All’s fair in love and war? The limits of the “fair dealing” copyright exception

The Fair Dealing-Fair Use war has been raging in Australia since antiquity. The Fair Users fondly yearn for the green pastures of American-esque copyright law. They imagine a vast nation where creative works are freely and peacefully disseminated as Fair Use, their benevolent sovereign, smiles on creators and consumers with equanimity and impartiality.

The Fair Dealers on the other hand see fair use as a anarchic dystopia, where books are printed on every street corner and MP3s are copied to iPods with wanton disregard to the precepts of peace and good order.

Our Canadian counterparts are largely in the same boat as us – their copyright legislation provides specific “fair dealing” exceptions to copyright infringement (education, criticism, new reporting etc.), but there is no general “fair use” exception.

The latest judgment from the Federal Court of Canada explores the limits of the fair dealing exception for education.

The Copycats

York University is Canada’s third largest university. In summarising York’s attitude to copyright, Justice Phelan suggested that “it was not completely accurate to say that York ignored copyright”, which is, of course, to suggest that it was accurate to a significant degree. Justice Phelan did not shy from elaborating on this assessment throughout the judgment.

Access Copyright is an entity which licenses copyright materials on behalf of their owners, and collects and distributes the royalties.

The Copyfacts

Like all universities, York provided a mix of digital and physical copies of course materials to its students, who, like all students, pretended to read them. The coursepacks distributed to students were either printed on campus or externally at third party print shops, which were supposed to be licensed by Access. You will not be surprised to hear that this litigation was concerned with an unlicensed private print shop, namely, the Keele Copy Centre.

At least 5 professors printed their coursepacks at Keele, and York turned a blind eye.

With considerable dramatic flair, Justice Phelan compared suggested these events had the same impact for Access and York as “the shot fired in Sarajevo in 1914”.

War of the Words

Up until September 2011, Access and York were in a relatively happy licensing arrangement. York had paid a tariff to licence materials under an agreement which expired in December 2010. After the expiration of the agreement, York paid an Interim Tariff for about 8 months.

Access was understandably eager to implement a more permanent arrangement, and thus concocted the Proposed Tariff. It changed the way fees were charged and had all kinds of new record keeping and reporting obligations.

York thought that all sounded bit complicated and did what we all wish we could do with arrangements we’re not particularly chuffed with – it unilaterally decided to “opt out”:

[York] chose to ignore the … charge, ignore any reporting or record keeping obligations, and develop its own Fair Dealing Guidelines to shield it from the consequences of copyright claims.

Which is to say, York shoved its fingers in its ears, shut its eyes and started shouting “FAIR DEALING! FAIR DEALING!”.

Two wrongs don’t make a copyright

Justice Phelan did not buy York’s argument that the Interim Tariff was a voluntary tariff, and not a mandatory one.

Justice Phelan was also somewhat underwhelmed with York’s Fair Dealing Guidelines. The Guidelines imposed arbitrary limits on permissible copying, with no regard to principles of fairness. It permitted wide-ranging, large volume copying which had a negative impact on industries. Finally, the Guidelines were never reviewed, audited or enforced; there was a “complete abrogation of any meaningful effort to ensure compliance with the Guidelines”. York could not rely on the Guidelines as a defence to the breaches of copyright.

Fair dinkum

Australia’s copyright legislation has a similar “fair dealing” exception to copyright infringement. Our exception allows consumers to use copyright material without permission, but only if the use is for one of the following purposes:

  1. research or study;
  2. criticism or review;
  3. parody or satire;
  4. reporting news; or
  5. professional advice by a lawyer, patent attorney or trade marks attorney.

This is an exhaustive list of the fair dealing exceptions. “Fair use” on the other hand is a far broader exception; it doesn’t prescribe the particular uses that can be fair.

The fair use / fair dealing debate has been waged for decades in Australia. Since 1998, eight Australian government inquiries have considered whether fair use should be adopted in Australia, six of which have recommended it (most recently by the Productivity Commission in 2016). The government’s response to this report is imminent.

What side of the war are you on? Was the Federal Court decision fair, or regulation gone mad? Let us know in the comments.

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