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.

Review of Canadian University Fair Dealing Policies

Update: I have made some revisions to the paper, adding Grant MacEwan University to the sample, correcting Queen’s University’s Access Copyright relationship, and removing typographical errors. Much thanks to Scott Day and Mark Swartz for bringing these oversights to my attention. (May 17, 2013)

I have recently made available the results of a project I have been working on since January. I analyzed the fair dealing policies of the top 40 Canadian universities by student enrollment (excluding Quebec) for content and to determine whether there is consistency among the universities, and any relationship between the content in the schools’ copyright web sites and whether they have signed an Access Copyright licence.

The paper is available at the following link: http://ssrn.com/abstract=2263034

This research is particularly timely because of the recent lawsuit brought by Access Copyright against York University, the basis of which is York’s allegedly ineffective fair dealing policy.

Abstract:

The past three years have seen a number of changes in the area of copyright law, particularly in the area of education. As a result, Canadian universities have had to make policy decisions to account for these changes and the resulting expansion of fair dealing rights. The content and consistency of the resulting policies may have a significant effect on the future interpretation of fair dealing rights. In this paper I analyze the current state of fair dealing policies and supporting information found on university web sites. I conclude that an ideal fair dealing policy is open ended and flexible, and incorporates mention of the significant elements of copyright legislation, court decisions, and other areas of law, in a way that is accessible to its intended audience of faculty and instructors.