The AUCC Guidelines: another Trojan Horse?

The late L. Ray Patterson, a copyright scholar, historian, and the author of important books on the history of copyright and the notion of users’ rights, had warned that copyright guidelines could be the Trojan Horse of publishers. Patterson referred to a particular type of carelessly written guidelines, those purporting to offer “bright lines”, and provide them by creating unnecessary limitations on users’ rights. The danger, Patterson illustrated, is that guidelines stating that to copy “1,000” words is a fair use, [imply that] to copy “1,050” words is an infringement. …[I]f librarians go along with [such] guidelines, why should not the courts do so?”

Not all guidelines and institutional policies are necessarily of that kind. UofT, for example, has begun developing policies that avoid many of these dangers; so has UBC. Unfortunately, the recent Guidelines, which the AUCC recommends its members to adopt, lean towards the Trojan kind. Providing an overly restrictive interpretation of fair dealing, errors, and gratuitous concessions of highly controversial issues, those Guidelines remain deaf to the loud and clear message that Parliament and the Supreme Court sent last year to Canadian educators. If widely adopted, these Guidelines could mark a setback for education and research in Canada.

Two years ago the publishers, the major record labels, their lobbyists and collectives, attempted to convince the Supreme Court to adopt their overly expansive view of copyright. For example, the Canadian Record Industry Association (CRIA, now “Music Canada“), urged the Court to adopt “a framework for the construction of exceptions to copyright infringement including, the fair dealing exception.” Under the record companies’ proposed framework, “exceptions should be clearly defined and narrow in scope and reach”. Canadian publishers’ organizations attempted to convince the Court that the concept of users’ rights is just a “metaphor” and that “these user interests should not trump exclusive rights in determining the copyright balance.” They failed. And not only did the Court refused to play along, those attempt backfired. Slowly and cautiously, many Canadian universities began to take their metaphor rights seriously. But apparently, despite the fact that the distance between the Supreme Court and the AUCC headquarters is only 350m, the news from the Court do not seem to have arrived there yet. The new AUCC Guidelines reflect as narrow a view of users’ rights as if the Court had not decided anything. If I didn’t know what the AUCC acronym stands for, I could have easily mistaken it for being the Association for Unbridled Copyright in Canada. Unfortunately, given the AUCC’s track record on copyright issues, this isn’t really surprising.

The Challenge of writing guidelines

Writing copyright guidelines for educational institutions is admittedly a challenging and tricky task. One reason is that despite the Court’s emphasis on “balance” and its insistence that users’ rights are an integral part of the Copyright Act, there is one sense in which copyright law is inherently unbalanced. The rights of owners can be infringed and the infringer may suffer some consequences. The rights of users, on the other hand, can often be trumped or ignored with impunity. As a result, copyright owners can be overly aggressive in claiming to have rights that they do not actually have, because there is no serious downside for doing that. With some rare exceptions, at most, a court will tell them that their view is wrong. Users, on the other hand, cannot be equally aggressive in asserting their rights because there is a downside for doing that. When a user adopts an erroneously wide view about the scope of his rights, the court will not simply tell him “sorry, you’re wrong” but may also grant some of the pecuniary and other remedies that the law prescribes. It is important not to overstate the risk, but when users are risk averse—as most educational institutions are—this inherent imbalance means that they will be institutionally inclined to be very timid with respect to their rights. Patterson urged them to be “as aggressive in protecting the right of fair use as the publishers are in seeking to destroy it”. Well, they should, but they will not, because the risks of being overly aggressive are asymmetrical.

The other reason why writing copyright guidelines is a challenging task is that there is no easy way to determine exactly what constitutes fair dealing. As I wrote here “articulating a precise legal rule that implements it is notoriously difficult, if not impossible. The Royal Commission on Copyright, whose 1878 report was one of the bases for the enactment of the Copyright Act, 1911, stated that “no principle which we can lay down, or which could be defined by the Legislature, could govern all cases that occur” and that ultimately these can be decided only on a case-by-case basis by “the proper tribunals.” Almost a century later, the US Congress House Committee reached a similar conclusion, noting that “since the doctrine is an equitable rule of reason, no generally applicable definition is possible, and each case raising the question must be decided on its own facts.” Lord Denning, in Hubbard v Vosper, and the [Supreme] Court [of Canada], in CCH, made similar observations, as did the US Supreme Court in Campbell.”

