The following table is a semi-update of the project I worked on last year, collecting and analysing fair dealing policies of the 40 largest Canadian universities, plus UPEI. Below you will find the current state of the policies.
Ariel Katz discusses the transition from Access Copyright blanket licence to in-house compliance management at the University of Toronto. He argues that the so-called upheaval claimed by AC is not much more than the usual hiccups experienced when moving from one system to another. He addresses the ambiguity surrounding the scope of AC’s repertoire (the copyright owners they claim to represent, and the specific works covered by the blanket licence or potential tariff), the use of licences directly negotiated with publishers, and the ostensible conflict between the interpretations of fair dealing held by AC and the university.
Howard Knopf has written a good analysis of the current situation with Access Copyright’s tariff proposal at the Copyright Board, laying out the main points of contention. Some important documents are also highlighted, such as AC’s objection to making public their list of affiliates, and Ariel Katz’s response.
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.
The University of Western Ontario Journal of Legal Studies (a.k.a. the Western Journal of Legal Studies) is an open access law review launched in 2012. All UWOJLS articles are available for anyone to view, download, or print, no subscription necessary. Copyright in the individual articles belongs to the respective authors.
Its full text is indexed in HeinOnline. The advantage of this relationship with HeinOnline is mainly one of exposure; HO is a highly-subscribed database, and when new journals are added, subscribing institutions may be notified to update their catalogues. A relatively new journal such as the UWOJLS, which is run by students and publishes in a field that some say is over-saturated, will often struggle to be noticed.
The disadvantage? Sometimes the only exposure a journal gets is through its association with proprietary databases such as HeinOnline. This means that a library’s catalogue entry will direct readers only to the proprietary database. The terms of the database publisher’s licence may limit certain uses of the journal articles in the database, such as inclusion in course packs or electronic learning management systems. (These uses may well fall under the scope of fair dealing, but a discussion of conflicts between contract and users’ rights in copyright will have to wait for another day.)
See, for example, the UWOJLS record in Simon Fraser University library’s electronic journal list: http://cufts2.lib.sfu.ca/CJDB4/BVAS/journal/565486. The record indicates, correctly, that the HeinOnline subscription licence does not allow articles to be used in e-reserves or course packs. What the record does not indicate, however, is that the University of Western Ontario Journal of Legal Studies is a fully open access publication whereby such uses are permissible.** Instructors considering UWOJLS articles for use in their courses may decide against it on the basis of these purported restrictions. Ironically, this would result in a net reduction in exposure.
(**Update: Simon Fraser University has updated the entry to include the UWOJLS. Thank you to Sandra Wong for bringing it to my attention.)
The moral of the story? Collections and licensing librarians must be alert to the possibility that a journal appearing in a proprietary electronic database may in fact allow for uses not permitted by the database’s subscription licence. It’s crucial to check every time, particularly in the case of new or more recently-launched journals that are more likely to be open access. Indicate that the journal is open access and provide the link in the catalogue record.
Publishers of open access journals, for their part, need to put the word out and not rely on commercial publishers to do the work for them. Exposure can be had by way of open access journal lists such as the Directory of Open Access Journals and SHERPA/RoMEO, through blog posts and social media, or via announcements on library-related listservs. To paraphrase a classic thought experiment: If a journal is open access but nobody knows that it’s open access, does it make an impact?
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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Copies of all of the AUCC fair dealing application documents can be found on Scribd (via Sam Trosow’s blog post above).
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:
2 Teaching and Research by University Faculty
3 Fair Dealing Guidance for Students
4 Library Copying
5 Learning Management Systems
6 Production and Sale of Course Packs
8 Musical Works and Sound Recordings
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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.
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.
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.