The Associations of Canadian Publisher’s
(“ACP”) has worked hard and apparently spent lots of money over the years fighting
against fair dealing. It has fought against
fair dealing twice in the Supreme Court of Canada and lost both times.
The ACP is also a very active lobbyist in Ottawa, as a search of the lobbyist
registry readily shows, seeking on the one hand to get grants from the Government
and on the other hand “lobbying to amend the Copyright
Modernization Act…to limit fair dealing exemption for education”. That lobbying
against fair dealing also didn’t work. Again, the ACP lost badly.
So,
it seems that the ACP has reverted to more blunt tactics. It has recently been
sending out this document dated December 2013 to
post-secondary institutions entitled “STATEMENT OF PRINCIPLES ON FAIR DEALING IN
EDUCATION”. It provides seven (7) principles of fair dealing
that are at best misleading and are, at worst, clearly wrong. The document might more accurately be entitled “[MIS]STATEMENT OF PRINCIPLES ON FAIR
DEALING IN EDUCATION”.
Don’t
just take my word for this. As everyone knows, there are have been three
Supreme Court of Canada (“SCC”) decisions on fair dealing since 2004 and the
word “education” is now included as one of the recognized general allowable
purposes of fair dealing in the statute. Despite the monumental and concerted efforts
of the ACP and their colleagues, the word “education” has not been defined or limited
by Parliament.
Despite
all the disinformation and denial from the ACP and others, the law of fair
dealing in Canada is actually now remarkably straightforward due to Parliament
and the acclaimed jurisprudence of the SCC. However, it’s taking a long time
for this clarity to sink in, at least in ACP circles.
Parliament
has said – and this is the now law, like it or not:
29. Fair dealing for the purpose of research, private study, education, parody or satire does
not infringe copyright. (Emphasis added)
There
were many ingenious and some rather disingenuous attempts to limit or qualify
the addition of the word “education” in 2012 when the fair dealing amendment was being
debated in Parliament – but the attempts failed. The legislative history will
confirm that those opposed to the word “education” feared its very broad
coverage. They now need to live with consequences of these dire predictions and
they may be haunted by their own words in any litigation attempting to limit
the meaning of the word “education”. As I always say to copyright maximalists,
“be careful what you wish for”. And the addition of the word “education” was passed
and given Royal Assent even BEFORE the SCC ruled in the K-12 case and the
iTunes previews case.
And, the SCC made it clear in the CCH case in 2004 that that, once the use is determined to be for a legitimate “purpose”, such as “of research, private study, education”, then there are six factors to consider to see if it is really “fair”. These are:
And, the SCC made it clear in the CCH case in 2004 that that, once the use is determined to be for a legitimate “purpose”, such as “of research, private study, education”, then there are six factors to consider to see if it is really “fair”. These are:
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To conclude, the purpose of the dealing, the character of the dealing, the
amount of the dealing, the nature of the work, available alternatives to the
dealing and the effect of the dealing on the work are all factors that could
help determine whether or not a dealing is fair. These factors may be more or
less relevant to assessing the fairness of a dealing depending on the factual
context of the allegedly infringing dealing. In some contexts, there may be
factors other than those listed here that may help a court decide whether the
dealing was fair.
It should be noted that:
-
No
single factor has priority
-
Not
all factors need be satisfied
-
There
may be additional relevant factors
-
These
factors closely resemble the American four factors, which are: (1) the purpose
and character of the use, including whether such use is of a commercial nature
or is for nonprofit educational purposes; (2) the nature of the copyrighted
work; (3) the amount and substantiality of the portion used in relation to the
copyrighted work as a whole; and (4) the effect of the use upon the potential
market for or value of the copyrighted work.
So – with all this in mind, let’s
look at the ACP’s astonishing misstatements about Canadian copyright law. What
ACP says is in Blue. My comments follow in Red.
1. Quantitative limits on fair dealing are not at
the heart of defining what is fair. In the absence of a permission negotiated
with copyright owners or their representatives, an arbitrary amount becomes a
guideline for unfair copying: regardless of the purpose or impact of copying,
the analysis starts and ends with calculating a quantity. That is not fair.
HPK: This is seriously misleading. Fair dealing – by definition – does
not require “a permission negotiated with copyright owners or their
representatives”. There is nothing wrong
with “guidelines” that suggest quantitative norms in line with “best practices”
in Canada and comparable jurisdictions and which indicate, as in the case of the U of T fair dealing guidelines, that
the application of these suggestions (e.g. “up to 10% of a copyright-protected
work (including a literary work, musical score, sound recording, and an
audiovisual work)” may “vary depending on the exact nature of the work being
used, and of the use itself, all in the context of consideration and
application of the fair dealing factors”. Quantitative guidelines are useful so
that users can enjoy their rights without having to “negotiate” every use.