Flexibility is a feature, not a bug

Fair dealing’s defiance of definition is not a bug but its feature. Fair dealing is not articulated as a set of precise rules but as a standard to allow flexibility in circumstances that cannot be fully foreseen in advance. This does not mean that fair dealing is unpredictable and capricious concept. It is not. As the case law develops, practices emerge, arguments are tested, and the landscape becomes clearer.

To facilitate this process the Supreme Court provided a series of factors that serves as a framework for examining the circumstances under which the dealing will be considered fair. On their own, none of these factors is determinative, and even applying all of them without understanding what they are trying to probe is a meaningless exercise. What those factors (and others) invite us to do is solicit data in order to give an informed answer to the overarching question: is copying without permission reasonably necessary to achieve the ultimate purpose; does the use of the work in question promote the public interest in the encouragement and dissemination of works of the arts and intellect, without seriously undermining the copyright owner’s opportunity to obtain a just reward? Sounds complicated? Maybe. But more often than not, this is not a very difficult question to answer, and not more complicated than many routine questions that courts and individuals face on a daily basis.

What guidelines should do?

Therefore, the goal of guidelines that are written to advance the goals of research and education should not be to minimize risk by offering bright lines. Such goal is both futile and counterproductive. It is futile because it is impossible to find the elusive bright line, and any bright line will be either over inclusive or under inclusive. And it is also counterproductive because given the asymmetry of risk and institutional risk aversion guidelines attempting to define a bright line will tend to adopt the under-inclusive rule. This, in turn, entrenches restrictive views of fair dealing and expansive views of owners’ rights. Over the long run this approach does not deter threats of litigation but only invites them.

Instead, the goal of institutional guidelines should be to educate the community and give its members tools that allow them to make informed decisions and feel confident in exercising their rights. Such guidelines should recognize the inherent asymmetry in the tendency to assert rights and while they cannot eliminate it, they should at least counter it by consciously and responsibly empower members of the community to assert their rights in furtherance of their scholarly and educational mandate, and help them resist the pressures to unduly constrain them.

One of the main problems with the AUCC new Guidelines is that they provide very little meaningful guidance of that kind. A reader of the Guidelines who is not expert in copyright law may learn that copyright law consists of sweeping prohibitions and some limited exceptions, but will not find any reference to the Supreme Court’s repeated characterization of fair dealing (and other limitations on owners’ rights) as users’ rights. Nor will the reader learn that the Supreme Court emphasized that these users’ rights are “an integral part of the Copyright Act”; that they “must not be interpreted restrictively” but should be given “large and liberal interpretation”; and that “that the balance in copyright between promoting the public interest in the encouragement and dissemination of works and obtaining a just reward for the creator requires recognizing the “limited nature” of creators’ rights” because “copyright plays [an important role] in promoting the public interest, and … the dissemination of artistic works is central to developing a robustly cultured and intellectual public domain.” These aren’t empty, not even merely celebratory, statements. Instead, these statements are interpretative principles—or in fact guidelines—articulated by the Court for others, not only paid lawyers, to rely on. Institutional guidelines that do not incorporate and build on them simply miss the point.

Fair dealing is not limited to “short excerpts”

The AUCC Guidelines do not invite the reader (or offer her the tools) to conduct this type of analysis. Instead, they repeatedly define fair dealing as the making of “short excerpts” despite the fact that Parliament never imposed such restriction and the Supreme Court held unequivocally that it is possible to deal fairly with a whole work. This Guidelines’ emphasis on short excerpts is a cardinal error. Not only because the length of the copying is just one factor, not a determinative one and not a particularly important one, in the overall analysis. It is also cardinal error because the view that fair dealing applies only to “excerpts” is one of a series of baseless claims that the organized copyright lobbies consistently promote, and hope that others would adopt (see for example various “copyright education propaganda” materials, such as this or this, propagated by industry-funded lobbying outfits in the U.S.).

Why does the AUCC limit itself to “short excerpts”? Maybe it read too much copyright propaganda of that kind. Maybe the lawyers to whom the AUCC outsourced the writing of these Guidelines, after promoting similar restrictive views on behalf of their copyright-owner clients for so many years, genuinely believe that these views are the law. Perhaps the AUCC thinks that since Alberta (Education) v. Access Copyright, a case that involved “short excerpts”, resulted in a finding that the dealing was fair, it means that fair dealing applies only to short excerpts. If this is the case, this is quite disappointing. One could hope that an organization representing some of the top universities in the world will be able to avoid some common logical fallacies. To state the obvious, just as the statement “today is cold” does not imply that tonight is going to be hot, and just as the statement “all human beings are mortals” does not imply that all other beings are immortal, a holding that the dealing in a case involving short excerpts was fair does not imply that copying of long excerpts or even the entire work is not.

