Feb. 21 to 25 is Fair Use/Fair Dealing Week, an international celebration of the exceptions to copyright law that functionally allow information to be shared and used in beneficial ways across almost – if not all – aspects of society, though most who rely on these doctrines are not aware of their importance.
Students and faculty might not always be aware of it, but copyright law touches most aspects of academia, and fair use is a vital mechanism for text accessibility in education.
Brianne Selman, scholarly communications and copyright librarian at the University of Winnipeg Library (UWL), explains that fair dealing is the Canadian doctrine that legislates “any time we’re making or sharing a copy of something someone else has the copyright to without directly asking for their permission for a set of enumerated purposes,” including education, private study, research, criticism, review, news reporting, parody and satire.
Without these exceptions, copyright holders could require licensing agreements to use any text for any of these purposes, allowing them to file spurious copyright claims, preventing information from being accessible, shareable and usable by the public.
In American law, this function is provided by fair-use doctrine, which is functionally quite similar to fair dealing, but the structure of the exceptions list is a little different.
Mark Swartz, copyright manager at Queens University Library and visiting program officer with the Canadian Association of Research Libraries, explains that “the major difference between fair dealing and fair use is that instead of having a list of exemplar purposes, we have a prescriptive list of things people can use fair dealing for, so there’s a list of allowable purposes, and users will have to fit their use into one of those purposes.”
Swartz notes that it is a pretty expansive list. “While people talk about fair dealing being more limiting than fair use, the supreme court has been clear that fair-dealing purposes should be interpreted fairly liberally,” he says.
Jenna Baraschuk-Modha, the copyright assistant at UWL, says a common example of the importance of fair use in academia is in syllabus creation. “Faculty and instructors (want) to use larger sections or excerpts from copyright-protected material, and when we don’t have access to digital copies, we’re limited to the fair-dealing guidelines, which restricts us a significant amount, to, usually, 10 per cent or one chapter of a book, for instance,” she says.
For professors to use multiple chapters of multiple books, as is common in humanities courses, either the text needs to be licensed, or fair-dealing guidelines come into play. Baraschuk-Modha notes that while many professors stick to fair-use guidelines, the copyright office offers other options, like a thorough fair dealing analysis for particular use of a text or a deeper look into licensing options.
There are some texts for which fair dealing is the only option, though. Selman mentions that the UWL collection includes some texts, like old Canadian instructional videos made by small production studios, where there is not a locatable copyright holder who could authorize other licensing options.
These kinds of texts are often not commercially available and rarely digitized (which has become a much bigger problem due to the COVID-19 pandemic), so the fair-dealing exceptions are the only way these texts can be shown, shared, lent and academically engaged with.
Fair use/fair dealing can be perceived as limiting, but all librarians interviewed for this piece emphasized that it enables access significantly.
While copyright law might seem pretty static, changes in technology, publishing, copyright law and society as a whole raise new and interesting questions regarding copyright and fair use/fair dealing. These new developments in fair use/fair dealing, as well as new voices in the area, are often the subjects of webinars, blog posts and other events during Fair Use/Fair Dealing Week.
Kyle K. Courtney, copyright advisor and program manager at the Harvard Library, is one of the authors of a white paper on a recent technological innovation with significant implications for fair use: controlled digital lending (CDL). CDL allows libraries to digitally use their right to lend under the “transformative” exception fair use, which has allowed libraries to expand access to their collections.
Swartz is working on adapting the CDL white paper to Canada’s copyright context. The project is currently open for review and could be published in a few months.
Courtney explains that Fair Use/Fair Dealing Week has its origins in annual sessions on fair-use best practices hosted by the Association of Research Libraries (ARL), beginning in 2010. By 2013, a capstone event had been added and a listserv called “Fair Use Allies” was created. Members of the listserv held the first week of fair-use activities in 2014. ARL joined the organizing effort in 2015 and brought in more branding, programming and website support.
“It’s a great example of successful grassroots organizing by cultural institutions – libraries, archives, museums and anyone else – to celebrate,” Courtney says.
“This year, we focused on a theme of fair-use supports, research journalism and truth,” Katherine Klosek, director of information policy at the ARL, says. “One of the reasons we chose the theme that we chose is because of the educational gag orders, the book bannings, assault on truth.” She also notes that the ARL is part of the Truth, Racial Healing and Transformation Movement, a national effort focused on community archiving and truth and history in the United States.
Selman and Baraschuk-Modha say they are particularly interested in Dr. Carys J. Craig’s presentation on open educational resources, Dr. Meera Nair’s presentation on questions about how fair dealing applies to data collection and Lucie Guibault’s presentation about students’ perspectives on fair use.
While Fair Use/Fair Dealing Week is a positive celebration of the copyright exceptions that allow for information to be shared and used beneficially, there are players in the copyright world that are less enthusiastic about it, such as Access Copyright, a nonprofit copyright collective which was, until November 2021, in a long court dispute with York University regarding licensing tariffs and fair dealing.
“We certainly see pushback from publishers who want to roll back things like fair dealing, and in particular they want to take ‘education’ out of the list of purposes in the copyright act,” Swartz says. “We spend a fair amount of time talking to MPs and explaining that that’s not a good idea, and if anything the list should be expanded rather than limited, and we should move towards a more open-ended list like they have in the US.”
Published in Volume 76, Number 18 of The Uniter (February 17, 2022)