Preserving Fair Dealing Use of Copyright Materials in Education


December 5, 2018 - 9 minutes read

By Jakob Sanderson and Owen Black 

A quality education is rooted in using diverse learning materials. With tuition costs on the rise, it is vital that students be allowed to use small amounts of copyright content for educational purposes. Lawmakers must keep the Fair Dealing provision of the Copyright Act of Canada intact while universities learn to adopt the use of open source resources 

This week, we’ve joined our counterparts from the Undergraduates of Canadian Research-Intensive Universities (UCRU) in Ottawa to collectively lobby MPs on Parliament Hill to take measures to approve the affordability of education. As tends to happen with government policy, the more obscure bits of legislation can have the broadest impact – in this case, the nearly century-old Copyright Act of Canada. The law was modernized in 2012 to include a Fair Dealing provision to allow for the limited use of copyright-protected material for free in education and research. Evidence has shown that this provision is crucial in lowering the cost of course materials in post-secondary programs, while enhancing the quality and accessibility of education itself. It is now undergoing its next mandatory review.   

In April, the federal government’s Standing Committee on Industry, Science and Technology began gathering input from provincial education ministers, education advocates, and representatives from the copyright and publishing industries as part of its year-long review of the Act. With the publishing landscape having been disrupted by an explosion of online and digital content, stakeholders say the current review will hold sway over how future post-secondary students can access course materials, affecting the affordability of their education.   

Updates to the Copyright Act and related Supreme Court rulings in 2004 and 2012 give teachers and students in non-profit institutions the right to reproduce and share up to 10% of a copyright-protected work. In the university context, examples would include a handout, PowerPoint slides, or a PDF file for reading as part of a course pack. Paying royalties to the content creator is not required given there is some sort of controls in place to ensure that material is used appropriately – such as hosting the files on a password protected portal. The purpose is to allow for the study, critique, review, or parody of the original piece as part of the learning process. This helps minimize the familiar scenario of students purchasing an entire textbook when a course only touches upon a chapter or two.  

The issue has provoked strong feelings on both sides, for and against. Canadian publishers have been vocal in their pushback, saying that the free use of copyright-protected materials undercuts their revenue. In 2016, the executive director of the Writers’ Union of Canada went even further, warning that by emphasizing the use of free resources in the classroom, Canadian universities were essentially prioritizing free, foreign-produced material rather than higher quality Canadian-produced resources. Meanwhile, the president of Universities Canada, a non-profit organization that advocates for universities and colleges across the country, has argued that exposing students to an ever-growing range of educational materials are necessary to prepare students for a 21st century digital economy.  

Figures from Statistics Canada show that Canadian publishers’ revenue on educational books actually rose from $376 million in 2014 to $395 million in 2016, all while the Fair Dealing provision was in place. Library spending on content acquisition has also risen consistently year-on-year. This leaves the outcry from booksellers sounding somewhat hollow. The evidence would seem to indicate that any supposed loss in revenue is being experienced by publishers that are reluctant to adapt to the changing needs of their clients. Universities are now trending toward the purchase of ‘transactional’ licenses that allow a user to select a specific resource to pay for and use as desired, such as a single journal article or academic study. Publisher paywalls remain the standard for accessing the vast majority of academic scholarship and scientific research, and rightfully so – credible resources will always require adequate financing and compensation. However, rather than paying higher amounts for blanket access to large databases of material, university libraries are now utilizing more flexible, on-demand forms of educational content.  

Beyond tuition, the most immediate upfront cost to students are textbooks. The average undergraduate will spend several hundred dollars per semester; or upwards of a thousand dollars or more depending on the program. At a time when higher education is arguably more important than ever before it is also becoming simply unaffordable for many young people, or leaves them financially hamstrung upon graduation (see our article from November 27: ‘The Elephant on Campus – Tackling Student Debt Burdens in Canada’). Fair dealing access to copyright materials is one way to keep costs lower, while also ensuring that students are constantly engaging with materials that reflect the current state of their chosen field. Another avenue to lighten the financial burden of students is to incorporate the use of free and openly licensed education materials, known as Open Educational Resources (OERs).  

With OERs, content can be accessed online, and kept up-to-date since the material is open source and editable; lecturers can tailor the material to the specific objectives of a particular program. Research from UCRU being presented to MPs shows that including more OERs in university courses is linked to better learning outcomes and lower rates of withdrawal from courses, as it makes the learning experience more nuanced and accessible. UCRU notes how the University of Toronto has reported that the Fair Dealing provision enabled student savings amounting to roughly $400,000 from 2012-2014 because students could simply scan portions of a textbook they needed – paid for by the university and centrally-housed in the library – rather than having to purchase entire book themselves.  

There is also an argument to be made that provincial and federal governments fund a system that incentivizes that the research material produced at public universities be made accessible as OERs, since taxpayers’ money indirectly enabled their creation. These OERs can serve as a public good in making scientific research more accessible to future generations of students who can leverage that work to continue to drive the type of research and innovation necessary to generate growth and opportunity within the Canadian economy. Rather than make students pay for materials to provide royalties to content creators, the government should look for ways to fund content creators themselves.  

Together with our UCRU peers we have been spending the week telling MPs that students accept that education comes at a price. However, the Fair Dealing provision is a worthy piece of legislation that should stay in place to improve affordability. Once that right is protected, the next step is to shift the focus to OERs, and convincing governments and universities to fully embrace their potential.