Comparison of Fair Dealing and Fair Use in Education Post-Pentalogy

Lisa Di Valentino, a doctoral student in Library & Information Science at the University of Western Ontario has posted a new working paper on SSRN.  Entitled “Comparison of Fair Dealing and Fair Use in Education Post-Pentalogy”, the author discusses and compares the scope of Canadian fair dealing and American fair use.  In addition to providing a thorough and up to date comparative analysis of the laws in these two jurisdictions, the author also compares the respective responses from the American and Canadian education and library communities. A summary of this paper was presented as a work-in-progress at the 2013 IP Scholars Conference at Cardozo Law School last month.

Here is the abstract:

While traditionally American fair use has been thought of as broader in scope than Canadian fair dealing, I claim that in 2013 this is no longer the case. I further argue that educational administrators and academic and library associations in Canada have yet to take full advantage of this expansion of users’ rights.

In Part I I give a brief and general overview of copyright in Canada and the United States. In Part II I compare the legislation and jurisprudence specifically with respect to fair dealing and fair use, using the fairness factors as a guide. Specifically, this part will examine differences with respect to the fairness factors in general, transformativity, amount and substantiality, market harm and licences, and institutional practice and policy. Part III is a discussion of the advocacy efforts of Canadian and American educational and library professional associations and the development of best practices and guidelines. I conclude that colleges and universities in Canada may now confidently develop copyright policies that reflect the rights of users, but educational administrators and associations in Canada are lagging behind their American counterparts in leveraging this opportunity.

This paper is exceptionally timely given the ongoing developments with respect to the Access Copyright license, and the development of  institutional copyright policies and guidelines in Canadian post-secondary institutions.

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