Recalibrating Some Copyright Conceptions: Toward a Shared and Balanced Approach to Educational Copying

Most of Canada’s publicly-funded educational institutions have operated since the 1990s under blanket reprographic licences. But recent Copyright Act amendments and Supreme Court decisions in several copyright cases have added legislative and judicial weight to the idea that copyright encompasses both private owners’ rights and public users’ rights in the form of infringement exceptions such as fair dealing. Many educational institutions have responded to these changes by moving toward greater reliance on statutory users’ rights and direct licensing with copyright owners, and by moving away from blanket collective licensing. Not unexpectedly, copyright owners and the societies and collectives that represent them see the changes in copyright law in a different light. Copyright owners’ and educators’ variant conceptions of the kinds of educational copying that are compensable pose a challenging policy problem in need of a principled solution that upholds the legislative underpinnings of copyright law and is perceived to be fair. This article attempts to frame a balanced understanding of underlying issues by considering the nature and purpose of copyright, the purpose of copyright collectives, what is meant by fair dealing, and, ultimately, how we should think about copyright. It suggests that meaningful change may not be achievable without concerted attention paid to the language we use to think and talk about copyright in order to construct a combat-free shared space in which learning, inquiry, and the production of creative works are fostered and, when appropriate, rewarded fairly.