Copyright Corner (September, 2016)

University of Lethbridge Faculty Association 9 ULFA News September / October 2016 What’s At Stake in the Coming Copyright Act Review? The bundle of Copyright Act amendments that came into force in 2012 included a requirement to review the Act every five years. Since the first scheduled review is just around the corner, some publishers, collectives and author societies have begun to promulgate the view that changes to the Act made in 2012—especially the addition of “education” as a fair dealing purpose—are crippling the publishing industry.1 Learners and creators have much to lose if unsubstantiated partisan claims hold sway in the review process. It is thus essential to understand the evidentiary basis of the shift in Canadian educational institutions’ copying practices that unfolded after mid-2012. In this regard, the keynote address at a recent Canadian copyright conference was very much on point. It reviewed factors that led Canada’s publicly funded schools, colleges and universities to revise their estimation of the applicability of fair dealing to classroom copying. The presenter, Wanda Noel, was legal counsel to the Council of Ministers of Education Canada (CMEC) in its successful Supreme Court appeal in Alberta (Education) v. Access Copyright in 2012. This column highlights aspects of Noel’s address entitled Fair Dealing: Past, Present and Future. Before the landmark 2004 Supreme Court decision in CCH v. Law Society of Upper Canada, it was widely considered to be risky to rely on fair dealing for educational copying. Under the Canadian Copyright Act, fair dealing is an exception to infringement: it permits us to engage in activities that otherwise might infringe copyright. Uses that are fair dealings do not require copyright owner permission or payment of fees. CCH established infringement exceptions to be users’ rights requiring liberal interpretation and outlined a two-part test to determine if a use qualifies as fair dealing.2 Despite the unanimous decision in CCH, Canadian educators remained leery of relying on fair dealing for educational copying until the Supreme Court’s 2012 decision in Alberta. The Court determined teachers’ copying of short excerpts for use by students could qualify as fair dealing. On almost all counts the Court rejected Access Copyright’s owner-centric views on how fair dealing should be assessed, and instead emphatically reconfirmed fair dealing to be a users’ right that, in terms of purpose, is correctly assessed from the stance of the ultimate user (the student), not the person making the copy. 1 For example, a PriceWaterhouseCoopers report (p. 94) commissioned by Access Copyright states the copying guidelines now used by Canadian educational institutions “have caused an atmosphere where unlimited copying has become commonplace, while content producers are unable to assert their intellectual property rights in any meaningful way,” http://bit.ly/1La3kDg, and according to a Globe and Mail columnist, “kids will suffer if Canada’s copyright legislation doesn’t change” http://bit. ly/1Tokxtg. 2 See the fair dealing FAQ on the U of L Copyright website at http://bit. ly/20Ngv0r. Copyright Corner 10 University of Lethbridge Faculty Association ULFA News September / October 2016 It took the July 2012 ruling from Canada’s highest appellate court to suficiently assure educators that making copies of short excerpts by instructors for students’ research or private study purposes could, pursuant to a properly conducted fairness assessment, constitute fair dealing. Moreover, the case was decided on the basis of the Copyright Act as it stood before “education” was added as a new fair dealing purpose in June 2012. These pivotal developments prompted CMEC, the Association of Universities and Colleges of Canada, and the Association of Canadian Community Colleges3 to work out a shared interpretation of educational fair dealing. Their carefully reasoned drafting process looked at Canadian statutory and case law as well as copyright laws, court decisions, and negotiated agreements and settlements in Australia, New Zealand, Israel, and the U.S. Now widely adopted, the resulting guidelines are intended to provide a safe harbour for those wishing to exercise fair dealing without assistance from a lawyer.4 As little educational copying lies outside of library licensing, statutory users’ rights, and open access,5 many institutions have decided not to renew long-standing blanket Access Copyright licenses.6 They instead acquire transactional licensing, when needed, for copying not otherwise covered by users’ rights, owner permission or licensing. It is the educational sector’s exit from blanket licensing that detractors say is wrong. In their view, the root problem is the inclusion of “education” as a statutory fair dealing purpose, but this overlooks the crucial role played by Alberta and the fact that the case was heard before the Act was changed in 2012. The fair dealing tussle is far from over, as more court cases and Copyright Board tariff proceedings on educational copying are ongoing. Their outcomes will further develop the law on educational fair dealing in Canada. It thus remains critically important for all instructors to ensure that when course-related copying of protected works is not covered by an existing licensing agreement, statutory users’ rights, or open access, owner permission is acquired. And when the Copyright Act review gets underway, we need to act on opportunities to oppose lobbying aiming to reduce the statutory users’ rights that have greatly benefited students, educators and society at large since 2012. As always, Betsy Greenlees and I in the Copyright Advisor ofice are happy to help you sort out copyright matters such as whether your teaching or research-related copying requires permission or is already covered by existing permission sources. 3 Now Universities Canada and Colleges and Institutes Canada, respectively. 4 See the University of Lethbridge Guidelines for Copying Under Fair Dealing at http://bit. ly/1NFXz0n. 5 “Open access” refers to content made publicly available by the copyright owner for copying, redistribution and other legal uses without need to acquire permission or pay fees. Some owners may stipulate that uses must be noncommercial. For more information see the Copyright website FAQ at http://bit.ly/2aYemg1. 6 As of January 1, 2016, the University of Lethbridge operates outside of a blanket copying license. Copyright Corner Rumi Graham, University Copyright Advisor E-mail: copyright@uleth.ca Phone: 403-332-4472 Website: www.uleth.ca/copyrigh