Choosing sides in Temple Garden – the start of the War of the Roses
For those of you who are interested in copyright and intellectual property (and I know that there are a lot of you), you will doubtless be familiar with the recent battles surrounding the shifting landscape of Canadian copyright law between Access Copyright and pretty much everybody else. For those of you unfamiliar with the drama surrounding these changes, in a nutshell there has been a huge shift towards “fair dealing” for the purposes of education. This shift began with the landmark CCH v. LSUC case in 2004 and was rapidly accelerated with the so-called “pentalogy” of SCC decisions in conjunction with the long-needed overhaul of the Canadian Copyright Act in 2012.
These changes served to further widen the already-yawning gap between champions of access to information and the advocates for artists’ rights. The rhetoric on both sides has been nothing if not pointed. However, while many (myself included) believe that the fair dealing provisions included in s. 29 of the Act and discussed by the SCC are rather clear-cut, it also represents a potentially massive shift away from the way things have been done previously. Which brings us to the the issue of Access Copyright, which represents a significant part of the status quo.
Previously, educational institutions would simply pay a set fee per student and that would serve as a basis for covering the licensing. After Access Copyright proposed a major fee hike, many institutions (understandably) balked, leading to a drawn-out impasse. Eventually, many institutions chose to “opt out” of signing an agreement with Access Copyright, instead choosing to deal with copyright internally, through fair dealing, licensing directly from publishers, and other means. York was no exception, announcing on May 29 of last year that they were not going to sign a new tariff.
Despite the relative clarity of the legislation and case law, there is still enough ambiguity with regard to what exactly constitutes “fair dealing” in the educational context to ensure that there would be continued struggles in attempting to frame these issues, particularly when the prevailing interpretation essentially threatens Access Copyright’s entire business model. It has long been seen to be a matter of when, rather than if, there would be what would likely be one last showdown between Access Copyright and Canadian educational institutions to finalize – once and for all – what the new status quo will be.
That moment arrived when Access Copyright filed a lawsuit against York on April 8 of this year, claiming that York’s fair dealing guidelines authorize and encourage copyright infringement. While I have some reservations about the substance of Access Copyright’s claim, it is undeniable that this is something that needs to happen, since the current environment of uncertainty is not sustainable in the long run. Whatever your feelings the changes in Canadian copyright, it has certainly been anything but boring.
For further information, in-depth analysis, and news, here are a few blogs worth keeping an eye on:
Howard Knopf at Excess Copyright