But you don’t have to take my word for that. As far as Canadian law is concerned the fact that “it may be possible to deal fairly with a whole work” is beyond dispute. Why? Because the Chief Justice of Canada, speaking for a unanimous Supreme Court, said so. And not only did it say so, it also added that copying an entire work may be “essential” for the purpose of research or private study. If the Supreme Court recognizes that copying an entire work may be essential for research or private study, what benefit arises from adopting a policy that tells researchers, teachers, and students that fair dealing permits them to make “short excerpts”?

Other errors and gratuitous concessions

But that is not all. As Howard Knopf was quick to observe, the Guidelines contain a few other errors, or at least hurried concessions of highly controversial and unsettled points of law. Unfortunately, most of the times when the Guidelines err, they tend to err on the side of commercial copyright interests.

For example, the Guidelines repeatedly explain that the “communication to the public by telecommunication” “is important in relation to the transmission of digital copies of works by email or over the Internet [e.g.,] by emailing copyright-protected work to students or posting a copyright-protected work to a learning management system that is accessible by students.” This statement must come from the wish list of Canada’s copyright collectives, but it contradicts the Supreme Court’s holding from last year that the transmissions of data that results in the creation of a permanent copy may implicate the reproduction right, but not the “communication to the public by telecommunication” right.

Moreover, the Guidelines explain that “In general, a communication is to the public, if the recipients are not restricted to individuals that are purely in a domestic relationship.” Like many concepts in copyright law, what constitutes the “public” is a tough question, but I am not aware of any binding authority that interprets the term “public” so broadly and so favourably to copyright owners’ interests. In fact, I am aware of several authorities supporting the proposition that emailing works to students, or posting them to a learning management system is not “to the public” at all; I’ll be happy to give the references to the AUCC.

As of 2004, a large and liberal and non-restrictive view of fair dealing has been a firm concept in Canadian copyright law, which has been further strengthened by the Court, and expanded by Parliament in 2012. The Supreme Court and Parliament have spoken in a very loud and clear voice that fair dealing is real, and that fair dealing is important. This is great news, but these achievements do not settle all issues. As many who are involved in scholarly communication know all too well, some publishers and other content providers insist on inserting clauses in licensing agreements that purport to limit and override users’ rights. While there might be some circumstances under which courts will hold a contracting party to its promise not to exercise some of its rights, it is far from clear that courts will always uphold some of the terms that may be found in some licensing agreements of scholarly materials, and there are solid grounds to believe that they will not. Indeed, this is a controversial and unsettled area of the law, with many issues to clarify, distinctions to be made, and issues to iron out. Those questions will surely occupy the courts for years to come. The Guidelines, however, take the position that such limitation will always trump fair dealing unreservedly. I, for one, don’t know that this is correct. Therefore, urging Canadian universities to adopt this view seems to me as unwise.

Likewise, the Guidelines make a sweeping statement about digital locks, suggesting that circumventing them without the copyright owner’s permission is always illegal. Not only the Copyright Act itself recognizes specific exceptions to that, the actual scope of the new anti-circumvention provisions in the Copyright Act has yet to be determined. Among the questions that will have to be determined is whether privately-implemented digital locks will necessarily and always trump the publicly-mandated allocation of rights between owners, users, and the public in general. Not only it is not entirely clear that this is indeed what Parliament had decided, it’s not clear that Parliament is constitutionally empowered to decide that even if it did. Again, I don’t know what the answers to all these questions are, but I doubt the wisdom of urging universities to adopt policies that not only answer these questions, but also answer them in favour of publishers.

But the “Policy” doesn’t necessarily cover everything

Now, attentive readers of the Guidelines may notice that the Guidelines do not say that fair dealing permits this or prohibits that, they only say that the “Policy” permits the one or does not permit the other. At one point the Guidelines even explicitly recognize that “[d]epending on the circumstances, copying … outside the Fair Dealing Policy may be permitted under the fair dealing exemption in the Copyright Act.” The distinction is important. Guidelines do not necessarily have to go as far as the law permits. It may be perfectly defensible for an institution to decide whether to be less or more assertive with respect to its rights, and stop short of exercising them to their fullest extent in order to minimize risks of litigation.

