, to wit:

    65.(8.1) This Act does *not* apply,
    (a) to *a record respecting or associated with research conducted or proposed by an employee of an educational institution or by a person associated with an educational institution*; or
    (b) to *a record of teaching materials collected, prepared or maintained by an employee of an educational institution or by a person associated with an educational institution for use at the educational institution*. 2005, c. 28, Sched. F, s. 8 (2). [my emphasis]

    In other words, buzz off, AC!