The AUCC Finally Provides Fair Dealing Policy “Application Documents” for Canadian Universities – But Is More Homework Needed?

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 guidelines, 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 length.

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: 

• Is 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?
•  Are 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? 
•  Why 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 Canada decision, 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”. 
•  Why 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.
• Why 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. 
•  Do these documents fully account for the SCC’s important ruling in the ESAC v. SOCAN decision last year that severely restricted the importance of the “communication right”, when it ruled that:

  Therefore, 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 abandonment. [39]                    

• Do 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?

  There are other questions that readily come to mind. For example:

• Do 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. 
•  Do 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. 
• Also, 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 right.

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.

As I wrote on January 16, 2012:

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 important issues.

And speaking of litigation, York has finally filed its long awaited Statement of Defence and Counterclaim, available here. The late filing, almost four months after the normal prescribed time limit, was done with the consent of Access Copyright. I and others will no doubt have some comments on this document in due course. York is being represented by the same firm that drafted the AUCC guidelines discussed above and that represented the AUCC at the ongoing Copyright Board hearing on the post-secondary tariff. The 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.

 

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.

HPK

AUCC Fair Dealing Policy Application Documents

1_Application of the Fair Dealing Policy For Universities_General Application

2_Application of the Fair Dealing Policy for Universities To Teaching and Research by University Faculty

3_Fair Dealing Guidance for Students

4_Application of the Fair Dealing Policy for Universities To Library Copying

5_Application of the Fair Dealing Policy for Universities To Learning Management Systems

6_Application of the Fair Dealing Policy for Universities To the Production and Sale of Course Packs

7_Application of the Fair Dealing Policy for Universities To Administrative Copying July 14_2013

8_Application of the Fair Dealing Policy for Universities To Musical Works and Sound Recordings_July 24_2013

9_Application of the Fair Dealing Policy for Universities To Audiovisual Works