Zerkee, Savage and Campbell (2022)
Contents
Source Details
| Zerkee, Savage and Campbell (2022) | |
| Title: | Canada’s Copyright Act Review: Implications for Fair Dealing and Higher Education |
| Author(s): | Zerkee, J., Savage, S., Campbell, J. |
| Year: | 2022 |
| Citation: | Zerkee, J., Savage, S., & Campbell, J. (2022). Canada’s Copyright Act review: Implications for fair dealing and higher education. Journal of Copyright in Education and Librarianship, 5(1), 1-27. https://doi.org/10.17161/jcel.v5i1.15513 |
| Link(s): | Open Access |
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| About the Data | |
| Data Description: | “Our corpus consisted of the briefs (N = 192) submitted to the INDU Committee in response to their call for comment on the statutory review of the Copyright Act. Briefs were accepted between April 17 and December 10, 2018, and were made available to the public on the INDU Committee’s website. We analyzed the INDU Report in addition to the briefs (INDU Committee, 2019).” “Finally, we captured demographic data about the parties who submitted briefs to the INDU Committee.” |
| Data Type: | Secondary data |
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| Cross Country Study?: | No |
| Comparative Study?: | No |
| Literature review?: | No |
| Government or policy study?: | No |
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Abstract
“Beginning in late 2017, the Standing Committee on Industry, Science and Technology (INDU Committee) undertook a statutory review of Canada’s Copyright Act. This article examines the recommendations made by higher education and academic library stakeholders in order to determine their copyright priorities. More specifically, the analysis highlights recommendations relating to fair dealing and addresses the tension between higher education and the Canadian publishing community. The article also explores the three fair dealing recommendations made in the INDU Committee’s final report, raises questions about the INDU Committee’s support for use of fair dealing in higher education, and proposes increased advocacy by the higher education community, including a cohesive strategy that engages directly with the public interest aspect of education’s role and the representation of its user groups. Ultimately, educational institutions are as much a part of the Canadian cultural landscape as any other copyright stakeholder. Improved advocacy is vital as Canada heads towards the next statutory review, expected to be launched in 2022.”
Main Results of the Study
An overview of the demographic characteristics of the parties: “Most of the submitting parties can be categorized as primarily representing a user position or a creator/rightsholder position. More than half (57.8%, n = 111) primarily represented users, over one-third (38.5%, n = 74) primarily represented creators” “Likely because the higher education community submitted many more briefs than other stakeholder groups, many of the most discussed topics in the briefs were highly relevant to education (see table 3). Fair dealing was the most discussed topic by far, addressed in more than twice as many briefs as any other topic.” For specifically the discussion of fair dealing: “Half of all briefs submitted (50.0%, n = 96) address fair dealing in some way; in the following breakdown the totals add to more than n = 96 because some briefs made multiple recommendations about fair dealing. More than half of the briefs addressing fair dealing (57.3%, n = 55) recommend maintaining the current exceptions. All these briefs represented a user position (100.0%, n = 55), and threequarters were submitted by the higher education community (figure 2). As explored further in the discussion section, many of these recommendations focus specifically on maintaining education as a permitted purpose of fair dealing.” “Over one-quarter of briefs addressing fair dealing (28.1%, n = 27) recommended limiting fair dealing in some way. The vast majority of these (92.6%, n = 25) represented a creator position, and the remaining two briefs (7.4%) represented a user position. The author/publisher community is the main stakeholder group that recommended limitations to fair dealing (figure 3).” “Mirroring the recommendations to maintain education as a fair dealing purpose, the majority of briefs recommending limiting fair dealing (92.6%, n = 25), specifically recommended removing, limiting, or clarifying the education purpose.” “Twenty percent of briefs addressing fair dealing (20.8%, n = 20) recommended expanding fair dealing in some way, most commonly (75.0%, n = 15) recommending a move from the current exhaustive list of purposes to an illustrative list similar to that in the United States’ fair use doctrine.” “Most stakeholders recommending expansions to fair dealing represented users (95.0%, n = 19), with one brief representing a creator position (5.0%). Briefs making these recommendations were submitted primarily by the higher education and legal communities (figure 4).” “Finally, four briefs (2.1%) made additional recommendations about fair dealing that would not necessarily entail changes to the act itself.”
Policy Implications as Stated By Author
"Notwithstanding the fact that the Copyright Act itself is set to undergo another statutory review beginning in 2022, there appears to be some momentum behind the government’s continued interest in copyright reform and the education community should be prepared to respond both to the next review as well as to any future calls to operationalize Recommendations 16 and 17. In preparation for these future consultations, it is imperative that the education community develop a cohesive advocacy strategy that goes beyond data and justification and engages directly with the public interest aspect of its positions and the user groups that it represents." "We suggest educational organizations expand their advocacy efforts beyond government consultation and consider the approaches employed by creator groups, including publishing op-eds in well-known newspapers and developing social media and marketing campaigns that speak to a broader public audience. We also encourage the higher education community to engage in further advocacy and policy conversations with more confidence. Entering into the 2017 review, many libraries and higher education institutions were on the defensive, urging the INDU Committee to protect the additional user rights enacted in 2012. Despite most submissions from this community failing to argue for an expansion of fair dealing, the INDU Committee signaled its support for such a measure, indicating its receptiveness to expansive user rights and serving as a reminder to our community to operate more offensively in the future. Finally, we caution against reading the INDU Report too optimistically and believe that educational institutions should continue to prepare for further debate regarding both the legitimacy of their fair dealing guidelines and the perceived harm that institutional copying has on the Canadian creative fields."
Coverage of Study
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