Meera Nair

teachers and students, copyright and liability

In Posts on September 1, 2014 at 2:47 pm

Congress 2014 was held at Brock University this past spring; included among the customary panel discussions was a series of debates concerning copyright, fair dealing, licensing and open access. Titled Copyright and the Modern Academic, the series sought to widen discussion about the means by which information flow is facilitated in learning, teaching and research. Videos of the series are available at the Canadian Association of Learned Journals (see here) and at the Brock Video Centre (see here).

I was particularly interested in the third debate, Access Copyright—Friend or Foe, with speakers Howard Knopf and Roanie Levy. Knopf is a lawyer with Macera & Jarzyna, author of Excess Copyright, and a long-standing advocate for a more nuanced understanding of copyright and fair dealing. Levy is the Executive Director for Access Copyright, formerly General Counsel and Director of Policy & External Affairs for Access Copyright, and equally passionate about the roles of protection and licensing towards development of content. (Fuller biographies of both speakers are given approximately 5:30 minutes in.)

The arguments of Knopf and Levy were lively and thought-provoking, but what remains uppermost for me is the first issue raised from the audience at the beginning of the Q/A (at approximately 58 minutes in). It focused upon Access Copyright’s licensing terms that protect teachers and students in the context of teaching and learning, but not the subsequent behaviour of the student:

Most of us use Blackboard or Moodle; we upload links to articles, we upload articles, we create wikis, we want students to comment, we are creating a discourse community among our students asking them to critically analyze concepts or issue … It is not surprising that many times students download those articles and then those articles could now be posted on a student’s blog or on a student’s Facebook page … we all know how things move across the Internet. … I would personally find [the licensing terms] quite limiting, if I had to worry about that (emphasis mine).

Levy was reassuring that the discourse community, composed as it is of students and teachers (more broadly speaking, the educational body associated to the license) were safe within their actions. Levy was also emphatic that the educational community did not extend to the world at large: “students need to be made aware that content cannot just be shared with the entire world … sharing proprietary content that is not their own should not be encouraged.”

To which Knopf immediately stated that such sharing should be encouraged: “if what the student or professor is doing is fair dealing.”

Levy’s and Knopf’s remarks are not mutually inconsistent – quite the opposite in fact. Each statement reinforces the other. It is entirely plausible, and beneficial, for teachers to simultaneously state that piracy is undesirable and fair dealing is desirable. Discussion will, over time, encourage students to understand the nuance and care that goes into an evaluation of fair dealing. In the more immediate future, such conversation between teachers and students further exemplifies that post-secondary institutions take this matter seriously and are developing systems of good practice that amount to more than merely posting rules to a website.

Regrettably, with time running out and other questions waiting for attention, the crux of the first question was not addressed. More specifically, does a teacher have to worry about the personal conduct of a student outside the activities encouraged within class, with materials licensed at the choice of the teacher? The short answer is No.

A longer answer would suggest that in the scenario where a student’s personal behaviour is alleged as infringing, the copyright holder of the material in question might bring a complaint to the attention of the ISP providing the platform used by the student. Depending on the jurisdiction, the ISP might remove the material (under notice-and-takedown as found in American law) or forward the complaint to the student (under notice-and-notice as set within Canadian law). In neither case is the teacher involved.

An even longer answer would suggest that if anyone should insinuate that the teacher and/or university were liable, a look at CCH Canadian will quickly allay any worries. While that case is known best for its support of fair dealing, the Justices also confronted a claim that libraries were responsible for the conduct of its patrons with regard to self-serve photocopiers. Chief Justice Beverley McLachlin, writing for a unanimous court, rejected that claim:

[E]ven if there were evidence of the photocopiers having been used to infringe copyright, the Law Society lacks sufficient control over the Great Library’s patrons to permit the conclusion that it sanctioned, approved or countenanced the infringement. The Law Society and Great Library patrons are not in a master-servant or employer-employee relationship such that the Law Society can be said to exercise control over the patrons who might commit infringement. … Nor does the Law Society exercise control over which works the patrons choose to copy, the patron’s purposes for copying or the photocopiers themselves (para 45).

If the Supreme Court of Canada has deemed that a library is not responsible for activity conducted within its premises, with materials provided by the library and via the library’s own equipment, because of an absence of control of people, materials, or equipment, then it is illogical to suggest that a teacher is liable for activity of a student, carried out by the student’s own initiative, on a platform independent of the classroom.

