The Association of Universities and Colleges of Canada (“AUCC”) has recently circulated nine
(9) “Fair Dealing Policy Application Documents” (see below) for recommended
adoption by its members. According to Prof. Michael Geist, it is believed that “…consistent application of the guidelines
will reduce the likelihood of infringement and enhance York’s defence against
the Access Copyright lawsuit, suggesting that near-identical guidelines will be
used across the country”.
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.
Back in 2010, which was well
before the 2012 Supreme Court of Canada (“SCC”) “Pentalogy” cases and the enactment of Bill
C-11, I pointed out that there were serious questions that needed to be asked
about AUCC’s then very restrictive fair dealing policy.
AUCC’s recent fair dealing policy documents
come more than a year after C-11 got Royal Assent and the Supreme Court delivered five landmark copyright case, two of
which focused on fair dealing. These documents come long after many other
universities have developed their own fair dealing policies, as is documented
in a very useful study
by Lisa di Valentino on various
fair dealing policies across Canada shows with lots of links.
Prof. Sam Trosow has
also recently referred to the importance of fair dealing guidelines and
the new AUCC documents. These documents are not confidential and have been recently
circulated to the university community in Canada. I have posted them and
provided links below.
It will be interesting to see if these
documents will be widely adopted in their current form. These nine documents taken
together are very much more complicated than those of U of T, or UBC or Athabasca just to take
some examples. Moreover, the U of T fair dealing
released last November 5, provides a useful “Step-by-Step Approach to
Determining if the Copying or other Dealing is Permitted” and permits a degree
of flexibility as to what constitutes a “short excerpt”. The UBC document
includes a useful flow chart. No such clear
and helpful guidance is found in these AUCC documents, despite their great overall
Since discussion of these AUCC documents
is inevitable and essential in the public interest, given AUCC’s position in
the university community, here are some of the many questions that have already
begun or are likely to arise:
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?
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?
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
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”.
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.
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:
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
There are other questions that readily
come to mind. For example:
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?
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.
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.
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
One of these “applications”, namely #8
concerning musical works and sound recordings, particularly caught my eye, given
my previous incarnation as a clarinetist and musicologist. It’s hard to see how a
“short excerpt” (i.e. 10%) of a typically three or four minute popular song
will suffice for most of the necessary purposes in post-secondary music
courses. The SCC has ruled that “It may
be possible to deal fairly with a whole work.”
The popular song form would seem to be a prime example of where “a
whole work” may need to be reproduced for one or more of the fair dealing
purposes, as will often be the case even for much longer “serious” musical
works. 10% of a three minute Beatles
song doesn’t get one very far – i.e. 18 seconds. This simply doesn’t reflect
the way that music needs to be taught – and students cannot possibly be
expected to purchase copies of everything that they need to study. The SCC has
made it perfectly clear that this is not necessary. In fact, “sheet music” is generally now very
difficult to obtain at any price. And, by the way, the explanation of the term
of copyright in musical works that involve both words and music is simply wrong
when the work is a “work of joint authorship”, e.g. Lerner and Lowe, Lennon and
McCartney, George and Ira Gershwin, etc. In such cases, the term is the life of
the survivor of the joint authors plus 50 years for the whole composition.
The problem with any guidelines that
set categorical bright line quantitative guidelines is that these can become
ceilings rather than floors or foundations upon which to build. And the problem with excessively restrictive
guidelines is that courts may assume that, if these are what the community
thinks is “fair” and acceptable, then maybe these are the outer limit of fair.
It is also regrettable that, rather than educating
its members about their rights and encouraging them to exercise their freedoms
to their fullest extent, the AUCC imposes restrictions that could arguably
result in a gratuitous concession of key users’ rights confirmed in the 2004 CCH v. LSUC decision. Above all,
there is serious concern that these guidelines could become the new “normal” in
Canada and thereby be adopted by the Copyright Board and even the courts as
indicative of what constitutes “fair” dealing.
I have similar concerns today, only
more so. This is because the question of “guidelines” and “best practices” and what
is considered “fair” in the relevant community did not arise in the cases that
led to the 2012 SCC decisions. But Access Copyright clearly wants such issues to
arise in the York University litigation. When Parliament and the Supreme Court
of Canada have spoken so clearly, eloquently and consistently, there is no
reason to concede an iota of these victories in order to appease an aggressive
collective that clearly has chosen to engage in denial and to litigate rather
than to search for ways to be helpful and to innovate. So, hopefully, AUCC will
not – however benign its intentions may be – play into AC’s hands on these all
Ironically, the current litigation
against York would not be happening as it now stands if AUCC had sought and
succeeded in a timely judicial review application on the elephant in the room,
namely the supposedly “mandatory” interim tariff that the Copyright Board imposed
on December 23, 2010. I wrote in January of 2011 about the
advisability of such an application. I believed then and still do now that such
an application might have had a very good chance of success at that time.
So – it’s timely and, indeed,
essential for the university community to look carefully at these AUCC
guidelines and determine whether they raise more questions than answers and whether
they may need more homework.
I should disclose that I have advised
a range of educational institutions, including some universities, on
closely related issues, including fair dealing guidelines, but my comments
above are purely my own.
AUCC Fair Dealing Policy Application Documents