DECEMBER 2008 | NO 3

Introduction

Legislative Fair Dealing Framework & Judicial Introduction Interpretation air Dealing is the right, within limits, to pose of news reporting does not infringe Determining Freproduce a substantial amount of a [if attribution is provided] ...” Fair Dealing copyrighted work without permission from, or payment to, the copyright owner. Its In the absence of a statutory definition, Fair Dealing purpose is to facilitate creativity and free the task of giving meaning to fair dealing in Practice expression by ensuring reasonable access to falls to the courts and to the users of copy- existing knowledge while at the same time righted material. For many years the Legislative protecting the interests of copyright owners. prevailing judicial view was that fair dealing Agenda It is important that academic staff know was only a narrow defence against a charge of their fair dealing rights and exercise them to . This began to change Conclusion the fullest extent. It is equally important that in 2002 with the Supreme Court of Canada universities and colleges codify robust fair decision in Théberge v. Galerie d'Art du Petit Appendix A – dealing practices in institutional policy. Such Champlain Inc. In Théberge the Court held Fair Dealing guidelines are necessary because the Copy- that the proper balance in copyright: Checklist for right Act does not contain a simple formula that sets out exactly what may or may not be “... lies not only in recognizing the creator’s Academic Staff copied without permission or payment. rights but in giving due weight to their Rather, fair dealing requires the exercise limited nature. In crassly economic terms Appendix B – of judgement. This advisory, drawing on it would be as inefficient to overcompen- Institutional jurisprudence from the Supreme Court of sate artists and authors for the right of Fair Dealing Canada, offers direction in the exercise of reproduction as it would be self-defeating Policy this judgement and a framework for codifying to undercompensate them.” [para 31] institutional fair dealing policies. The judges emphasized that:

Legislative Framework and “...excessive control by holders of copy- Judicial Interpretation rights and other forms of intellectual may unduly limit the ability he lists fair dealing’s per- of the to incorporate and Tmitted purposes, but does not actually embellish creative innovation in the define what it is: long-term interests of society as a whole, or create practical obstacles to proper Section 29 - “Fair dealing for the purpose utilization.” [para 32] of research or private study does not infringe copyright.” In 2004 the Supreme Court directly Section 29.1 - “Fair dealing for the purpose addressed fair dealing in CCH Canadian of criticism or review does not infringe Ltd. v. Law Society of Upper Canada. The copyright [if attribution is provided] ...” ruling dealt primarily with the Law Society Section 29.2 - “Fair dealing for the pur- library’s practice of delivering copies of case

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law, legal articles and other research material • indicated the permissible amount of to lawyers. The Court found that this practice copying was determined by the exercise constituted fair dealing, not copyright of judgement: “Ordinarily, requests for a infringement. In reaching this conclusion the copy of one case, one article or one statu- Court urged an expansive understanding of tory reference will be satisfied as a matter the rights of the users of copyrighted material: of routine. Requests for substantial copy- ing from secondary sources (e.g. in excess “The fair dealing exception, like other of 5% of the volume or more than two exceptions in the Copyright Act, is a user’s citations from one volume) will be right. In order to maintain the proper referred to the Reference Librarian and balance between the rights of a copyright may ultimately be refused.”; and owner and users’ interests, it must not be • noted that the service was provided on interpreted restrictively.” [para 48] a not for profit, cost-recovery basis.

The Court also held that: Determining Fair Dealing • the specific fair dealing categories (research, hether or not copying constitutes fair private study, criticism, review, news Wdealing depends on the facts of each reporting) should be given a broad and case. To assist in this determination the Court liberal interpretation; in the CCH decision set down six criteria that • even though a library does not itself engage allow educators, librarians and students to in research or private study, for the purpo- conduct their own analysis of whether their ses of reproducing a work it may stand in use of a work is fair. These criteria are: the shoes of a patron who is engaging in research and private study; and 1. The Purpose of the Use – To consti- • existing “custom and practice” can help tute fair dealing the use in question must fall determine if the reproduction of a work within the following categories: constitutes fair dealing. • research; With respect to “custom and practice”, the • private study; Court placed heavy emphasis on the fact • criticism; that the library had codified its fair dealing • review; or practices into a written policy. This “Access • news reporting. to the Law Policy”: The Court instructs that these purposes • limited the copying service to a defined are to be broadly interpreted. Research community (“lawyers, articling students, includes work done both for profit and not for the judiciary and other authorized profit. Criticism goes beyond the academic researchers”); or literary sense of the word and should be • required that the copying be for the fair interpreted to include critical political com- dealing purposes set out in the Copyright mentary, controversial viewpoints, and even Act (research, review, private study and when undertaken with a genuine criticism) and an additional purpose intent to criticize the parodied work. Similarly, (use in court, tribunal and government “review” should mean more than the discus- proceedings); sion of artistic merit. It should also capture

