Meera Nair

about time

In Posts on December 12, 2013 at 3:12 pm

Yesterday, the universities of Toronto and Western Ontario formally announced their ending of relations with Access Copyright; Michael Geist cannily summed up the proceedings as “confirming the obvious.” Access Copyright’s licensing model is unsuited to the evolving needs of academic institutions. But it would be wrong to conclude that academic institutions want to evade payment for copyrighted works; quite the contrary. It only means institutions are unwilling to pay twice over for works licensed through other means, and are less than willing to pay for reproductions that are available without cost for a variety of reasons including: open access, public availability, and fair dealing. Across Canada, academic institutions are making the best use of resources to the betterment of students, teachers, researchers etc. We should expect nothing less given the predominance of taxpayer funds that support institutions, not to mention the over and above costs passed on to students and their families.

Reviewing the press releases of the three parties involved, while the institutions (Toronto and Western) each courteously state that negotiations were conducted in “good faith by both parties”, Access Copyright is unwilling to be so gracious. Instead, it continues to argue the seeming newness of fair dealing as interpreted by the universities; that it is “untested by law and closely replicates the scope of coverage in the Access Copyright license.”

I beg forgiveness for repeating, yet again, that current practices of fair dealing were shaped expressly by the edicts of the highest court of the land, over a period of ten years. The landmark decisions that speak directly to reproduction of works in educational institutions (CCH Canadian v. Law Society (2004), Access v. Education (2012), SOCAN v. Bell (2012), ESA v. SOCAN (2012)) predate the inclusion of “education” to fair dealing as amended through the Copyright Modernization Act (2012). See Notable Supreme Court Decisions for a summary of the decade.

The flexibility we enjoy today is not the result of an act of benevolence on the part of governments or courts—it is an acknowledgement that copyright holders were previously allowed to deny Canadians the full benefit of copyright’s system of limited rights and is a corrective to that unfortunate history. Access Copyright, perhaps unwittingly, confirms this with their view that fair dealing today replicates coverage within their previous licenses.

The blanket model licenses used in the past insinuated that fair dealing only existed in the presence of a general license. Educational institutions agreed to Access Copyright’s general prescription of fair dealing as a series of quantified measures, thereby removing any hint that fair dealing is a matter of individual context. Our educational institutions are now reclaiming the individuality of fair dealing on behalf of their communities. To which I must say: it is about time.

Almost two years ago to the day, Ariel Katz posted a compelling essay titled Fair Dealing’s 100 Years of Solitude. He chronicled in detail the treatment of the exception after its 1911 codification into statutory law in the United Kingdom. “Tragically, what was supposed to be an exercise in the codification of a dynamic and evolving common-law principle ended up—with a few notable exceptions—in a hundred years of solitude and stagnation.”

Posted shortly after the Supreme Court of Canada heard the “pentalogy” cases, Katz wrote: “The cases that the Court heard last week will determine whether CCH will be seen as an outlier in copyright jurisprudence or whether it created a necessary correction that brings fair dealing back to play the role it was always supposed to play.” As 2012 would bear out, the Court rose to the occasion and continued the task of bringing fair dealing back to its time-honoured role as a flexible limit upon the rights conferred through copyright.

Returning to the current news, to better understand the 20th century Access Copyright model of blanket licensing of educational materials, it is important to understand the history of Access Copyright itself. Two years ago I gave a brief talk on this matter for the British Columbia Library Association; my notes and references can be found through this post.

Access Copyright will not go quietly into the night. They continue a campaign of fear, targeting the teachers who are learning to navigate the terrain of copyright and fair dealing: “For faculty who are accustomed to operating under Access Copyright licenses, the termination will be accompanied by disruption and uncertainty.  Faculty may be asked to change the way they share materials or assume greater personal responsibility for copyright … .”

While institutions have become much better at providing copyright information, all too often the rationale for a “10%” rule is missing or limited to a citation of CCH Canadian. In yesterday’s announcements, both institutions spoke of educating their communities about copyright; the stories that make up fair dealing’s history, past and present, ought to be the starting point. Regulations and best practices take root more quickly if they are placed in context.

  1. “While institutions have become much better at providing copyright information, all too often the rationale for a “10%” rule is missing or limited to a citation of CCH Canadian.”

    This is precisely the question I’ve been wondering about, and what led me to this blog and older post. I’ve been trying to figure out what’s the legal authority was for the so-called “10% rule” that universities keep trotting out. From what I can tell – and I assume I a missing something really obvious, hence my frustration – there is none.

    As far as I can tell, the current 10% rule that many university libraries are touting as part of their current fair dealing policy is just a reissue of the old limits set out by Access Copyright for students and institutions where were participating and paying for their earlier licensing scheme. The way I read it, the 9 Fair Dealing Policy Application Documents produced by AUCC appear to simply repeat the previous Access Copyright terms, but say that this amount of copying constitute fair dealing. There are references to CCH 2004, Access v. Education 2012, and the 2012 amendments to the Copyright Act, but I didn’t see anything in these that specifically or obliquely refer to the anything resembling the ‘10% rule.’ The best I can seem to figure is that this is what everyone was used to, so that’s now the defacto rule.

    Assuming I’m correct, my concern for universities, including lead defendants like YorkU, is that the ‘10% rule’ criteria is that it’s not. As I recall, the collection of permissions that included the ‘10% rule’ were allowances granted by Access Copyright for its licensees. Essentially, universities paid $3.74/student + 10 cents/photocopied page, and Access Copyright agreed not to sue them. The later proposed agreement was $47 then $26/student flat fee for the same terms but eliminated the 10 cents/page copying fee. In either case, the 10% criteria were only the ‘rule’ while predicated on a licensing contract with Access Copyright.

    In the absence of any licensing contract with Access Copyright, the 10% rule doesn’t exist – it was an arbitrary quantification and condition developed by Access Copyright. None of CCH, Access v. Education, the copyright pentology, or the Copyright Act specify any quantification of what constitutes fair dealing – they are deliberately open and they say it depends on the circumstances in each case. If that is the case, then Access Copyright is free to argue what constitutes fair dealing in every copy that is made of material it has collective rights over. More importantly, it begs the question of what is the legal basis for universities and AUCC putting out guidelines to staff and students that the ‘10% rule’ criteria are fair and viable? Sure courts have said there should be a wide and liberal interpretation of fair dealing as a user right, but they never stipulated any specific quantity or practical rules, like 10%, for doing so. Until the Access v. York case plays out, there is no actual legal basis for any of these criteria. Estoppel doesn’t apply since the prior conduct was predicated on a license fee, and current policies are not. What did I miss?

    Just asking and seeking clarification.
    Jan 2015

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