In light of updates to the Copyright Act and the Supreme Court’s copyright Pentalogy rulings, the Association for Universities and Colleges of Canada (AUCC) has released updated guidelines for their fair dealing policy.
The policy outlines what uses of copyrighted works are considered fair dealing, which is in accordance with the policies of several other institutions. Fair dealing is generally accepted to include: up to 10% of a work, a single chapter or article, an entire artistic work from a compilation, an entire newspaper article or page, an entire poem or musical score, or an entire entry from a reference work providing that no more is copied than required. The AUCC developed nine documents tailored to various members of the post-secondary community that explain how the policy is to be put into practice by institutions. The guideline offers suggestions to post-secondary institutions about what specific information to include in their own policies in light of CCH Canadian Ltd v Law Society of Upper Canada, such as a generic disclaimer for institutions to post near copying services indicating the institution's copyright policies.
Interestingly, the guidelines dictate that any restrictions imposed by an institution’s licensing agreement will take precedence over the fair dealing guidelines. The guideline also implements “safeguards” to ensure compliance with fair dealing exceptions. This results in a fairly conservative guideline, but the AUCC also indicates that activities outside the scope of the restrictions may still be protected by fair dealing exceptions.
There is concern from some that this policy will result in the narrowing of the scope of fair dealing. In CCH Canadian Ltd v Law Society of Upper Canada, the Court held that one of the factors to consider is the industry standard. While not a conclusive defence, the Court may look to the guidelines set out by a community to determine whether a dealing is fair. If post-secondary institutions broadly accept these guidelines then they will in effect become the industry standard examined by future courts. Post-secondary institutions may opt to remain within the "safeguards" to in an attempt to ensure that they are not the target of infringement claims. If this creates a new outer boundary drawn by the community then courts may follow suit and narrow the concept of fair dealing for education or research. On the other hand, the Court may still hold that dealings falling within industry standards exceed what is fair. Thus, even if institutions choose to remain well within the boundaries of the guidelines, there is neither a guarantee that claims will be prevented, nor a guarantee that conduct within the scope of the guidelines will result in a favourable ruling in any proceedings that follow.
On the other hand, there is nothing to prevent the court from determining that a use beyond the scope of an industry practice is nevertheless fair. Courts have made it clear that these policies remain guidelines and nothing more. They will still examine the overall feel of the copying and look to the quality rather than quantity of material copied. In CCH the Court supported a “large and liberal” interpretation and asserted fair dealing as a user right.
The guidelines are most concerned with the supplemental aspect of the Alberta (Education) v Canadian Copyright Licensing Agency ruling. In that case, the Court stated that it would be unrealistic to expect classrooms to purchase a full book for each student when only a small portion was used to supplement the main text used in the class. Therefore, course packs must remain supplemental to be protected under fair dealing. I suspect that the guidelines are intended to stem the trend of making various excerpts available to students so that the course pack or posted readings become the main reading material provided to students. Even though each individual piece may fall within generally accepted usage and the CCH guidelines, the overall effect of such course packs may not pass the Alberta (Education) test for supplemental materials.
Post-secondary institutions do not want to be on the wrong side of a test that balances the rights of students to deal fairly with copyright protected materials and the rights of copyright holders to retain control of the reproduction of their works. The Court continues to affirm tech neutrality and the guideline’s conservative outlook may be attributed to an attempt to remain open to the changes that could be brought about by forthcoming technology. Viewed this way, the guidelines are not restrictive but responsive to the changing ways in which materials are available and the flexible nature of the fair dealing exceptions as viewed by the Canadian court system in recent years.
Allison McLean is an IPilogue Editor and a JD Candidate at Osgoode Hall Law School.