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the review and disclosure of facts and events. In fact, the Justices observe “It may be “News reporting” can extend beyond the work possible to deal fairly with a whole work”. of the traditional print, radio and television [para 56]. The Court is clear that the media to encompass community and organiza- exercise of judgement is determinative: tional newsletters and web logs. In addition to the coverage of current events, “news report- “The amount taken may also be more or ing” could also mean the documentation of less fair depending on the purpose. For the broad sweep of natural and human history. example, for the purpose of research or If the “purpose” hurdle is cleared, a private study, it may be essential to copy an cumulative weighing of the next five criteria entire academic article or an entire judicial determines the existence of fair dealing. decision. However, if a work of literature is copied for the purpose of criticism, it will 2. The Character of the Dealing – Here not likely be fair to include a full copy of the court touches on two sub-criteria to assess the work in the critique.” [para 56] how the work is dealt with - the number of copies made and existing custom and practice. 4. Alternatives to the Dealing – Here According to the court: the Court proposes a necessity test:

“If multiple copies of works are being “If there is a non-copyrighted equivalent of widely distributed, this will tend to be the work that could have been used instead unfair. If, however, a single copy of a work of the copyrighted work, this should be is used for a specific legitimate purpose, considered by the court. I agree with the then it may be easier to conclude that it Court of Appeal that it will also be useful was a fair dealing.” [para 55] for courts to attempt to determine whether the dealing was reasonably necessary to With respect to “custom and practice” achieve the ultimate purpose. For example, the court notes that if the copying at issue if a criticism would be equally effective if it conforms to an existing practice in a “trade did not actually reproduce the copyrighted or industry” (or, by analogy, the academic work it was criticizing, this may weigh community), it is more likely to be fair. against a finding of fairness.” [para 57]

3. The Amount of the Dealing – The Copying an article or a chapter for the CCH decision offers no mechanical formula purposes of research or private study would for determining how much of a work can be pass this necessity test in most instances. copied fairly; it provides parameters that allow the public to exercise judgement. In doing so, 5. The Nature of the Work – The Court the Court is clear that fair dealing encompasses again identifies two narrow sub-criteria: the copying of substantial amounts of a work: whether a work has been published and whether it is confidential: “If the amount taken from a work is trivial, the fair dealing analysis need not “The nature of the work in question should be undertaken at all because the court will also be considered by courts assessing have concluded that there was no copy- whether a dealing is fair. Although certainly right infringement.’’ [para 56] not determinative, if a work has not been

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published, the dealing may be more fair in “... the purpose of the dealing, the character that its reproduction with acknowledgment of the dealing, the amount of the dealing, could lead to a wider public dissemination the nature of the work, available alternatives of the work — one of the goals of copy- to the dealing and the effect of the dealing right law. If, however, the work in question on the work are all factors that could help was confidential, this may tip the scales determine whether or not a dealing is fair. towards finding that the dealing was unfair.” These factors may be more or less relevant [para 58] to assessing the fairness of a dealing depen- ding on the factual context of the allegedly By analogy, the nature of academic work - infringing dealing. In some contexts, there published to disseminate ideas, often with may be factors other than those listed here no motive of direct financial gain - may that may help a court decide whether the favour a fair dealing analysis of its use. dealing was fair.” [para 60] 6. The Effect of the Dealing on the Fair Dealing in Practice Work – The Court raises the issue of economic competition: he advancement of knowledge depends Ton the free and open exchange of infor- “Finally, the effect of the dealing on the mation. This truth is so strongly understood work is another factor warranting consi- within academic culture that a belief in an deration when courts are determining amorphous “public interest” or “educational” whether a dealing is fair. If the reproduced right to reproduce works without permission work is likely to compete with the market or payment is commonplace among academic of the original work, this may suggest that staff. Faculty routinely distribute copies of the dealing is not fair. Although the effect their own work, notwithstanding that they of the dealing on the market of the copy- may have transferred copyright to a publisher. right owner is an important factor, it Liberal copying is also done of the works of is neither the only factor nor the most others, for research, private study, criticism, important factor that a court must consider review and classroom use. When academic in deciding if the dealing is fair.” [para 59] staff do assert their copyright, it is often to protect academic freedom, scholarly integrity In the academic environment the repro- and open communication rather than for duction of multiple copies of core course personal economic gain. texts (a novel, for example) would tend to This behaviour constitutes an ill-defined undermine the commercial market for the but robust custom of educational fair dealing. work and thus probably not constitute fair While it has served the advancement of dealing. In contrast reproducing single knowledge well, it is now under pressure copies of portions of supplemental material from copyright licensing agencies, publishers for research, private study, criticism or review and the entertainment industry; each eager likely would meet the fair dealing test. The to see all uses of works regulated and mone- reproduction for these same purposes of an tized. The challenge for academic staff is to entire article from an academic journal or protect the open exchange of information. a chapter from a book would as well This can be achieved by molding existing practices of sharing to fit within the fair The Court concludes: dealing parameters set out by the Supreme

