education

A “Fair and Better Way Forward”… but how?

Recently the Canadian Copyright Institute (CCI) have made publicly available an opinion paper from Fall 2013 that sets out their position on the 2012 Copyright Act amendments and the Supreme Court’s decision in Alberta (Education) et al. v. Access Copyright.

Important analyses of the paper have been written by Michael Geist and Meera Nair.

Michael Geist, Canadian Authors & Publishers: We Demand Education Talk To Us As Long As It Leads to New Payments (March 14, 2014): http://www.michaelgeist.ca/content/view/7091/125/

Prof. Geist points at what CCI’s paper does not address — that the majority of copying done in Alberta (Education) was already permitted for various reasons before fair dealing or blanket licences even needed to be considered. Nor does the paper acknowledge the Supreme Court’s stance toward technological neutrality, per Entertainment Software Association v. Society of Composers, Authors and Music Publishers of Canada — “… absent evidence of Parliamentary intent to the contrary, we interpret the Copyright Act in a way that avoids imposing an additional layer of protections and fees based solely on the method of delivery of the work to the end user.” (para. 9)

Meera Nair, Rewriting History (March 23, 2014): http://fairduty.wordpress.com/2014/03/23/rewriting-history/

Dr. Nair adds to the discussion by noting that CCI’s claim of pending devastation to the publishing industry is at most unsupported, and at least irrelevant. As she puts it, “It is not incumbent upon the education sector to prop up the publishing sector by making unnecessary payment for materials.”

Both commentators advise that if the CCI and other organizations of copyright owners want a meaningful discussion with the educational community, the theme must be one of adaption and not intimidation.

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Canadian university fair dealing policies, part two point five

Further to my previous post, I have expanded the sample to include the smaller universities that are members of the Association of Universities and Colleges of Canada. Again, the table records whether the school has signed a licence with Access Copyright, whether an updated fair dealing policy is available on the web site, whether such policy is based on AUCC’s policy, and whether the school’s web site includes the AUCC’s guidelines for applying the fair dealing policy.

Continue reading →

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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.

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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.

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