Tuesday, June 12, 2012

Repeat After Me: "Fair Dealing Does Not Require Payment – Even to Access Copyright"

One Canadian university has just posted the following as part of its "COPYRIGHT GUIDELINES (based on the guidelines set by ACCESS COPYRIGHT)":

1. FAIR DEALING (copying not sold in the Bookstore)
The Canadian Copyright Act indicates that the copying of a work for the purpose of research, private study, criticism, review, or news reporting is justified as Fair Dealing. This applies to all works and does not require permission from the rights holder. [XXXX] University remits an annual fee (based on FTE) to account for this type of copying. (Emphasis added)

This, of course, reflects a serious misunderstanding. If the copying is “fair dealing”, it is unnecessary to pay Access Copyright or anyone else for copying it. 

Here, once again, are the two fundamental steps in determining whether there is any need to get permission or to make a payment for the use of copyrighted material.

The first step of enquiry is to determine if the copying amounts to at least “a substantial part” of the work. If the copying is of an excerpt that is so brief that it is not "substantial" in the context of the whole work, s. 3 of the Copyright Act makes it very clear that there is no right to prevent such copying. Contrary to misstatements occasionally heard, this is not limited to one sentence. One of Canada’s foremost copyright authorities, David Vaver, states that even where the writing is of the quality of Dickens or Shakespeare, it is “simply nonsense” to suggest that “the taking of even a single sentence” may infringe.  See p. 183 of his 2011 book.

The determination of what is substantial is context specific. However, there is absolutely no arbitrary “one sentence” rule. In the academic context, the copying of several sentences or even paragraphs is often necessary to make a point and to ensure that context is provided. Attribution is necessary, of course, as a matter of academic protocol and to avoid any allegation of plagiarism. But such “insubstantial" copying is not prevented by the Copyright Act, and requires neither permission nor payment. Unfortunately, there have been recent misstatements or misunderstandings relating to this point that have appeared in contexts ranging from thesis approval procedure to oral argument in the Supreme Court of Canada.

Here is the second step. If the copying amounts to a "substantial part" of the work, then the copying still may be permitted as an example of “user’s rights” under the general fair dealing provision of the Copyright Act for the purpose of research or private study, criticism or news reporting – or perhaps under one of the specific exceptions in Copyright Act . Such copying requires neither permission nor payment. The Supreme Court of Canada was very clear about this back in 2004 in the CCH. v. LSUC case when it stated that:
The fair dealing exception under s. 29 is open to those who can show that their dealings with a copyrighted work were for the purpose of research or private study.  “Research” must be given a large and liberal interpretation in order to ensure that users’ rights are not unduly constrained. 

We may soon learn more from the Supreme Court of Canada about what fair dealing means in Canadian classrooms and whether the concerted attempt to push back on the CCH v. LSUC decision will succeed. (Disclosure – I and Ariel Katz argued on behalf of CILP in this case in support of the proposition that multiple copies in the classroom and copies of teacher prescribed material may fall within the fair dealing provisions of s. 29 and 29.1 of the Copyright Act when such copying meets the criteria set forth by the Court in CCH v. LSUC, contrary to the rulings of the Copyright Board and Federal Court of Appeal.)

It is important for all to realize that Access Copying is not entitled to any payment whatsoever on account of any copying that is not substantial or that is permitted as a “users’ right” by virtue of "fair dealing". Such copying should be subtracted from any calculation of an overall license rate. It is unfortunate that this issue may not get adequately thrashed out at the Copyright Board, with AUCC having withdrawn. It is also unfortunate that there is still such basic misunderstanding on these points. Such misunderstanding may perhaps have contributed to the recent agreements of UofT/Western to signed licenses, and AUCC, and ACCC to model licenses that are 800% in the case of universities and 300% in the case of community colleges more expensive and more restrictive than the pre CCH v. LSUC licenses, which should have been adjusted downwards at the earliest opportunity after CCH but were not.

The University in question also states in its guidelines that:
 This Canadian copyright licensing agency administers rights, collects royalties and distributes payment to the majority of our rights holders. (an ‘Exclusions List’ of publishers not covered by Access Copyright available through Bookstore)."
 I don't know what is meant by "majority of our rights holders". However, the extent of AC's actual repertoire - especially that of interest to the university - is shrouded in mystery.  AC's actual repertoire has never been publicly disclosed.  I have never heard that it amounts to a "majority"  in any sense of the required repertoire. This is a point that could have been very vigorously pursued at the Copyright Board, and should be if the hearing goes on.


PS - the above institution is Kwantlen Polytechnic University http://bit.ly/QYMgjD

It has apparently chosen to ignore the carefully considered views of its faculty and students and has signed the #ACdeal

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