Aline is right: publishers represent the research and development of the education departments in the country. If there were a single most important thing one could do to improve this bill, it would be to leave out the word “education” from the fair dealing exception in section 29. Because it gives educational institutions and all other commercial or non-commercial private training businesses the right to use any copyright protected work without permission or compensation, it is the one exception that will have the direst consequences on the book industry. On the one hand, academic publishers will see their textbooks largely reproduced without compensation. And on the other hand, literary publishers will lose the benefits of having one of their works studied in class. Moreover, this right is created even though educational institutions have no problem accessing material thanks to the copyright licensing agencies. We are talking about 0.5% of the total annual budget for education in Canada, which is around $70 billion.
Without a precise definition of fair dealing, everything has been said about this exception. The government says it means restricted to “a structured context, including private training but not for the public in general”. The Canadian Association of University Teachers defines fair dealing as “the right, within limits, to reproduce a substantial amount of a copyrighted work without permission from, or payment to, the copyright owner”, while the Conference of Rectors and Principals of Quebec Universities says that the proposed exception “does not mean in any way the end of compensation for creators”.
Let us resolve the issue this morning: it is open ended, free and without permission, as long as it is fair. This one and only restriction to the free use of any given material for educational purposes, fairness, does not protect the book industry in any way.
Establishing what is fair under the new law will drive to litigation and judicial proceedings. The destabilization of legitimate and well-established business models and the costs of litigation will jeopardize middle and long term investments until the courts will have decided on which uses are fair and which are not.
Without a precise definition, The Supreme Court developed a non-exhaustive list of six factors to assist in determining whether a use is fair: purpose, character and amount of the use, alternatives to the dealing, nature of the work and effect of the dealing on the work. However, the court ruled that: “Although the effect of the dealing on the market of the copyright owner is an important factor, it is neither the only factor nor the most important factor that a court must consider in deciding if the dealing is fair”. In other words, a court could conclude that dealing is fair even if it harms the market for a work. In contrast, in the “fair use” regime of the United States, this factor is the “most important, and indeed, central fair use factor”. This gives American publishers the comfort they need to invest in innovative educational resources. If Bill C-11 passes as written, Canadian publishers and foreign investors would not have the same comfort level.
This is why the second and most important thing to do to improve Canada's Copyright Act would be to make sure the “three-step test” of the Berne Convention is incorporated into our legislation so as to become the basis on which courts will rely for the interpretation of fair dealing. This would, among other things, ensure the effect of the use on the work would be prioritized in the determination of what is fair and by the same token ensure our law meets our international obligations.