Fair dealing has unsurprisingly emerged as one of the dominant topics of the ongoing Canadian copyright review. While educational institutions maintain that spending on content has increased since the 2012 reforms that added education to the list of fair dealing purposes, Access Copyright and the publishing community argue that licensing revenues have declined. Starting today, I’ll be posting a series on fair dealing that unpack many of the issues and demonstrate why House of Commons committees studying the issue may have been misled by exaggerated and inaccurate claims.

The series starts with the foundational argument from Access Copyright and its supporters, namely that current educational practices are the result of the 2012 copyright reforms that led to a significant expansion of fair dealing. The implication is that the government broke their compensation system in 2012 and should “fix it” by curtailing educational use of fair dealing. Future posts will explain why licensing has actually increased since 2012, but this post is limited to the oft-heard claim that the 2012 reforms are to “blame” for current educational practices.

The attempt to link licensing approaches to the 2012 reforms – particularly the expansion of the fair dealing purposes to include education – has become a standard line for proponents of limiting fair dealing. Access Copyright’s submission to the copyright review argues that education and the collective had a mutually beneficial relationship that “deteriorated following the Copyright Modernization Act (the “CMA”) coming into force in 2012, due largely to the education sector’s interpretation of the addition of ‘education’ as an enumerated purpose to fair dealing (the “Education Exception”).”

Access Copyright supporters tell a similar story: the Association of Canadian Publishers told the committee “we’ve been damaged by the Copyright Modernization Act”, the Writers’ Union of Canada said to the committee “we now know that the 2012 imposition of education as a category of fair dealing has delivered none of its intended benefits and has caused exactly the kind of economic damage many of us predicted,” and Copibec noted to the committee that “about six years ago, we appeared before the committee studying Bill C-32. At that time, we warned MPs about the risks and potential abuse associated with introducing the word ‘education’ into the fair dealing exception.”

While linking the 2012 reforms to copyright practices today may have emerged as a standard lobbying line, the reality is that Access Copyright told the Copyright Board of Canada in 2016 that the legislative changes merely reflected the law at the time and did not expand fair dealing. The copyright collective was asked during the interrogatory process of a case involving a post-secondary institutions the following question by the board:

Describe the impact on fair dealing in educational institutions of the addition of “education” in s. 29 of the Copyright Act and of the Alberta and Bell Supreme Court of Canada decisions. To what extent do these developments expand fair dealing in educational institutions?

Unlike the claims to MPs conducting the copyright review, Access Copyright responded (Document AC-21 in the Access Copyright – Post-Secondary Educational Institutions case) that the legislation did not expand fair dealing, but rather merely codified what the Supreme Court of Canada had already ruled:

The majority of the Supreme Court of Canada in Alberta (Education) v. Canadian Copyright Licensing Agency (Access Copyright) found in its July 2012 decision that teachers who copy copyright-protected works for their students on the teachers’ own initiative share a symbiotic purpose with the students who are engaged in their own research and private study. The majority concluded that “[i]nstruction and research/private study are, in the school context, tautological.” In effect, the majority of the Supreme Court of Canada jurisprudentially expanded the meaning to be afforded “research “and “private study” to include instruction. This decision expanded what was once understood to be limited allowable purposes of private study and research to include copying performed for the purpose of instruction or education.

This expansion of the allowable fair dealing purposes was later codified in the amendments to section 29 of the Act. The coming into force of the statutory amendment in November 2012 did not serve to further expand fair dealing because the Supreme Court of Canada had already interpreted the exception as including that purpose. Simply put, and contrary to the apparent position taken by a number of educational users that the legislative amendments further expanded fair dealing in education, the legislative inclusion of education as an express allowable fair dealing purpose simply now accords with the jurisprudence [bold added].

Access Copyright’s response to the Copyright Board that the legislative change merely codifies the Supreme Court’s jurisprudence is surely wrong given that the legislation received royal assent on June 29, 2012, two weeks before the Supreme Court of Canada’s Alberta v. Access Copyright ruling. Moreover, since those decisions were based on the research and private study purposes, the addition of education must have meant something more than what was already found in the law. The inclusion of education as a fair dealing purpose was better viewed evolutionary rather than revolutionary, representing a compromise between those calling for a full fair use provision and those seeking to further restrain fair dealing.

Regardless, given Access Copyright’s position before the Copyright Board, the claims that current fair dealing practices are the result of the 2012 reforms are misleading. Canadian fair dealing practices over the past five years have involved increased licensing and copying practices that are largely the result of technological change, new digital licensing alternatives, and court rulings, not the 2012 reforms as Access Copyright and its supporters now claim in an effort to convince the committee to backtrack on the earlier amendments.