thank you Madame Abella

A week has passed since our Supreme Court issued five decisions concerning copyright in the analog and digital age. The commentary is fascinating; see Howard Knopf here, Bob Tarentino here, and ongoing, detailed coverage from Michael Geist here.  In his posting today, Geist emphasizes that the long-term prospects for Canada are very good: (i) The language of user rights is not merely a conceptual term; it is a robust principle which will affect all future examinations of copyright. (ii) The Copyright Act must be read as technologically neutral; developments in technology cannot be assumed as sufficient reason to extract added licensing fees from people. (iii) Fair dealing is positioned for continued growth via the Court’s support of the “large and liberal interpretation” first enunciated in CCH Canadian.

To which I would add one more note of satisfaction. In Alberta (Education) v. Canadian Copyright Licensing Agency (Access Copyright),  the Supreme Court reminded Canadians that libraries were places where students and teachers may access and copy work germane to the pursuit of education. It borders on the absurd that we should need such a reminder but, as I wrote a year ago, AUCC’s copyright and fair dealing policies include an edict that material placed on reserve should not serve as a substitute for purchased copies. To which my question was, “What is the purpose then of library reserves, or indeed libraries in general?

The decision penned by Madame Abella debunks any idea that libraries should not serve as a source for required readings. In Education v. Access Copyright the material under consideration was quite specific: “… copies of works made at the teachers’ initiative with instructions to students that they read the material. Teachers would photocopy short excerpts from textbooks and distribute those copies to  students as a complement to the main textbook … (para. 7).” Clearly, if students are instructed to read the material, it could not be described as optional. To the suggestion that schools purchase individual copies of all copyrighted material for all students, Madame Abella was quite direct:

In my view, buying books for each student is not a realistic alternative to teachers copying short excerpts to supplement student textbooks.  First, the schools have already purchased originals that are kept in the class or library, from which the teachers make copies.  The teacher merely facilitates wider access to this limited number of texts by making copies available to all students who need them.  In addition, purchasing a greater number of original textbooks to distribute to students is unreasonable in light of the Board’s finding that teachers only photocopy short excerpts to complement existing textbooks.  Under the Board’s approach, schools would be required to buy sufficient copies for every student of every text, magazine and newspaper in Access Copyright’s repertoire that is relied on by a teacher.  This is a demonstrably unrealistic outcome.  Copying short excerpts, as a result, is reasonably necessary to achieve the ultimate purpose of the students’ research and private study (para. 32 – emphasis mine.)

Following the multi-facetted guidance set by CCH Canadian, Madame Abella deemed such copying as fair dealing. The entire decision is well worth reading; a legacy point is:

It seems to me to be axiomatic that most students lack the expertise to find or request the materials required for their own research and private study, and rely on the guidance of their teachers.  They study what they are told to study, and the teacher’s purpose in providing copies is to enable the students to have the material they need for the purpose of studying.  The teacher/copier therefore shares a symbiotic purpose with the student/user who is engaging in research or private study.  Instruction and research/private study are, in the school context, tautological (para.23).

By requiring that the conduct of copier and end-recipient be examined together, this Court is ensuring that fair dealing be as malleable as possible to address situations as of yet unknown.

Again, it must be emphasized that the Court was examining the copying of excerpts of additional material used by teachers. Fair dealing is not license to copy entire textbooks for an ulterior motive of profitable mass distribution, and in no way can this decision be read as such. But it ought to be clear to AUCC, and the post-secondary community at large, that libraries should be allowed to function as per their central purpose — to facilitate widespread access to legitimately acquired material.

the $16 textbook

The first textbook I bought for my university studies was Calculus with Analytic Geometry, by Howard Campbell and Paul Dierker, or C&D as students dubbed it. It was an 800+ page tome priced at $48. At the time I thought this was outrageous; an unbelievable demand of cash from first-year mathematics students. Later, as I confronted slimmer, yet more expensive books, I developed an affection for C&D. Serving as it did for three consecutive courses, it became the most economical purchase of my undergraduate studies.

But not everyone bought their books.

There were many for whom it was simply not viable. Years later a friend told me that during her first winter in Canada, a stark choice presented itself: buy boots or buy a textbook. She opted for the boots and managed her coursework by going to the library frequently and reading a copy available from the reserves. She was by no means the only one to do so, but the limiting of borrowing time mandated by the library effectively ensured access for everyone in need.

As Michael Geist reported this week, the University of Calgary, Queen’s University and the University of Waterloo all signaled their intent to move away from collective bundled licensing of copyrighted material. Allied to this movement, post-secondary institutions are becoming more aware of fair dealing. However, as I wrote before, the leading institutional policy on fair dealing, by the Association of Universities and Colleges of Canada (AUCC),  sets a very narrow interpretation of fair dealing. Their apologetic tone could have the undesirable effect of establishing practices that undermine the discriminating power of fair dealing. Only time can tell; much will depend on how faculty members respond.

