Universities Canada’s 2025 Unpublished Final Fair Dealing Guidelines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 by 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.

To “Actualize” Users’ Fair Dealing Rights: Guidelines If Necessary But Not Necessarily Guidelines

 I recently spoke to the very worthy ABC Copyright group, which has been holding conferences since 2003, to which I’ve often contributed. My topic this year was:

To “Actualize” Users’ Fair Dealing Rights:

Guidelines If Necessary But Not Necessarily Guidelines

This and several other presentations, including a keynote from Sara Bannerman, are available at the conference archive here:

https://dalspace.library.dal.ca/collections/241d04d2-aa6d-4618-86cc-df08b1221741

We did have a brief appearance at the conference from Universities Canada, from which we have long been waiting for an updated version of its outdated and problematic fair dealing guidelines and documents. I shall let you know if and when we see some white smoke from that source.

The notion of actualizing user’s fair dealing rights flows from Justice Abella’s landmark Supreme Court of Canada ruling in the York University case from nearly four years ago, in which I was honoured to act for the intervener CARL with what turned out to be a very influential intervention. Here’s the decision:

York University v. Canadian Copyright Licensing Agency (Access Copyright), 2021 SCC 32 (CanLII), [2021] 2 SCR 734, <https://canlii.ca/t/jh8bc>

Here’s the webcast: https://www.scc-csc.ca/cases-dossiers/search-recherche/39222/

Here was Justice Abella’s closing comment from the decision:

[106]  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.

(highlight & emphasis added)

HPK

Blacklock’s Aspirational Appeal Advancing

 

I’ve written earlier about the Blacklock’s appeal. The Attorney General has filed its Respondent’s memorandum on January 20, 2025. It makes all the essential points.

CIPPIC has now filed its Intervener’s memorandum on February 19, 2025, which covers a lot of ground in its allotted 20 pages. Once again, I am delighted to see myself cited as an authority.

For readers’ convenience, here once again is Blacklock’s “bombastic” Appellant’s memorandum filed on December 2, 2024.

IMHO:

• What the Government did was clearly fair dealing and did not infringe copyright.
• CIPPC is right that “entering a valid and licitly obtained password to access password-protected content does not “circumvent” a TPM”.
• CIPPIC is right that TPMs do not trump fair dealing as a matter of law.

HPK*

* with a reminder, as always, that none of this is legal advice

PS - the appeal will be heard by the Federal Court of Appeal in Ottawa on October 7, 2025. https://www.ippractice.ca/file-browser/?fileno=a-267-24 

Fantasy & Fiction about Fair Dealing in Canada: Access Copyright’s Strategic Plan 2025 - 2028

Access Copyright (“AC”) has recently published its Strategic Plan 2025 - 2028 which states that:

The plan outlines the four complementary strategic goals we will be working towards for the next three years; all are critical for Access Copyright as we work to build a sustainable future for the organization.

Is Access Copyright's "Strategic Plan 2025" that talks about "new business amongst corporate clients" anything more than aspirational fantasy? AC will need more than a slick website and management clichés such as “We will put more emphasis on outcomes than outputs” in order to get corporate “clients” after a more than two-decade litany of litigation defeats in the Supreme Court of Canada & the Federal Court.

It is unclear whether the past unnecessary and arguably sweetheart deals with the federal and provincial governments are still ongoing, and if so, why. Indeed, it was such deals that got AC started in the 1980’s. Needless to say, bad decisions in the past need not be repeated in the future. Governments and businesses are absolutely entitled to the “users’ rights” that are provided by the fair dealing provisions in s. 29 of Canada’s Copyright Act. It is government’s job to be competent and well informed and this requires extensive “research”. Likewise, for businesses large and small.

AC continues to spend its vanishing credibility and much depleted financial resources on fanning the fiction that its precipitous decline in revenues since 2012 is the result of the legislation that year that included the word “education” in s. 29 of the Copyright Act. That change, along with the inclusion of “satire and parody” essentially confirmed very longstanding case law and common sense. It brought Canada closer to the still more user friendly “fair use” provisions in American law. “Fair dealing” in Canadian copyright law didn’t happen overnight in 2012: it has been explicitly provided in our Copyright Act for more than a century.

This is from AC’s comments on its 2023 annual report: Access Copyright

Charting the Impact of Fair
Dealing for Education
(2012-2023)

EDUCATION REVENUES*

*Revenue totals do not include the following:

• Retroactive K-12 royalties recognized in 2012 and 2013 that were payable for the years 2005-2009;

• Royalties recognized in 2022 and 2023 collected from post-secondary institutions under the 2011-2017 tariff. The vast majority of these royalties relate to the year 2011.

Retroactive K-12 royalties collected in 2019 have been allocated to 2012-2017 representing the years in which they were payable.

