To Use, or Not to Use? That is the Question: AUCC Updates Fair Dealing Guidelines

In light of updates to the Copyright Act and the Supreme Court’s copyright Pentalogy rulings, the Association for Universities and Colleges of Canada (AUCC) has released updated guidelines for their fair dealing policy.

 

The policy outlines what uses of copyrighted works are considered fair dealing, which is in accordance with the policies of several other institutions. Fair dealing is generally accepted to include: up to 10% of a work, a single chapter or article, an entire artistic work from a compilation, an entire newspaper article or page, an entire poem or musical score, or an entire entry from a reference work providing that no more is copied than required. The AUCC developed nine documents tailored to various members of the post-secondary community that explain how the policy is to be put into practice by institutions. The guideline offers suggestions to post-secondary institutions about what specific information to include in their own policies in light of CCH Canadian Ltd v Law Society of Upper Canada, such as a generic disclaimer for institutions to post near copying services indicating the institution’s copyright policies.

 

Interestingly, the guidelines dictate that any restrictions imposed by an institution’s licensing agreement will take precedence over the fair dealing guidelines. The guideline also implements “safeguards” to ensure compliance with fair dealing exceptions. This results in a fairly conservative guideline, but the AUCC also indicates that activities outside the scope of the restrictions may still be protected by fair dealing exceptions.

 

There is concern from some that this policy will result in the narrowing of the scope of fair dealing. In CCH Canadian Ltd v Law Society of Upper Canada, the Court held that one of the factors to consider is the industry standard. While not a conclusive defence, the Court may look to the guidelines set out by a community to determine whether a dealing is fair. If post-secondary institutions broadly accept these guidelines then they will in effect become the industry standard examined by future courts. Post-secondary institutions may opt to remain within the “safeguards” to in an attempt to ensure that they are not the target of infringement claims. If this creates a new outer boundary drawn by the community then courts may follow suit and narrow the concept of fair dealing for education or research. On the other hand, the Court may still hold that dealings falling within industry standards exceed what is fair.  Thus, even if institutions choose to remain well within the boundaries of the guidelines, there is neither a guarantee that claims will be prevented, nor a guarantee that conduct within the scope of the guidelines will result in a favourable ruling in any proceedings that follow.

 

On the other hand, there is nothing to prevent the court from determining that a use beyond the scope of an industry practice is nevertheless fair. Courts have made it clear that these policies remain guidelines and nothing more. They will still examine the overall feel of the copying and look to the quality rather than quantity of material copied. In CCH the Court supported a “large and liberal” interpretation and asserted fair dealing as a user right.

 

The guidelines are most concerned with the supplemental aspect of the Alberta (Education) v Canadian Copyright Licensing Agency ruling. In that case, the Court stated that it would be unrealistic to expect classrooms to purchase a full book for each student when only a small portion was used to supplement the main text used in the class. Therefore, course packs must remain supplemental to be protected under fair dealing. I suspect that the guidelines are intended to stem the trend of making various excerpts available to students so that the course pack or posted readings become the main reading material provided to students. Even though each individual piece may fall within generally accepted usage and the CCH guidelines,  the overall effect of such course packs may not pass the Alberta (Education) test for supplemental materials.

 

Post-secondary institutions do not want to be on the wrong side of a test that balances the rights of students to deal fairly with copyright protected materials and the rights of copyright holders to retain control of the reproduction of their works. The Court continues to affirm tech neutrality and the guideline’s conservative outlook may be attributed to an attempt to remain open to the changes that could be brought about by forthcoming technology. Viewed this way, the guidelines are not restrictive but responsive to the changing ways in which materials are available and the flexible nature of the fair dealing exceptions as viewed by the Canadian court system in recent years.

 

Allison McLean is an IPilogue Editor and a JD Candidate at Osgoode Hall Law School.

6 Comments
  1. Great article, Allison. I’d just like to make a point about Alberta and supplemental readings.

    While in the Alberta case the excerpts at issue did happen to be supplemental to the main textbook, we shouldn’t assume that fair dealing would not apply if so-called short excerpts (articles for example, or chapters) made up the whole of the course readings. This is the case in many graduate courses, where the syllabus reflects a range of ideas.

    Indeed, the new AUCC fair dealing interpretive guidelines for course packs and learning management systems do not differentiate between supplemental and required readings, although they do caution against cumulative copying from the same work (or editions of it) so as not to substitute for its purchase.

    I can’t imagine that the courts would consider it unfair to have all the readings for a course made up of short excerpts from varied resources.

  2. Thanks for the comment David. You are absolutely correct about the old title creating confusion. We have updated the title and apologize for any confusion we may have caused.

  3. Thank you for the article Allison.

    I don’t think it is at all accurate to say “Fair dealing is generally accepted to include: up to 10% of a work…” as it is on this exact definition of a “short excerpt” that much of the current disagreement around fair dealing is centred.

    The overwhelming majority of Canadian writers (according to a recent Writers’ Union survey), believe defining 10% of a work as a “short excerpt” is completely unfair, if not patently absurd.

    This morning, I gave a presentation on copyright to a group of 40 European graduate students. I held up a 450 page book and asked them how much they thought would be fair to copy without permission or payment to the writer. The highest number I heard was 2 pages, which is 0.4% of the work. When I told them that educational institutions are trying to claim 45 pages of that 450 page work, they were astounded.

    It is not generally accepted that taking 10% of anything without asking or paying is fair.

    John Degen, Executive Director
    The Writers’ Union of Canada

  4. Lisa, you make an excellent point. The guidelines do not explicitly require the course pack to be supplementary. However, the guidelines state that copying under the policy is not to substitute for the purchase of the work and provides several safeguards for those intending to create a course pack. In application, I think the result is a more cautious approach to the use of course packs as the main resource. After all, the purpose of the guidelines is the avoidance of infringement claims, and under Alberta copying supplementary materials appears to be safe.

    When the copied material becomes, in effect, the text for the class then the ruling in Alberta about supplemental copying may be distinguishable. In addition, the dissent coming from four of the nine members of the court in Alberta was that a teacher’s purpose was distinguishable from the passive copying in CCH. As a result, I think that if the issue were to come before the courts it would warrant at least its own line of analysis.

    Alberta allows rights holders to provide evidence that there is a causal link between course pack compilations as a primary text and declining sales of the underlying works. Moreover, as smaller portions become available for purchase at a reasonable price, I think that one could make the argument that the use of single chapters or articles has an effect on the work, making the dealing unfair.

  5. I’m not sure the discussion about the teacher’s purpose will play much of a role in future cases with similar facts. The dissent’s position was that the teacher had a purpose separate from that of the students, and that purpose was “instruction”. Now that “education” is included in the list of allowable purposes, it seems that even the dissenting justices would find that the teacher had passed this stage of the fair dealing analysis.

    I’m also not sure that smaller portions of works being made available will have much impact of on impact on the fairness analysis. It’s doubtful these small portions would be made available as separate print copies; it is more likely they would be made available through a licensing scheme. And the court in CCH was quite clear that it would be improper to consider the availability of a license as a factor in the fair dealing analysis.

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