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Court of Canada in the CCH decision. necessary to push for the enshrinement of the At an individual level, this means under- CCH analysis in the Copyright Act. Legislative standing that it is legal to copy substantial clarification is needed in four particular areas: amounts of a work without seeking permis- sion from, or providing payment to, the 1. Scope – Fair dealing currently covers copyright owner when: five purposes: research, private study, criti- cism, review and news reporting. This list • the purpose of the copying falls within the needs to be expanded to encompass addi- broad categories of research, private study, tional instances of copying that would criticism, review or news reporting; and pass the CCH test but do not fall specifically • it is fair to do so given the character of the within the enumerated grounds. For example, dealing; the amount of the dealing; alterna- more explicit rights are needed for artists to tives to the dealing; the nature of the original engage in parody and collage; for teachers work; and the effect of the dealing on to display and reproduce material in the the work. classroom; for computer scientists to engage in reverse engineering; and for the public To assist academic staff a Fair Dealing at large to copy material into different for- Checklist is attached as Appendix A. mats to facilitate time-shifting and device interoperability. At the institutional level, the Supreme Rather than creating a long list of new “pur- Court in CCH is clear that a library, for the poses” for fair dealing, this simple amendment purposes of reproducing a work, may stand to the Act would achieve this result: in the shoes of a patron who is engaging in research and private study. This analysis “Fair dealing for purposes such as research, logically extends to permitting a classroom private study, criticism, review or news professor to fair deal (copy) on behalf of reporting does not infringe copyright.” his or her students. However, the prudent course of action is to encourage the institu- The inclusion of the words “such as” would tion as a whole to fulfill this role. This can indicate that the categories are not rigid, be done by promulgating specific fair dealing limited and exclusive, but are understood to policies for library reserves and interlibrary be broad enough to cover all legitimate uses. loans (including electronic material) as well as broad institutional fair dealing guidelines 2. Definition – As noted, the Act does similar to the Great Library’s. not actually define fair dealing. To introduce clarity, the legislation should be amended to An example of an Institutional Fair Dealing provide a definition: Policy is attached as Appendix B. “Fair dealing is the user right to reproduce The Legislative Agenda a substantial amount of a work without permission or payment as determined by he Supreme Court of Canada has given factors such as: the purpose of the use; the Tfair dealing real meaning and power character of the dealing; the amount of the and it is important that academic staff take dealing; alternatives to the dealing; the advantage of the Court’s rulings. To solidify a nature of the original work; and the effect robust understanding of fair dealing it is also of the dealing on the work.”