There will be cases where these guideline suggestions are too high – or too
low. Training, experience and good faith will prevail. The existence of good fair
dealing policy guidelines is a key element in any institution’s copyright
approach. Indeed the Law Society’s “Access Policy” was repeatedly mentioned by
the SCC in the CCH decision, and was instrumental in the LSUC’s successful
defence.
2. “Textbook-like collections” are created by
instructors during their course planning and are most often presented as course
outlines. For any resource that appears as required material on an instructor’s
course outline, copyright owners should be paid. Although the copying of short
excerpts to complement core resources may be fair, fair dealing is not intended
to enable the assembly of textbook-like collections, whether digitally or on
paper. That is not fair.
HPK: This is wrong. The SCC has explicitly ruled that the fact that a
teacher takes the initiative to tell a student what to be read does NOT ipso
fact preclude that material from being “fair dealing”. When it is fair dealing,
the user does NOT need permission and the copyright owner does NOT get paid. That’s
the whole point about fair dealing.
3. Fair dealing is intended to facilitate
transformative uses of copied material, such as new research, criticism, and
satire. When copying is simply duplication for distribution, it is not fair
dealing.
HPK: This is wrong. The term
“transformative” use can be found in
American case law,
but is only one of many potentially relevant aspects. It is NOT an essential requirement
of American fair use, much less Canadian fair dealing. Copying that is “simply
duplication for distribution” may very well be fair dealing, if it is for one
of the recognized purposes and meets the SCC’s factors.
4. Fair dealing is intended to enable situational
uses of copyright-protected material, in support of free expression, expanded
discourse, and creativity. Fair dealing is spontaneous—not planned, organized,
coordinated for maximum value gained, or designed specifically to avoid
payment. If copying is not spontaneous, it is not fair dealing.
HPK: This is wrong. Most fair dealing will involve careful analysis as
to whether the dealing meets the requirements of the statute and the SCC
factors. That is why all educational institutions are disseminating guidelines
and educating their communities. Would intelligent copyright owners want it any
other way? The use of fair dealing to minimize costs and maximize quality of
education and research is the fundamental part of the foundation of copyright
law and is the reason why the SCC tells us that is a “users’ right” that must
be given a “large and liberal” interpretation.
5. Fair dealing depends on copying from a legal
source. Copying from an illegally acquired original is not fair dealing.
HPK: There’s no basis for this statement
as such a general and categorical proposition. It’s conceivable that “copying
from an illegally acquired original” might be an additional factor above and
beyond the SCC’s six factors in some hypothetical instance in determining whether
the copied material involved fair dealing – but equally conceivable that it may
not be.
6. Fair dealing is not intended to exclude paying
for the work of authors and all those involved in the original publishing of
the material when those doing the copying are being paid for their work, or
when students are being charged for the materials. That is not fair.
HPK: This is wrong and very seriously misleading. The SCC clearly ruled in
the CCH decision that lawyers have the right to engage in fair dealing for the
purpose of research. Lawyers normally get paid for their work. Professors and
teachers also get paid for their work. And it’s OK to charge students for
materials incorporating copying that is fair dealing, as long as it’s on a not-for-profit
cost recovery basis.
7. Fair dealing is not intended to cause damage to
the markets for works, along with the livelihoods of authors and publishers,
and their ability to create new works. Depending on the work, such damage can
occur at any level of copying, but damage is very likely when large amounts of
a work are copied, or when multiple copies are made. If copying damages the
market for a work, it is not fair dealing.
HPK: This is very seriously misleading. There is nothing in Canadian law
that prevents the making of multiple copies, if such copying meets the
requirements of the statute and the SCC fair dealing factors. Even If there are
thousands of students in a MOOC, the provision of material to each and every one
can be fair dealing, if the purpose is for education or another allowable
purpose and the SCC’s factor test is satisfied.
Conclusion:
Those
in the educational community should ignore the ACP misstatements – or perhaps use
them as a teaching tool about how NOT to inform the Canadian public
accurately about copyright law.
Those
in the educational community should acquaint themselves with good fair dealing guidelines
that apply in their context. While the basic underlying principles are the same
for everyone, there may be some differences between certain types of
institutions and situations. K-12 is obviously not quite the same environment
as and advanced research university – though there is more in common than not
when it comes to fair dealing. Overall, I am partial to the U of T fair
dealing guidelines, which are nuanced, sophisticated and yet
very clear and logical. I should reiterate, as I have previously disclosed,
that I had some involvement in their creation.
The
final paragraph of the ACP document is particularly ironic:
As
long-term, effective partners in education, Canadian-owned higher-education
publishers are open to discussion and negotiation on the limits of fair
dealing. We propose that copyright users adopt policies based in the principles
we outline here, an approach that recognizes that authors, publishers,
professors, learners, universities, colleges and schools are partners, not
adversaries, in education.
One
may well ask how parallel efforts in seeking a mandatory tariff, suing a major
university, and disseminating wrong and misleading statements of principle are
likely to promote a relationship of “partners, not adversaries, in education”.
HPK
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