It's Just not Fair! - York University's Copying of Works for Teaching not Fair Dealing

Since the decision in CCH (discussed more on this blog here), fair dealing has been very different in Canada, showing its flexibility and adaptability in modern copyright issues. Due to the much broader, US fair use comparable doctrine introduced in the CCH case, some could even argue that fair dealing has gone too far and become too strong of a shield. Even so, many cases have challenged, and will challenge, the notion of fair use and its extent, and a recent Federal Court decision looked at fair dealing yet again.

The case of Canadian Copyright Licensing Agency v York University dealt with with the distribution of study materials to students by York University in the form of Coursepacks. These information packs contained a course outline or syllabus, course notes, and course materials such as excerpts from books, journal articles, and other miscellaneous materials. The packs were produced by York University Printing Services (or at times external printers, e.g. Keele Copy Center).  The University did have a licensing arrangement with CCLA, which expired in 2010, but was renewed on an interim basis. The University then terminated the arrangement, remaining outside of CCLA's copyright licensing scheme. Remaining outside of the scheme would force the University to monitor its compliance with copyright laws (including fees and reporting). CCLA wanted to enforce the previously agreed interim tariff, and took York University to court, with the University counterclaiming fair dealing for any reproductions.To protect their interests, York University published its own copyright guidelines in the absence of a different agreement.

The first point of contention was whether the Interim Tariff would be enforceable against York University regardless of their termination of the tariff.

According to Justice Phelan, handing down the Court's judgment, the historical development of collection societies and their fees for the use of copyright protected works shows legislative intent to provide the societies "…with effective enforcement mechanisms against users who are not subject to an agreement and who reproduce, without authority from owners or without the benefit of an exception (e.g. fair dealing), copyright protected works covered by the collectives". These tariffs are legally binding subordinate legislation, which has no opt out capability. Only if "…York did not copy any works in Access’s repertoire, if it obtained proper permission to copy those works, or if the copying was exempt by law… then the tariff would not be applicable". Ultimately the Court concluded that the Interim Tariff would be mandatory and that CCLA would be entitled to the recovery of the royalties and other associated costs.

The Court then moved onto the consideration of whether the use by York University would fall under fair dealing.

The basis for fair dealing in Canada is CCH Canadian Ltd v Law Society of Upper Canada (discussed more here), which sets out, much akin to fair use in the US, the criteria for fair dealing to be established. They are that the use is an authorized purpose under section 29 of the Copyright Act (such as education), and that the use is 'fair'. The fairness of any use has no set definition, but is assessed based on 6 non-exhaustive factors: a) purpose of the dealing, b) the character of the dealing, c) the amount of the dealing (amount of copying), d) alternatives to the dealing, e) the nature of the work, and f) the effect of the dealing on the work.

As the threshold for establishing that a use falls under an authorized purpose is low, the Court quickly concluded that the use by York University was indeed for education. The Court then took on the assessment of fairness, looking at each of the factors above individually in relation to the facts at hand.

Teaching methods vary greatly, irrespective of coursepacks

Firstly, what the purpose of the dealing was. The Court considered that the initial assessment of the authorized purpose of the use and the first fairness factor had a great deal of overlap. To mitigate this, they aimed to find out the 'goal of the dealing', rather than its purpose, which they determined to be the allowance of access for students to various teaching materials. However, due to the termination of the Interim Tariff, and the introduction of the copyright guidelines, the Court saw that the goal of the dealing was two-fold: "…Education was a principal goal, specifically education for end user. But the goal of the dealing was also, from York’s perspective, to keep enrolment up by keeping student costs down and to use whatever savings there may be in other parts of the university’s operation". The goal therefore was not simply an altruistic furthering of education, but to also to cut costs. The factor was not deemed to be strongly in favor of fairness.

Secondly, the Court looked at the character of the dealing. This includes the examination of how the work was dealt with, the number of copies made, and the extent of its dissemination. Data provided by York University was very unreliable, according to Justice Phelan, due to largely deficiencies in user access data. Justice Phelan concluded that the issues with the data and poor witness evidence from York University weighed towards unfairness under this factor.

Thirdly, the amount of dealing was looked at. This is not a simple consideration of the quantity of material used, but also a qualitative one on the importance of the part that was copied. What the Court focussed on were the copyright guidelines issued by York University, which specified a 10% limit to copying from a single work, without discussing the qualitative element. Due to this lack of qualitative control, works were copied indiscriminately and multiple times for different courses. The Court therefore failed the amount of dealing assessment, as there was nothing fair about the amount of dealing used.

Fourthly, the Court took on considerations for alternatives to the dealing. Should there be no alternatives the factor can weigh in favor of fairness, due to the necessity of the copying. The volume of material from varied sources used in teaching, as evidenced by York University, did show a degree of necessity for the copying. While there were alternatives, there were no free alternatives to use, which subsequently left the Court to conclude that the factor favors York University.

