Meera Nair

Fair Dealing Week 2022

In Posts on February 21, 2022 at 6:55 pm

Strictly speaking, every week is a Fair Dealing week. Thanks to multiple Supreme Court decisions over the last 18 years, the importance of fair dealing within the system of copyright has been well-established. The impetus for that development occurred nearly twenty years ago when fair dealing was identified as critical to the goal of the system of copyright: to foster and protect the public domain. Writing for the majority, in Théberge v. Galerie d’Art du Petit Champlain inc. (2002), then-Justice Ian Binnie provided these memorable words:

 “Excessive control by holders of copyrights and other forms of intellectual property may unduly limit the ability of the public domain to incorporate and embellish creative innovation in the long-term interests of society as a whole, or create practical obstacles to proper utilization.  This is reflected in the exceptions to copyright infringement enumerated in ss. 29 to 32.2, which seek to protect the public domain in traditional ways such as fair dealing for the purpose of criticism or review … (para. 32).”

Binnie’s words were influential towards establishing fair dealing as lawful, resilient, and necessary to a well-functioning system of copyright. Fair dealing is integral to the daily lives of creators, students, educators, researchers, consumers – said another way, to the lives of all Canadians.

With respect to the educational sector, in July 2021, the Supreme Court of Canada resolved the long-running dispute between Access Copyright and York University. The outcome was unambiguous: collective licenses cannot be imposed on users and analysis of fair dealing must begin from the perspective of the end user. With unanimity, the Justices effectively reminded us that fair dealing is always available.

Yet the politics around fair dealing persist.

It recently came to my attention that last year the Standing Committee for Canadian Heritage had agreed to “devote at least one meeting before the summer recess to hear from witnesses on the continuing challenges for publishers, creators and artists as it pertains to fair compensation for their work in the field of educational publishing in Canada.” Such intention, expressed outside the five-year copyright review cycle, is a stark reminder that some Members of Parliament are eager to lavish attention on copyright owners and writers. MPs seemed blissfully (perhaps willfully) unaware that those two bodies are distinct; that attention to the former does not imply gains for the latter.

When that meeting took place in June 2021, the assembly of witnesses left little to the imagination:

Despite optimism that the Supreme Court would rule in their favour in the York case, Roanie Levy (President and Chief Executive Officer, Access Copyright) called on the Committee to ensure implementation of Recommendations 18-21 of the prior Heritage Committee Report, Shifting Paradigms. (Preferably by the end of 2022 when the Government of Canada must amend the Copyright Act to comply with CUSMA.) Among those recommendations:

That Government of Canada amend the Act to clarify that fair dealing should not apply to educational institutions when the work is commercially available.
That the Government of Canada promote a return to licensing through collective societies (15).

MPs showed no interest in uncovering how the law actually works, they had no desire to understand that copyright is not a grant of absolute control over every scrap of content. The canard of 600 million uncompensated pages was on full display (Michael Geist debunked that premise years ago) as was the insistence that the educational community was in arrears on its payments for collective licenses and that such licenses are modest in cost.

When speaking of his son’s first year at university, John Degen (Executive Director, The Writers’ Union of Canada) emphasized that he would have been happy to pay an annual copy licensing fee of $14.31. Philip Landon (Chief Operating Officer, Universities Canada) reminded the Committee that Access Copyright had recently sought $26 annually. (Left entirely unsaid was that tensions with the postsecondary community began when Access Copyright sought a fee of $45 per student per year.)

Notably, the MPs refrained from asking a pertinent question:  What do all students get for that fee?

For the sake of argument, let us assume that any amount of copying requires payment (that there is no fair dealing). Let us also assume that educational institutions do not license reproduction of content directly from publishers. Under these assumptions, students whose learning is dependent on excerpts of content would bear the cost of that content. 

But what of students where excerpts are never used as learning resources? I offer up my daughter’s experiences. Throughout her undergraduate studies—mechanical engineering—textbooks were predominantly the only learning resource employed. Sometimes she bought a new book, sometimes a used book, and sometimes no book at all. On those occasions she relied on the library’s reserve copy.

Had a blanket fee been in place during my daughter’s studies, she and her cohort (comprising approximately 100 students) would have paid the fee and received little or nothing in return.

In fact, her university admits two cohorts each year. As students participate in cooperative education work experience, their degrees span five years. Therefore, under a system of mandatory collective payment, by the time they graduated the Class of 2020 would have contributed at least $25,000 to Access Copyright. It is conceivable that this scenario would be repeated in many programs across the post-secondary community.

Let’s also assume that every dollar contributed to Access Copyright goes directly into the hands of struggling Canadian writers. (This borders on farce; bear with me.) The net result would be a transfer of wealth to an impoverished group of Canadians from another impoverished group. As a public policy, it would make no sense at all.

When Shifting Paradigms was publicly released, Michael Geist remarked that the report represents:

… little more than stenography of lobbying positions from Canadian cultural groups, the report simply adopts as recommendations a wide range of contentious proposals: copyright term extension, restricted fair dealing, increased damages, as well as several new rights and payments. There is no attempt to engage with a broad range of stakeholders, much less grapple with contrary evidence or positions.

The work of that Heritage Committee bore no resemblance to the dedication of the MPs actually tasked with the Herculean challenge of conducting a comprehensive review of Canada’s Copyright Act in 2017-2019. That duty fell to the then-Standing Committee on Industry, Science and Technology. From their final report, Dan Ruimy’s words regarding this challenge are memorable:

As Chair, my main concern was to make sure that the review would be informed by as many different perspectives as possible. Committee members were encouraged to ask all manner of questions to better understand the impact copyright law has on Canada’s modern economy and Canadian creators, even though such questions often led to difficult discussions. We did not presume what the outcome of this lengthy and complex undertaking would bring, only that the Committee would give anyone the opportunity to present oral or written evidence. I am honoured to have witnessed such an important and thoughtful conversation (xiii).

Ruimy and his colleagues ensured that participating Canadians would know their voices had been heard. Early in the Summary is this gem: “This report cites every single person who provided oral testimony or submitted a brief to the Committee, and thus recognizes that the complexity of copyright policy requires every issue to be carefully weighed (1).”

That Industry report should be the gold standard for what public consultation means in Canada.

In terms of fair dealing and its application in educational settings, the INDU Committee’s observations bear repeating:

The conflicting views presented on the matter of fair dealing are not entirely incompatible. The Canadian publishing sector is struggling to adjust to market disruptions that predate and are unrelated to amendments contained in the CMA. These disruptions will persist even if Parliament removed every single exception added to the Act in 2012. … The Committee cannot endorse the proposal to limit educational fair dealing to cases where access to a work is not “commercially available,” as defined under the Act. While licensing should be encouraged, this proposal risks reducing flexibility in the educational market by favouring blanket over transactional licensing (64).

Another Copyright Review will get under way this year and the push to make fair dealing subject to commercial availability will continue. Such a move would not be in Canada’s best interests. However, it would not be unusual either.

Throughout its history, Canada has not used the mechanism of copyright to its best advantage. Productive uses have been curtailed by an over-reliance on licensing, commercial availability, and a far too dogmatic interpretation of copyright. These issues will be explored in my upcoming talk on Wednesday, where I consider Canada’s goals for developing a world-class Artificial Intelligence industry against its copyright reality.

6 April 2022: The video of my talk has been posted.

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