Academic journal article Partnership : the Canadian Journal of Library and Information Practice and Research

Recalibrating Some Copyright Conceptions: Toward a Shared and Balanced Approach to Educational Copying

Academic journal article Partnership : the Canadian Journal of Library and Information Practice and Research

Recalibrating Some Copyright Conceptions: Toward a Shared and Balanced Approach to Educational Copying

Article excerpt


A blanket licensing arrangement existed somewhat uneasily for about two decades between Canada's publicly-funded educational institutions and Access Copyright, a collective society representing copyright owners of textual works across Canada outside of Quebec. Established in 1988 and known as CANCOPY until 2002, Access Copyright negotiated its first educational blanket licence with the province of Ontario in 1991 for reprography of book and journal excerpts in K-12 schools, after which most of Canada's other public K-12 and postsecondary institutions acquired a similar licence over the next several years (Copyright Board of Canada, Statement 14). But almost from the start, disquiet hovered around an issue on which the parties have generally agreed to disagree: the meaning and scope of the infringement exception called fair dealing in section 29 of the Copyright Act.

Unease intensified over the past decade after infringement exceptions were recast as users' rights by the Supreme Court of Canada in a unanimous 2004 decision (CCH; par. 12). In its landmark CCH ruling, the Court confirmed the Copyright Act's dual public and private objectives, which were described by the Court two years earlier in its Théberge decision as "a balance between promoting the public interest in the encouragement and dissemination of works of the arts and intellect and obtaining a just reward for the creator" (par. 30). The Théberge and CCH rulings together signal a need to recalibrate our conceptions of the interests served by copyright.

This article considers the policy conundrum of how to approach that recalibration task with regard to educational copying, which is unfolding as a complex and, at times, divisive issue. Widely divergent interpretations of the Copyright Act and relevant case law have created an ideological chasm separating two groups: authors, publishers and other owners of copyright in original intellectual works on one side, and, on the other, members of the educational community who copy selections from those works for student use as part of the broad endeavour to cultivate an informed citizenry. The crux of the conundrum is disagreement on the bounds of compensable educational copying.

If we assume that a thriving creative culture and a well-rounded educational system are both highly valuable and vitally important to the continued flourishing of our society, how might we effectively address competing interests of copyright owners who maintain that educational institutions need blanket licences to cover classroom copying, and educators who believe blanket licensing is unnecessary because the majority of their copying is covered by fair dealing and licence agreements negotiated directly with publishers? Four issues appear to be embroiled in this discord: What is copyright? What is the purpose of copyright? What is the purpose of copyright collectives? How is fair dealing understood?

The answers explored here may inform policy development and refinement, but they also raise a further question: How should we think about copyright? This article proposes that resolution of our current quandary calls for shared commitment to converting the copyright "battlefield" into an enlivened, inclusive space conducive to a meeting of minds on fair and effective ways to encourage the pursuit of learning, inquiry, and the creative arts, and to ensure appropriate, fair rewards for creators.

What is Copyright?

A key point of divergence across variant viewpoints on compensable educational copying is the issue of what copyright is believed to be. Factually, copyright is a type of statute-enabled intellectual property that subsists immediately upon the creation of anything deemed to be its proper subject matter existing in a fixed or perceptible form, and lasts for a limited term. During that term, which in Canada is normally the life of the creator plus 50 years, a set of sole rights to control reproduction and other specified acts is granted to the copyright owner who, in most cases, is initially the creator. …

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