The recent sadly and badly misinformed “opinion” dated May 20, 2023 by veteran Globe and Mail cultural columnist Kate Taylor entitled “Copyright loophole for education should be plugged” highlights the need for the educational sector to step up to the plate on fair dealing and copyright revision. Her “opinion”, which some might mistake for journalism given her 34 year tenure with the Globe and Mail (which regards itself as “Canada’s National Newspaper”), could have been written by lobbyists for Access Copyright and publisher interests, though it would lack her hallmark and that of the Globe and Mail.
This is not the first time she has
blatantly opined for Access Copyright. Here she is in 2016 using her
Globe and Mail podium, which does not even pretend to be an “opinion” piece as
does the current effort.
- She doesn’t seem to understand that
fair dealing rights are “users’ rights” that must be given a “large and liberal
interpretation” and are “always available.” She needn’t take my word for this.
Those statements come from the Chief Justice of Canada, Beverly McLachlin in
the landmark 2004 CCH v. LSUC decision.
Above all, fair dealing is not a “loophole”. Fair dealing rights are absolutely
essential and integral to the concept of copyright in Canada and every other
- She doesn’t seem to know the difference in terminology between “fair dealing” (Canada) and “fair use” (USA).
- She is apparently unaware that the USA has provided more and more explicit rights to educators since 1976 than Canada has ever done, i.e. by hard wiring teaching (including multiple copies for classroom use), scholarship, or research” into its copyright law since 1976. See 17 USC 107 Nobody could credibly suggest that this is non-compliant with international treaties. It’s simply absurd to suggest that Canada is an “outlier” in this respect; if anything, our fair dealing users’ rights need to go even farther to catch up with the USA.
- She is apparently
unaware that key Canadian SCC fair dealing decisions, including the landmark 2012
v. Access Copyright and the SOCAN v.
Bell iTunes preview cases, were decided on the
pre-2012 law that goes back to 1921 before the word “education”
was added to s. 29.
- She is
misleading readers by suggesting that the addition of the word “education” to
s. 29 of the Copyright Act via the 2012 Copyright Modernization Act
caused the decline in Access Copyright’s revenues. Indeed, the 2019 INDU
Committee Report from Parliament confirmsthat:
- ... in Alberta (Education) v. Canadian Copyright Licensing Agency (Access Copyright),5 the SCC concluded that teachers could rely on the fair dealing exception when reproducing works for their students since these students were engaging in “private study.” The SCC reached this conclusion without relying on an explicit fair dealing exception for “education”—which, as noted above, has since been added to the Act.
- See also:
Prof. Ariel Katz’s 2018 testimony at the INDU hearings explaining that correlation does not imply causation and outlining the many of the actual reasons for Access Copyright’s declining revenues
Prof. Ariel Katz’s 2014 blog about The Loss of Access Copyright Royalties and the Effect on Publishers: Sifting Fact from Fiction which debunks the myths about the Oxford University Press “OUP”)decision close its Canadian K-12 division. Ms. Taylor in her current opinion to continues to attempt to refloat the OUP fiction
There have been no court cases since
2012 that have specifically considered the effect, if any, of the 2012 addition
of the word “education” with respect to the fair dealing rights of educators,
librarians, students and other essential “users” of the copyright system. In any event, the effect of the
dealing on the market for the work being copied is one of the factors that
courts would consider in determining fairness or lack thereof and, if Ms.
Taylor is somehow correct in her assertion of causal connection, then copyright
owners are already protected – so there’s another reason why there’s no
loophole that needs to be fixed.
She is apparently unaware of the
greatly increased spending since 2012 that bypasses Access Copyright not just
because tariffs aren’t mandatory (as Ariel Katz and I have been preaching for a
decade or so and the SCC agreed in 2021) but because Access Copyright’s
“tariff” offers such poor value. Its repertoire is very limited – especially in
limited to justify any more than a small fraction of their “approved” tariff which is:
per FTE student, if the educational institution is a university.
per FTE student, if another educational institution (i.e. college)
The PSE sector is spending more money
than ever though acquisitions, direct licensing, and dealing with the much more
responsible and responsive American Copyright Clearance Center for
transactional licences. Access Copyright is notoriously inefficient in its
distribution, offers very limited “rights”, and its repertoire is focussed on
Canadian literature – which is not a major component in the PSE sector. Most
Canadian university or college grads will never need to read Margaret Atwood or
Alice Munro. Maybe they should for their literary betterment. But such material
is not part of the curriculum for engineers, doctors, lawyers, computer
programmers, and the overwhelming majority of PSE students.
