Fair Dealing and students

Updated October 2017

After amendment of Canada’s Copyright Act in 2012, S29 fair dealing expanded in capacity. Previously limited to purposes of research and private study, S29 would grow to include parody, satire and education. The inclusion of “education” was seen as both new-found treasure and a disaster of immeasurable proportions. It was neither. Fair dealing as specified through the previous Canadian law, and practiced with the guidance of the Supreme Court, was capable of facilitating legitimate unauthorized uses of copyrighted material in educational settings.

And yet, application of fair dealing in educational institutions remains controversial and confused. Unfortunately, some institutions tend to limit the application of fair dealing by their own students.

What follows below is not intended to be handed out to students with stern edicts about copyright. Rather it is intended for teachers and administrators, to give them the courage to leave students alone. Copyright concerns should not intrude on students’ work; fair dealing supports the process of learning as it naturally unfolds in higher education.

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The point of entry into any question of copyright infringement begins with the definition of copyright itself. Section 3.1 of the Copyright Act states that copyright is  “…the sole right to produce or reproduce the work or any substantial part thereof in any material form whatever….” If the amount of the work copied (for whatever purpose) is insubstantial, copyright does not arise and thus infringement is not an issue. (Neither substantial nor insubstantial are defined in the Act, it is a matter of degree. That said, the Copyright Board has provided some guidance concerning substantiality). If one feels that a substantial aspect of a copyrighted work was copied, then consider if fair dealing applies.

Evaluation of fair dealing is a two-step process. First, does the use fall within one of the accepted categories of fair dealing as defined in the Act? Paraphrasing from Sections 29, 29.1, and 29.2 – research, private study, education, parody, satire, criticism, review and news reporting are eligible. Note: Attribution is only required for criticism, review and news reporting. [Although, close attention to the Act reveals that legislators are only concerned with the source of the material,  If the author or performer etc. are mentioned in the source, then inclusion of that name is valued.]

In any event, as students today are strictly schooled in the practice of citation, the attribution requirements are generally met without second thought. Therefore, it is quite likely that a student pursuing individual activity to complete an assignment is safely within the scope of all forms of fair dealing.

The second part of the process appears more challenging: was the use fair? For that we have the guidance of the Supreme Court of Canada, as first indicated in their 2004 decision CCH Canadian and then repeated in decisions thereafter. It must be remembered that Court indicated that these factors were only a framework; that different situations may warrant different questions. Nevertheless, here is the explanation of how individual student work melds with the six factors denoted in CCH Canadian.

1) The Purpose of the Dealing. Establishing the validity of purpose is quite straightforward. Quite apart from the category of “education,” most educational activities incorporate research, private study, criticism or review. (Indeed, those four uses could be present in the same assignment.)

2) The Character of the Dealing. This means, how is the copyrighted work dealt with? In general terms, in CCH Canadian the justices agreed that: “If a single copy of a work is used for a specific legitimate purpose, then it may be easier to conclude that it was a fair dealing (para.55)”

In the context of student work, two types of copying are likely to take place – copying for reference and copying for inclusion. The need for reference material sits comfortably in the CCH Canadian context. That dispute centred upon the copying of legal materials for legal research – in that situation the court stated: “Copying a work for the purpose of research on a specific legal topic is generally a fair dealing (para.67).”

In terms of copying for inclusion, the question becomes does the copy serve the purpose of the assignment as exemplified through the student’s own ideas and expression thereof? Whether it be a grade ten homework assignment or a doctoral dissertation, when the student has chosen an input element appropriate to his or her message and integrated that element in a new creation, such copying is likely to be fair.

Moreover, inclusion of copyrighted material is supported through the Berne Convention in the right of exception for quotation. Renowned copyright scholars Sam Ricketson and Jane Ginsburg write:

Quotation is an integral part of many kinds of intellectual activity, ranging from the writing of historical treatise and critical commentaries to the composition of polemical tracts. Accordingly, provision for it is made under most national laws, as well as under the [Berne] Convention… this is a mandatory requirement under the Convention.

In our increasingly visual world, quotation may well encompass visual elements. That does not change the legitimacy of fair dealing provided, again, that reproducing the element is necessary for the larger purpose of the student’s expression.

