AUCC – ill at ease

Fair Duty

Early last week Michael Geist informed us that the Association of Universities and Colleges of Canada (AUCC) had commissioned detailed guidelines concerning fair dealing from Osler, Hoskin & Harcourt. AUCC’s request was prompted by Access Copyright’s lawsuit against York University; a lawsuit launched earlier this year on the dubious claim that York University’s fair dealing policies were encouraging infringement. As I wrote then:

Access Copyright is once again trying to roll back the interpretation of fair dealing fostered in Canada by both the Supreme Court of Canada and the Government of Canada. This progressive interpretation took shape slowly, with Court decisions spanning 2002-2012 and Government efforts at amendment benefiting from more than ten years of deliberation. Both bodies took measured steps that recognize the importance of maintaining copyright’s limits. Access Copyright is setting its sights on the educational community that took guidance from the government and the Court.

On Friday, Howard Knopf

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AUCC’s nine-pack of Fair Dealing Guidelines

Copies of all of the AUCC fair dealing application documents can be found on Scribd (via Sam Trosow’s blog post above).

Sam Trosow

The full text of the 9 revised AUCC Fair Dealing Guidelines have now been posted online on the SCRIBD website (links at excesscopyright.blogspot.ca)  and at the University of Calgary library.  I’m curious as to why AUCC does not just post them on their own website.  Why is the task of disseminating these important documents to the public left to third parties?

Here are the files, as posted at SCRIBD:

1  General Application
http://www.scribd.com/doc/165760807/1-Application-of-the-Fair-Dealing-Policy-ForUniversities-GeneralApplication

2 Teaching and Research by University Faculty
http://www.scribd.com/doc/165760791/2-Application-of-the-Fair-Dealing-Policy-for-Universities-ToTeaching-and-Research-by-University-Faculty

3 Fair Dealing Guidance for Students
http://www.scribd.com/doc/165760787/3-Fair-Dealing-Guidance-for-Students

4 Library Copying

http://www.scribd.com/doc/165760801/4-Application-of-the-Fair-Dealing-Policy-for-Universities-ToLibraryCopying

5 Learning Management Systems

http://www.scribd.com/doc/165760772/5-Application-of-the-Fair-Dealing-Policy-for-Universities-ToLearning-Management-Systems

6 Production and Sale of Course Packs
www.scribd.com/doc/165760756/6-Application-of-the-Fair-Dealing-Policy-for-Universities-TotheProduction-and-Sale-of-Course-Packs

7 Administrative Copying
http://www.scribd.com/doc/165760763/7-Application-of-the-Fair-Dealing-Policy-for-Universities-ToAdministrative-Copying-Jul-14-2013

8 Musical Works and Sound Recordings
http://www.scribd.com/doc/165760749/8-Application-of-the-Fair-Dealing-Policy-for-Universities-ToMusicalWorks-and-Sound-Recordings-July-24-2013

9 Audiovisual Works
http://www.scribd.com/doc/165760752/9-Application-of-the-Fair-Dealing-Policy-for-Universities-ToAudiovisual-Works

Some serious questions are already being raised (here, herehereandhere) but much more analysis needs to be done. Unfortunately, these documents are

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New AUCC model fair dealing policies

The Association of Universities and Colleges of Canada have made available a new set of fair dealing guidelines developed by the law firm of Osler, Hoskin & Harcourt. These guidelines replace provide guidance for the previous model policy introduced not long after the Supreme Court’s “Copyright Pentalogy” decisions and the amendment of the Copyright Act. Copies of the guidelines can be found at Michael Geist’s blog.

Having had a look at the guidelines I’d like to share a few quick thoughts based on my research into university fair dealing policies.

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Comparison of Fair Dealing and Fair Use in Education Post-Pentalogy

I have just uploaded to SSRN a new working paper titled “Comparison of Fair Dealing and Fair Use in Education Post-Pentalogy”. In it I discuss the scope of Canadian fair dealing and American fair use since the five landmark decisions of the Canadian Supreme Court in 2012, and the amendment of the Copyright Act the same year.

A summary of this paper was presented as a work-in-progress at the 2013 IP Scholars Conference at Cardozo Law School.

Abstract:

While traditionally American fair use has been thought of as broader in scope than Canadian fair dealing, I claim that in 2013 this is no longer the case. I further argue that educational administrators and academic and library associations in Canada have yet to take full advantage of this expansion of users’ rights.

In Part I I give a brief and general overview of copyright in Canada and the United States. In Part II I compare the legislation and jurisprudence specifically with respect to fair dealing and fair use, using the fairness factors as a guide. Specifically, this part will examine differences with respect to the fairness factors in general, transformativity, amount and substantiality, market harm and licences, and institutional practice and policy. Part III is a discussion of the advocacy efforts of Canadian and American educational and library professional associations and the development of best practices and guidelines. I conclude that colleges and universities in Canada may now confidently develop copyright policies that reflect the rights of users, but educational administrators and associations in Canada are lagging behind their American counterparts in leveraging this opportunity.