Access Copyright and Fair Dealing Guidelines in Higher Educational Institutions in Canada: A Survey

By Henderson, Serena; McGreal, Prof Rory et al. | Partnership : the Canadian Journal of Library and Information Practice and Research, July 1, 2018 | Go to article overview

Access Copyright and Fair Dealing Guidelines in Higher Educational Institutions in Canada: A Survey


Henderson, Serena, McGreal, Prof Rory, Vladimirschi, Dr Viviane, Partnership : the Canadian Journal of Library and Information Practice and Research


Introduction

Beginning with a 2004 Supreme Court of Canada (SCC) decision (CCH Canadian Ltd. v. Law Society of Upper Canada [CCH], 2004), followed by the 2012 "pentalogy" decisions, five rulings of the SCC, the court provided guidance to educators and others on fair dealing (Geist, 2013). These decisions clarified for users that under fair dealing, restrictive interpretations of the exception must not be made. The large and liberal interpretation of fair dealing was further extended for educators with the passing of the Copyright Modernization Act in 2012, when "education" was added to the statutory purposes of fair dealing. The SCC recognized the need for balance between the rights of the copyright owner and those of the users by clarifying the limited nature of both owner and users' rights, while also noting users' rights and fair dealing were integral to copyright (SOCAN v. Bell, 2012). These rulings had a fundamental impact on the interpretation of Canadian copyright: a more open and inclusive approach that balances the rights of users and owners with a large and liberal interpretation of fair dealing.

This paper is an investigation into the acceptance by higher educational institutions (HEI) in Canada outside Quebec of this new interpretation. Specifically, this includes an assessment of the HEI that have chosen to opt in to the Access Copyright licensing scheme, their reference to the Universities Canada (UC) policy statement on fair dealing, and/or reference to the SCCs "six factors."

Background

Access Copyright (AC) is a Canadian non-profit organization that supports authors and publishers across the country (with the exception of Quebec) by granting copying licenses for a large catalogue print materials. In 2010, AC proposed a significant increase in their pricing structure for HEI, from $3.38 per full-time equivalent student (FTE) plus $0.10 per page for course packs (collections of readings) to $45.00 per FTE for universities and to $35 per FTE in colleges and institutes (CIs). This "tariff" applied to all HEI in Canada outside of Quebec (Copyright Board of Canada, 2010). Quebec universities and Cégeps (Colleges d'enseignement général et professionnel) hold agreements with a different copyright collective called Copibec. This is a separate issue and is not the focus of this paper.

Universities Canada (UC), formerly the Association of Universities and Colleges Canada (AUCC), represents 96 Canadian HEI. UC responded to renewed faculty and administration interest in copyright and fair dealing generated by this proposed change by creating guidelines. These guidelines were to assist institutions in deciding whether the fair dealing exception to copyright could be used to address concerns regarding the use of copyright-restricted content for research (Association of Universities and Colleges Canada [AUCC], 2010).

In addition to the increased fees, HEI expressed further concerns including the lack of value in the licence. They also felt that AC was exceeding its jurisdiction with its insistence on onerous auditing and reporting requirements, leading to a "culture of surveillance" (Trosow, Armstrong, & Harasym, 2012).

In 2012, AC had also proposed a significant fee increase for the K-12 sector (Copyright Board of Canada, 2012). This, along with AC's aggressive move away from a negotiated licence, caused a reaction among school boards and ministries of education across Canada, and was noted by HEI. The proposed fee increase led to a 2012 Supreme Court of Canada case, and ultimately a significant reduction in the K-12 "tariff" (Access Copyright, 2017; Alberta (Education) v Access Copyright, 2012J.

This case was one of the five major SCC judgements that occurred on July 12, 2012, termed the "copyright pentalogy" (Geist, 2013), which proved to be a catalyst in the redefinition of Canadian copyright law (Farrow, 2012). Two of these rulings, which resulted from a judicial review of Copyright Board decisions, reinforced the 2004 SCC decision that fair dealing was an integral part of copyright law and outlined a two-step analysis for determining whether a dealing was fair. …

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