Fair Dealing in the Post-Secondary Environment

A note from Access Copyright on trouble-free use of copyright protected works

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In Brief

  • The Association of Universities and Colleges of Canada (AUCC) Fair Dealing Policy does not, and is not meant to replace an Access Copyright Licence or Tariff, which remains essential to the simple, legal and cost-effective use of copyright protected materials.
  • The AUCC Fair Dealing Policy provides no immunity from the legal consequences of infringement - indeed, the courts may say some activities sanctioned by the AUCC policy are not fair dealing.
  • Sound copyright policy should not be based solely on an interpretation of fair dealing, but should also recognize the importance of purchasing published works and obtaining a comprehensive licence from a collective society such as Access Copyright, and direct licences with individual rights holders or groups of rights holders.
  • In other words, it still makes good sense to operate under an Access Copyright Licence or Tariff. It will enable practices that are valuable to students and institutions and that fall outside of fair dealing, and it will clarify grey areas. Moreover, recognizing the value of published works helps replenish the cycle of content creation for the benefit of all.
  • Collective licences and tariffs give educational institutions easy, legal access to copyright protected works, while helping to ensure that the activity of creating and publishing new works remains sustainable.

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Introduction

In recent months, several educational institutions have adopted policies similar or identical to the Fair Dealing Policy prepared by the Association of Universities and Colleges of Canada (AUCC).  While the AUCC policy is intended to help faculty, staff and students understand what they can and cannot do with copyright protected materials, it has given rise to some worrying misconceptions. Because fair dealing is a moving target with no hard and fast definitions, it is important for Access Copyright to offer some perspective on behalf of creators and publishers of copyright protected works.

It is not surprising that AUCC and Access Copyright interpretations of fair dealing diverge in many areas. It is worth also noting that the AUCC Fair Dealing policy diverges as well in many important respects with the CAUT Guidelines for the Use of Copyrighted Material.  This statement is not designed to provide an exhaustive critique of the AUCC Fair Dealing Policy. Nor is Access Copyright opposed to fair dealing policies per se. Rather, our interest is to underscore the fact that many areas of potential liability still exist in the face of a successful implementation of a fair dealing policy, and that institutions would be wise not to ignore those liabilities.

The AUCC Fair Dealing Policy in context

The AUCC Fair Dealing Policy brings important clarity to key issues by explicitly labeling a number of routine copying activities by faculty, staff and students as not permitted under fair dealing.

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The AUCC fair dealing policy clearly states that:

  • Faculty and students cannot post copyright protected works on course management systems or course websites,
  • Required course readings cannot be put on library reserve,
  • Multiple copies of a published work cannot be made for and distributed to students, and
  • Coursepacks cannot be created or sold to students.

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These routine copying activities are, however, covered by the Access Copyright Tariff.

Institutions should be aware that eliminating these areas of use does not eliminate the need to take up the Access Copyright licence under the Access Copyright Post-Secondary Educational Institutions Interim Tariff, 2011-2013. The AUCC Fair Dealing Policy does not, on its own, shelter educational institutions from possible copyright infringing activities by faculty, staff or students.

In fact, the AUCC Fair Dealing Policy is specifically intended for institutions thatdointend to operate under an Access Copyright Tariff. The AUCC makes this extremely clear: 

"… the Association of Universities and Colleges of Canada has prepared, and recommends for adoption by each AUCC member outside Quebec that intends to operate under the Access Copyright Post-secondary Educational Institution Tariff, 2011 to 2013 (the "Proposed Tariff'), the attached fair dealing policy. "

It is important to note that there are no hard and fast rules on fair dealing.  Fair dealing is a legal concept applied by the courts to each act of copying on a case-by-case basis.  The act of copying must be for one of the five purposes identified in the Copyright Act.  Then, the act of copying must befair. 

Fairness is generally assessed by applying a set of six factors which are themselves subject to interpretation and which were provided by the Supreme Court of Canada in CCH Canadian Limited v. Law Society of Upper Canada.   The Supreme Court stated in CCH that "whether something is fair is a question of fact and depends on the facts of each case." (para. 52)

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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."

(CCH Canadian Limited v. Law Society of Upper Canada, para. 60).

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Fair dealing is a moving target. This is underscored by the fact that the Supreme Court of Canada will be revisiting the fair dealing test as described in CCH in two cases in the coming year.  Fair dealing is always subject to judicial interpretation.

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. 

One important area for caution is that the AUCC Fair Dealing Policy does not reflect the proper legal tests.  For example, the policy suggests that it is a fair dealing to copy less than 10% of a work.  The Fair Dealing Policy FAQs boldly state that a student making a copy of a journal article on reserve is fair dealing if it is for their private study or research without applying any of the fairness factors identified by the Supreme Court.   Blanket statements such as these are possible under an Access Copyright Licence or Tariff, but on their own they have no legal basis.

As another example, the AUCC Fair Dealing Policy also suggests that a single copy of an optional or supplementary digital reading can be made available to all students enrolled in a class and that each student can print a copy (whether 20 or 500 students). At the same time, the policy does not allow a professor to photocopy multiple copies of an article for distribution to students. In other words, the AUCC Fair Dealing Policy appears to allow faculty, staff and students to do indirectly what they cannot do directly.   This is contradictory and has no legal basis.

Conclusion

AUCC's Fair Dealing Policy is not a shield against copyright infringement. A well-administered institutional user of copyright protected works will make appropriate use of exceptions in the Copyright Act in combination with the purchase of published works, the acquisition of direct licences and licences through consortia, and a comprehensive licence from Access Copyright.

These components work together to ensure that faculty and students in educational institutions have seamless, legal, convenient, and cost-effective access to copyright protected works, while respecting the rights of creators and publishers and recognizing the value of their works.