The main reason that AC’s educational revenues have fallen so precipitously is that, beginning in about 2012, educational institutions realized, following persistent and persuasive advocacy led primarily by Prof. Ariel Katz and also myself, that its tariffs set by the Copyright Board were NOT MANDATORY and its licences not only offered very little, if any, value but simply weren’t necessary. See Ariel Katz’s Fair Dealing’s Halls of F/Sh/ame blog from 2012 The non-mandatory aspect was conceptually confirmed by the Supreme Court of Canada in CBC v. SODRAC in 2015 and very specifically confirmed in York University v. Canadian Copyright Licensing Agency  in 2021. Ariel and I made the prevailing arguments by way of interventions in both cases. I appeared as intervener counsel in both cases, and Ariel was represented by Sana Halwani in the York case. Prof. David Lametti, as he then was, was on our team in the SODRAC case.

None of the court decisions that have gone against AC, including the York decision from the Supreme Court, turned on the addition of the word “education” in s. 29 of the Copyright Act. See my 1923 detailed blog about A Fair Deal for Fair Dealing. At that time, I pointed out that: “ key Canadian SCC fair dealing decisions, including the landmark 2012 Alberta 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.” I also stated then that “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.” So, copyright owners are getting payments to which they are entitled – but just not via AC.

The importance and influence generally and in the courts of Ariel Katz’s two landmark “Spectre” articles has been immense. See Ariel Katz:  Spectre: Canadian Copyright and the Mandatory Tariff - Part I and Spectre: Canadian Copyright and the Mandatory Tariff - Part I.

In 2024, AC badly lost a major Federal Court decision that it did not even try to appeal that required it to refund g $28,279,000 plus legal costs to the CMEC K-12 consortium. I wrote about it here.

Fair dealing – which is a cornerstone of “users’ rights” and is “always available” as taught by the Supreme Court of Canda in the landmark CCH decision – is spelled out in Canada’s Copyright Act:

s. 29 Fair dealing for the purpose of research, private study, education, parody or satire does not infringe copyright.

A business, whether it is a small law firm or a giant bank, is entitled to undertake “research” in order to go about its business. The fact that a business is in business to make money does NOT prevent it from relying on fair dealing, as the Supreme Court of Canada has twice confirmed. Fair dealing may entail making copies of stuff for research purposes, consistent  with the six CCH factors “that could be considered to help assess whether a dealing is fair”:

(1) the purpose of the dealing; (2) the character of the dealing; (3) the amount of the dealing; (4) alternatives to the dealing; (5) the nature of the work; and (6) the effect of the dealing on the work.  Although these considerations will not all arise in every case of fair dealing, this list of factors provides a useful analytical framework to govern determinations of fairness in future cases.

Sharing of material internally for research purposes in a commercial setting has been validated by numerous court decisions, even when the material was behind a paywall and obtained via the “licit” use of a password, as Blacklock’s has learned to its chagrin in a recent Federal Court decision from which it has filed a Hail Mary appeal that is unlikely to succeed IMHO.

See also the SCC’s comments on “aggregate” copying in the York University case. And it should go without saying but seems to be necessary to restate again and again that copying that is not “substantial” doesn’t even engage the Copyright Act. Nor does merely linking engage the Copyright Act.

So, AC may be dreaming in virtual reality if it thinks that Canadian businesses are going to voluntarily pay a licence fee for their normal research activities. Potentially misleading information addressed to various business sectors on AC’s website is not helpful, e.g. BioTech, Pharma Firms, & Life Sciences and other sectors.

As always, there’s the proverbial question of whether AC actually has a viable chain of title to all or even much of the repertoire it purports to be able to licence. BTW, for those business determined to spend their money somehow, I have a very nice bridge to Brooklyn that I’m willing to sell for the right unreasonable price.

If AC wants to be the proverbial delusional dog persisting in chasing the legislative car to amend s. 29, it should be careful what it wishes for – especially if it catches that car. There are overdue changes to s. 29 that would expand Canda’s fair dealing provision to make it as generous to users as the American “fair use” version in 17 USC 107. If the next Government unwisely opens up that Pandora’s box at AC’s behest, there will be strong calls for:

• Inclusion of the words “such as” in the list of fair dealing purposes;
• Confirmation that fair dealing applies to material behind a licitly accessed paywall;
• Confirmation that fair dealing rights cannot be trampled by contract;
• Addition of TDM access for the purpose of AI technology; and,
• Etc.

In the unlikely event that the next government should reopen s. 29, it would be likely be  a “make my day” moment for users’ rights in Canada.

Likewise, if AC attempts to litigate in order force businesses to enter into useless and unnecessary licences.

HPK*

*with a reminder, as always, that none of this is legal advice