Fair dealing regime navigating unfair discourse

At the end of 2022, the editors of the Oxford and Merriam-Webster dictionaries, respectively, declared that the words of that year had been “goblin mode” and “gaslighting.” As Canadians join the international celebrations of Fair Dealing/Fair Use Week (Feb. 20-24) and look back over the past 12 months, these words are perfect for describing the state of copyright discourse in Canada. Champions of fair dealing—an exception to copyright for uses such as education, enshrined in the Copyright Act and nearly 20 years of consistent Supreme Court of Canada jurisprudence—should be on the front foot following resounding legal victories and legislative gains. Stephen Spong is the director of the John and Dotsa Bitove Law Library and copyright officer at Western University. Photograph courtesy of Stephen Spong Instead, educators and librarians—on the front lines advocating for fair dealing—have been distracted by the challenges of adapting to the COVID-19 pandemic. Those of us responsible for copyright in the educational sphere were forced to consider what was considered “fair” in the pandemic context, which—in the span of days—meant that our students were suddenly unable to be on campus accessing print materials that they had taken for granted until then. While it was a golden opportunity to exercise fair dealing rights, this gilt-edged opportunity was tempered by the pandemic’s existential crises. In the summer of 2021, the Supreme Court delivered another blow to detractors of the education sector’s use of fair dealing, including Access Copyright, a royalty collection/distribution organization that largely represents big textbook publishers and a vaguely amorphous group of Canadian authors. While the usual suspects both cheered and jeered the decision, educators on the side of fair dealing shifted focus to the coming fall session’s pandemic uncertainty and looming changes to the public domain thanks to NAFTA renegotiations. This is where “goblin mode” and “gaslighting” come into play. Fair dealing opponents, for some time, have spread misrepresentations as incontrovertible facts. For example: the false suggestion that declining royalties collected by Access Copyright means fewer royalties are being paid overall by educators for copyright materials—when in fact, educators have simply turned to alternative vendors while spending on licensing and materials has steadily increased to approximately $400-million per year. While the judiciary has grasped the reality of the situation, legislators and policymakers continue to hear self-serving narratives of problems that do not exist in a kind of marrying of “goblin mode” with gaslighting. While everybody is entitled to an opinion, resorting to goblin mode gaslighting to get one’s way is at best undignified, unconstructive, and—counter to issues settled at the Supreme Court—tantamount to thumbing one’s nose at the bedrock of modern civil society: the rule of law. While there can be legislative responses to the courts, doing so in goblin mode insults parliamentary democracy. Fair dealing is not perfect, but it has proven durable, withstanding significant headwinds and scrutiny, emerging stronger, clearer, and as important as ever. It provides flexibility for educational institutions at both the K-12 and post-secondary levels, especially as students and users increasingly move to more diverse ways of learning, including hybrid models. The past three years have brought more educational change than perhaps the previous 60 years, but fair dealing has been able to flex with and facilitate these changes, demonstrating that flexibility is more durable and constructive than rigid adherence to outmoded and outdated ways of thinking. With this in mind, it might be helpful to cast back to Merriam-Webster’s word of the year from 2005: “integrity,” which seems like a more fitting descriptor for fair dealing. It would be ideal if this term were to apply to all sides of this debate. Stephen Spong is the director of the John and Dotsa Bitove Law Library and copyright officer at Western University. The Hill Times