As I noted in my last post, asking for an exception to the law, to cover educational institutional use of publicly available material, poses risk to other Canadians and allows institutions to abrogate their responsibilities with respect to fair dealing. Furthermore, it narrows the possibilities of what can be done with materials obtained from the Internet. There are two issues entwined here.
1) When is fair dealing an option?
2) What might publicly available look like?
With respect to (1); just as copyright holders need not indicate the © to reserve their rights, a fair dealing enthusiast need not wait for an invitation to engage with a work. In the CCH Canadian ruling of 2004, the Supreme Court of Canada said, “Fair dealing is always available.”
It is inconsistent within our law to affirm copyright in a published work and simultaneously deny the possibility of fair dealing with that same work. At least for now…
Concerning (2); it would be prudent to consider what happened the last time an exception was requested for educational institutions. On the summary page of Bill C-61, Canadians were permitted:
(c) … certain uses for educational and research purposes of Internet and other digital technologies to facilitate technology-enhanced learning, interlibrary loans, the delivery of educational material and access to publicly available material on the Internet;
Paraphrasing from the exception:
30.04 (1)… it is not an infringement of copyright for an educational institution, or a person acting under the authority of one, to do any of the following acts for educational or training purposes in respect of a work or other subject-matter that is available through the Internet:
(a) To reproduce it;
(b) To communicate it to the public by telecommunication, if that public primarily consists of students of the educational institution or other persons acting under its authority;
But conditions were attached, and one was ingeniously crafted:
30.04 (4) Subsection (1) does not permit a person to do any act described in that subsection in respect of a work or other subject-matter if …:
a clearly visible notice … prohibiting that act is posted at the Internet site where the work or other subject-matter is posted or on the work or other subject-matter itself.
Meaning to say, all a copyright holder had to do to prohibit individuals within educational institutions from utilizing a work was to post such a notice with the work. In which case, legitimate applications of fair dealing would be voided simply because they happened in an educational institution. Mercifully, Bill C-61 did not come into being as Canadian law. If the exception had been implemented in this manner, then copyright holders would enjoy the privilege of copyright, while denying others the right of fair dealing.
Bill C-61, An Act to Amend the Copyright Act, Second Session, Thirty-ninth Parliament, House of Commons. Canada. 2008.