A closer look at the rabbit hole

On April 17, 2014, John Degen wrote a blog post bemoaning the lack of clarity in the claims made by educational institutions regarding fair dealing. I hope to be able to shed some light on the issue.

It’s actually not difficult to keep track of educational claims about copyright because they are based on the law. All you have to do is read the Supreme Court’s decisions in CCH, Bell, and Alberta. Then have a look at the legislative amendments that Parliament enacted in Bill C-11. Degen is right to ask whether we know what the legislators intended in drafting the enactments; this is the underlying question in statutory interpretation. The courts are tasked with figuring this out, and we can get a good idea from how they have interpreted the statute in the past. In CCH the Supreme Court characterized fair dealing as a user right and an integral part of the Copyright Act, which must not be interpreted restrictively (para. 48), and the enumerated purpose in the first part of the analysis must be given a “large and liberal” interpretation (para. 51). In Bell and Alberta the Supreme Court reiterated this position.

Parliament has added “education” as an enumerated fair dealing purpose (while retaining similar purposes such as research and private study). They did not qualify or condition it in any way. Since the drafters were probably aware of the CCH decision, it is not a leap to presume that this purpose should also be interpreted in a large and liberal fashion.

So the claims at issue amount to this: Parliament has added “education” as an enumerated fair dealing purpose. The Supreme Court has interpreted fair dealing purposes broadly. Educational institutions may and should take advantage of user rights to the greatest extent possible. The rabbit hole really isn’t that deep.

And it might help in terms of clarity if Michael Geist’s entire answers from his FAQ were quoted. For example:

7.    Aren’t educational institutions reducing payments to Access Copyright because of the C-32 fair dealing reforms?

No. Potential reductions in payments to Access Copyright have little to do with fair dealing reform.  Post-secondary institutions and Access Copyright are currently before the Copyright Board on the issue of a potential tariff. To the extent payments may go down or education may reconsider its use of the Access Copyright licence, this primarily reflects changes in the way education accesses works, including campus-wide licencing of materials in databases, open access to materials, book purchases, and individual licencing.

Snipping the answer to “no” potentially changes its meaning. Geist is not denying that payments to Access Copyright will be or have been reduced. Clearly, if educational institutions do not enter into blanket licences with the collective, there will be no payments. The underlined bit is important. Universities began to reconsider their relationships with AC years before the Copyright Act amendments and the Copyright Pentalogy. The primary spurs were the inability to come to agreeable terms for a new licence, and AC’s tariff application. Put simply, universities were not happy with AC’s attempt to drastically increase fees, which, generally, are not ultimately paid by the universities themselves, nor by professors, but directly by the students (as a supplementary fee and folded into the cost of printed course packs).

And if AC or copyright owners lose money because universities decide to rely more on fair dealing and other user rights, which they are entitled to do, their beef is with Parliament and the courts, not with the users.

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