Universities Canada’s 2025 Unpublished Final Fair Dealing Guidelines

So it seems like there will be no puff of white smoke from Universities Canada (“UC”) about its new long-awaited fair dealing guidelines that were announced at the recent ABC conference on April 30, 2025. A spokesperson for UC then suggested that we would see the guidelines in a week of two.

UC has been working on fair dealing for better or worse – mostly for worse IMHO– for decades. I’ve written about this at great length on my blog, including several posts when UC was called AUCC. For a long time, AUCC – now UC – actually used the same law firm as CanCopy – now called Access Copyright. AUCC/UC’s strategies and published documents on fair dealing very nearly resulted in snatching defeat from the jaws of victory in the York University saga, which finally ended with a win  for York in 2021. That win was frankly based significantly on intervener submissions by Sana Halwani on behalf of Prof. Ariel Katz and myself on behalf of CARL.

Anyway, it seems that UC has finally sent out its final guidelines to various institutions but has, for whatever reason, refrained from publishing them on its website. Apparently, there was a long consultation and at least two law firms were involved. If the guidelines were really good and UC was really confident about them, why wouldn’t the document be published UC on its website?

IMHO, which is NOT a legal opinion,  the guidelines are arguably not really good. In fact, they are arguably quite problematic. Here’s a few reasons why:

There is no discussion of the concept of “substantial”, which is a key threshold built into s. 3 of the Copyright Act. It’s also a threshold issue for any discussion of copyright in the academy. If what is copied is not “substantial”, there’s no need to even think about copyright and fair dealing, much less to waste the time of expert librarians or copyright counsel. For example, a few sentences or even a few paragraphs out of a book or journal article are rarely, if ever, going to be “substantial”.  It’s always a question of degree and context. Of course, there must always be proper citation – but plagiarism and copyright infringement are two different things which may, but do not necessarily, overlap – which any good guidelines should make clear.

A key part of these guidelines makes no logical or grammatical sense, i.e.:

1. The copy must be a “Short Excerpt” containing no more of a Work than is required in

order to achieve the Allowable Purpose, which is either:

(a) up to 10% of a Work; or

(b) no more than:

(i) one chapter from a book;

(ii) a single article from a periodical;

(iii) an entire artistic work (including a painting, print, photograph, diagram, drawing, map, chart and plan) from a Work containing other artistic works;

(iv) an entire newspaper article or page;

(v) an entire entry from an encyclopedia, annotated bibliography, dictionary or similar reference work,

whichever is greater.

(highlight and emphasis added)

How, for example, I wonder, how it makes any sense to say that one can copy “up to 10% of a Work” OR “a single article from a periodical”  or “up to 10% of a Work” OR  an  “an entire entry from an encyclopedia” - whichever is greater?

Another issue is this:

5. Teaching Staff and Other Staff may not obtain a Work for copying under these Fair Dealing Guidelines by circumventing a technological protection measure (commonly referred to as digital locks), such as a paywall.

This appears to ignore, or at least greatly oversimplify, an important recent ruling of the Federal Court which holds that:

It is hereby declared that the licit acquisition and use of a password, if it is otherwise a technological protection measure, does not constitute the circumvention of the technological protection measures of the Copyright Act.

See 1395804 Ontario Ltd. (Blacklock's Reporter) v. Canada (Attorney General), 2024 FC 829 (CanLII), <https://canlii.ca/t/k4zfr>. That decision is under appeal, but I would frankly be very surprised if the appeal were to succeed.

Another issue, not even addressed, is that merely linking, without more, should not entail copyright concerns. The Supreme Court of Canada has ruled that merely linking is NOT publication. This was in the context of defamation, but there’s no reason to assume that the principle would not apply to copyright infringement.  Linking to something posted legally should be safe. See Crookes v. Newton, 2011 SCC 47 (CanLII), [2011] 3 SCR 269, <https://canlii.ca/t/fngpv>.

Still another issue arises from this:

3. A single copy of a Short Excerpt from a Work may only be provided to students registered, enrolled or engaged in a course, unit or program of academic, continuing, professional or vocational study administered or hosted by the University, which may include a person who is granted deferred standing in a course, as follows:

a) as a class handout;

(b) as a posting to a learning or course management system that is password protected or otherwise restricted to, and accessible only by, students in the specific university course, unit or program (in each case, a “LMS”); or

(c) as part of a course pack compiled by the University bookstore or another entity or department controlled by the University,

and it is recommended (if practical) that each such copy, or the LMS, includes a notice indicating that Short Excerpts are being copied in reliance on the Fair Dealing Right, and advising students to only use materials for their personal Allowable Purposes, and not to communicate or share materials with others.

(highlight and emphasis added) 

I fail to understand why a university student or professor cannot publicly post outside the realm of the academy, for example on a blog or in a journal or any other public forum, anything that is permitted by fair dealing.

Overall, these guidelines seem to be a step backwards, even from the 2012 U of T Fair Dealing Guidelines, with which I was very much involved. It is now 2025 and the York decision, which strongly encouraged guidelines, is now nearly four years old.  One might expect to see fair dealing actualization motivated by the concepts of safe harbours and enablement, rather than inhibited by  excessive risk aversion, caution, and deference to now illusory threats. In that decision, Justice Abella stated:

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.

(emphasis added)

Universities Canada is a worthy and important organization. But it is not the only organization concerned with copyright and post secondary education in Canada. Other organizations may wish to look at guidelines for actualizing fair dealing. And, of course, individual institutions can show unilateral initiative, as did U of T in 2012 under the leadership its former President David Naylor and General Counsel Steven Moate, both now retired.

Whether we actually even need “guidelines” in light of the several user friendly decisions from  the Supreme Court of Canada is a potentially interesting question and inspired me to title my recent talk and blog “To “Actualize” Users’ Fair Dealing Rights:

Guidelines If Necessary But Not Necessarily Guidelines”. However, there seems to be a strong appetite for guidance through guidelines. It would seem obvious that whatever may or may not emerge should surely be good guidelines.

 HPK. Not legal advice.