Copyright law and Supreme Court expand “fair dealing”
Freeing teachers from red tape is one of the features of new federal legislation.
On June 29, 2012, the Canadian copyright reform bill received royal assent. Although the Copyright Modernization Act (Bill C-11) has passed, its coming-into-force date is still forthcoming.
On July 12, 2012, the Supreme Court issued its Access Copyright decision, protecting and expanding “fair dealing” in schools. The law and the courts have defined new copyright rules for schools (see http://copyright.ubc.ca).
The law: Copyright Modernization Act
1. Expanded fair dealing uses
Fair dealing defends some uses of protected works against copyright infringement. The act specifically extends fair dealing to education, as well as satire and parody, research, private study, criticism, review and news reporting.
2. Expanded educational exceptions
Teachers and those acting on behalf of a school can do the following:
- Do anything necessary to display a work. The display of a work is now technology-neutral (no more specific talk of whiteboards and so on). However, the work should be purchased when it is (1) commercially available in a school-friendly format, (2) reasonably priced and
(3) accessible in the Canadian market.
- Show a legally obtained film, documentary or other video in class.
- Use, reproduce and communicate (for example, by telecommunication) legally posted Internet content so long as (1) sources and authors are cited, (2) the content is not digitally locked, (3) there is no clearly visible copyright protection notice and (4) the school knows (or should know) that the work is not on the Internet as a result of a copyright infringement in the first place.
- Stop paying royalties, destroying or tracking multiple copies of news reports and commentaries.
3. Distance learning supported
Distance education teachers can provide student lessons through telecommunication. Students can copy the lesson for later use as long as both school and student destroy the copy
30 days after final assessments reach the students. Schools must secure lessons against unauthorized access (through digital locks, encryption, passwords and so on).
The Supreme Court: Access Copyright decision
Michael Geist, copyright analyst and scholar, writes: “The Access Copyright case has enormous implications for education and copyright in Canada” (see “Supreme Court of Canada stands up for fair dealing in stunning sweep of cases,” www.michaelgeist.ca/content/view/6588/125/).
The decision specifically addresses teachers’ fair dealing as vital to education. Geist quotes Justice Abella:
Teachers have no ulterior motive when providing copies to students. Nor can teachers be characterized as having the completely separate purpose of “instruction”; they are there to facilitate the students’ research and private study.
Abella goes on to say that
photocopies made by a teacher … are an essential element in the research and private study undertaken by those students. The fact that some copies were provided on request and others were not, did not change the significance of those copies for students engaged in research and private study. (Alberta [Education] v. Canadian Copyright Licensing Agency [Access Copyright], 2012 SCC 37)
The new provisions will advance classroom learning and free teachers from the burden of negotiating outdated copyright laws.
Margaret Shane is the ATA’s records and information manager, privacy officer and archivist.