Fair Dealing Works

Fair Dealing Works!

The Fair Dealing Works campaign brings together student leaders, post-secondary institutions, and copyright experts and practitioners together to stand up for educational fair dealing rights.

Fair dealing is a crucial part of our educational ecosystem. Current Canadian laws ensure that there is a balanced approach between creators’ rights and the rights of users.

Changes to copyright law that would undermine educational fair dealing would unfairly pass along new costs to students without guaranteeing new revenues for authors and creators. Fair Dealing Works aims to provide accurate information on the current state of Canadian copyright laws as they pertain to Canadian post-secondary education.

Canadians enjoy fair dealing protections as a right for research, private study, education, parody, satire, criticism, review, and news reporting. These activities are not copyright infringement – in fact, the ability for users to make copies for specific purposes is an integral part of the Canadian Copyright Act. This provision ensures that educational material can be shared without undue interference that would make it harder for students to learn.

Fair dealing works. Canadians want to see a balanced system that respects everyone’s rights. That’s why we need to protect educational fair dealing, an important right of users, learners and researchers that makes Canada more innovative and creative.

Partners

The Fair Dealing Works campaign is a collaborative effort. Our members include: Universities Canada, Colleges and Institutes Canada (CICan), the Canadian Association of Research Libraries (CARL), the Canadian Alliance of Student Associations (CASA), the Canadian Federation of Students (CFS), the Canadian Association of University Teachers (CAUT) and the Canadian Internet Policy and Public Interest Clinic (CIPPIC).

Copyright should work for everyone

Copyright should work for everyone who uses, learns from and creates our culture, research and scientific knowledge. Balancing the rights of users and creators is key to a strong, fair copyright system that helps Canada innovate and prosper.

Students, universities, colleges, teachers and researchers – and all Canadians – benefit from a copyright system that both protects creators’ work and allows for fuller use of scientific knowledge, cutting-edge training materials and our shared cultural heritage.

Educational fair dealing is an important Canadian right that forms part of a balanced system that respects everyone’s rights. Learners, teachers, researchers and educational institutions agree: instead of a move away from balance that creates new costs for students, we need to protect educational fair dealing.

The Supreme Court of Canada took an important step towards balancing our copyright system, and copyright is more balanced than ever. At the same time, some are looking for radical revisions to generations of copyright law that would unbalance and imperil our system.

Recent changes that lengthened the term of copyright were already a dangerous step away from users’ rights.

Radical change to further erode Canadians’ rights would also create unfair new costs for students while so many are struggling.

Canadians want to see a balanced system that respects everyone’s rights. That’s why we need to protect educational fair dealing, an important right of users, learners and researchers that makes Canada more innovative and creative.

Fair Dealing in Canada Myths & Facts

Fair dealing is an important right that allows the use of copyright-protected material without permission from the copyright holder under certain circumstances – and it’s an integral part of Canada’s balanced copyright system.

Myth 1: Fair dealing is a recent addition to the Copyright Act.

Fact: Fair dealing has a long history and has been a part of Canada’s Copyright Act since 1921.

Fair dealing’s origins can be traced back to English case law from the 18th century. In 1921, Canada 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, allowing 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.

Myth 2: Copyright’s primary purpose is to ensure authors are paid.

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 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.”

Myth 3: Canadian authors’ royalties have declined because educators are paying less for content.

Fact: Educational institutions are paying as much as they ever have 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.

Myth 4: The changes made to fair dealing in the Copyright Act in 2012 gave educators the right to freely use any amount of a work.

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 works copyright compliance through awareness raising, education and training.

Myth 5: Authors would be the main beneficiaries of copyright laws that undermine educational fair dealing.

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.

Myth 6: Canadian post-secondary institutions are no longer doing their share to support Canadian authors and creators.

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 of academic and non-academic reading types on Canadian courses found that the number of chapters of literary works that were distributed in only under 5% of the syllabuses was less than half compared to, say, the number of academic readings.[4]

Myth 7: Infringement behaviour is a rampant problem among students, on campuses, and across the post-secondary education sector.

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 to mitigate infringing behaviour 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]

Myth 8: Limiting the scope of fair dealing will not have a negative impact on learning, innovation, and knowledge dissemination in Canada.

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]

Myth 9: The licensing options currently offered by copyright collectives meet the learning needs of colleges and universities, particularly for programs responding to industry and labour market needs.

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.

Myth 10:  Mandatory tariffs or licensing regimes are the only way to ensure creators are fairly compensated for the use of their works.

Fact: Currently, across the post-secondary education sector, students face the ‘double-charging’ situation when they pay for course packs containing materials that are freely available to them from their respective libraries.

Introducing a mandatory tariff would ultimately see publicly funded educational institutions paying unnecessarily a second time for copying rights that have already been negotiated through other channels and will ultimately create an additional expense for students.

[1] York University v. Canadian Copyright Licensing Agency (Access Copyright), 2021 SCC 32 (CanLII), Available at: https://www.canlii.org/t/jh8bc (Accessed: December 21, 2022).

CCH Canadian Ltd. v. Law Society of Upper Canada, 2004 SCC 13 (CanLII), [2004] 1 SCR 339, Available at: https://canlii.ca/t/1glp0 (Accessed: December 21, 2022).

Alberta (Education) v. Canadian Copyright Licensing Agency (Access Copyright), 2012 SCC 37 (CanLII), [2012] 2 SCR 345, Available at: https://canlii.ca/t/fs0v5 (Accessed: December 21, 2022).

Society of Composers, Authors and Music Publishers of Canada v. Bell Canada, 2012 SCC 36 (CanLII), [2012] 2 SCR 326, Available at: https://canlii.ca/t/fs0vf (Accessed: December 21, 2022).

[2] For the shift to digital resources as the main reason for the decline in collective licensing, see also: Statutory Review of the Copyright Act, Report of the Standing Committee on Industry, Science and Technology (2017) Committee Report No. 16 – INDU (42-1) – House of Commons of Canada. Available at: https://www.ourcommons.ca/DocumentViewer/en/42-1/INDU/report-16/ (Accessed: December 20, 2022).

[3] Scholarly Publishing and Academic Resources Coalition (2019) Research Companies: Elsevier, SPARC. Aspesi, C. & SPARC (Scholarly Publishing and Academic Resources Coalition). Available at: https://infrastructure.sparcopen.org/landscape-analysis/elsevier (Accessed: December 20, 2022).

[4] Willinsky, J. and Baron, C. (2021) “What should students pay for university course readings?: An empirical, economic, and legal analysis,” Canadian Journal of Higher Education, 51(4), pp. 40–53. In particular, Table 3, p. 44. Available at: https://doi.org/10.47678/cjhe.v51i4.189159  (Accessed: December 20, 2022).

[5]  For numerous examples, see the Canadian Association of Research Libraries’ University copyright guides – canadian association of research libraries. Available at: https://www.carl-abrc.ca/influencing-policy/copyright/university-copyright-guides/ (Accessed: December 21, 2022).

[6] Copyright in the digital age An economic assessment of fair use in New Zealand (2018). Deloitte Access Economics. Especially section 4.1 pp. 37-39. Available at: https://www2.deloitte.com/content/dam/Deloitte/nz/Documents/Economics/dae-nz-copyright-fair-use.pdf (Accessed: December 21, 2022).