A Martlet Investigative Series:New legislation expands definition of fair dealings

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With the recent passing of Bill C-11, the Copyright Modernization Act, Canadian academic institutions have become even more divided on the issue of how to deal with evolving copyright law.

Bill C-11 passed through the House of Commons after its third reading on June 18 and was given royal assent on Friday, June 29.

Although there have been previous attempts over the past decade to amend the Copyright Act, Bill C-11 is the first substantial amendment to the Copyright Act of Canada since 1997. The bill is almost a mirror copy of its predecessor, Bill C-32, and includes a controversial section on restrictive digital locks as well as an expanded definition of fair dealings of copyrighted material.

Fair dealings are exemptions from infringement of copyright law or copy uses not subject to copyright fees. Fair dealings previously only applied when copyrighted material was used for research and personal study, criticism, review or news reporting.

However, Bill C-11 proposes a broader definition that includes satire, parody and educational uses under the protection of fair dealings usage. For universities specifically, the educational uses cover things such as reproducing material for exams, projecting material for instruction and sharing works over the internet.

The news of Bill C-11 gaining royal assent comes just over a month after many universities across Canada, including UVic, signed a letter of intent with Access Copyright, the collective that typically controls licensing and royalties for copyrighted material used by academic institutions. The model license between the Association of Universities and Colleges of Canada (AUCC) and Access Copyright sees an increase of 46 per cent in the fee UVic students pay to access to the collective’s repertoire, which contains mostly print-based materials.

According to Chris Martin, director of Research for the Ontario Undergraduate Student Alliance, all the now-exempt uses outlined in Bill C-11 are interpreted in the Access Copyright model license as copies that need to be paid for. While critics of this expanded definition argue that including education under fair dealings will open the floodgates for unlimited copying of material at universities, experts such as University of Ottawa’s Michael Geist suggest that this reform is evolutionary rather than revolutionary, and “will help enable the use of new technologies in the classroom and support student creativity, innovation and curiosity in their scholarly pursuits.”

Indeed, Bill C-11 does not necessarily give universities the right to copy as they please. The Copyright Act does not actually define what is and isn’t a “fair” dealing. In 2004, a Supreme Court of Canada case between CCH Canadian, a group of publishers, and the Law Society of Upper Canada established six factors to determine whether the dealing is fair. These factors look at the purpose of the dealing (whether it was for commercial or charitable purposes), the character of the dealing (whether multiple copies were made rather than a single copy), the amount of the dealing, the available alternatives, the nature of the work (whether it is publicly available or not) and the effect of the dealing on the work (whether the copied work will compete with the original).

With the passing of Bill C-11 and a shift in focus at many universities towards digital initiatives, many critics of the Access Copyright model license suggest that it is not the best choice.

Allan Bell, director of library digital initiatives at UBC, states that while the situation is different for each institution, UBC has had no problem dealing with copyright licenses through librarians and an in-house copyright office instead of Access Copyright.

“We’re finding that our faculty are relying less and less on printed course materials from the Access Copyright repertoire and are moving towards more advanced, forward-looking digital online and multimedia teaching technologies that support the engaged student learning experience that people are expecting now,” says Bell. “The days of coursepacks certainly are not pedagogically what people are going to be doing in the future.”

UBC currently spends close to $10 million on digital licenses, and has made a concerted effort to switch to digital initiatives.

“Libraries have changed dramatically over the last 10 to 15 years as you can probably imagine, and since 2002, circulation of print material has declined by 59 per cent,” says Bell. “People just aren’t using printed material like they used to.”

At UVic, the administration states that they have “reluctantly” agreed to sign the model license with Access Copyright as a way to safeguard against potential litigation while they set up a central copyright office.
Yet, while UVic’s copyright office was unable to comment on the passing of Bill C-11, Inba Kehoe, one of the office’s representatives, stated that a campus copyright advisory group will be assembled to assist in drafting policies and guidelines so UVic can confidently opt out of the Access Copyright license when the contract ends in December, 2015.

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