fair dealing

Increase in cost of course packs, but what are the reasons?

The Varsity, the University of Toronto’s student newspaper, reports that students are being made to pay increased (sometimes doubled) prices for printed course packs since the expiry of the UofT’s licence agreement with Access Copyright (AC).

Some might jump straight to the argument that because UofT no longer licences with Access Copyright, the works (or at least up to 20% of them) aren’t covered by a blanket agreement, and thus by necessity students are paying more on a per-page basis.

More likely, this is an issue with communication, specifically between the library and the instructors.

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Access Copyright v. York suit split into two

Howard Knopf has reported that the Access Copyright v. York University suit has been bifurcated by the Federal Court — that is, split into two phases that will be heard separately. He has posted Aalto CMJ’s bifurcation order here. The order was requested by York.

In the first phase, documentary and oral discovery (the gathering of evidence) will take place with respect to York’s use (or authorization of use) of the copyrighted works enumerated in Schedule “B” of Access Copyright’s Statement of Claim, as well as York’s counterclaim seeking a declaration that the proposed tariff is voluntary and that uses of copyrighted works that fall within the scope of their Fair Dealing Guidelines are fair dealing.

In the second phase, if necessary, the Court will consider Access Copyright’s claims related to other acts of reproduction that York may have engaged in or authorized, and which are not set out in Schedule “B” but may be discovered during the course of the proceedings.

Access Copyright argued against the bifurcation, on the grounds that it will cause prejudice to their attempts to show that York’s Fair Dealing Guidelines do not reflect the legal scope of fair dealing, and that York has engaged in or authorized copying that falls outside of the ambit of the guidelines. They contend that the initial focusing on the 87 enumerated works will interfere with their ability to discover copying that has taken place beyond what has already been alleged.

Aalto CMJ’s bifurcation order attempts a compromise between York’s view that there are far too many instances of fair copying to be considered in one proceeding, and AC’s view that its ability to discover further copying is compromised. To that end, York will be required to produce the volume and types of copying that it tracks, and provide samples of the copying.

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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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Copying “a few pages” does not reach threshold of substantiality

Michael Geist has written a blog post on the series of questions posed by the Copyright Board to Access Copyright in the post-secondary education tariff proceedings.

Prof. Geist specifically notes the Board’s view that the copying of a couple of pages from a book is not “substantial”, and does not implicate any of the copyright owner’s exclusive rights; therefore, there would be no need for a fair dealing analysis.

“The Board’s preliminary view is that the copying of a few pages or a small percentage from a book that is not a collection of short works, such as poems, is not substantial.” — Copyright Board (pdf)

The Board invites Access Copyright to comment on its view.

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Do Licence Agreements Trump Users’ Rights?

I’ve just posted a new working paper on SSRN: “Conflict between Contract Law and Copyright Law in Canada: Do Licence Agreements Trump Users’ Rights?” It’s available for download at http://ssrn.com/abstract=2396028. The paper was written under the supervision of Prof. Samuel Trosow, and portions of it were presented at the Ontario Library Association Super Conference on January 31, 2014.

Abstract:

I argue in this paper that it is not a settled issue in Canadian law that copyright exceptions provided in the Canadian Copyright Act can be trumped by contractual agreement, and that a strong argument can be made that they cannot. I first frame the issue by discussing the increasing use of digital rather than print materials in academic libraries, and the potential conflict between subscription agreements and the Copyright Act. I then address three approaches (jurisdictional, purposive, and statutory right) that can be taken to determine whether contractual terms are preempted by statutory provisions, and conclude that, in Canada, copyright exceptions are statutory rights that cannot be removed by contract. Finally, I briefly discuss technological protection measures and argue that their recent inclusion in the Copyright Act does not necessarily indicate legislative support for private ordering.

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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.

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Rocky start for post-Access Copyright era? Not quite.

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.

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