Fair dealing protected at Queen's

Legal reform and Supreme Court cases support the University’s argument to not sign agreement

“I made it, so I control it.”

Whether this statement is repulsive or attractive to you, it’s probably the way you understand the logic of copyright.

But according to the Supreme Court, in five major cases handed down in July, and according to the Parliament of Canada, in Bill C-11, passed in June, it isn’t correct. And this might make your life a little easier at university.

Copyright is in fact a balance between the rights of creators (or the labels, collectives, publishers and so on who represent them) and the rights of users.

This isn’t some new notion: the fact, for example, that copyright has a limited term shows that it isn’t like property.

After a certain period where the creator is compensated, artistic creations enter the public domain.

And since 1911, the Canadian Copyright Act has also featured “fair dealing,” a provision by which “fair” use of copyrighted material for the purposes of research, private study, criticism, review, or news reporting doesn’t have to be paid for.

Fair dealing is necessary to academic work: it’s what allows us to quote people or books without permission, to take notes and keep records and to show readers where we got our information.

This year, Bill C-11 added education, parody and satire to this list of eligible fair dealing purposes.

The recent Supreme Court cases insist that fair dealing is a robust element of copyright. They ruled in SOCAN v. Bell that 30-second iTunes clips don’t trigger copyright payments, because people use them to research what to buy. They’re fair dealing.

You pay when you buy, not when you try.

In Alberta (Education) v. Access Copyright, the court said that it is “not reasonable” to expect schools to pay for every little photocopy.

While it remains the case that systematic or wholesale copying must be paid for, some more limited copying is fair dealing because it facilitates study and research.

These developments are good for Queen’s, because the University decided this summer to not buy into the license that Access Copyright was offering.

Access Copyright represents writers and publishers, and in the past, Queen’s as used it to clear rights for photocopying. However, the new deal Access offered on digital copying had many flaws and strings attached. It also would have increased costs for students.

Based on the Supreme Court’s 2004 decision in CCH v. Law Society of Upper Canada, many have argued that most copying done on campus — chapters and articles copied by students in the process of writing essays for example — is fair dealing.

To have the Supreme Court and Parliament confirm the weight of fair dealing even further is a good thing for universities.

But what does this have to do with you?

Well, in the abscence of the Access license, Queen’s is working hard to keep things simple for students.

Prices for photocopied course packs will include copyright fees (the Publishing and Copy Centre is run by the AMS and the Campus Bookstore by EngSoc, and they have licenses of their own with Access, apart from the university). This way, you only pay copyright clearance for the courses you take.

If your courses use digital materials, Queen’s will pay behind the scenes for access to those, either through a subscription with their publisher, or as cleared through the library’s Copyright Advisory Office.

So basically, when it comes to course materials, you don’t have to do anything: librarians, profs, and the copy shop and bookstore take care of it for you.

Of course not all the copies you may make are official course readings.

So remember, the Supreme Court and Parliament have affirmed that as a researcher and learner, you can do limited amounts of copying as you need to without paying the publisher.

Need to copy an article or a graph or chart so you can work on your term project? That’s okay.

Queen’s has very specific guidelines for fair dealing, since without “fair,” it doesn’t exist. But, sorry to say, this situation confers on you a responsibility.

If copyright isn’t as bad as you thought, if it includes rights for users, it’s incumbent on users to respect the rights of creators.

It’s a relationship, or a bargain. In the words of Chief Justice Beverley McLachlin, copyright is about balancing “the public interest in promoting the encouragement and dissemination of works of the arts and intellect and obtaining a just reward for the creator.”

So think about it: would you think it was fair if somebody used your song or essay or video in a certain way? If not, maybe hold off.

We don’t want anybody sued around here: your parents might not appreciate the legal bills.

Laura Murray is a professor in the departments of English and cultural studies

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