CCH directly paved the way for post-secondary institutions in Canada to manage copyright in-house, providing a viable alternative to increasingly expensive yet less and less valuable institutional licences from Access Copyright. This case 1) affirmed that a library could deal fairly with copyright-protected work on behalf of a patron, 2) provided factors to give structure to an analysis of whether a dealing is fair, and 3) confirmed that fair dealing is a user’s right and requires a “large and liberal” interpretation. Additionally, in allowing that the Great Library could “rely on its general practice to establish fair dealing” rather than “adduc[ing] evidence that every patron uses the material provided for in a fair dealing manner” (para. 63), CCH provided support for the approach taken in the fair dealing guidelines in use across the education sector in Canada since 2012. However, despite the solid grounding provided by CCH (and reinforced by the Pentalogy cases as well as the York case), the publishing sector continues to challenge the legality of the ways in which post-secondaries copy and use materials for teaching. In the current increasingly-digital age, fair dealing is relied on much less at the institutional level than it was in the past. The vast majority of academic libraries’ collections are now in electronic formats and governed by licence terms that typically permit access and copying for teaching and research; these licences are paid for by the institution or its library. Textbooks now come in interactive formats that students subscribe to individually. Therefore, there is rarely a need anymore for additional permission or licensing to copy teaching materials. However, fair dealing is still incredibly valuable to individual instructors, researchers, and students, allowing them to draw from a diverse range of current and historical scholarly and non-scholarly sources in teaching and research, and include a wide variety of evidence in theses and other research outputs. CCH continues to impact many aspects of the everyday work of copyright administration in Canadian post-secondaries. This presentation will explore the evolution of fair dealing in higher education, address the challenges being raised by the publishing sector, and explore where we might be headed.

Keywords

copyright · fair dealing · courts and jurisprudence · Canadian higher education