3) The Amount of the Dealing. This is perhaps the most unnerving aspect. Regrettably though, this anxiety is often resolved by stipulating a quantified measure. The New York Times featured an article by David Orr, titled “When Quoting Verse, One Must Be Terse” Mr. Orr describes the challenges wrought by copyright to American poetry criticism and makes specific mention of the problem of limiting copying by measure:

[It doesn’t] help to say that the standard should be, say, 5 percent of a given poem. Here’s the entirety of Monica Youn’s  poem Ending: “Freshwater stunned the beaches. I could sleep.”
What’s 5 percent of that? “Fr”?

This same dilemma arises when dealing with a visual work.  How can you make a meaningful comment if you can only display a partial image? The simply answer is that you cannot.  Hence, reproducing an image in its entirety is reasonable.

In general, the thought required in choosing an appropriate amount is precisely what students will learn. The integration of other works must be towards the expression of each student’s own ideas, and they have teachers to help them make these decisions.  The very act of learning includes determining when a direct quotation is best, or, when it is time to paraphrase. When an image makes a point, or when an image is simply distraction or clutter.

Mr. Orr presciently suggests that one should rely on the custom and practice of the discipline.  The Supreme Court explicitly included that directive in CCH Canadian (para. 55).  Institutions need not worry about setting amounts as to what their students may incorporate into projects – that is a decision shaped by both teacher and student according to the long-standing custom called teaching.

4) Alternatives to the Dealing. In CCH Canadian, the justices commented that “If there is a non-copyrighted equivalent of the work that could have been used instead of the copyrighted work, this should be considered (para.57).” Since the time of CCH Canadian, the volume of Creative Commons work has grown considerably. Students can be encouraged to look for such material. But this does not rule out using copyrighted material. (This is why we have fair dealing.)

An obvious place where exact reproduction of copyrighted work may be imperative is in the arena of popular culture. Rosemary Coombe writes, “the imagery of commerce is a rich source for expressive activity. In consumer cultures, most pictures, texts, motifs [etc.] are governed, if not controlled by regimes of intellectual property.” If the purpose of the new creation is to comment upon or criticize a popular culture phenomenon, it is necessary to reproduce the visual representation.

5) The Nature of the Work. This raises the question of whether greater dissemination of the copyrighted work is of benefit to the public. Bear in mind that this factor was enunciated in the context of CCH Canadian and centred upon the distribution of entire research articles for the same purpose for which they were created — namely, research. In the realm of completing a school assignment, this factor has less relevance. We are speaking of a situation where a copyrighted work (in part or in whole) is reproduced in aid of a new expression serving a larger goal. Wider distribution of the copyrighted work seems a moot point.  (Whereas one could argue that the newly created work serves a public benefit.)

6) The Effect of the Dealing on the Work. This speaks to the likelihood of affecting the market of the original. Will utilization of the copyrighted material result in unfair competition?

When a student incorporates copyrighted work for the purpose of a school assignment,  it is unlikely that the student’s work could substitute for the original. Even if the student has incorporated the entire work, assuming they did so in a manner that is consistent with their purpose – to answer a question, to give background to their research, to explore an issue, to critique other work –the student’s use is law-abiding. Note: With a contextual exploration similar to what was later articulated in CCH Canadian, a Canadian court supported such fair dealing by a commercial newspaper.

But for those who might worry that existing systems of licensing curtail fair dealing, in CCH Canadian the Supreme Court gave us this memorable instruction: “The availability of a license is not relevant to deciding whether a dealing has been fair (para. 70).”

Finally, as the six factor analysis tends to intimidate people, I would like to offer an alternative analysis.

References:

CCH Canadian Ltd. v. Law Society of Upper Canada  [CCH Canadian] 2004 SCC 13.

My synopsis of CCH Canadian.

Sam Ricketson and Jane Ginsburgy, International Copyright and Neighboring Rights: The Berne Convention and Beyond 2^nd Edition (Oxford:OxfordUniversity Press, 2005).

Rosemary Coombe, The Cultural Life of Intellectual Properties: Authorship, Appropriation, and the Law (Durham: Duke University Press, 1998).