Fifthly, what the nature of the work is. As most of the materials copied were academic or creative works, they required a great deal of creativity, complex analytical analysis, skill, perspective, and judgment by authors. Due to the significant skill, effort, and investment involved, the nature of the works weighs against York University, especially considering their treatment by both the copiers and the guidelines issued by the University.

Finally, the Court considered the effect of the dealing itself, for example, on the creators and publishers of the work. This could amount to a possible element of competition with the original work in the marketplace.  The creation and distribution of the coursepacks at issue have shown a decrease in sales and licencing revenues for CCLA, especially after the issuing of the copyright guidelines. The Court concluded that "…the Guidelines have caused and will cause material negative impacts on the market for which Access would otherwise have been compensated for York’s copying".

The Court ruled against York University, disallowing their counterclaim for fair dealing as the University failed on 5 out of 6 factors as discussed above. York University have stated that they will appeal the decision.

The case will potentially have profound effects on Universities in Canada, particularly on those who might not be under a licence from the CCLA. As the case will be appealed the future of the decision remains uncertain, potentially even reaching the Supreme Court down the line, yet professors, librarians and administrators at Universities need to be careful in the meantime. This writer does not purport himself to be a Canadian copyright expert, and the decision has received quite a bit of criticism, so he will refrain from making sweeping comments on the validity of the decision.

Retrospective - All's Fair in Dealing and Education

Having just a few days ago written about the Canadian progression in the field of fair dealing and education in the new Copyright Modernization Act 2012, I thought it would be best to address a case that changed the way the old provisions of fair dealing applied to both study and education in newfangled ways, applying the principles set out in the mammoth of a case that was CCH, practically still hot from the oven (discussed on this blog as well and worth reading should you be unfamiliar with it).

The case of Alberta (Education) v Canadian Copyright Licensing Agency (Access Copyright) dealt with the copying of excerpts from textbooks and other materials by teachers to distribute to their students as a means to study only specific parts of texts. Some of the materials being copied were under the copyright of Access Copyright, for which various royalty payments were negotiated in the 1990s between the school boards and the company. After subsequent negotiations there was an agreement made for royalties to be paid on a volume basis, instead of the old per-student basis negotiated for most of the decade.

The use of the copies was tracked individually to ascertain the volume being copied; looking at their purpose, who made the copies, and who they were for. Most of the copying was done by teachers either for themselves or for students at their behest, which was agreed to fall under fair dealing by both parties. The contentious matter was the copying of materials for students by the teachers to take home and read. It was argued that this copying of materials did not fall under fair dealing for research or private study, as the copies were not requested by the students themselves, not meeting the requirements set out in CCH, at the initial hearing for the Copyright Board. The schools argued that they would fall under the provision thus being exempt from the tariffs set by Access Copyright. The Copyright Board decided the use did not fall under fair dealing, failing to meet the requirements under CCH; however the schools appealed the decision.

Private "study"

The case culminated in the Supreme Court of Canada in mid-2012 where the matter of whether the teachers' use fell under fair dealing, specifically the aforementioned provision of research or private study was finally decided. One has to note that the Canadian provision expressly mentions the possible use of materials for study as a private one, possibly indicating that a teacher could not act as a conveyor of material to the student, largely being Access Copyright's argument in the case; as the copies were not made at the request of students, it did not fall under fair dealing.

The courts gave an interesting argument, deciding that the teachers' use did indeed fall under fair dealing. To fully appreciate how the Court reached this conclusion, it is useful to look at what exactly was said in the judgment:

"...there is no such separate purpose on the part of the teacher.  Teachers have no ulterior motive when providing copies to students.  Nor can teachers be characterized as having the completely separate purpose of “instruction”; they are there to facilitate the students’ research and private study.  It seems to me to be axiomatic that most students lack the expertise to find or request the materials required for their own research and private study, and rely on the guidance of their teachers.  They study what they are told to study, and the teacher’s purpose in providing copies is to enable the students to have the material they need for the purpose of studying.  The teacher/copier therefore shares a symbiotic purpose with the student/user who is engaging in research or private study.  Instruction and research/private study are, in the school context, tautological."

Clearly the Court saw that the relationship between a student and their teacher is symbiotic; one where the teacher merely facilitates the students' private study by providing them with the material. Should the students be instructed to go and look for the material themselves, copy it, and use it for personal study, their learning would clearly be hindered significantly. Without the teacher being a sort of "middle-man", and being a part of that personal study, the students would suffer.

The Court didn't alter its position in the matter of personal study, firmly sticking to its prior interpretations, but did apply common sense in the relationship between a teacher and a student in that regard. The case didn't enable anyone to abuse the provision under the veil of providing materials for others for personal study. The decision was a 5-4 split decision, clearly showing a side of disdain even in the judiciary to accept this use of fair dealing as such, but nevertheless the decision seems to be a practical one and clearly makes sense. Without the option for teachers to copy and distribute reading materials for their students, the underlying matter of fairness would be skewed towards the copyright owner instead of the user, clearly going against what fair dealing stands for; the allowance of use of various copyright materials to improve yourself, your knowledge and to improve society as well without the shackles of copyright payments when clearly there is no competing interest.

