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The silence  of AUCC is deafening. Has anyone heard from them regarding the Supreme Court (SC) decisions? What do they have to say about their counseling overly restrictive views of fair dealing in their model fair dealing policy recommendation.

Below are some of my comments on the AUCC fair dealing policy in light of the recent SC decisions. Note that I am not a lawyer and these are opinions. I am open to being corrected where needed.

Here is the March, 2011 version of their model fair dealing policy:

http://www.tru.ca/library/pdf/AUCC-Fair-dealing-policy-March-2011.pdf

There may be a later version, but it is not easily findable online.

The AUCC policy claims that fair dealing does NOT permit making copies for course packs or required readings. The SC has ruled that whether readings are required or not in a course is NOT relevant to fair dealing and copies may or may not be put in course packs or on reserve depending on the 6 point test.

The AUCC policy doc also claims that some licenses overrule fair dealing. The SC has asserted the importance of fair dealing as a user right. Licenses do not take away fair dealing rights.

Guidelines 1 & 2 refer to making a single copy of a work. The SC has determined that that the number of copies for students is NOT a factor. You can make multiple copies of a reasonable portion of any work under fair dealing.

Guideline 3 states that no copying may exceed 10% of a work. Guideline 4 refers to 5%. The SC supports a reasonable amount of copying, which is not limited to these amounts. The amount cannot be unreasonable, but what is reasonable must be interpreted liberally. Do you, as a reasonable person, see 5% or 10% as “liberal” or is it overly restrictive?

Guideline 9 recommends cutting off faculty who avail themselves of their fair dealing rights to make multiple copies of reasonable portions of their work.  And, Guideline 10 recommends refusing faculty who wish to copy under fair dealing. Also, the policy distinguishes between published and unpublished works. Fair dealing extends to unpublished as well as published works. Everything is copyrighted. So, why does AUCC make this distinction?

10b) states that destroying a copy after it is used is one of the criterion for judging whether a copying is fair dealing? This view is not supported by the SC.

Guidelines 12 & 13 for interlibrary loans wrongly states that only a SINGLE copy is fair dealing when the SC has judged that a faculty member can make copies for all his/her students under fair dealing. And, there is nothing in fair dealing that distinguishes a paper copy from an electronic copy. On the contrary, the SC has determined that the law must be technology neutral.

Guideline 14 was overly prescriptive then and is even more so now, given the continued liberal interpretation of the SC decision.

III University Library Reserve

Guideline 16 states ONE copy for 30 students. Fair dealing allows copies for every student according to the SC.

16b) refers to “optional” and “supplementary” material. This distinction is NOT relevant to fair dealing according to the SC. And the policy insists that faculty must confirm that their copy is supplementary in writing. This is insulting both to fair dealing and to the faculty member.

16c) stating that library reserve cannot substitute for purchasing books or course packs is overkill.  According to a liberal interpretation of fair dealing this is quite possible in some, if not many, cases.  On the contrary, the SC determined that using a portion of a work should not force the institution to buy the whole book.

16d) has overly restrictive and clearly unnecessary requirements for students

16e&f) fair dealing is NOT necessarily limited by time so why do they insist on a “limited duration” and that the users must “destroy” the ecopy.

17 ECopies

This parallels 16 and the same comments apply except that it has even more unnecessary restrictions for faculty and students.