But an even more deleterious policy is finding voice through these measures — students cannot rely on library reserves for their required course reading. The AUCC fair dealing policy explicitly addresses what material can be borrowed. In Section III University Library Reserves, instructions are given toward the creation of paper or electronic copies of course material. It is AUCC’s directive that only optional reading material should be included in reserves; “no more than 25% of the required reading.” Of any material (required or optional) up to three copies can be deposited in reserves, allocated on the ratio of one copy per 30 students.

However, that instruction is followed by this canonical statement:

(16c) The use of library reserve must not substitute for the purchase of books, coursepacks, or other published materials.

What is the purpose then of library reserves, or indeed libraries in general?

This same language has made its way to Queen’s University; see Schedule B, Fair Dealing Copying Guidelines – Interlibrary Loan, Library Reserve and Document Delivery of Copyright At Queen’s Policy.

In many respects Queen’s copyright policies are laudable,  but that the university supports limiting reserves in this way is disappointing. Moreover, following AUCC in situating the restriction as allied to fair dealing is disturbing. Fair dealing may arise from a use of material, borrowed or otherwise; fair dealing is not the filter by which to limit access to the material.

If post-secondary institutions insist that course materials cannot be borrowed, that is their prerogative. But to represent that policy as related to fair dealing only further undermines fair dealing in the eyes of the very constituent body that can most significantly benefit from it: the post-secondary community.

AC, AUCC and CAUT – making sense out of acronyms

Two days ago Access Copyright (AC) posted some remarks titled “Fair Dealing in the Post-Secondary Environment.” These were directed at the Fair Dealing Policy of the Association of Universities and Colleges of Canada (AUCC). Which raises a question – what is the AUCC policy on fair dealing?  At this time, there is no specific information at their website. (In the copyright section the last document posted is dated to February 15, 2011 – it contains the remarks of AUCC President Paul Davidson to the legislative committee for Bill C-32.)

Fortunately, Google is there to help and I found the AUCC policy in the University of British Columbia Library Collections. Unfortunately, it reads like an amalgam of rote text from the Copyright Act coupled with previous Access Copyright licenses. This does not facilitate what presumably was the objective of the policy: to help people understand what fair dealing is and when it can be used.

Moreover, I am troubled by some of the AUCC stipulations which are then further stiffened in the hands of AC.  For instance, according to AUCC, fair dealing does not permit “making copies of required readings for library reserve.”  The AC interpretation leads to “required course readings cannot be put on library reserve.”  Neither position reflects the traditional use of reserves – to ensure that all students have a means of accessing and reading required course material. And fair dealing draws legitimacy, in part, from past custom. A point also emphasized by the Canadian Association of University Teachers (CAUT); their fair dealing guidelines are more accurate in terms of the law and more clearly written.

AC does its best to distance the AUCC guidelines from legitimate activity, stating that:

Institutions must also understand that the AUCC Fair Dealing Policy is not sanctioned by rights holders or Access Copyright. The policy will be the subject of heated debate at the Copyright Board. The Board or the courts may determine that some of the copying activity sanctioned by the AUCC policy is not fair dealing.

Given the extremely conservative nature of the AUCC policy it is hard to imagine that an institution following those instructions would incur the wrath of any court. The greater risk of the AUCC policy is that students, staff, teachers and librarians will come to see it as an upper bound on fair dealing. Furthermore, the merit of an unauthorized exception to copyright will be blunted with the excessive administrative processes called for by AUCC.

To understand fair dealing, one ought to review its history.  But in the absence of a comprehensive study, the minimal starting point is CCH Canadian (2004). As the Federal Court of Appeal noted in 2010, no discussion of fair dealing can occur without reference to this case.

To their credit, AC mentions CCH Canadian and gives a pertinent quotation:

The Supreme Court of Canada on Fair Dealing
“To conclude, the purpose of the dealing, the character of the dealing, the amount of the dealing, the nature of the work, available alternatives to the dealing and the effect of the dealing on the work are all factors that could help determine whether or not a dealing is fair. These factors may be more or less relevant to assessing the fairness of a dealing depending on the factual context of the allegedly infringing dealing. In some contexts, there may be factors other than those listed here that may help a court decide whether the dealing was fair.” (para. 60)

The CAUT guidelines give a little more information about these six factors, but readers would do well to also look at an earlier CAUT Intellectual Property Advisory (2008) which describes the fair dealing aspects of CCH Canadian in detail. (Or you can read my account here.) Navigating fair dealing is easier when policy rules are set upon context.

And as far as sorting out the instructions of AUCC and the interpretation of AC, that will take longer than a blog post.