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.
First, the good:
The new policy is much longer and more detailed than the previous one and provides more context. The “General Application” guidelines include a discussion of copyright and infringement in general. The six fair dealing factors are listed, which will help users determine whether or not a dealing may be fair. Other statutory exceptions are addressed, and it is made clear that these exceptions are available in addition to fair dealing, not instead of it.
The first fair dealing factor listed (the purpose) does not include “education, parody or satire” to reflect the Copyright Act amendments of 2012. (This may simply be a proof-reading error.)
The policy does not mention what is arguably the most important detail of the CCH decision: that fair dealing (and other exceptions) are users’ rights and must be interpreted broadly.
The policy claims that, where a subscription licence restricts or prohibits certain uses of a work, the restrictions take precedence over the Fair Dealing Policy. However, the relationship between private contract and far dealing has not yet been examined in Canadian courts, so it is premature to assert that one would trump the other. This claim is especially troubling in a policy that is expected to be adopted word-for-word by many, if not most, universities; given that the Supreme Court has said that the custom in a particular industry may be a consideration in a fairness analysis, it would not be wise to yield this point before its appearance in the jurisprudence.
I hope that university administrators take a careful look at the model policy before adopting it wholesale, and consult with instructors, researchers, and librarians, before deciding whether it is the right strategy for their schools.