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.

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.

UofT, Western decline to renew blanket licence with Access Copyright

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.

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New AUCC model fair dealing policies

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.

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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.