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.

Continue reading

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.

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.