fair use | Fair Dealing in Education

February 23-27 is Fair Use Week, a “community celebration of fair use coordinated by the Association of Research Libraries.”

Here in Canada, we’re celebrating the equivalent (but not exactly the same, of course) Fair Dealing Week. The Scholarly Communications and Copyright Office at the University of Toronto are initiating a nation-wide discussion on fair dealing in Canada, via the Twitter handle @UofTSCCO and the hashtag #FairUseWeek2015.

Here at the University of Western Ontario, on Friday, February 27, Prof. Samuel Trosow and I will be discussing fair dealing and how it relates to contract law. Details are below:

Fair dealing is a exception to copyright infringement that is granted by the Copyright Act. In 2004, the Supreme Court characterized fair dealing as not only an exception, but as a user’s right that should be interpreted broadly. In 2012, it reiterated that position. That same year, Parliament extended the scope of this user’s right by adding “education, parody and satire” to the list of fair dealing purposes in the Copyright Act. However, copyright owners and database publishers can attempt to limit the reach of fair dealing in contracts granting subscriptions to electronic information. Are these contract terms valid? Professor Samuel Trosow and Lisa Di Valentino will discuss the intersection between copyright law and contract law that has become a significant issue in a world of digital access to knowledge.

Friday, February 27, 2015
12:00pm – 1:20 pm
North Campus Building, Room 293

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.