The problem, however, is that the Guidelines do not describe their view of the scope of users’ rights as a minimum, or a safe haven, within which the institution feels sufficiently confident. They don’t even tell the institutions that there is a range of reasonable position to choose from. Nor do the Guidelines offer any meaningful direction on how fair dealing might apply beyond the narrow circumstances that they articulate. Under such conditions, it is very unlikely that most readers of the Guidelines will appreciate the fine distinction between the scope of the Policy permits and the scope of the law, or interpret the Guidelines as merely drawing is a bare minimum. It is far more likely that they will understand the Guidelines as reflecting the full extent of their rights under the law. The floor will converge with the ceiling.

Will the Guidelines minimize risks and help York?

The choices made in the AUCC Guidelines probably reflect the Guidelines’ stated goal to “reduce the likelihood of infringement and enhance York’s defence against the Access Copyright lawsuit”. In other words, the goal of these Guidelines is not to educate Canadian universities and empower them responsibly to take advantage of their rights under the law, but actually to refrain from doing that under the dubious belief that this will reduce the likelihood of being sued. As I noted earlier, this approach entrenches a very restrictive view of fair dealing and therefore increases the likelihood that anything beyond that might be accepted as infringement.

It is also far from clear that universal adoption of these Guidelines will help York’s defense. In fact, if there is any merit in the suggestion that ex post strategic adoption of guidelines will help in a case that is currently pending, then arguably a better way to help York might be to adopt guidelines that were actually much more liberal than York’s own policies. It should also be noted that York has not been sued for copyright infringement. Access Copyright’s lawsuit against York is an attempt to enforce the Interim Tariff, under the erroneous theory that the tariff is mandatory. The validity of York’s own guidelines, policies, and actions is only remotely and tangentially relevant to what that lawsuit is about, if at all.

Indeed, it seems that the logic behind these Guidelines is that best way to reduce infringement is effectively to relinquish the rights of users and refrain from doing anything that publishers might possibly view as infringement of their rights. This is certainly away to minimize risk, but it would be akin to an attempt to reduce the likelihood of being sued for defamation by adopting university policies that prohibit publishing anything that might upset someone. Some lawyers might think that this is actually good advice. Academics should revolt against it.

Can Canadian universities adopt better guidelines?

If you’ve read so far, you might be thinking “but what’s the alternative? Is there a better way to provide internal guidance in a way that allows universities to act safely and responsibly within the law without giving up their rights?” The answer is yes.

This is the first time that Canadian universities begin to think seriously on copyright issues and how to exercise their rights, and as I noted earlier, there are already local examples of policies, such as UofT’s or UBC’s, that are preferable. But Canadian universities can also learn from the experience of others. Our southerly neighbours have been dealing with those challenges for at least four decades. Many of them initially followed a similar path to that of the AUCC, but in more recent years the flaws of this approach have become more apparent and new approaches have emerged. Our more remote colleagues in Israel have also done some interesting work in this area.

One important lesson the Canadian universities can learn is that, in the words of Prof. Peter Jazsi, “fair use is like a muscle; unused, it atrophies, while exercise makes it grow.” The same is true for fair dealing. Another important lesson is to recognize that copyright law affects the core of the academic mission. Works that are subject to copyright are both major inputs for research and teaching, as well as a major outputs. Universities have to make sure that the application and development of copyright law is not inconsistent with their mission. Not only universities need to keep abreast of all developments, they also have to think and act strategically; they need to be proactive, rather than reactive. Developing copyright policies or guidelines should be part of this wider action, and such policies should be developed by, and for the use of, those who are supposed to use and rely on them. One way to do that is by establishing a working group or groups to deal with copyright issues on an on going basis. While high-level legal expertise is crucial to the process, in the future the AUCC or its members might wish to consider getting legal advice that reflects a broader range of views, including from practitioners and academics reflecting different points of view and experiences.

It would be beyond the scope to expand on how to turn these insights into practice, but we should start this long-overdue discussion. Meanwhile, those interested in how to develop guidelines can look at some of the works and projects in the links below.

Recommended reading:

Trojan image By Berishafjolla (Own work) [CC-BY-SA-3.0], via Wikimedia Commons

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