Fact: Fair dealing has a long history and has been a part of Canada’s Copyright Act for more than a century.

Fair dealing’s origins can be traced back to English case law from the 18th century. In 1921, Canada followed the United Kingdom (U.K.) and enacted its own domestic copyright law, heavily based on the U.K. statute. Canada’s first copyright act adopted the U.K. statute’s concept of fair dealing, explicitly recognizing fair dealing for the purposes of private study, research, criticism, review, or newspaper summary.

Parliament clarified the scope of fair dealing in 2012 by adding new qualifying purposes for fair dealing: parody, satire and education. The addition of ‘education’ was well received by the education sector, despite the fact that the use of fair dealing within educational institutions was already well established. Courts had already confirmed the availability of fair dealing to educators and students. The addition of education as a fair dealing purpose in 2012 did not substantially change educators’ and students’ right to use fair dealing.

The Supreme Court of Canada (SCC) has declared fair dealing to be a user right that must be given a “large and liberal” interpretation. Several major SCC decisions have affirmed the right to fair dealing in Canada.^[1] Fair dealing is part of the foundation on which scholarship is built. Without this critical right, students, educators and researchers would be limited in their ability to achieve an optimal level of education and contribute to valuable research endeavours.

Fact: Copyright law has always recognized that users’ and creators’ rights are both important.

Canadian Copyright law has always considered both creator and user rights as integral to society’s interest in the generation and use of creative and intellectual works. Copyright’s recent judicial treatment highlights the importance of recognizing and maintaining balance in copyright law.

In 2002, the Supreme Court stated that “the Copyright Act is usually presented as a balance between promoting the public interest in the encouragement and dissemination of works …and obtaining a just reward for the creator.” In 2004, the Supreme Court added that “user rights are not just loopholes.” A series of five landmark decisions in 2012, and every decision since, further reaffirmed the principle that user rights are integral to copyright.

In 2022, the Supreme Court further clarified in its SOCAN decision that copyright law “does not exist solely for the benefit of authors,” and instead that society is enriched by a balanced system where “authors are encouraged to produce more works, and users gain access to works which they can use to inspire their own original artistic and intellectual creations.”

Fact: Educational institutions’ spending has increased steadily for content through traditional subscriptions to periodicals, digital subscriptions to services, and purchases of individual works.

After a decade of steady spending growth, universities now spend over $400 million on acquisitions and subscriptions to content for their campuses every year. Copyright collectives’ services have become less relevant to educational institutions as physical copying has declined in favour of new digital resources and licensing. Collectives have seen declining revenues, a trend that is primarily a result of changing market conditions, not copyright law. In 2020, 82% of annual library expenditures reported by the Canadian Association of Research Libraries were on electronic resources. This was a huge increase from a decade earlier (2009) when library expenditures on electronic resources were only 56%, almost half as expenditures on print materials.^[2]

Collection of royalties and their disbursements are done by publishers and collectives both within Canada and abroad. Meanwhile, Access Copyright has consistently refused to explore new revenue streams like pay-per-use licensing that could go directly to authors and caused Canadian educational institutions to purchase licences from American vendors.

Libraries’ digital licensing agreements compensate vendors, publishers and creators and include negotiated educational and research uses for end users. Digital acquisitions include contractual rights to share and excerpt works in amounts beyond fair dealing limits for educational purposes – rights that are bound by strong technological safeguards to help ensure compliance with copyright law.

Fact: The changes in the Act in 2012 did not change the amount of a work that can be copied under fair dealing.

In 2012 ‘education’ was added to the Copyright Act as an allowable purpose for fair dealing, however, this had no impact on the amount of work that could be fairly copied. Educational uses are still subject to a fair dealing analysis outlined by the Supreme Court of Canada, which considers the amount copied as a factor. Educational institutions have developed and implemented clear, fair dealing guidelines. The sector also ensures copyright compliance through awareness raising, education and training.

Fact: Educational publishers and copyright collectives, not authors, would be the prime beneficiaries of any legislation that undermines fair dealing rights.

Publishers have been quick to blame educational institutions for a decline in authors’ revenues – but at the same time, the last decade has been enormously profitable for many academic and educational publishers. Elsevier, the world’s largest academic publisher, saw revenues of 3.2 billion USD in 2018, with a profit margin of 37% – more than twice that of Netflix in the same year.^[3] The global educational publishing market is expected to reach over 27 billion USD by 2027. Meanwhile, even copyright collectives like Access Copyright disburse more to publishers than to authors. In their 2021 annual report, Access Copyright reported that 55% of domestic disbursements went to publishers. Authors are the campaign’s public face to dismantle hard-won fair dealing rights, but they are not likely to be its main beneficiaries.

Fact: Post-secondary institutions employ today’s authors and creators, and foster the next generation’s, as well.

The post-secondary sector in Canada is extensively involved in training, employing, and nurturing current and burgeoning Canadian creators who teach, study, create and perform in programs devoted to creative writing, dance, music, theatre, video game design and much more. Permitting corporate publishing interests to undermine students’ exposure to excerpts of content will ultimately undermine Canadian culture.

In most university and college programs, the content used has been created by academics, scholars and experts affiliated with Canadian and international post-secondary educational institutions. An analysis of assigned reading types in Canadian courses found literary book chapters included in less than 5% of the syllabuses.^[4]

Fact: Most educational content on campuses today is accessed through libraries’ licensed digital content and includes rights for sharing content with students and creating excerpts. In recent years, libraries have invested in copyright experts and implemented meticulous and lengthy processes to review and approve course reading lists.

Physical photocopier machines are rarer than they have been for generations, and paper books are declining in favour of digital holdings and e-resources. Libraries across Canada are even adapting space previously used for collections into co-working or studying spaces.

The use of fair dealing makes up a small percentage of the content used for post-secondary education institutions due to the preference for library-licensed content in various electronic formats and the shift by educators to the use of Open Educational Resources (OER) and other open content whenever available.

Institutions work diligently to ensure copyright guidelines are met on campus by introducing technological protections, solid policies, and education for the responsible use of copyright-protected content. Students access their library-licensed course readings through digital credentials and technical safeguards that enforce licence agreements. Educators are encouraged to consult with copyright experts and communication offices in their institutions before creating and distributing course materials to guarantee full compliance with library licences.^[5]

Fact: Narrowing the scope of fair dealing in any way will negatively impact student learning, stifle innovation, and unnecessarily increase the costs of educational materials for students.

A Deloitte report found that New Zealand‘s narrow definition of fair dealing prevented post-secondary instructors from using their own research in the classroom and during public presentations. Restrictive fair dealing rights were proven to  hamper collaboration between post-secondary institutions and industry owing to the cost of clearing copyright, and students also face significant barriers to accessing materials and disseminating new knowledge.^[6]

Fact: Colleges and universities develop innovative programs that respond to industry feedback and meet labour market needs. These programs rely on carefully selected and curated content not available through collective agencies.

Students in these programs need access to the newest, cutting-edge materials, primarily  developed by institutional talent and sector-specific experts, that would not be part of a collective’s repertoire. The library already licences materials in preferred electronic formats and often reaches far beyond traditional textbooks and course packs to operating instruction and training materials for new technology and equipment.

Fact: Introducing a mandatory tariff is a backdoor way of erasing users’ ability to exercise their fair dealing rights.

Mandatory tariffs would force post-secondary institutions into paying royalties to copyright collectives that the institutions are often already paying through other channels. Creators negotiate the terms of the contracts that determine their compensation by publishers and copyright collectives.