The Copyright Modernization Act, previously known as Bill C-11 expanded the scope of Section 29 by adding “education” to the list of purposes in respect of which fair dealing does not infringe copyright.

I find this problematic for the simple reason that it is not clear what “education” is supposed to mean.

The current Copyright Act had already contained Section 29.4 that created a specific exception for educational institutions or “persons acting under the authority of educational institutions for the purposes of education or training”. Both the existing and upcoming revisions of the Copyright Act only refer to education in connection with “educational institutions”. Section 29 is now the only exception.

One of the rules of legislative interpretation is that the Parliament does not include unnecessary or meaningless language in its statutes and that it does not make the same point twice.

If certain unauthorized acts of educational institutions and of persons authorized by such educational institutions were already exempted, the question then becomes, what does the addition of the word “education” really add to the Copyright Act?

If it is limited to educational institutions, what is the benefit of adding the word to a section that has nothing to do with educational institutions?

If it’s not about educational institutions, is it about general education, which is routinely defined as “the act or process of imparting or acquiring particular knowledge or skills”? This definition really is so broad that it would apply to almost any human activity. By uploading a copy of a new movie, the uploader may be said to impart knowledge about that movie; by reproducing a book and selling copies of it at 25% of the price, the unauthorized “publisher” may be said to impart knowledge contained in the book.

The original exception targeting educational institutions could be defended because it was based on the presumption that educational institutions are mature enough not to engage in piracy. Ironically, given the number of professors, including professors of law, who believe that copyright should not prevent unauthorized use of copyrighted works as long as such use “benefits the public”, this assumption seems less reasonable today.

If any use may be covered by the purpose of education, then the only qualifying criteria remains whether the use was fair. While some may say that this brings Canada’s fair dealing closer to the American fair use, the problem is that, unlike the U.S., we still have pages and pages of specific exceptions and purposes, which makes meaningful application of the Act substantially more difficult.

In my paper on international treatment of parodies in copyright laws of various countries, I outlined that there are three groups of countries in how they treat exceptions from the general rule that no one can use works protected by copyright without consent of the copyright owner:

1. countries that have a closed list of exceptions, outside which any unauthorized use is considered an infringement;

2. fair use countries, where fairness of use is the only thing that matters, and the purposes are only listed for the sake of example; and

3. fair dealing countries, where on top of a list of exceptions the courts need to consider whether the use for a particular purpose is fair.

I came to the conclusion that fair dealing offers the worst of both worlds – it lacks the predictability of systems with a closed list of exceptions, yet it does not offer the flexibility of fair use systems.

Adding a bunch of new categories, regardless how broad, does not really solve the problem, does it?

BOTTOM LINE: Yet another amendment that does not seem to make any sense. If “education” refers to “educational institutions”, then the amendment is redundant. If it refers to any education, then the amendment is overly broad.