Response to the AUCC Fair Dealing Guidelines for Universities

 

We, the members of PLG London find the AUCC guidelines to be problematic. We are concerned that blind adoption of these guidelines on the part of university administration would not support the best interests of students, faculty and librarians here at Western – and at other colleges and universities. Because many of us are Western students, moving into professional roles, some in academic libraries, we feel it is our responsibility to address this issue.

First, it is important to take into account the context in which these guidelines were created, which was to support – York University in its litigation with Access Copyright. That context has influenced the overall tone and feel of the guidelines, which comprise a conservative, excessively restrictive interpretation of the Copyright Act. Second, perhaps because a legal team authored these guidelines, it lacks a perspective relevant to the academic community they affect. We are concerned that the guidelines were developed from a defensive position and that they do not reflect the long-term needs of students and faculty here at Western and elsewhere.

These nine “guidelines” are presented as inflexible rules, and contain several unnecessary concessions. For example the circumstances under which digital locks may be circumvented hasn’t been fully settled, yet in the guidelines they automatically take precedence over user rights as a prohibited activity. Similarly the statement that limitations contained in licenses trump users’ rights is also an unnecessary concession as this issue has not been settled in Canada.

The short excerpt, 10% restriction on musical works, is presented as a firm portion, yet the term “short excerpt” itself is problematic and needs to be open to a more flexible interpretation. As numerous commentators point out, the risk in making such concessions prematurely could send the wrong message about what educational institutions consider to be fair dealing, and could result in more restrictive interpretations in the future.

This inflexibility and restrictiveness not only goes against the spirit of the Copyright Act itself, but it fails to recognize several recent developments including the addition of education to the statutory fair dealing categories and the strong endorsement of fair dealing by the Supreme Court of Canada. It doesn’t make sense to constrain the creative and intellectual activities of the educational community as the AUCC guidelines attempt to do.

Alongside our major concerns with the how this restrictive language affects faculty and students are our concerns regarding the language and format of the guidelines. Specifically, the number and length of the guidelines themselves are excessive; they are also repetitious, and contain overlapping content. This discourages the educational community, students in particular, from accessing and exploring them, or even grasping their content.

We fully appreciate the need for guidelines to be adopted, but we want to see policies that work and make sense for the audience they are affecting. This means guidelines that are easy to understand and use, and ones that reflect the current state of Canadian Copyright law.

The University of Western Ontario has a responsibility to students and faculty to offer a space for research, learning, and critical dialogue. To support a needlessly restrictive interpretation of Copyright Law is antithetical to that purpose.

We recommend that the administration instead consider the CAUT Copyright guidelines (http://www.caut.ca/docs/default-source/copyright/revised-caut-guidelines-for-the-use-of-copyrighted-material-(feb-2013).pdf) as an alternative to those provided by the AUCC. The CAUT guidelines are divided into 5 sections, dedicated to themes, not specific types of works. This avoids overlap in content and makes it easier for the reader to hone in on the issue that is affecting their decision-making at the time. It is also organized hierarchically, capturing the essence of fair dealing and topics of interest to the general user. It is not divided into subsections for specific user groups, but instead presents information as it applies to multiple user groups. The model proposed in the CAUT guidelines is more relevant to our current educational context, and applies better to the ways information is being created and shared today.

The PLG, London Chapter recommends that colleges and universities reject the AUCC guidelines, and instead consider adoption of the CAUT guidelines. We also recommend that decision makers in educational institutions consult Lisa Di Valentino’s May 2013 study “Review of Canadian University Fair Dealing Policies” (http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2263034) to understand how other Canadian universities have addressed the issue.

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2 thoughts on “Response to the AUCC Fair Dealing Guidelines for Universities

  1. I agree with many of your opinions on this matter and believe that policymakers need to act conscientiously if they publish these guidelines on their websites. I think it is an important issue that has not garnered sufficient attention or discussion either within the library community or in the larger community whom they affect. I think it is our duty as librarians to inform the broader community about this issue and their rights in using educational resources.

    It needs to be addressed that the format and tone of these “guidelines” are very misleading. Although they are titled “guidelines” they are communicated as if they are finite and authoritative and this will ultimately prove restrictive in the common understanding and application of them. However, you were correct to point out that they are even more constricting than the legislation and which De Valentino argues quantifies legislation that was purposely left flexible.

    I found this to be particularly problematic in their definition of `short excerpt,` which De Valentino is aptly able to better clarify. Policy makers need to examine when“ Copying more than 10 percent of a work (up to and including the entire work) may be fair depending on the circumstances.“ (De Valentino, p 19)

    However, I also think that the issue of author rights is completely absent in your post. I understand that your main concern is in educational fair dealing, but we need to remember that these guidelines were adopted for a reason, albeit perhaps a bit excessively.

    Maybe as De Valentino suggests the PLG could look at the fair dealing policy included on the University of P.E.I.’s website. It might prove an interesting project to examine the contributing literature as well as the arguments in favor of such a conservative approach and make some concrete suggestions for change.

  2. Pingback: A Response to the Response to the AUCC Fair Dealing Guidelines for Universities. | theInformationalist

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