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Fair dealing for academics

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By Rory McGreal August 20, 2012 - 6:45pm

A Table explaining the recent Supreme Court pentology. Note that the court decision was based on the old copyright law. So it is clear that universities have for decades interpreted fair dealing much too warily and conservatively. The Supreme Court has ruled that fair dealing must be interpreted liberally.

The new Bill C-11 which will come into force shortly is much more open and less restrictive in interpreting fair dealing

                                      Fair dealing

Before:         WRONG                                    After:         RIGHT

Previous accepted wisdom

(in too many cases)

                             Supreme Court decision

Making class copies for students is not research and therefore not fair dealing

Making class copies for students is a type of private research and so is fair dealing

Fair dealing does not apply when the content is required as part of a course rather than optional for supplementary reading.

Fair dealing applies whether or not content is  required, optional or supplementary. The distinction is not relevant to fair dealing.

Copies cannot be placed in course packs or on library reserve.

Yes they can under fair dealing.

Users can only make a single copy of a work for their own personal use.

Teachers can make as many copies of a work as there are students in their course. The number of copies are not necessarily a factor in fair dealing.

Guidelines for 10% of a work or even 5% of some works were used.

Fair dealing allows a reasonable amount of a work to be copied.  What is reasonable must be interpreted liberally not conservatively as in the past.

Fair dealing only refers to published works.

Fair dealing applies to ALL works.

Destroying copies of digital works (“digital book burning”) after use supports fair dealing.

Destroying copies is not a criterion for judging whether a work is fair or not.

Different rules for paper and digital copies.

In fair dealing the law MUST be technologically neutral. There is no difference in fair dealing based on the technology being used.

Only allowing one copy on reserve for many students.

Many copies can be made for student use.

Library reserve cannot substitute for purchasing books.

The Supreme Court ruled that using a portion of a work should NOT force the institution to buy the whole book.

Overly restrictive and unnecessary requirement for faculty and students

No longer needed as the courts have ruled that we should take a liberal interpretation of fair dealing.

Course content is only fair dealing until the end of a course after which the copy must be destroyed.

Fair dealing is not necessarily limited by time.



Furthermore, in the new law,(C-11)  statutory damages for copyright infringement will be limited to  a maximum $5 000 or the actual financial damage caused. The copyright owner would have to prove the financial damage.


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