Fair and flexible: what we can learn from Canadian copyright law

Spotprent op het bedrog van de firma C. de Bruyn & Zonen
The "fair dealing" exception
Licentie

With the EU and other states looking to modernise copyright law for the digital era, education exceptions in copyright law are a hot topic. Particularly, the second paragraph of Article 4 of the proposed directive on Copyright in the Digital Single Market that gives room to educational licenses is being contested by educators, learners, and educational organisations. Canadian copyright law includes the doctrine of “fair dealing” — a unique version of a common exception. The European approach sees legal concepts determined by rightsholders through license agreements. Anxious to protect their position of power, representatives of rightsholders in Europe have often pointed at the Canadian exception as a dangerous example that has negatively impacted the educational publishing industry in Canada. These statements do not hold any merit. The Canadian doctrine offers both a solution to the legal question of how copyright exceptions can be drafted to the benefit of education and should inspire countries around the world who want to improve education exceptions. 

The Canadian fair dealing copyright exception

The fair dealing copyright exception is a users’ right that allows for the use of a material that may infringe copyright, but only if it is “fair”. The Canadian Copyright Act limits fair dealing to the purposes of research, private study, education, parody or satire, criticism, and news reporting. In 2004, the Supreme Court of Canada provided 6 factors to determine “fairness”. Applied on a case by case basis, these factors are the purpose, characteristics, and amount of the dealing, and any available alternatives, the nature of the work, and the dealing’s effect on the work in the market on the copyright owner.

In 2012 the Supreme Court of Canada expanded the application of fair dealing to educational purposes. They ruled that copying short excerpts of copyrighted materials is reasonably necessary to carry out the purpose of research and private study. Even in an educational context, fair dealing allows for no more than 10% of a copyrighted text to be copied. The educational institution must have legal access to the initial copy of the work in order to use the fair dealing exception. However, the Copyright Act includes education exceptions in addition to fair dealing (educators can choose whichever happens to be more advantageous for their purposes).

The fair dealing provision under the Canadian Copyright Act is similar to “fair use” exceptions in other jurisdictions such as the US, Israel, the UK, and South Korea. Canadian fair dealing differs from US fair use in that it has a closed (but flexible) list of purposes to which it applies. Israel allows for up for 20% of a book to be copied under fair use. The Australian Law Reform Commission stated that copyright must leave breathing room for new works and productive uses that use other copyrighted material — a goal that can be achieved through fair use.

The European legal landscape is currently an inharmonious mix of exceptions. EU law gives Member States the option of creating education exceptions or limitations, but each Member State has implemented these differently (or not at all). For example, the Estonian education copyright exception is broad in scope and application, while Austria’s are much more restrictive.

The fair dealing myth

There is a myth going around that fair dealing destroyed the Canadian publishing industry. However, the challenges facing the publishing industry are the result of a complex, changing digital world — not fair dealing. The facts are that educational institutions have increased their spending on copyrighted materials alongside fair dealing, publishers profit margins have increased (even in education divisions), and licensing continues to be the foundation of access between publisher and user.

The Canadian fair dealing doesn’t provide enough rights for educational institutions to fully utilise the materials, meaning licensed materials continue to be necessary. At the University of Guelph, fair dealing accounts for only about one fifth of course e-reserve use. The majority of their use is comprised of site licences, open access, and transactional licences. The University of Guelph’s experience (similar to other universities’) demonstrates that fair dealing does not replace licensing — it only complements the educational experience.

The changes sustained by the publishing industry since 2012 are actually due to evolving use and purchase patterns, not the 2012 inclusion of education in fair dealing. Students and teachers are turning more and more to strictly digital use and libraries are purchasing the bulk of their new materials in digital form. Universities are increasingly opting to buy licences from alternate sources rather than purchase large packages of copyright materials from copyright collectives such as Access Copyright. But these changes are not hurting the industry, only changing it. Canadian publishers are reporting increases in digital revenue. Similarly, fair use has not stopped the US educational publishing industry from thriving.

Lessons to be learned

Provided fair dealing exceptions can keep up with technological changes, they offer a flexible approach to balance users’ and creators’ rights. The Canadian example allows courts to decide what constitutes fair dealing for any material, medium, and method of use while maintaining flexibility. This is much better than having legal concepts determined by rightsholders through license agreements, which is what we have been seeing in Europe. This is what makes Canada’s approach stand out – decisions about the scope and application of the exception are ultimately in the hands of the court, not rightsholders. In the European Union context, giving courts the discretion to make these decisions will lead to increased uniformity in access to education across the EU.

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