Fair [And Educationally Sound] Dealing
in Canada’s Proposed Revisions to the Copyright Act

On June 2^nd, 2010, the Canadian federal government introduced a new copyright bill intended to “modernize Canadian Copyright law,” as Tony Clement, Minister of Industry put it in the press release. I want to join the healthy welter of blogging around this latest attempt to “modernize” our act. Now before you read any further, let me say that the one to read in these matters is Michael Geist, especially as he is all over the most draconian aspect of this new bill, namely how the digital lock provisions trump all other rights.

For my part, I want to pick up on one aspect that is being touted as part of the government’s “balanced copyright“. That balance – which, of course, Michael Geist is rightly arguing is jeopardized by giving all the weight to digital locks – is found in, among other places, additions to the Fair Dealing clauses. One clause has been amended to include three new items: “Fair dealing for the purpose of research, private study, education, parody or satire does not infringe copyright.” 

To now see all of my favorite purposes in life – research, private study, education, parody and satire – grouped like that in a single legislature clause (with criticism and review included nearby) seemed a very fair dealing indeed, and left me feeling proud and hopeful in the face of this new legislation. I was admittedly moved by the inclusion of “education” in Fair Dealing, having campaigned in the 1980s for just such a revision, on the grounds that nothing could do more to engender a post-schooling consumption of Canadian culture than the ability of schools to share that culture as something living and breathing, rather than textbook-dead, with students. My original case for the education exception was that we, as teachers of literature, for example, were deeply committed to creating the market for just such work, and that restrictions on our use of that work was seriously harming the very formation of that market.

However, in its press release of June 3, 2010, Access Copyright declared itself “deeply concerned by the extension of fair dealing to education” (and in the interest of full disclosure I have been a recipient of funds that it collects on behalf of writers). At the risk of biting the hand that has fed me, I wish to consider a pedagogically sound approach for why, when it comes to the purposes of education, fair dealing needs to be based on something more than how it does “not harm the market for a work.” That is, how can teachers demonstrate that they are using such extensions for the benefit of Canadian education.

To step back for a moment, it was decades ago that the photocopier first allowed teachers to supplement their dependence on textbooks. It was a great day in my school when the photocopier arrived in September of 1978. I was soon clipping articles from the Globe and Mail op-ed page at breakfast to share and discuss with the class that morning (an act subsequently covered by Access Copyright’s collective agreements).

Today, the photocopying market is mainly about creating course-packs and handouts. In higher education, where I now teach, Canadian students currently pay 10 cents a page for course-pack materials and their institution pays $3.38 per student annually through Access Copyright. And certainly, the course-pack was a handy enough teaching device, especially if the articles were placed in the order of the classes (and the copies were relatively legible). But the course-pack no longer makes the same educational, economic, and ecological sense that it did even a decade ago.

A good portion of the typical course-pack, namely almost all of the research articles published in journals over the last decade or two, is now available to students through the library’s digital collection (to which student tuition contributes). With a little bit of instruction, students can realize the educational (as well as economic and ecological) advantages of reading online versions of assigned articles. That is, students can be encouraged to consult a work the article references or a work that cites the article; they can check related studies, more recent work, media coverage, or government policies, on the topic. They can also fill in background knowledge they may be missing about the article, as well as share their annotations on the article. 

In the process, their online library skills will improve, even as they might be shown how some articles are freely available in ways they can consult after they graduate, as if to suggest that research might have some relevance to their lives and careers outside of school. Students who learn how to tap into this body of knowledge after leaving higher education might well be more likely, as taxpayers, to support research funding, given the contribution that it makes to Canadian society and the world. And this might seem, taking the longer-term perspective, to be an extremely fair deal for those creators contributing to the journal literature.

What will ultimately modernize copyright in Canada is a revision of the Fair Dealing clause that supports teachers’ efforts to improve the quality of Canadian education and the contribution of Canadian research and scholarship. We might say that, in extending Fair Dealing to educational purposes, “the use is ‘fair’ (i.e., it does not unduly harm the market for a work, compared to the educational advantages it affords).”