But not necessarily six factors.
Below is some of the content I covered yesterday during a panel discussion Fair Dealing–Where do we go from here? With the aim of simplifying the fairness analysis, I drew attention to some pre-CCH Canadian case law (see here and here). My thanks to the University of Alberta for the opportunity to participate in the discussion.
Earlier this week, I mentioned Canada’s progress in developing a mutually respectful system of copyright, one that does more than pay lip-service to creativity. Fair dealing plays its part in this system of limited rights, as is necessary to maintain the goal and structure of copyright set some three hundred years ago. That fair dealing has become part and parcel of the legal landscape is perhaps best exemplified by remarks from a Federal court judge: “I don’t think this case is as profound as you and others made it out to be.”
Fair dealing is here to stay; students and teachers have every reason to make use of it.
However, it would be reasonable to say that there is still a great deal of timidity among educational institutions over actually using fair dealing.
The principal element of a decision of fair dealing is the contextual analysis to determine if a use is fair. This approach was set via CCH Canadian where the Court relied on six factors for analysis: (i) purpose of the dealing; (ii) character of the dealing; (iii) amount of the dealing; (iv) alternative to the work; (v) nature of the work; (vi) effect of the dealing on the work. These factors were included in fair dealing policies developed by national educational bodies and subsequently implemented at institutions across the country.
But therein lies a problem. While it is essential to remember that fairness is embedded in context, we have also to remember that the six factors cited are not sacrosanct. In CCH Canadian, the Supreme Court also emphasized that the framework of exploration must be malleable. That discussion of fair dealing is hailed as a progressive development because it struck down the 20th century tendency to see copyright, or exceptions thereto, in terms of mechanical rules to be applied without consideration of context. By simply adopting new rules, we risk that estimable gain of progressive development.
To be sure, rules carry some value in setting general guidelines for institutions as a whole. When fashioning policies for use of copyrighted works, the 10% / 1 chapter position of the prevailing policies is a reasonable starting point. If more is desired, then discussion with copyright personnel is the next step. Yet the larger goal should be to encourage thought with regard to any decision to copy. Fair dealing is not, and never should be, confined to the perspective of measure.
A challenge to such copyright literacy is the six-factor analysis. Intimating that teachers carry out such an expansive consideration risks evoking horror, even paralysis, in that audience. But that audience is well-positioned to grasp a more tailored analysis.
Fair dealing is not used purely to obtain reference materials; fair dealing also shows itself in the creative effort of developing learning resources. Such resources benefit from the inclusion of quotations, images, charts/tables etc. Inclusion of any one of these items may well be legitimate simply by virtue of being an insubstantial portion of a larger work; yet it is beneficial to engage in a fairness analysis. Particularly, as such cases lend themselves to a two-factor examination that everyone is capable of understanding and executing:
1. What is the purpose of using the copyrighted material?
Mere conventional thinking would tell us that the purpose is education, and education is one of the permissible categories of s.29 Fair Dealing. But a more precise answer pays dividends in terms of risk management. Teachers choosing to use particular materials should be clear (at least to themselves) as to how that content serves an educational objective. The answer need not be couched in pedagogical jargon, it could be as simple as it “illustrates a concept.” This modest exercise of thought sharpens focus on both the objective and the material, and (inadvertently perhaps) places a curb on the amount copied. Without resorting to stipulations of measure, such consideration encourages the teacher to use only what is needed, nothing more.
2. How is the material distributed?
We ought not to forget that teachers stand in the fair dealing shoes of their students. Hence, distribution should be in light of what is necessary to meet the needs of that finite group. Placing content in a secure, password-protected learning platform, or via handouts in class, serves that goal. Whereas posting content to a public website is not as confined in its reach. (I am not ruling out wider distribution such as placing a dissertation in an open-access institutional repository–more on that another day). In any case, if students were then to circulate the carefully curated material, there is no liability to the teacher or institution.
To those who are concerned at the seeming loss of four factors, they have not disappeared. Rather, they are subsumed by the situational aspects of this type of copying. As noted above, the aspect of amount is implicit to considered thought regarding why a work (or portions thereof) is being copied. The question of alternative resources becomes less germane as the explicit language in Alberta v. Education rules out the implication that schools ought to purchase a copy of every conceivable work for every conceivable student. (And if the work copied is from institution-wide subscription resources, this factor becomes irrelevant.) The nature of the work tends to be published material, eminently suited to fair dealing. As to effect, the Supreme Court has emphasized that such dealings should not be read in the aggregate. And the Copyright Board has explicitly rejected the former dictum of anything worth copying is worth paying for (para 110 here and para. 217 here).
To some that may sound harsh, but only until one realizes that the Board has not ruled out paying for copying when appropriate. The Board only rejected a century-old proposition which was inspired by the conduct of a rival publisher. The Board, like the Supreme Court, now emphasizes a holistic examination of any dispute.
On a different note; in 2016 I met an American lawyer who was–to put it plainly–in awe of Canada and our development of fair dealing. Three Supreme Court decisions, progressive amendments passed by government, two Copyright Board decisions, and fifteen years of considered dialogue led by legal scholars, practicing lawyers, university counsels and many, many librarians. In part wonderment, part frustration, she asked: “What are you waiting for?”