The York Appeal and Fair Dealing Guidelines

By Adrian Sheppard

By Adrian Sheppard

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The long-awaited decision from the Federal Court of Appeal in the Access Copyright v. York University case was released on April 22. There are two key issues in the case: whether the Copyright Board’s Post-Secondary Tariff is mandatory in its application to institutions, and whether conforming with York University’s Fair Dealing Guidelines constitutes fair dealing under the Copyright Act.Copyright Act.

On the mandatory tariff issue, the Court found in York’s favour, overturning the decision of the lower court and confirming that such tariffs are voluntary. This was a very welcome result for the post-secondary community, as it allows institutions the freedom to choose from a range of possible approaches and licensing options to remain copyright compliant. I have written previously about the importance of this issue to the university. I am hopeful the Court’s very thorough treatment of the matter will settle the issue, although Access Copyright may seek leave to appeal to the Supreme Court of Canada (SCC).

On the guidelines issue, the Court found against York, upholding the decision of the lower court that copies made in compliance with York’s 2012 Guidelines would not necessarily constitute fair dealing. York may seek leave to appeal to the SCC on this issue.

Given that the University of Alberta also relies on its own Fair Dealing Guidelines, it is reasonable to wonder what impact the decision might have here. Whenever there is a court decision that speaks specifically about fair dealing guidelines, it is important to consider the points raised in that decision and how they might relate to and inform the guidelines currently in place at our institution.

At present, there will be no changes to the University of Alberta Fair Dealing Guidelines in relation to course materials for the Spring and Summer Terms this year. However, there is expected to be an internal review of the guidelines forthcoming, and there may be some minor changes for the Fall Term. Instructors will be informed of any such changes before the end of the Summer Term.

One of the frustrating things about the treatment of the guidelines in each of the two York decisions is that the Courts seem to be taking a somewhat different perspective on how fair dealing works, and should work, at post-secondary institutions than the perspective taken by the institutions themselves, notwithstanding that the institutional perspective seems well-grounded in the SCC jurisprudence on fair dealing.

Background: Fair Dealing at Post-Secondary Institutions

Private study has been a fair dealing purpose ever since Canada’s first Copyright Act in 1921. Under fair dealing, a post-secondary student has long been able to reproduce and make use of a reasonable portion of a copyright-protected work for the purpose of private study without seeking the permission of, or making any payment to, the copyright holder.

In the Alberta (Education)Alberta (Education) case, the SCC determined that teachers could make copies of materials for students and distribute those copies to the students under fair dealing as a way of facilitating and supporting the private study of their students. Effectively, a portion of a copyright-protected work that a student might copy for herself as a fair dealing could also be copied for that student by her teacher. Furthermore, the teacher of a group of students could make and distribute copies of such portions of copyright-protected works to each of her students to support and facilitate the private study of those individuals. The ultimate user of the work remains the student, and the ultimate purpose of the dealing is the private study of the student. The dealing itself, i.e., the reproduction of a portion of the copyright-protected work for the use of the student for that private study, happens to be performed by the teacher. Although Alberta (Education) deals with the K-12 context, it seems a reasonable extension to apply it to the post-secondary context as well.

At the University of Alberta, when an instructor is determining what materials the students in their course should have access to, there are several possibilities available:

  • the instructor might assign a textbook, which will be made available for purchase through the university bookstore;
  • the instructor might assign or select readings that are openly licensed or free from copyright protection altogether;
  • the instructor might select readings from the large collections of licensed library resources, which include electronic access to a broad range of journal articles and ebooks, and which can be made accessible to students in accordance with the terms of those licenses;
  • the instructor might seek a transactional licence to allow for the use of a specific work for a specific course; and
  • for works that are not covered by university licenses, the instructor might make copies of reasonable excerpts from those works under the University’s Fair Dealing Guidelines.

The instructor is free to make their own choices about which content to provide to the students in her classes. Where certain copyright-protected content is to be provided to the students under fair dealing rather than under the terms of a licence, it is expected that the content provided will be consistent with the University’s Fair Dealing Guidelines. In those rare situations where there is a compelling argument that using an excerpt exceeding the limits of the guidelines might be fair, a more detailed, case-specific, fair dealing analysis can be sought through the Copyright Office.

Why do institutions have Fair Dealing Guidelines? Rather than making individual instructors responsible for conducting separate fair dealing analyses on a case-by-case basis, or having the Copyright Office involved in all such analyses, it has been deemed more efficient to use a set of guidelines that are easy to apply and that are likely to yield a reliable determination of the fairness of the dealing in a large majority of cases.

