Through most of 2018, the federal Standing Committee on Industry, Science and Technology (INDU) was engaged in its statutory review of the Copyright ActCopyright Act. One of the prominent issues in that review was fair dealing for the purpose of education. A number of groups have been lobbying for the removal of “education” as one of the purposes under fair dealing. Access Copyright has recommended that “the Copyright Act be amended such that the fair dealing exception for the purposes of research, private study and education not apply to educational institutions in respect of works that are commercially available.” Their contention is that the use of fair dealing by educational institutions is having an adverse economic impact on Canadian authors. However, even if Access Copyright could establish such a causal connection, which it has not, removing education as a fair dealing purpose for educational institutions would not be an appropriate response.
Why is fair dealing so important?
Copyright was introduced through federal statute in order to serve the broader public interest. It is in the public interest for Canada to foster a climate where individuals can create new literary or artistic works while maintaining the capacity to receive financial gain from those works. However, establishing a legal climate that protects the creation of new works is only in the public interest if those works can be accessed and used for the broader public benefit.
Most of the provisions of the Copyright Act are devoted to defining the rights of creators and outlining the protections that are afforded their copyright-eligible works. However, the effectiveness of any statute is dependent on checks and balances to manage the unintended consequences of overly strict enforcement of its provisions. As the Supreme Court of Canada’s ThébergeThéberge decision observed, copyright law is “a balance between promoting the public interest in the encouragement and dissemination of works of the arts and intellect and obtaining a just reward for the creator (or, more accurately, to prevent someone other than the creator from appropriating whatever benefits may be generated)” (para 30).
Fair dealing is the centrepiece of user rights under the Copyright Act. It is the foundation for the rights that form a critical part of the balance to which the Théberge decision refers.
How does fair dealing work?
Section 29 of the Copyright Act lists a number of purposes, and it is only those dealings with copyright-protected works for one of these listed purposes that can be even considered for fair dealing. If a dealing is for one of these purposes, then a fair dealing analysis, as outlined by the Supreme Court of Canada in CCHCCH, can determine whether or not that dealing is fair. If the dealing is found to be fair, then that use of the copyright-protected work is not an infringement of copyright. If the dealing is not for one of the listed purposes, then fair dealing is not available as a justification for that use, so the use is more likely to be an infringement of copyright.
What is the point of this list of purposes?
The list is a way to determine whether a use of a copyright-protected work might be serving the broader public interest. The current list of these fair dealing purposes is: research, private study, education, parody, satire, criticism or review, and news reporting.
What would it mean for education to be removed from the list of purposes?education to be removed from the list of purposes?
The fact that “education” is listed as a purpose under fair dealing does not mean that all uses of copyright-protected materials for the purpose of education are fair. Rather it simply means that where those uses are found to be fair, then those uses are in the public interest and thus do not infringe copyright. To advocate for removing education as a purpose under fair dealing, or to make it unavailable to educational institutions, is to argue that no uses of copyright-protected materials for educational purposes by educational institutions would serve the public interest to an extent sufficient to be eligible for fair dealing, and thus that all such uses of copyright-protected materials would require permission or a licence from the rights-holder.
If educational institutions were no longer able to apply fair dealing, specific uses that legitimately fall under fair dealing today — which are for an educational purpose and properly determined to be fair — would become infringing.
Eliminating educational fair dealing is not simply about addressing potential unfair practices related to uses of copyright-protected materials by educational institutions. It would mean removing from consideration as fair dealing all possible uses of copyright-protected materials by educational institutions for the purpose of education.
What if educational fair dealing were found to be causing adverse impact on the livelihoods of Canadian authors?
For the sake of argument, let us suppose that (1) some uses of copyright-protected works under fair dealing by educational institutions are not, in fact, fair, and (2) that the consequences of these unfair dealings are having an adverse economic impact on authors. How should this issue be addressed? If the dealings are not fair, then those uses does not properly fall under fair dealing. In such a case, the use is an infringement of copyright and the rights-holder has a legal remedy under the Copyright Act. This does not indicate a problem with fair dealing; rather, this is how it is intended to operate within the Act.
If it ain’t broke…
The structure of the fair dealing provision in the Copyright Act is quite simple. If a dealing involving a substantial portion of a copyright-protected work is for one of the listed purposes, and if that dealing is fair, then that dealing is not an infringement of copyright. The specifics of what might count as fair dealing are intended to be left open to interpretation, as each set of circumstances will be different. No one can anticipate all possible uses of protected works, but it is understood that some of those uses, if those uses are for a purpose that serves the public interest, might be fair. The provision does not apply only to individuals; it can apply to corporations as well. The provision does not apply only to non-commercial uses, it can apply to commercial uses as well. If the dealing is for one of the listed purposes, then the fairness of the dealing, based on the specific circumstances involved, is the only consideration. Fairness is the standard, and the broader public is the beneficiary.
The bottom line.
To remove education from the list of purposes would mean that no dealing with copyright-protected material for an educational purpose could qualify for fair dealing. It would reclassify uses of materials that are fair and lawful today as copyright infringement. To exclude educational institutions from the ability to apply fair dealing to dealings for educational purposes would prejudge all possible uses of those materials by educational institutions as either unfair or not consistent with the broader public interest. Given all possible uses of all possible copyright-protected materials by any and every Canadian educational institution, this seems a very extreme response.
Declining incomes and opportunities for Canadian authors and creators should concern us all and it is reasonable for government to be investigating such claims and exploring possible solutions. However, there is no evidence that educational fair dealing is the cause of this problem, and undermining educational institutions in their fair dealing with copyright-protected materials will not solve this problem.
What can be done?
The review of the Copyright Act continues as the INDU Committee is drafting its report. If maintaining fair dealing for the purpose of education and the availability of fair dealing for educational institutions are important to you, please don’t remain silent on the issue. Contact the Committee Clerk at INDU@parl.gc.ca.
Fair Dealing WeekFair Dealing Week, which runs from February 25 through March 1 this year, is an annual recognition and celebration of a key provision of the Copyright Act that helps maintain the balance of rights between creators and users to best serve the public interest.Copyright Act that helps maintain the balance of rights between creators and users to best serve the public interest.
For those interested in learning more about fair dealing, register for and attend the Fair Dealing Symposium 2019 on February 27.Fair Dealing Symposium 2019 on February 27.
For more information about copyright at the University of Alberta, check out the Copyright Office website, or email our help desk.Copyright Office website, or email our help desk.
Adrian Sheppard — Director, Copyright Office
Adrian has been the Director of the University of Alberta’s Copyright Office since April 2015. One role of the Copyright Office is to educate and inform U of A students, faculty and staff on issues related to copyright. Adrian has an LL.B. from the University of Victoria.
Note: This post is intended to provide information and perspective about copyright issues, but should not be considered as legal advice.