August 3, 2023 – A number of articles have been published in national newspapers over the past months, building on a decade-long campaign that is misrepresenting the Canadian education sector and universities in particular. The focus of this misinformation is on fair dealing and the use of course materials in classrooms.
Rather than adapt its outdated business model to our digital reality, the collective rights organization Access Copyright is making false assertions of rampant infringement, even ‘theft.’ It claims that its member authors would be better paid if the educational purpose of fair dealing was removed from the Copyright Act and, further, demands that the Government of Canada levy a mandatory tariff on universities – above and beyond the hundreds of millions of dollars that are currently being spent by these institutions to provide students and instructors with course materials.
To be clear, a mandatory tariff would force universities to pay a fee, on a per-student-head basis, for access to small excerpts of materials that the vast majority of students do not and never will use – and these costs will inevitably be passed on to those same, often cash-strapped, students.
The reality is that universities license or students buy access to almost all necessary course materials. In addition, universities continue to pay transactional licences for small excerpts of materials that are beyond their conservative institutional fair dealing guidelines. Unfortunately, this requires paying US companies for those rights, as Access Copyright refuses to provide this service.
There is not, nor has there ever been, intentional or widespread ‘theft’ of intellectual property by Canadian universities. And it is important to keep in mind that the books and articles used in a university setting are usually created by university-based authors who are not seeking their livelihood from copyright royalties.
Access Copyright has also claimed that their requests are in line with other jurisdictions. This is false. For example, there are no mandatory tariffs in the United States and fair use for educational purposes has been an important part of that country’s copyright system since 1976.
The Supreme Court of Canada has played an important role in ensuring that the public interest is well served by our current legislation and libraries continue to respect the law and the decisions of our country’s highest court. This includes the creation of institutional fair dealing guidelines for the increasingly small amount of print materials that might still be subject to fair dealing in this digital age.
CARL continues to assist universities as they make fiscally responsible decisions about how to manage their copyright commitments. This supports both creators and users of copyright-protected works in the classroom, as is intended by the legislation and our highest court.