Access Copyright persists in attempting to collect revenues based upon repertoire for which it has NO rights. It once was able to get educational institutions to hold their noses on its dubious and now defunct “indemnity” scheme, which may have appeared to offer some practical value to some institutions. I’ve written a lot about this in the past, including this from 2009
I have often suggested that Access
Copyright could serve a useful purpose if it offered decent value to license
its actual repertoire based upon useful terms and conditions at a reasonable
price. But that price would presumably be a fraction – perhaps 10% - of what it
currently sees itself entitled.
Ms. Taylor concludes her perfect puff
piece for Access Copyright by saying “The legalized
robbery of Canadian authors by the education sector is an
international embarrassment and a national shame.” (emphasis and highlight added) Frankly, the
national shame is that Canada’s national newspaper would publish something this
misinformed, outrageous, and imbalanced that might get mistaken, due to its
provenance and the Globe and Mail’s status, for credible journalism or
analysis. BTW, I posted several timely tweets about this “opinion” and compiled
them for the comments section for the
Globe and Mail, which has apparently decided not to publish my comment in the “comments” feature following her opinion.
All that said, Ms. Taylor’s analytically
and factually challenged “opinion” should at least be useful as a wakeup call
for the educational sector – which frankly has not stepped up to the plate with
sufficient vigor and confidence since its great victory in the SCC in the 2021 Access Copyright case, for which Ariel Katz laid the legal foundation
and influentially intervened and I made the prevailing arguments on behalf of the intervener Canadian
Association of Research Libraries (“CARL”)
The good copyright news overall now is
that we recently passed Passover this year without the feared fatal budget
announcement regarding fair dealing or mandatory tariffs that this Government
might have hidden away in Federal Budget. That’s the good news.
The bad news is that this doesn’t mean
these dangers have passed, as Ms. Taylor’s opinion piece blatantly demonstrates.
Although the Hon. Pablo Rodriguez has his hands full with his incredibly
misguided legislation in the form of Bills C-11 (now passed) and C-18 (the “link tax” bill), that doesn’t
mean that he or his enabling officials have forgotten about copyright and the shrill
and misinformed voices from Quebec (of which he is Trudeau’s “Lieutenant”) and
Wiser ministers know that copyright
revision – other than very careful incremental changes – is not a hill to die
on in Canada. Fortunately, there are two other ministers who will hopefully
bring some essential legal and policy wisdom to the table, should this become
necessary. The Hon. F-P Champagne, the
ISED minister, is actually the minister with historically primary
responsibility for copyright. The Minister of Justice – the Hon. David Lametti
– who is mentioned by name by Ms. Taylor – may also play a role. He was a
leading copyright law professor at the McGill Faculty of Law for about 15 years
before he ran for office. His department is responsible for ensuring the
constitutionality of any legislation and is responsible for the review and
drafting of legislation for the government. He was my client and appeared with
me in his capacity as law professor and head of the Centre for Intellectual Property Policy at McGill in another
important SCC case that helped to pave the way to the definitive 2021 SCC York ruling
that Access Copyright tariffs aren’t mandatory. See Canadian
Broadcasting Corp. v. SODRAC 2003 Inc., 2015 SCC 57 (CanLII),  3 SCR 615.
In the lull before the possible copyright storm, the best thing that the user community can do would be to follow the suggestion of Justice Abella in her last and crowning SCC decision of her illustrious career, namely to “actualize” their fair dealing rights as she puts it in the 2021 Access Copyright v. York University decision from the SCC.
As I’ve said before:
victories of the PSE (post secondary education) sector are in peril – not only
because of AC and its collaborators but because of sometimes unwise strategies
in the PSE sector itself. Recall this important analysis by Prof. Ariel Katz
following York’s defeat at the trial level in 2017: Access Copyright v.