Retrospective - Fair dealing in modern Canada

What are the limits to what you can do with copyrighted material that you've bought? The degree of freedom can vary quite a bit, even within the common law system itself, ranging from more restrictive (and, quite frankly, out-dated) levels of fair dealing such as in the UK, to the broad fair use of the United States. The position of fair dealing in common law countries took a huge leap in the beginning of the new millennium, in the frozen North of all places.

The land of maple syrup, lumberjacks, and apparently fair dealing

The hallmark case of the early 2000s in the development of fair dealing and its application in Canada was CCH Canadian Ltd v Law Society of Upper Canada which not only shaped subsequent legislation, but changed the approach taken to fair dealing within the judiciary. The case was one of several where the Supreme Court of Canada flexed its muscle and actively developed the interpretations of fair dealing provisions in Canada.

To provide the case with some exposition, fair dealing essentially is a set of categories through which copyrighted material can be used. In Canada, the UK and Australia fair dealing is restricted to fixed categories, such as criticism and review, study and research, and the reporting of news, with the US standing alone with a much broader, open-ended policy of fair dealing (in the US referred to as 'fair use'); leaving out set categories and opening up fair use to a much wider interpretation and application by the judiciary. One could describe the former jurisdictions as a feeding bowl approach, where the acts allowed are merely provided as exceptions as opposed to being intrinsically embedded in the copyright provisions or copyright itself as a concept. What this means is that essentially the exceptions are treated as leftovers, or in another sense inferior to that of the rights in copyright and their execution. The US legislation takes a much more lenient approach, evaluating the possibly infringing act through its nature and purpose, clearly allowing for more wiggle-room and judicial interpretation than its counterparts.

The case of CCH dealt with the copying of legal materials for practitioners and law firms within Ontario, seldom including other parts of Canada as well, where cases, legislation and other works were copied and sent to their customers for a fee. The Law Society also offered photocopying services for anyone wishing to copy the materials themselves. CCH Canadian took exception to this use of copyrighted material, some of which were owned by them, and sued the Law Society for copyright infringement. The matter went as far as the Supreme Court of Canada, where the case dealt with a number of issues, but the more influential of which considerations over fair were dealing under the Canadian legislation.

One quote in the case, albeit not directly related to the fair dealing discussed, from the case of Théberge v Galerie d'Art du Petit Champlain Inc by Justice Binnie, showcasing the Court's attitude towards copyright quite well:

"The Copyright Act is usually presented as 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)... The proper balance among these and other public policy objectives lies not only in recognizing the creator’s rights but in giving due weight to their limited nature."

What this approach does differently is discuss the limited nature of the rights, whereas often the rights of authors and content creators alike is treated as absolute while fair dealing is purely annexed to those rights. The balancing of public interest and rights is imperative when considering fairness, which is an operative part of all fair dealing. If balance between people’s interests and their rights is not struck real fairness can never be attained.

In its deliberation of fair dealing the Court formulated the approach that should be taken when assessing proper fair dealing, more specifically fairness in that dealing, using both the US legislation discussed above and the English case of Hubbard v Vosper and set six factors that need to be assessed in determining the fairness in fair dealing; (1) the purpose of the dealing; (2) the character of the dealing; (3) the amount of the dealing; (4) alternatives to the dealing; (5) the nature of the work; and (6) the effect of the dealing on the work. In their decision the Law Society had not infringed copyright and their actions fell square within fair dealing. The purpose of the dealing refers to a possible commercial or defamatory use of the works, while its nature also plays a part in the deliberation, that being whether the work is published or confidential for example. Amount refers to how much of the work was copied, be it a page from a book or the entire work; the more copied, the more likely it will not be a fair amount. Would copying the work be something that has to be done, with no alternatives, or would other ways of accessing or using the same or similar material be available, and at what cost or effort would this come at. Finally whether the copying has a detrimental effect on the work or its sales has to be considered, with a satiric work clearly not affecting a factual work’s sales in the same market. The terms themselves are left relatively open, providing space for deliberation and interpretation on a case-by-case basis.

The vigilant guardians of copyright

Without diving too deep into the specific findings of the Court, one conclusion can be drawn from the outcome and the language used; the Court changed the approach often taken in copyright from a rights holder emphasized approach to a user-centric approach. As stated before showed a change of attitude within the judiciary, placing fair dealing not merely as an allowance provision, but as a set of intrinsic user rights that existed by virtue of the public's need to use their legally purchased material in ways which were not foreseen in the drafting of earlier laws. What the Canadian Supreme Court did was bring fair dealing closer to the 21st century, and brought it back into life. 

This case and ones after it spurred the Canadian Parliament to act and a piece of legislation was introduced, the Copyright Modernization Act, which brought the old laws more in line with the Internet, clarified the position of internet service providers and permitted certain acts of copying by consumers.