The End of Fair Dealing?

FEATURE

THE END OF FAIR DEALING?

Canada’s Copyright Act is under review – what could that mean for education?

By Cynthia Bifolchi

Under law, Canada’s Copyright Act is supposed to be reviewed every five years. The last time the legislation was updated was 2012, so reassessment by the Standing Committees on Canadian Heritage, and Industry, Science and Technology, began this spring. The results of the review could have far-reaching implications for teachers and students, particularly if the provision around “fair dealing” is changed or reversed.

Supreme Court of Canada decisions in 2004 and 2012 provided guidance as to what fair dealing looks like in the educational context. Teachers and students are allowed to copy “short excerpts” of copyright-protected material, provided that the use is reasonably “fair” and the source is credited. A short excerpt is up to 10 per cent of a copyright-protected work (including a literary work, musical score, sound recording, or audiovisual work). This is also defined as: one chapter from a book; a single article from a periodical; an entire entry from an encyclopaedia or other reference work; an entire newspaper article or page; and an entire single poem, artistic work, or musical score from a work containing other poems, musical scores, or artistic works.

Canadian writers and publishers vehemently oppose the fair dealing provision, arguing that using these works without paying for them financially harms the authors and inhibits or stifles the creation of new works. Since 2012, not only have various individuals launched four separate legal challenges, the industry has also actively lobbied government to reverse the provision and make students and instructors liable to pay for copying material, even short excerpts.

“What [fair dealing] means for Canadian publishers is less ability [to] invest in Canadian-specific works,” Kate Edwards, Executive Director of the Association of Canadian Publishers, recently told CBC Radio. “I think that has culture implications for students in this country. In order for creation to continue, and in the Canadian context, [with] Canadian-specific works that speak to Canadian audiences, revenue needs to come back to the writers and the publisher.

“Students copying a few pages in the library [is] not the issue publishers are particularly concerned about. What we are going to be talking about is the systemic copying of large chunks of content, so a full short story from a collection, [or] a chapter of a book that are being used for instructional material.”

The Writers’ Union of Canada shares this view. According to the union, the fair dealing provision introduced in 2012 was

“poorly defined.” As a result, many educational institutions “abandon[ed] a long-established licensing structure that saw writers and publishers compensated for the use of their work.” The organization says this provision costs Canada’s creative professionals tens of millions of dollars per year. It is now calling for “meaningful and substantial” repair of the Copyright Act.

However, this has been met with firm opposition from education stakeholders and teacher, student, and library associations, including the Canadian Teachers’ Federation (CTF), who are calling on the committee to retain the fair dealing provision. According to the Canadian Alliance of Student Associations, restricting the use of short excerpts of materials would have a “chilling” effect on education, and the extra costs involved would hurt teachers and students.

“With fair dealing, Canada’s copyright law supports learning, fosters innovation, and drives knowledge creation by providing teachers and students with the legal right to deal fairly with the copyright-protected works of others,” says Chris George, a communications advisor on copyright and education issues. “It provides the framework for Canadians to acquire the knowledge and skills needed to be competitive globally.”

In July 2017, the Council of Ministers of Education, Canada (CMEC) Copyright Consortium made a statement supporting the Copyright Act as it stands. According to CMEC, the legislation is “good public policy that achieves an important balance between user rights and creator rights” and places Canadian students on a “level playing field” with students in other countries. It also said that given that the publishing industry had an operating profit margin of 11.7 per cent in 2014, promoting a “continued, vibrant publishing industry in Canada does not require a change to the fair dealing provisions.”

The review process for the Copyright Act is expected to conclude by early 2019. In the meantime, you can learn more about your rights and obligations under copyright law by visiting www.ctf-fce.ca/en/ Pages/Issues/Copyright.aspx. There you will find a variety of resources, including Copyright Matters!, a joint publication of CTF, CMEC, and the Canadian School Boards Association. As a teacher, you can share important lessons with your students by exposing them to a wide variety of materials, while being diligent about protecting the labour and original thinking of the creators.

Cynthia Bifolchi is Writer/Researcher in the Communications and Government Relations departments at the OECTA Provincial Office.