I have never viewed the University’s Fair Dealing Guidelines as a means of shielding the university from claims of copyright infringement. Rather, I view the guidelines as providing security for instructors as they make choices about the materials that they might reproduce and distribute to the students in their classes, as well as serving as an indicator of where seeking a transactional licence for the use of the material might be more appropriate. It is ultimately an institutional responsibility to ensure that any application of its guidelines in relation to the reproduction and distribution of course materials is reasonably likely not to infringe copyright. If such a reproduction and distribution of course materials is found to be infringing, then the institution is legally responsible. However, where that reproduction and distribution has been within the University’s Fair Dealing Guidelines, notwithstanding the infringing outcome, in general, the instructor should be considered to have acted in a manner consistent with university policy.

The Federal Court of Appeal’s assessment of York’s Fair Dealing Guidelines

What did the Federal Court of Appeal determine about York’s 2012 Fair Dealing Guidelines? Effectively, the Court determined the mere fact that the use of a copyright-protected work is consistent with York’s Guidelines is not sufficient to ensure that that use counts as a fair dealing. Whether or not an application of the York 2012 Guidelines can yield an outcome that infringes copyright does not by itself indicate any need for changes to the University of Alberta Fair Dealing Guidelines. However, what the Court has to say about such guidelines, and what that suggests about the Court’s perspective on how fair dealing should be understood, is definitely of interest and is somewhat concerning.

In the landmark CCH caseCCH case in 2004, the SCC lays out six-factors for conducting a fair dealing analysis, and these factors have been applied in every significant fair dealing case since then. I will comment on what the Federal Court of Appeal has to say about four of those six factors in relation to York’s Guidelines:

The Purpose of the Dealing

The Federal Court of Appeal distinguishes between the purpose of the institution making the copies and the purpose of the student using the copies in its analysis of the purpose of the dealing. However, if the dealing in question is the reproduction of a specific excerpt of a specific work and providing that reproduction to a specific student for her private study (in relation to a specific course), then it is not clear to me how the purpose of the university in relation to that specific dealing is anything other than supporting and facilitating the private study of each individual student in that course.

The Federal Court considered it reasonable to inquire into York’s “real purpose or motive in using copyrighted work”, which included “to obtain for free what had previously been paid for” and “to keep enrolment up by keeping student costs down…”[240]. “It is significant that York disputes the Court’s factual conclusions but primarily defends itself by disputing their relevance”[241].

Yet, I must also dispute their relevance. Suppose any of us is offered an expensive licence that covers an activity that we believe we are legally entitled to engage in without such a licence. In what respect is our purpose in pursuing that activity tied to avoiding the licence? Whether we choose the path with the licence or the path without the licence is not relevant to our purpose in pursuing the underlying activity. That purpose is antecedent and fully formed; in this case, making readings available to students in a class. Our motivation for taking the most effective lawful path to achieve a given purpose should not be permitted to colour that purpose.

The Character of the Dealing

[258] Since the issue in this case is the fairness of York’s Guidelines, the application of the CCH analysis means that the Federal Court did not err when it concluded that the Guidelines tended towards unfairness either in the aggregate or from the point of view of an individual student receiving 360 copies, an amount which York did not justify beyond invoking education as an allowable purpose.

To consider the matter of aggregate copying in this case, it is important to look at it from the point of view of the individual student and what would be permissible under fair dealing for the purpose of private study for that individual student. When it comes to the number of pages, say 360, each student receives, it should not make a difference whether the cumulative 360 pages are all from one work, involving only one dealing, or from 360 different works, involving 360 separate dealings, provided that each of the dealings involved in accumulating that stack of 360 pages is fair. This would be no less true if the stack were 1000 pages.

The other side of the aggregate copying issue involves a concern about the number of copies that might be made of any specific excerpt from a given work. However, the same reasoning applies. If it would be fair dealing for one student under a certain set of circumstances to make a single copy of a given excerpt from, say, Margaret MacMillan’s Paris 1919: Six Months That Changed The World, for the purposes of private study, then, if there were ten, or a hundred, or a thousand, or ten-thousand students under relevantly similar circumstances, it should also be fair dealing for each of them to make a single copy of that same excerpt for their own private study. It is not clear to me why it should make any difference who is physically producing the copies if the end result is the same (as per Alberta (Education)).

