61 Reforms to C-61, Day 54: E-Reserve Provisions Less Effective Than Fair Dealing

E-reserves are the electronic equivalent of the traditional library book reserves - books or materials that a professor places on reserve in the library so that it is accessible to the entire class. In the aftermath of the LSUC v. CCH Supreme Court of Canada decision, which emphasized the need for a broad and liberal interpretation of the fair dealing provision, a growing number of universities began to establish (or consider establishing) e-reserve policies based on fair dealing. Most libraries had traditionally sought licenses for the use of electronic copies of these additional research and reading materials, yet the frustration of lengthy delays and the CCH case spurred many to think about a fair dealing based approach.  For example, the University of Calgary has established an e-reserve policy that links to accessible online content and scans print material that qualifies as fair dealing.

The move toward fair dealing based e-reserve policies have been gaining momentum in Canada, yet Bill C-61 tries to steer libraries in a different direction as the bill includes a specific provision that promotes a license-based approach.  Section 30.02(1) provides that:

Subject to subsections (3) to (5), it is not an infringement of copyright for an educational institution that has a reprographic reproduction licence under which the institution is authorized to make reprographic reproduc-
tions of works in a collective society’s repertoire for an educational or training purpose

(a) to make a digital reproduction - of the same general nature and extent as the reprographic reproduction authorized under the licence - of a paper form of any of those works;

Moreover, Section 30.02(7) and (8) create a statutory safe harbour that limits potential liability for libraries for digital communication of works under this section. 

So far, so good.  However, Section 30.02(3) sets out several requirements to qualify for the exception, including payment to the applicable copyright collective at 30.02(3)(a).  In other words, digital copying is permitted but only if the institution pays for the digital copies.  The institution has already paid for the work in print form and this is designed to extract additional revenue for the digital copy.  While some people may believe that is reasonable, the key point here is that the government is really just imposing a statutory deal on both parties - digital copies and a statutory safe harbour in return for payment and new DRM restrictions.  Some risk averse libraries and institutions may jump at the deal (with all of its restictions), but many other libraries will rightly conclude that they will be better off ignoring this new "right" altogether and opt for a fair dealing model that does not come with so many restrictions.