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International Law

: Excess Copyright

Answer to Quiz re Fair Dealing in Universities Copyright

By Howard Knopf, Esq.

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Back on November 17, 2010, posted a "quiz" on the source of a document on fair dealing in the university context. The document was extremely restrictive of what can be permitted and seemed stop short of realizing the potential for empowerment from the 2004 Supreme Court of Canada decision in CCH v. LSUC.

One might have guessed that it came from Access Copyright itself - since it is so very restrictive. Or CARL, which speaks for university research libraries and which might have taken the responsibility for such a document. CMEC has been very conservative as to the ambit of fair dealing in the K-12 context - but of course CMEC does not speak for universities.

The answer, however, is AUCC itself - which speaks for the administration of Canadian universities.

I understand that a "final" version of this document will issue later this week.

It will be interesting to see what the changes entail.

The original quiz and links are below.

This document purports to provide "guidelines" to Canadian universities about fair dealing. Readers may be interested in guessing when and from where it emanates. I shall provide two important hints.

Hint #1:

The source is one of the following:

- Access Copyright (?AC?)

- Association of Universities and Colleges Canada (?AUCC?)

- Canadian Association of Research Libraries ("CARL")

- Council of Ministers of Education Canada ("CMEC")

Hint #2:

The landmark Supreme Court of Canada decision dealing with fair dealing, namely CCH. v. LSUC, was rendered on March 4, 2004.

This document begins as as follows:

Fair Dealing Policy

I. Copying Guidelines

1. Except where otherwise stated, these guidelines apply to the making by a university [of] a single copy from a work protected by copyright for the purposes of private study or research [sic] in circumstances in which the consent of the owner of copyright has not been secured and is not required by reason of the fair dealing exception in the Copyright Act. Permission from a copyright holder may be required where the copy falls outside of these guidelines.

A few preliminary notes:

- The correct phraseology is ?research or private study? and NOT ?private study or research.? The phraseology as above (i.e. ?private study or research?) is simply wrong. We amended the legislation a long time ago to make the word ?private? modify the word ?study? and not the word ?research?. Details such as this can matter very much in court cases and clearly do matter in the context of the university.

- The document is not even internally consistent on the foregoing point. At one point, it uses the correct phrase ?research or private study?.

- I?ve highlighted some of the more restrictive points on what is supposedly permissible according to the document.

Readers are asked to guess who penned the linked document and when it was written. Guesses and comments can be posted below, anonymously if so wished. Even I won?t know who is the source of the comment, if provided anonymously. As always, I will block or remove defamatory, tasteless or baseless comments. Be constructive.

The original "quiz" and links follow below.

Full post as published by Excess Copyright on December 07, 2010 (boomark / email).