The Amount of the Dealing

[281] As noted earlier, at paragraph 56 of CCH, the Supreme Court made the point that the amount of copying had to be justified by the purpose of that copying. The Federal Court found that York had not done so. Before this Court, York does not try to remedy the omission but emphasizes its allowable purpose (education) and returns to the issue of the proper perspective. York has made no attempt to explain the various thresholds found in the definition of Short Excerpt or the apparent anomaly resulting from a work’s publication format.

A full fair dealing analysis, looking at the specific details of a particular use, can assess the qualitative aspects of an excerpt to be used. The general nature of guidelines makes these qualitative distinctions more difficult to address, so guidelines tend to focus on the quantitative. Most universities base the definition of “short excerpt” in their guidelines on the definition developed by the AUCC (now Universities Canada) and included in the sample set of guidelines it released in 2012 for general use and adaptation. The different categories of works (books, periodicals, etc,) and the copying threshold for each category have never struck me as unreasonable in the general case, but to justify such thresholds might be challenging, except perhaps through looking at a large selection of use cases and determining whether there were any clearly unfair outcomes. Nevertheless, it is not clear that this type of justification would satisfy the Court, and the Court offers no guidance on what a satisfactory justification might involve.

Alternatives to the Dealing

[290] It is sufficient for the purposes of this factor to point out the significant difference between York’s copying and the copying in Alberta Education. York’s copying is systematic while the copying in Alberta Education was ad hoc. Recall that the Copyright Board found that there was no system in place with respect to the Alberta teachers’ copying. As a result, the Federal Court did not err in concluding that the two situations were not equivalent.

It is not clear to me what counts as “systematic” copying, except having a set of guidelines in place to govern the sources and the size of the short excerpts that might be copied and having some infrastructure to facilitate the reproduction and distribution of readings. Beyond that, the decisions around what readings to assign (and provide) to the students of their classes are made entirely by the instructors. It is not clear how any dealing itself, which seems to me to be the reproduction and distribution of a specific short excerpt from a certain copyright-protected work by an instructor for the distribution to the students in her class for the purpose of their individual private study, is any different between York and what is described in Alberta (Education). Moreover, the fact that “education” was added as a fair dealing purpose in 2012 might suggest more openness under fair dealing to any such “systematic” approaches to copying by institutions in support of their students’ studies.

Takeaways from the Decision on Fair Dealing

Judicial decisions that comment on the application and fairness of such guidelines are a good prospective source of potential improvements for institutions to consider.

Safeguards: “As the copier, it was incumbent on York to ensure that its Guidelines were implemented according to their intent, since the integrity of the Guidelines and York’s practice are at the heart of its claim of fair dealing”[239]. It is certainly prudent for universities, on an ongoing basis, to take reasonable steps to confirm whether and the extent to which their guidelines are being used as intended. “In addition, York’s Guidelines did not attempt to forestall downstream copying and redistribution by students [256]”. Whether this is the role of the guidelines per se, or whether it is more the role of a copyright literacy program, it is certainly prudent for universities to take reasonable steps to ensure students who are receiving copies of copyright-protected course materials, whether those materials are reproduced and distributed under licence or under fair dealing, are aware of the terms and conditions that allow for and govern their access to those materials.

Justification of Thresholds: This issue may merit some time and attention in order to strengthen the guidelines and ensure they are yielding fair outcomes. A large research university operates across a broad range of subject matters and a variety of categories of works that are reasonably likely to be dealt with as sources for course materials to be reproduced and distributed under fair dealing. Structuring a set of guidelines that remains simple to apply but that draws appropriate distinctions between the relevant categories of works with a reasonable and defensible fair dealing threshold for each category remains the objective.

Summary

Fair dealing is a right that is available to students, staff, faculty, and to institutions themselves. Guidelines are only one tool to ensure that this right is exercised to the fullest. Universities are large creators as well as large users of copyright-protected materials, and they well understand the importance of copyright law’s balance of rights and the role of fair dealing in maintaining that balance. The Federal Court of Appeal’s decision in this case will inform future discussions about how universities use Fair Dealing Guidelines and the content of those guidelines, but the decision does nothing to diminish the role of fair dealing in the activities of post-secondary educational institutions in relation to their lawful use of copyright-protected materials.

For additional information about copyright at the University of Alberta, or to arrange an information session for your department or faculty, check out the Copyright Office website, or email the help desk.Copyright Office website, or email the help desk.

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About Adrian Sheppard

Adrian has been the Director of the University of Alberta’s Copyright Office since April 2015. One role of the Copyright Office is to educate and inform U of A students, faculty and staff on issues related to copyright. Adrian has an LL.B. from the University of Victoria.