Copyright in Canada: When Ten Percent is Too Much

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While the assault on writers and publishers by the university community in Canada continues, based on the dubious proposition that the educational exception for fair dealing means that institutions of higher learning no longer need to obtain licences to reproduce material in course packs and other classroom material, there is some hope for redress through the courts. On February 9 the Quebec Court of Appeal overturned a ruling from a year earlier by the Quebec Superior Court thus allowing the Société québécoise de gestion collective des droits de reproduction (Copibec for short) to bring a class action suit against Université Laval on behalf of all authors and publishers from Quebec, the rest of Canada and other countries.” The lawsuit in Quebec parallels the one in English Canada where the copyright collective, Access Copyright, is suing York University (and indirectly most other post-secondary institutions in the rest of Canada) for similar infringements.

As I discussed in an earlier blog, that lawsuit was launched as a result of a decision by the Association of Universities and Colleges of Canada (AUCC) to back out of an agreement for a new model licence that would have resolved the issue of student photocopying, and updated copying guidelines for the digital age. The AUCC decided that the new educational exception added to the Copyright Act in 2012 allowed it to determine unilaterally how much copying of a work constituted fair dealing. The guidelines were based generally on the “10% rule” (i.e. in the view of the AUCC, copying up to ten percent of a work constitutes fair dealing, along with application of other criteria such as one chapter from a book, one article from a periodical, one page or article from a newspaper etc.). The Canadian courts however have ruled that the amount of copying is just one of six factors (not dissimilar to the four fair use factors that are considered in US jurisprudence) that must be considered. These are;

(i) the purpose of the dealing; (ii) the character of the dealing; (iii) the amount of the dealing; (iv) the alternative to the work; (v) the nature of the work; (vi) the effect of the dealing on the work.

There is nothing sacrosanct about the 10% rule (although it is used as a general guideline in the US). While authors and publishers in Canada–who themselves support and use fair dealing in their work–are unhappy that a fixed numeric formula is being mechanically applied to deny them economic compensation for use of their works, there are those (in the librarian community for example) who advance the argument that a numeric formula is too constricting.

Meera Nair, the Copyright Officer for the Northern Alberta Institute of Technology (NAIT) in Edmonton who writes Fair Duty, a pretty good blog (with which I don’t always agree, but that is ok) on copyright issues, has this to say about the six factors and the 10% rule.

“We have… to remember that the six factors cited are not sacrosanct…the framework of exploration (of the limits of fair dealing) must be malleable….”

“To be sure, rules carry some value in setting general guidelines for institutions as a whole. When fashioning policies for use of copyrighted works, the 10% / 1 chapter position of the prevailing policies is a reasonable starting point.” (emphasis added).

In other words, the self-declared fair dealing maximum set by the AUCC is, for this university copyright officer, just the starting point! She goes on to add;

“Fair dealing is not, and never should be, confined to the perspective of measure.”

I think Access Copyright and Copibec would agree with her on that point, but they are less likely to buy into her other arguments. She claims that all that is really needed to determine whether a dealing is fair or not is for the teacher to consider the purpose for which he or she is using the material, and the means of distribution. In this way, the teacher will be encouraged to use “only what is needed, nothing more”. But what if the teacher determines that 40% of a book is what is needed to illustrate the concept being taught, or even just 5% of the book (but the key elements that strip out the value of the work)? Apparently for Dr. Nair this is ok. No need for reference to the five other factors the Courts have outlined.

It is this kind of thinking that is presumably behind the decision of Laval to thumb its nose at Copibec and do what no other university in Quebec has done—opt out of Copibec’s licence. This is Quebec’s leading research university, an institution that traces its proud history back to 1663, founded by the first Bishop of New France. It boasts that it is known for “advancing and sharing knowledge in a high-energy research and development environment”, a claim that prompted a protest letter to the Rector of the university by many of Quebec’s leading intellectuals who pointed out the hypocrisy of a great institution like Laval acting to undermine rather than uphold the rights of authors.

In fact, Quebec has always placed great stock in its cultural integrity and the ecosystem that supports culture. Perhaps this is a by-product of being a small island of Francophone culture in a sea of North American English language speakers (or Anglophones as we say in Canada), struggling for cultural survival. The French fact in North America has survived—one could even say thrived—for over 400 years. Quebec artists have made a major mark on the cultural scene in Canada, Europe and the United States (Céline Dion anyone?). The many prolific and talented Francophone writers (Gabrielle Roy, Jacques Poulin, Anne Hébert, Michel Tremblay, Marie-Claire Blais, and apologies to the many I did not single out), film makers (Denis Villeneuve, Denys Arcand, Robert Lepage) and singers and musicians (too many to name) all demonstrate how the Quebec cultural scene punches well above its weight in terms of relative size.

In the university sector, all Quebec universities—with the exception of Laval—have continued with their licensing agreements with Copibec despite the AUCC’s views on what constitutes fair dealing. This is in contrast to the rest of Canada where virtually all universities have scrapped their Access Copyright licences—leading to the current lawsuit between the collecting society and York University. The fact that Laval has chosen to follow this trend will now be reviewed by the courts.

Copibec has won an important victory in obtaining the approval of the Court of Appeal to certify its class action. It can now proceed to seek an injunction to stop Laval from copying without a licence the materials of the authors it represents and to seek material, moral and exemplary damages. (Four million dollars is being sought). If nothing else, this case will help clarify what the acceptable limits are to fair dealing in higher education.

It will be important to see what the Quebec court decides regarding these limits. There are precedents in the K-12 sector that may or may not apply, but the Copibec case against Université Laval, as well as the Access Copyright case against York University, should provide some clearer guidance (unless of course there is a settlement prior to judgement). Clarity is certainly needed, as the recent Fair Duty blog illustrates. Without some clear delineation as to what constitutes fair dealing and what does not, many in the university community will continue to take the view that fair dealing is “malleable” and will try to push and expand its limits.

They will do so in the name of education and social benefit, but the reality is that the universities have a direct economic interest in shortchanging creators. Revenues that should go to the creators of content will be diverted to other economic activities on campus; creativity will be subsidizing the salaries of professors (and yes, librarians and copyright officers), new athletic facilities, parking lots, and of course all the many other good things that universities do from cancer research to building a better mouse trap. The research and teaching carried out by universities is important to society, but these activities should not be funded on the backs of authors and publishers.

© Hugh Stephens 2017. All Rights Reserved.

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