York University: An Anatomy of a Predictable But Avoidable Loss. The fact that the AC litigation against York was not
struck down early on and had to go the SCC and that York chose to bet the farm
on a bad set of fair dealing guidelines and risk a severe smack down overall on
fair dealing does not bode well for the future unless basic lessons have been
learned – which is hopefully happening but is not yet evident. York very nearly
lost that litigation. Fortunately, my brave client the Canadian Association of
Research Libraries (“CARL”) and Prof. Ariel Katz instrumental in saving York from this fate – though it’s far from clear that all those responsible for
York’s strategy actually appreciate our work.
It surely suggests that
the PSE sector needs to update fair dealing guidelines and to follow Justice Abella’s wise words in the York decision:
 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. Since we are not deciding the merits of
the fair dealing appeal brought by York, there is no reason to answer the
question in this case.
(underline highlight &
This can only mean that the
PSE sector needs to come up with viable fair dealing guidelines that are:
- Neither too permissive nor too defensive
- Sufficiently specific to be actually useful.
- Sufficiently to broad to enable adult responsibility by individual professors and library personnel without the need to seek legal advice or permission from so-called rights owners or their licensees (after all, that is what fair dealing is all about)
- Likely to stand up to scrutiny in the event of litigation.
As I’vesaid before:
Perhaps York should have been rather
more careful about what it wished for. Both the Federal Court and the FCA had
to respond to the counterclaim, which they did as asked. I am on record from
the beginning as having questioned not only the guidelines themselves, which
emanate from AUCC (now UC) guidelines but York’s decision to needlessly, in my
view, put them on trial. Essentially, I had suggested that York get a summary
ruling on whether the tariff was mandatory – which should have been very easy
at least after the 2015 SCC judgment – and not unnecessarily “bet the farm” on
the controversial fair dealing guidelines. Here are some of my blogs in reverse
The process of
actualizing educators’ fair dealing rights, which includes updating fair
dealing guidelines, is essential and may suffice to head off any improvident
legislation, such as Ms. Taylor and her supporters would like to see. It is too
important to be entrusted to any single organization. That said, it should not
be unduly complicated, given the good beginning of the 2012 U of T guidelines with
which I was closely involved. These could be satisfactorily updated relatively quickly
by a very small number of experts. If different organizations separately develop
new guidelines, then let the market decide which approach is better. This may
prove more efficient than attempting to form a coalition that could result in
delays and devolution to the lowest common denominator. Above all, the mistakes
that almost resulted in defeat being snatched from the jaws of victory in the
long saga of the York litigation as a result of problematic guidelines and
litigation strategy must not be repeated.
The original 2012 U of T
fair dealing guidelines were developed in a cooperative collaboration between
usually contrasting viewpoints (Casey Chisick and I) under the wise leadership
of the now retired and much missed U of T general counsel Steve Moate. I was
pleased to have been part of this process. These were, IMHO, the best fair
dealing guidelines to date and suggest a method and process of going forward.
If Casey and I can agree on anything concerning copyright, chances are that it
must be right!
U of T has recently controversially updated
its fair dealing guidelines, supposedly in response to the 2021 York decision
from the SCC. Here is the new version. I was NOT involved
in this update because I was not invited. I and many others are
Overall, these revised 2022 (as
slightly updated in early 2023) guidelines are a disappointing and, in several
instances, questionable and even inaccurate revision and update. They are more
restrictive for the PSE sector than the 2012 guidelines.
Overall, the guidelines have gone from
a reasonably balanced “safe harbour” approach that enabled and empowered fair dealing to a much
more risk-averse restrictive approach that overly protects publishers and
needlessly errs on the side of caution at the cost of good education, research,
and private study. With three strong SCC fair dealing victories in the last
decades and two recent strong SCC judgements that tariffs aren’t mandatory, why
wouldn’t U of T offer more assertive and empowering guidelines for the benefit
of teachers and, above all, students – in other words, the university
If the current government is unwise
enough to follow the histrionic hyperbole of Access Copyright and powerful
publishers as presented by Ms. Taylor, then the PSE sector must be ready to
defend itself with a good offence. This might include:
- Clarifying that TPMs can be circumvented for fair dealing purposes
- Ensuring that users’ fair dealing rights cannot be overridden by contract or waiver
- Ensuring that if crown copyright is not abolished in its present form, then republication of any crown work that is not officially “secret” should be permitted as fair dealing. This would be almost as good as in the USA where the federal government has no copyright rights in its works
- Adding the two little words “such as” to the s. 29 fair dealing provision, consistent with American law.
Anyway, thank you to