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3. Statutory Damages – The Copyright righted work without permission from, or Act entitles copyright owners to recover payment to, the copyright owner. Its purpose money from anyone who infringes their is to facilitate creativity and free expression by copyright. The actual amount lost through ensuring existing knowledge is not placed be- infringement is often small so the Act gives yond reasonable access while at the same time the owner the right to claim an award of protecting the interests of copyright owners. statutory damages ranging between $500 and $20,000 for each work infringed. The Parliament and the courts have created existence of this significant penalty encourages this broad and important right and entrusted individuals and institutions to be extremely its proper exercise to the good judgement of cautious in exercising user rights, especially the public. Theoretically, fair dealing could a right such as fair dealing that is not explicitly have been legislated as a precise formula defined in the Act. with crisp boundaries, but this is not the In order for fair dealing and other user way the law has developed. The limits of rights to be meaningful a simple amendment the practice are imprecise and will always to the Act is needed to restrict the availability be subject to dispute. Rather than retreating of statutory damages: from this grant of discretion, the education community must fully accept it and define “Statutory damages shall not be available for itself, within the parameters set by in any case where an infringer acted with Parliament and the courts, what is fair. a good faith belief that their actions with respect to a work are justified by fair dealing This means that academic staff must know or other limitations.” their fair dealing rights and exercise them to the fullest extent. It is equally important that 4. Fair Dealing in Digital Works – To universities and colleges codify robust fair achieve its purpose, fair dealing must apply dealing practices in institutional policy. Such equally to works in paper and digital format. guidelines can inform the actions of academic Specifically, the Copyright Act must not staff and will signal to the courts and Parlia- prohibit the circumvention of measures that ment the “custom and practice” of fair “lock down” (by encryption or otherwise) dealing at universities and colleges. digital works unless the purpose of the cir- cumvention is infringement. In other words, Finally it is incumbent upon academic staff, any new provision in the Act that prohibits as individuals and through their associations, circumvention must be carefully targeted to participate in the process of copyright against infringement (for example, commercial reform. In particular, Parliament must hear piracy) and must not prohibit circumvention from the education community on the issue to allow fair dealing and other user rights. of fair dealing. A robust information com- Finally, the Act must not ban devices or mons, where ideas and information are readily services that facilitate circumvention, as they accessible, is fundamental to the scholarly may be essential to exercise fair dealing rights. process, free expression and to Canada’s wider social, cultural and economic development. Conclusion Advocating for a balanced Copyright Act that enshrines the robust practice of fair dealing air dealing is the right, within limits, to will help ensure the health of this commons Freproduce a substantial amount of a copy- and thereby serve the public interest.

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Appendix A lawfully posted on the internet. In some instances explicit consent to reproduce A Fair Dealing Checklist for this material is present, such as when Academic Staff work posted on the internet is amenable to routine browser commands such as air dealing is the right, within limits, “print”, “save”, “copy” and “send”. Fto reproduce a substantial amount of a copyrighted work without permission from, 3. Are there alternatives to fair dealing or payment to, the copyright owner. Its in a copyrighted work? Rather than fair purpose is to facilitate creativity and free dealing in a work it may be possible to simply expression by ensuring reasonable access to provide an internet link to it. It is also unne- existing knowledge while at the same time cessary to fair deal in a work if your institu- protecting the interests of copyright owners. tion has paid for a license to reproduce it There is no simple formula that sets out (although beware of paying for a license to exactly what may or may not be copied engage in copying that would fall under fair without permission or payment. Rather, fair dealing). dealing requires the exercise of judgement. The following questions offer direction in 4. Are you copying a small portion of the the exercise of this judgement. work? Section 3. (1) of the Copyright Act provides: 1. Is the work protected by copyright? Material in the public domain (including “For the purposes of this Act, “copyright”, facts, ideas and works in which the term of in relation to a work, means the sole right copyright has expired) can automatically be to produce or reproduce the work or any used without permission or payment. It is substantial part thereof …” not necessary to conduct a fair dealing analysis before copying such material. This means a fair dealing analysis is only necessary when the amount to be repro- 2. If the work is protected by copyright, duced is substantial. Insubstantial amounts has its owner given implicit or explicit of a work may automatically be used without consent to make reasonable use of it? If permission or payment. the work is under copyright but is presented for public use with minimal restrictions then 5. Does the copying fall within the Copy- reproducing it is reasonable if the reproduction right Act’s listed fair dealing purposes? is consistent with the owner’s presentation of To constitute fair dealing the purpose of the the content. For example, reproduction of a copying must be (as broadly construed) re- work for not-for-profit educational purposes search, private study, criticism, review or news would be acceptable if that was the reason reporting. If the use falls within these cate- the owner originally made it available. Large gories then a cumulative weighing of steps six scale commercial re-distribution of the same through ten determines if the copying is fair. material would be unacceptable. Examples of material presented for public use with 6. Is the character of the dealing fair? minimal restrictions include open access Making multiple copies of a work in a way publications, works covered by a Creative that stands out from traditional academic Commons license and much of the material practice has the appearance of unfairness.

