Clearing Up the Copyright Confusion (Part II)

By Dan Glover

Last week, a dispute arose about the scope of the “fair dealing for the purpose of … education” language proposed in Bill C-32, an Act to Amend the Copyright Act. This dispute was captured in a February 16 blog by John Degen, in which he discussed a running battle with the writer Cory Doctorow about what the Copyright Act currently allows in respect of fair dealing, and what it would allow under the proposed regime. Doctorow’s views are contained here in a responding blog.

While I take issue with Doctorow’s choice to “disemvowel” John Degen or anyone who happens to disagree with him – free culture but not free speech? – I have focused this comment on Doctorow’s repeated contention that fair dealing is available only to “protected groups”, namely journalists and critics, but not to other persons, namely educators. Nothing could be farther from the truth.

The fair dealing regime in the Canadian Copyright Act does not at all apply to classes of persons. Rather, it applies when any person deals fairly with a copyright work for an allowable purpose, namely research, private study, criticism, review, and news reporting.

The Copyright Act is very clear when it applies only to specific persons. For example, the exceptions in ss. 29.4 to 29.9 of the Act apply only to “educational institutions”, a term that is specifically defined in s. 2 of the Act. If you don’t fit into this category, you don’t have a right to the exception.

By contrast, the fair dealing exception imposes no conditions as to who can exercise it. In CCH, the Supreme Court found that the Great Library could make free copies of cases for lawyers who were working for clients, even though the lawyers were clearly operating for profit. In the recent Access Copyright K-12 decision (Copyright Board; Court of Appeal), there was no royalty awarded against schools for single copies made solely for the purpose of research or private study, as well as multiple copies made at the request of third parties solely for these same purposes. (See para. 60 of the Copyright Board decision.) So the suggestion that educators cannot make free copies for research, or private study, criticism review or news reporting purposes under the current regime is simply wrong.

What is truly at issue in this debate over C-32 is whether it makes sense to introduce a new allowable purpose of great potential breadth, thus asking one public good (publishing) to deeply subsidize another (education), when other economic inputs into the school system (energy, labour, supplies) face no such challenge.

I have commented at length at the unanticipated effects such an amendment might have in an earlier blog. Suffice it to say that given the recently documented fragility of this important cultural and educational enterprise, robbing Peter to pay Paul has never seemed less wise.

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