Supreme Court Ruling on Copyright: Implications for “Research”?

The Supreme Court of Canada’s ruling on copyright came down yesterday. Michael Geist, professor of Law at the University of Ottawa where he holds the Canada Research Chair in Internet and E-Commerce Law writes that the ruling “completely eviscerates much of Access Copyright’s business model and calls into question the value of the model licence signed by many Canadian universities.”

It is not clear whether the University of Alberta has signed. On 8 June 2012, Folio issued an indicating that the University had “taken steps” towards signing, and might sign by 30 June to secure a retroactive discount of 85% from 1 January 2011. Presumably the University will not have signed, choosing instead to wait for the Supreme Court’s ruling.

The ruling (it seems) has implications for how we define research. The key paragraph in the decision on the defining of “research” is below. Geist’s emphasis is in green; my additional emphasis in red. 

It is true that an important goal of fair dealing is to allow users to employ copyrighted works in a way that helps them engage in their own acts of authorship and creativity: Abraham Drassinower, “Taking User Rights Seriously”, in Michael Geist, ed., In the Public Interest: The Future of Canadian Copyright Law (2005), 462, at pp. 467-72. But that does not argue for permitting only creative purposes to qualify as “research” under s. 29 of the Copyright Act. To do so would ignore the fact that the dissemination of works is also one of the Act’s purposes, which means that dissemination too, with or without creativity, is in the public interest. It would also ignore that “private study”, a concept that has no intrinsic relationship with creativity, was also expressly included as an allowable purpose in s. 29. Since “research” and “private study” both qualify as fair dealing purposes under s. 29, we should not interpret the term “research” more restrictively than “private study”. Limiting research to creative purposes would also run counter to the ordinary meaning of “research”, which can include many activities that do not demand the establishment of new facts or conclusions. It can be piecemeal, informal, exploratory, or confirmatory. It can in fact be undertaken for no purpose except personal interest. It is true that research can be for the purpose of reaching new conclusions, but this should be seen as only one, not the primary component of the definitional framework.

Dissemination is in the “public interest” because it protects the “personal interests” of us all. Here’s to a world of “informal” and “exploratory” research by all.

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1 Response to Supreme Court Ruling on Copyright: Implications for “Research”?

  1. Kathleen Lowrey says:

    I just hope this translates to a more sensible process for creating coursepacks on the ground. Under the copyright regime in place last year I was unable to include *any* text from a travel narrative first published in …. 1557, apparently because a new edition of it was published in 2008. Previous to that, I had been using a version published in 1924, and because of Access Copyright rules I had to strictly delimit the number of pages I could include even from that text. As it looks as though a third regime of coursepack rules will now be implemented, perhaps I should raise a prayer to the unquiet ghost of Hans Staden asking him to intercede on the side of common sense.

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