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The reproduction of fewer copies for a gain - may favour a fair dealing analysis of specific legitimate purpose in conformity its use. with existing practice is more likely to be fair, especially when the distribution of the 10. What is the effect of the dealing on copy is limited to a defined audience (for the work? If the reproduced material is like- example posted on a restricted access web ly to compete with the market of the original site). Charging a copying fee to recover work, this may suggest that the dealing is costs, rather than in expectation of a profit, not fair. However, although the economic would also suggest fairness. effect of the dealing on the copyright owner is an important consideration, it is neither 7. Is the amount of the dealing fair? The the only factor nor the most important portion of a work copied (up to and including factor in deciding if the dealing is fair. the entire work) will be more or less fair depending on the purpose. For research or Fair Dealing in Specific Situations private study it may be essential to copy an entire academic article or an entire chapter he ten steps outlined above provide the of a book. However, if a work of literature is Tbasis for academic staff to conduct their copied for the purpose of criticism, it may own fair dealing analysis. In specific situa- not be fair to include a full copy of the work tions they would apply as follows: in the critique. As a practical matter some works, such as a photograph or short poem, • Fair Dealing in Research - The reproduc- can only be reproduced in their entirety and tion for purposes of research of single the question of whether copying the entire copies of single items (such as an article work is fair will depend on the circum- from a journal or a chapter from a book) stance. Academic practices encourage proper from a larger source would strongly tend citation and judicious use of direct quotes. to be fair. Copying an entire book or journal volume would be less so as such 8. Is it necessary to reproduce the work? action would unreasonably undermine To qualify as fair dealing the copying must be the commercial market for the work. reasonably necessary to achieve its ultimate • Fair Dealing in Scholarly Publication - purpose. For example, if a critique would be The reproduction within an article or equally effective if it did not reproduce in monograph of substantial quotations, full the subject of the critique, this may images, tables (with attribution) would weigh against a finding of fairness. The constitute fair dealing for the purposes of existence of a non-copyrighted equivalent review and criticism. It would be more of the work that could be used instead of the difficult to justify the reproduction of copyrighted work would also weigh against larger works in their entirety within the a finding of fairness. publication. As noted above, academic practices encourage proper citation and 9. Is the nature of the work conducive to judicious use of direct quotes. fair dealing? A work that the owner had no • Fair Dealing in the Classroom - The intention of distributing, such as confiden- reproduction of a copy of a work for tial material, would be harder to fair deal. criticism and review in the classroom An academic work - published to disseminate would tend to be fair. In particular the ideas, often with no motive of direct financial transformative use of a work by students

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in a project would meet the criteria. The Single copies of library materials, required simple presentation by a teacher of an “off for the purposes of research, review, private the shelf” lesson plan probably would not; study and criticism, as well as use in court, nor would the performance of a work to tribunal and government proceedings, may raise funds or to entertain students. be provided to users of the Great Library. This service supports users of the Great Some Additional Questions Library who require access to legal materials while respecting the copyright of the • If you are thinking of copying someone publishers of such materials, in keeping else’s work, would you be displeased with with the fair dealing provisions in Section 27 the copying if the work was yours? If you of the Canadian Copyright Act. would, this might suggest unfairness. • Does the copying depart radically from the Guidelines to Access custom and practice of your colleagues? If it does this would tend to suggest unfairness. 1. The Access to the Law service provides • Is the purpose of the copying simply to single copies for specific purposes, identi avoid developing your own lesson plan or fied in advance to library staff. presentation in order to save time and 2. The specific purposes are research, review, effort? This would tend not to be fair. private study and criticism, as well as use • Is the copying necessary to facilitate in court, tribunal and government pro- access to content for research and critical ceedings. Any doubt concerning the review? This would tend to be fair. legitimacy of the request for these purposes • What are the economic implications? If will be referred to the Reference Librarian. the copying would undermine a legitimate 3. The individual must identify him/herself business model or cause the future and the purpose at the time of making the production of similar works to cease it request. A request form will be completed would tend not to be fair. by library staff, based on information provided by the requesting party. Appendix B 4. As to the amount of copying, discretion must be used. No copies will be made for The Law Society of Canada - any purpose other than that specifically Great Library Access to the Law set out on the request form. Ordinarily, Policy requests for a copy of one case, one article or one statutory reference will be satisfied he Law Society of Upper Canada, with as a matter of routine. Requests for sub- Tthe assistance of the resources of the stantial copying from secondary sources Great Library, supports the administration of (e.g. in excess of 5% of the volume or justice and the rule of law in the Province of more than two citations from one volume) Ontario. The Great Library’s comprehensive will be referred to the Reference Librarian catalogue of primary and secondary legal and may ultimately be refused. sources, in print and electronic media, is 5.This service is provided on a not for profit open to lawyers, articling students, the basis. The fee charged for this service is in- judiciary and other authorized researchers. tended to cover the costs of the Law Society.

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