The 2020 appeals court ruling in York University v. The Canadian Copyright Licensing Agency, declared York’s fair dealing guidelines, which attempted to set out the terms for fairly using articles and chapters in the university’s courses without paying royalty fees, to be other than fair to authors and publishers. The court notes that “York did not justify [its claim to ‘fair dealing’] beyond invoking education as an allowable purpose” (258). In the face of the court’s refusal of York’s blanket appeal to the fair dealing exception to copyright infringement, and now that the case is headed to the Supreme Court, I want to set out for your consideration a different approach to dealing fairly with this particular publishing marketplace.
The readings assigned to Canadian university students are drawn from scholarly and trade publishing sources. There are peer-reviewed journal articles, on the one hand, and media pieces from The Walrus or an excerpt from the Handmaid’s Tale, on the other. While the differences between scholarly and trade publishing economies have persisted for centuries, the distinctions have only grown sharper in the digital era with the introduction, on the scholarly side, of institutional licensing and open access publishing models. There is reason, then, to approach scholarly publications in one way and trade publications in another. What I’d like to propose is a new “three-step syllabus rule” to fair dealing, which is a variation on the Berne Conventions’s three-step test, which applies much more broadly.
The approach utilizes current technologies capable of identifying the readings listed on syllabuses. Such a system could be adapted through machine learning to ascertain scholarly and trade publications. The first step would be to match the readings listed on a university’s set of syllabuses with its library holdings, as well as with open access scholarly resources. This would establish which of the readings that the students already have access to through their university’s institutional licenses, as well as through open access to such resources (that often support publishers, as well).
This first step will prevent the “double charging” of students for assigned readings that their library possesses or are freely available, which amounted to more than half the readings students were asked to pay royalties on in one study. Any of the assigned scholarly materials that are not yet covered by the library’s holdings or by open access would be treated as recommendations for library acquisition, whether through subscription, ebook purchase, or a single-article purchase. The consideration given to acquiring assigned resources, given their demonstrated use and value on campus by instructors and students, is important to the fairness to this approach, leading to the next step.
The second step would be applied to the scholarly readings that are not (yet) available to students through the first step. For these materials an innovative and limited appeal would be made to distributing the works under the fair dealing exception, based on the differences in publishing economies. Among the factors that help determine whether a dealing is fair is “the effect of the dealing on the work,” to cite the influential Supreme Court judgement on this matter, which should not include “a substantial adverse effect, financial or otherwise, on the exploitation… of the existing work” to use the language of the Copyright Act of Canada.
In the special case of scholarly works, however, any “substantial adverse effect” that a publisher experiences is neutralized by the substantial beneficial effect gained by authors in having a work assigned in a university class. This highly desirable “exploitation” for authors can cumulatively lead to “financial” benefits in career development that far outweigh any royalty payments, which are non-existent with journals and insubstantial, if they exist at all, with book chapters. Even if, as is likely, authors have given up their copyright in the work, the Copyright Act still recognizes their moral rights, which relate, in a highly relevant way in this case, to the protection of their “honour or reputation.” That the appeal to fair dealing applies to only the remaining – and decreasing numbers of – assigned readings not covered in the first step of this approach should be seen as adding to the fairness of this three-step syllabus rule.
The third step involves the non-academic readings that are largely the work of professional writers and their publishers. I do not find an appeal to fair dealing for these works to be fair. This follows from the admittedly unusual way in which I draw on the differences in publishing economies for the authors involved. In the case of professional writers’ and their publishers, there is undoubtedly an alignment of interests in avoiding “the substantial adverse effect” of the university seeking fair dealing exceptions for a market made up of Canada’s 1.3 million university students. More than that, the instructors see enough value in such works – in helping them achieve their instructional goals – to assign them to their students (rather than, say, just referring to them in class). This alone suggests the fairness of encouraging the works’ authors and publishers to continue this contribution by compensating them (while scholarly authors and publishers benefit in other ways).
Thus, with media articles and excerpts drawn from trade books, I would support applying Access Copyright’s approved tariff rate to universities and their students. Under this three-step syllabus rule, however, the tariff would need to be recalculated to eliminate any royalties associated with scholarly publications. Insofar as the Copyright Act is intended to protect intellectual property incentives and rights, its interpretation and implementation needs to be responsive to both the longstanding and changing dynamics of publishing.