Difference between Supplementary and Optional vs. Required readings on reserve
When the Copyright Board of Canada published its tariff for the K-12 sector, it noted in its reasons that the students were in receipt of required reading and held that this could not be considered to be fair dealing and therefore, it was an infringement of copyright and compensable. In its appeal of the Board's decision, the lawyers for the K-12 sector argued, among other things, that the courts had misconstrued the case law on this point. In its decision upholding the Board's tariff (in very large part) the Court of Appeal dealt with this contention and dismissed it summarily. That dismissal is one of the grounds on which review by the Supreme Court is being sought. Until the Supreme Court deals with the matter, and decides that the case law has, in fact, been misconstrued, the Court of Appeal's decision is authoritative. Thus, making copies for required reading requires the consent of the copyright holder, while making a limited number of copies for optional and supplementary reading remains, under the provisions of the Copyright Act, a fair dealing (i.e. not an infringement).
In the legal opinion sought by AUCC, the matter is dealt with as follows: the paper copies that are made as an optional and supplementary source of information for students must be a small proportion (no more than 25%) of the required reading for a particular course. In addition, the university library must have received, from the faculty member or instructor requesting the copies, a written acknowledgement in paper or electronic form, confirming that the copies are intended as an optional and supplementary source of information for students and that the copies amount to no more than 25% of the required reading for the course. See Memorial's Fair Dealing Policy and Fair Dealing FAQ for further clarification.
Required reading generally includes any required textbooks, course manuals developed by the instructor and any other required readings (specific permission to copy must be sought if not covered by the library's general licenses). In the Desire2Learn environment, it may include exercises on the textbook publisher's website if these are required.
Supplementary and optional reading generally includes articles, book chapters and various other fragments that can be copied in accordance with Memorial's Fair Dealing Policy without the permission of the rights holder. In the Desire2Learn environment, it would not include exercises on the publisher's website if these are supplemental, because permission to use them has been granted by the publisher. If these exercises are required, they increase the base that is subject to the 25% rule. If they are supplemental, they do not increase the base, but they do not count as part of the 25%. Alternatively, if, in the same course, the text book contained 300 pages, the course manual 130 pages, and the five articles 10 pages each, a supplemental reading list of 120 pages (ca. 12 journal articles) would be possible, 120 pages being 25% of 480, without adding in the impact of the exercises and readings on the publisher's website. The best way to estimate the quantity of these is up to the instructor, but must be reasonable.
Calculating the 25%
Having outlined the kinds of materials that fit into required and supplemental categories, it is important to note that there is no set way of calculating the 25%. Any reasonable process will do. The two most obvious are chapter/article counts and page counts.
If a course requires a text book with 18 chapters, a course manual of 13 units, and five articles, one might reasonably maintain that a supplemental reading list of 9 articles would meet the test, 9 units being 25% of 36. If the same course required the students to carry out 18 units of exercises and readings on the publisher's website, another 4.5 articles could be added to the supplemental and optional reading list.
