AUCC – ill at ease

Early last week Michael Geist informed us that the Association of Universities and Colleges of Canada (AUCC) had commissioned detailed guidelines concerning fair dealing from Osler, Hoskin & Harcourt. AUCC’s request was prompted by Access Copyright’s lawsuit against York University; a lawsuit launched earlier this year on the dubious claim that York University’s fair dealing policies were encouraging infringement. As I wrote then:

Access Copyright is once again trying to roll back the interpretation of fair dealing fostered in Canada by both the Supreme Court of Canada and the Government of Canada. This progressive interpretation took shape slowly, with Court decisions spanning 2002-2012 and Government efforts at amendment benefiting from more than ten years of deliberation. Both bodies took measured steps that recognize the importance of maintaining copyright’s limits. Access Copyright is setting its sights on the educational community that took guidance from the government and the Court.

On Friday, Howard Knopf posted a very thoughtful assessment of the guidelines, drawing attention to their conservative nature. He is concerned that “these guidelines could become a ceiling rather than the foundation or ground floor of fair dealing.” Together with Geist’s assessment that “the guidelines provide useful information for teachers and students,” we see the range of possibilities.

The guidelines are only that: guidelines. How each institution might incorporate that material is a different matter. The first challenge is the form of the guidelines. It seems that these were written by lawyers, to be read by other lawyers. (No disrespect is intended to any lawyer; it is only that the text conjures up the worst of stereotypical imagination.)

There is an underlying assumption that potential readers are well-versed in Canada’s new millennium judicial history concerning fair dealing. If that is in fact true, these guidelines will not curb legitimate fair dealing where the copying exceeds the bounds of what is suggested. (As to whether the very presence of these guidelines narrows fair dealing in the eyes of a court, that is a different issue and one I will address another day.)

Before enunciating limits on amounts and dictating habits of practice, a guidance document should set the stage by giving details of the Supreme Court decisions that facilitated fair dealing to this point. Particularly so, as research and teaching, two key activities of post-secondary institutions, were addressed.

In CCH Canadian v. Law Society of Upper Canada (2004) the Court upheld individual copying of journal articles, made by a library at the request of a patron for the purpose of research. The Justices unanimously declared that research should be given a “large and liberal interpretation” and that the mere presence of licensing options did not eliminate fair dealing. (Also contained within that decision was the clear stipulation that the library was not responsible for the conduct of patrons using copying equipment within the library.)  And, the Court reminded Canadians that librarians could stand in the fair dealing shoes of their patrons.

In Access v. Education (2012) the Court upheld the copying of supplemental short excerpts of copyrighted material for distribution to students in a classroom. Central to the decision is that the works were supplemental. A welcome comment was the recognition that teachers shared the fair dealing purposes of their students, effectively standing in those shoes.

[And, if one wishes to be thorough about it, it should be pointed out that, when the Supreme Court of Canada had the opportunity to address technological neutrality, it resoundingly supported the principle in 2004 and again in 2012.]

Taken together, there is no reason that fair dealing cannot comfortably protect the creation and delivery of short excerpts of copyrighted material to students in an manner that enhances efficiency for students, teachers, librarians and researchers.

Brief snippets of these cases are found in my Notable Supreme Court Decisions; links to each case are within. As I wrote three years ago, our Supreme Court has made a habit of presenting decisions such that all Canadians may understand what is happening at the highest court in the land. Moreover, the decisions have been the subject of many books and articles. Canadian academia need only appeal to their very strength and treat this subject as any other academic issue – something to learn about and engage with. If that happens, documents like AUCC’s guidelines are less intimidating and less likely to foreclose discussion on fairness.

And, we should not be surprised by the somewhat stilted guidance, as historically AUCC has not been at ease discussing fair dealing. That the guidelines themselves are not available at the AUCC website (they were only circulated to universities, Knopf very kindly posted links to the documents) is symptomatic of the organization’s unease. An earlier guideline was equally absent, as I discovered in 2011.

Even after the 2012 decisions by the Supreme Court of Canada, AUCC still did not make their position  on fair dealing prominent. If one searches for “fair dealing” at the AUCC website, a document titled  “Fair dealing policy for universities” can be found among the resulting hits. The document is brief, but helpful in providing a rule-of-thumb guidance, with encouragement that fair dealing is a flexible provision. The document begins with:

The fair dealing provision in the Copyright Act permits use of a copyright-protected work without permission from the copyright owner or the payment of copyright royalties. To qualify for fair dealing, two tests must be passed.  First, the “dealing” must be for a purpose stated in the Copyright Act: research, private study, criticism, review, news reporting, education, satire or parody. Educational use of a copyright-protected work passes the first test. The second test is that the dealing must be “fair.” In landmark decisions in 2004 and in 2012, the Supreme Court of Canada provided guidance as to what this test means in educational institutions.

And then, a standard guidance is given concerning limits (i.e., 10% of work, one chapter, an entire illustration, etc.…). This is more useful than the offering of last week as this document givens the contours of fair dealing and individual institutions can build upon this. Yet, AUCC was unwilling to publicize this document either.

At their website, AUCC makes mention of copyright as part of their policy work. However, the listed content is far out of date and only pertains to advocacy for amendment. That is, of course, important to policy development in Canada. But, getting one’s hands dirty is the next step in policy development and AUCC is reluctant on that score.

Fortunately, as both Geist and Knopf point out, many universities and colleges have made copyright and fair dealing a priority on their campuses. People are talking about these matters; this is a significant step forward. Institutions have prepared guidelines of their own and are working towards educating faculty, staff and students about the nuances in the system of copyright.

For BC’s educational community, in association with the open textbook project, BC Campus has compiled a list of all post-secondary institutional sites on copyright; see here. (I checked, almost all the links are still active.) And, for everyone, a more readable set of guidelines, dated to February 2013, is available from Canadian Association of University Teachers (CAUT); see here. Note that the amounts described for copying by CAUT are consistent with AUCC’s guidance, but the development and presentation of the topic is much better and thus enhances understanding of the issues.