AUCC's Final Fair Dealing Policy with Explanatory Memo

AUCC has issued its presumably final final fair dealing policy with a short explanatory memo. The Supreme Court's six part test from CCH v. LSUC, which I noted yesterday had been taken out, has now been added back in. However, the spirit of that landmark decision seems to be rather distant in this document. The explanatory memo, which emphasizes all the things that supposedly can't be done, follows below.Those with reasonably long memories may recall that Access Copyright used to be called CanCopy – but changed its name – possibly because too many impertinent people, such as former York President Harry Arthurs and myself. were calling it "Can'tCopy". Anyway, the explanation below and the attached document are what AUCC – not Access Copyright – thinks can be copied and can't be copied under "fair dealing" in the universities. HK ********************************** Fair Dealing Policy The legal counsel for the Association of Universities and Colleges of Canada has prepared, and recommends for adoption by each AUCC member outside Quebec that intends to operate under the Access Copyright Post-secondary Educational Institution Tariff, 2011 to 2013 (the "Proposed Tariff'), the attached fair dealing policy. The fair dealing policy outlines the copying of published works that can be made in print or electronic format by a university through its staff and faculty members under the exception for fair dealing in sections 29 to 29.2 of the Copyright Act, without seeking permission of the copyright owner. The policy does not apply to audio or video recordings. The fair dealing policy does not address exceptions in the Copyright Act other than fair dealing. Depending on the circumstances, other exceptions in the Act may also permit the copying of works without the permission of the copyright owner. One example of an exception is section 29.4(1). It provides that it is not an infringement of copyright for an educational institution to make a manual reproduction of a work onto a dry-erase board, flip chart or other similar surface intended for the display of handwritten material. Another example is section 30.2 which provides that it is not an infringement of copyright for a library to do anything on behalf of any patron that the patron could do herself under fair dealing. Your institution may wish to include the fair dealing policy in copyright guidelines or a copyright compliance policy that addresses other exceptions under the Copyright Act. The fair dealing policy does not restrict any copying that your institution is permitted to do under arrangements that your institution has with publishers, e.g., under a Canadian Research Knowledge Network licence, or a transactional permission with the publisher or the publisher's representative, e.g., Access Copyright or the Copyright Clearance Centre. The fair dealing policy does not permit making copies for sale to students in course packs, making copies of required readings for library reserve, or posting copies on course management systems, e.g., Blackboard, or on course websites. Some licence agreements that universities have with publishers that provide access to publications in electronic format restrict the making or dissemination of copies. Where there is a conflict between the terms of a licence agreement and the fair dealing policy, the terms of the licence agreement apply. The policy contemplates that your institution will appoint a person who will make decisions on whether copying outside the scope of the copying guidelines are for one of the fair dealing purposes of research, private study, review or criticism, and in all the circumstances, whether the making of the copies is fair. Paragraph 10 of the policy sets out the factors to be considered in determining whether the making of a copy for one of the fair dealing purposes is fair. If the copying is for one of such purposes and the making of the copy is fair, the copying can be made under the fair dealing exception without the permission of the copyright owner.

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