Fair Dealing Becomes a Whole Lot Fairer of a Deal for Educators

On July 12, 2012, the Supreme Court of Canada issued a ruling on Alberta (Education) v. Canadian Copyright Licensing Agency (Access Copyright) that, on the surface at least, appears to be a game-changer for the educational contribution of “fair dealing” in Canada’s Copyright Act. While in practical terms, the ruling will do no more than cause the Copyright Board to reconsider a case in which it had ruled that a teacher copying short excerpts to use with her class did not constitute fair use. This is actually a pretty standard interpretation of fair dealing, if not a particularly favorable one for educators. Fair dealing currently defines practices that qualify as “exception to infringement” in the use of copyrighted materials, and includes the use of excerpts for “research or private study”; “criticism or review”; and “news reporting.”

What is perhaps most surprising in this ruling is the agreement between Board and Court on the first test of fair dealing, concerning the purpose of the copying. The Copyright Board and Supreme Court agreed that the teacher copying “short excerpts” was allowable under the provision for research or private study. The disagreement between the two bodies was on the second test, “whether the dealing is ‘fair’” (which I consider below). First, let me pause over the breakthrough represented by this agreement that the act of teaching qualifies for copyright exemption, if the copying is fair.

This agreement reinforces the idea that copyright law balances private and public interests in favor of a greater public good. Here’s how I have come to see it, at least: Rather than being solely about protecting intellectual property ownership, copyright law is designed to increase the production of such property as it contributes to the public good. It is a law “for the encouragement of learning,” as the title of the Statute of Anne 1710 puts it, “to promote the progress of science and useful arts” as the U.S. Constitution puts it (see below for Canada’s grander claims in its recent copyright amendment).

To that end, copyright laws offers intellectual property holders an additional property benefit, namely a limited-duration and limited-application monopoly right to exclude others from copying the work without the permission of the owner. The monopoly is limited, for example, by “fair dealing,” which enables excerpts to be freely used in criticism, review, news reporting, research and private study. Such uses have long encouraged learning and promoted the progress of science, and thus are no less important to the goals of this law.

Thus, the importance of how the Alberta decision recognizes teachers’ contribution, through the copying of “short excerpts,” to these larger cultural goals. It signals how instrumental the schools are in preparing the next generation for a productive engagement with intellectual property. Prior to this ruling, the classroom was treated largely as a market for the consumption of intellectual property. This leads me to the second test for fair dealing, having to do with whether, for this now legitimate purpose, can the dealing, be judged fair.

The Court then found, contrary to the Copyright Board, that the teachers’ use of “short excerpts” was, in fact, fair. In coming to this decision, the Court rejected two of the arguments that can be used to undercut fair dealing exceptions: (a) did the teachers have a viable alternative to using the exception and (b) did their use of the exception unduly damage the copyright holder? The Court ruled that the proposed alternative, of buying a textbook for each student of the work briefly excerpted was, an “unreasonable” alternative. It also ruled that Access Copyright failed to provide sufficient evidence that such copying contributed to a decline in textbooks sales.

Here again, the Court’s ruling sends out an important message for the common cause represented by copyright law. The schools are not to be simply regarded as a market to be exploited for every possible sale. Rather, education plays a role with parallels to that of the book reviewer and critic, as they are all engaged in cultivating a discerning audience, eager to engage with what is best about such intellectual properties. As a good critic serves and builds this country’s culture industries, in ways recognized as fair dealing, so do the schools.

It has always struck me as one of the great ironies of Canadian copyright law that the one clear allowance made for education in the Copyright Act is “reproduction for examination,” as if that was the very best setting in which to encounter great writing that one would seek to experience again and again. That irony has now been tempered by the Supreme Court’s ruling Alberta (Education) v. Canadian Copyright Licensing Agency (Access Copyright), and in ways that bode well, in principle, for the life of intellectual property.

This ruling is likely to reinforce a classroom friendly interpretation of the addition of “education” (as well as “parody or satire”) to the allowed purposes for fair dealing in the Act to Amend the Copyright Act, which received royal assent on June 29^th, 20012 and will likely take effect in the fall (see Michael Geist’s blog). The amended Act is prefaced on a desire to, among other things, advance “Canada’s ability to participate in a knowledge economy driven by innovation and network connectivity is fostered by encouraging the use of digital technologies for research and education.”