Lessons Learned: Fair Dealing Exception for Education, Research and Private Study

Educational Use: A Dickensian Tale of Two Lawsuits by Kevin L. Smith

Georgia State and York University

Similarities in two cases:

Overarching goal to establish how to apply fair dealing in educational copying
Differing positions on how “amount” should be judged
Six factors test for fair dealing from CCH v. Law Society is very similar to four factors of fair use

Differences:

GSU plaintiffs are rights holders, not collective rights organization like Access Copyright
York case starts with availability of blanket license
No U.S. parallel to issue of interim tariff
No Canadian parallel to GSU’s sovereign immunity defense
York case is more recent

Fair Dealing - Two step test

1. Use must be on list of permitted purposes - research, private study, etc.

2. Six factors to consider - purpose, character, etc.

Outsider’s View

- Canadian Broadcasting Corp. v. SODARC (2003)

“Licenses fixed by Copyright Board do not have mandatory binding force”

Article by Ariel Katz

CCH Canadian Ltd. v. Law Society of Upper Canada (2004)

Two step test for fair dealing with factors similar to fair use

Fair dealing is a users’right, not “simply a defense”

Should be interpreted broadly

Alberta v. Access Copyright (2012)

-teacher made copies cannot be segregated from the purpose of research and private study - teacher steps into the role of the student when they make copies on behalf of the student

Digital world really makes everyone an author and a publisher

Harm to authors - commercially available works

Value is set by the consumers who purchase the work

What about academic authors where that is not their purpose

Issue of strategy

- Could a decision on fair dealing and the York guidelines have been avoided?

- Should focus be on mandatory nature of an approved tariff, or only an interim one?

York case has potential for more harmful impact

If Federal Court is upheld:

- Tariffs could become taxes - potential “huge new costs”

- Supreme Court precedents benefiting education would be a least partly erased

Biggest threat to publishers is their failure to transform their businesses to a digital world, not the harm that is done by the educational use of materials

Copyright Librarians in the States provide information on copyright so that the individual can make a decision/assess about risk of use, situations where there are parallels to the facts

Offer information, but not conclusions

Inspired amateur self-help, on the ground risk analysis of fair dealing