Meera Nair

setting aside a library exception

In Posts on September 20, 2015 at 6:51 am

When specific institutional exceptions entered into the Copyright Act in 1997, the ensuing challenge was to decode an array of conditions, spread over the distinctions between Educational Institutions, Libraries, Archives and Museums, the kinds of machines installed in these institutions, and such permutations and combinations thereof. The effort to determine where legitimate copying began or ended was not for the faint of heart.

Receiving Royal Assent in the Second Session of the 35th Parliament 1996-1997 (through a bill named C-32), the exception for libraries concerning interlibrary loan (ILL) was less than generous. It was restricted by genre to scientific, technical or scholarly works — fiction or poetry was strictly disallowed — with newspapers only eligible if more than a year old, and restricted by purpose to only research or private study. It also mandated that copies could not be in digital form.

The construction of the exception was intended to facilitate productive unauthorized uses of copyrighted material, but then was called upon to placate copyright owners who opposed exceptions of any kind. At the time, economist Michael Rushton observed that “[the exceptions] were heavily amended at committee stage, generally in favour of creators’ groups (p. 327).

Moving ahead to our current Act (as shaped by amendments assented to in 2012, ushered in by another Bill C-32 and finished by Bill C-11) the exception has seemingly improved. Digital copies are permitted, but under conditions. Paraphrasing from Section 30.2 (5.02), when a patron requests a resource via ILL, if that request is filled with a digital copy, the providing library must take “measures” to prevent the requestor from:

  • making further copies (other than printing one paper copy for his/her needs),
  • communicating the digital copy to anyone else,
  • using the digital copy for more than five days following first access.

Taking “measures” allows for some elasticity in application, libraries are shielded to a degree from adopting onerous surveillance practices. But it should be evident that this style of exception is woefully inadequate to the reality of past and current information flows.

A routine need is the sharing of materials among a group. This can take form in a myriad of ways: students working on a group project, researchers or writers collaborating from near and far, professional societies responding to regulatory developments, or civil servants addressing media coverage, just to name a few. Yet under Section 30, each member of a group must submit a request for necessary material, which the supplying library will fill, many times over. And this presupposes that all sources of material are known in advance and that serendipity has no role to play.

While the caveat of Section 30 is inefficient and illogical, disregarding a section of any Act leaves a feeling of unease. Fortunately, libraries need not follow Section 30 piecemeal; instead, libraries are able to rely upon the entirety of fair dealing instead.

Section 29 is concise: “Fair dealing for the purpose of research, private study, education, parody or satire does not infringe copyright.” There are no further restrictions upon the purpose, no restrictions upon genre and (as CCH Canadian taught us eleven years ago) no restrictions regarding commerciality (para. 51). Of course, the unwritten  rule since CCH Canadian is that the proposed copying must be evaluated for fairness, via a framework of context-appropriate factors.

Consider the following: A person submits an ILL request and further distributes the material to a group. If all involved in that group are each entitled to make that ILL request, it is difficult to see how a single request on behalf of a group of entitled individuals could be construed as unfair. If anything, that single request should be lauded as it eliminates duplication of effort for both lending and receiving libraries. The fairness analysis then shifts largely to due care when proceeding with the group distribution. Meaning, posting the material to a publicly available website would be frowned upon. Instead, a secure server comes to mind. A library might make that suggestion if it so wishes. Regardless though, CCH Canadian also made it plain that libraries are not responsible for the actions of their members (para. 45).

To those who might argue that libraries must rely on library exceptions, I leave the last words to Chief Justice Beverley McLachlin, again via CCH Canadian:

As an integral part of the scheme of copyright law, the Section 29 fair dealing exception is always available. Simply put, a library can always attempt to prove that its dealings with a copyrighted work are fair under s. 29 of the Copyright Act. It is only if a library were unable to make out the fair dealing exception under s. 29 that it would need to turn to s. 30.2 of the Copyright Act to prove that it qualified for the library exemption (para 49).

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