It’s just been announced that the University of Toronto and the University of Western Ontario have declined to renew the controversial blanket licence with collective Access Copyright, ending months of speculation over what the universities had planned. The decision follows Western’s overhaul of its copyright policy, with fair dealing guidelines closely modelled on UofT’s. Western had previously been one of the few larger universities that did not have any type of fair dealing policy or guidelines available on its web site.
This decision by the two schools is a welcome one. Given the Supreme Court’s reiteration of fair dealing as a user’s right that is to be broadly interpreted, and the amendment adding “education, parody and satire” to the list of allowable fair dealing purposes in the Copyright Act, it has become more difficult for universities to justify entering into agreements that, for a fee, “permit” copying that is almost certainly within the scope of fair dealing.
Access Copyright is, understandably, disappointed in the decision. In their press release they maintain that fair dealing guidelines are untested by law. This is incorrect. In CCH v. Law Society of Upper Canada, the Great Library’s Access Policy (a sort of proto-fair-dealing policy) allowed the copying of, for example, one article from a law review or one case from a reporter, and requests for more than five percent of a volume would be referred to the Reference Librarian. A unanimous Supreme Court said that the policy “places appropriate limits on the type of copying that the Law Society will do.” (para. 73) They went on to add that the Great Library is able to rely on its general practice (as described in the Access Policy) to establish fair dealing, rather than attempt to show that every single dealing was fair (para. 63). These comments by the court are not obiter dicta; the Court granted a declaratory judgment acknowledging that “the Law Society does not infringe copyright when a single copy of a reported decision, case summary, statute, regulation or limited selection of text from a treatise is made by the Great Library in accordance with its Access Policy.” (paras. 76, 90)
Educational fair dealing was addressed again in 2012, in the Supreme Court’s “Copyright Pentalogy” decisions. In Alberta (Education) v. Access Copyright, the Court (in a 5-4 decision) reiterated the characterization of fair dealing as a user’s right. It held that certain types of copies (short excerpts) made for students on the initiative of teachers were made for an allowable purpose, i.e., research. The
Court Copyright Board, as a result of the Supreme Court’s findings, went on to find that these dealings were fair and so would be excluded from Access Copyright’s proposed tariff.
The recently-developed fair dealing guidelines of post-secondary institutions have not themselves been tested by law. Some are similar in scope to the Great Library’s Access Policy, while some, such as UofT’s and Western’s, focus less on particular amounts and more on the fair dealing analysis. The Federal Court may get such an opportunity to test one university’s policy, in the course of deciding Access Copyright’s action against York University.
Access Copyright’s press release states that “University of Toronto and Western University will end more than 20 years of cooperation with Canada’s writing and publishing community.” This is nothing but hyperbole. Canadian universities want to cooperate with the writing and publishing community (all of it, and not just those copyright owners associated with Access Copyright), not only in order to respect owners’ rights and avoid infringement, but because university faculty, staff, and students are a large part of that community.
It is challenging but not impossible to manage copyright issues without a blanket licence (many universities such as University of British Columbia and University of PEI are “going it alone”). As Access Copyright rightly notes, “the termination will be accompanied by disruption and uncertainty.” There is work that needs to be done, and changes that need to be made, but these schools have decided that they are willing to take on the challenge and adapt to the changing landscape of academic communication.