Regardless of the status of the material involved (licensed, purchased, or utilized through exceptions to copyright), teachers are not implicated by personal copyright infractions of their students.

Louvain – 25 August 1914

In Posts on August 24, 2014 at 11:36 am

Librarians and historians alike may well feel somber as we approach the 100th anniversary of the Le sac de Louvain, a collective punishment meted out by German forces to the people of Louvain for seeming resistance to the German presence. Included among the sites of destruction was the library of the University of Louvain. Set ablaze the night of 25 August 1914, by the next morning its contents had been reduced to ashes.

In 2013, Mark Derez, Archivist of University Archives and Art Collection Leuven (Louvain), presented the story of that destruction, response, and reconstruction. An abbreviated version of his presentation was published in 2014 by the WWI Daily. Derez writes:

The destruction of Leuven had not been unique – in four Belgian provinces, 18,000 houses were destroyed and 5,000 Belgian civilians were killed … [But] there was an emotional element at work… Of all the atrocities committed, that which spoke most to the imagination was the devastation of the university library, for in no way could it have been considered a military target. … [This assault] produced a worldwide stream of solidarity. While the war was still on, twenty-five committees were formed in neutral and Allied countries to collect money and books.

Among those who took it upon themselves to encourage donations of books by Americans and American libraries, was Theodore Wesley Koch. A scholar of Dante, and an internationally respected librarian, Koch’s appreciation of the benefit wrought by libraries for the public was all too evident. As Librarian for the University of Michigan, he had introduced measures that allowed students to borrow books (previously only the professoriate enjoyed that privilege) and allowed public access to the periodical collection.

In a publication titled The University of Louvain and its Library, produced in London and Toronto in July 1917, Koch details the history of the university and the depth and breadth of the library’s contents. It began with a bequest of 852 volumes in 1627, “rich in history and theology,” from former student Laurent Beyerlinck. Subsequent patrons and librarians worked together through a period of nearly 300 years to amass over 250,000 items including rare manuscripts, incunabula, and university archival material beginning with the original papal bull authorizing its foundation.

Koch draws particular attention to the work of C.F. de Nelis, appointed as University Librarian in 1752, whose first act was to: “… ask the Government to require Belgian printers to send to the University Library at least one copy of every book printed by them (p.17).” (A condition that sounds very much like that included within the Statute of Anne (1710), where publishers were to remit nine copies of each book produced, “printed upon the best paper,” to various university libraries.)

The library was successfully reconstructed, inside and out. But it opened in 1928 to both acclaim and controversy. Architect Whitney Warren had sought to design not merely a modern library in neo-renaissance style, but also a war memorial replete with a bell tower whose carillon would ring forth patriotic anthems. Derez describes in detail the clash between those who sought to demilitarize the halls of learning and those who wanted the atrocities to be immortalized. So too does Matthew Battles in Library: An Unquiet History (2003). The final design and play list stopped short of overt jingoism but was memorial enough to attract unpleasant attention from Germany in the next world war. Merely 12 years after it opened, the library was once again destroyed in the 1940 shelling.

The library has since been rebuilt again to Warren’s design. Complete with its bells.

The rallying of the international library community in support of public benefit continues to this day. Preservation of our past, and preparation for our future, were prominent topics of discussion at the satellite conference and the annual conference of the International Federation of Library Associations and Institutions (IFLA) held in Strasbourg and Lyon over the past few weeks. In her opening remarks, IFLA president Sinikka Sipilä spoke of strong libraries as integral to strong societies; and emphasized that “access to information supports development by empowering people to exercise their civil, political, economic, social and cultural rights, learn and apply new skills and make decisions and participate in an active and engaged civil society.”

To that end, the Lyon Declaration on Access to Information and Development was unveiled on 18 August 2014; it calls upon Member States of the United Nations to ensure that information access, sharing, and use are incorporated in the post-2015 development agenda. Details are here; at the time of this writing, 134 organizations have given their support.

 

the $500 million tip of the TPP iceberg

In Posts on July 13, 2014 at 8:19 pm

Last week, international negotiators met in Ottawa to further discuss the Trans-Pacific Partnership (TPP) agreement. With the usual shroud of secrecy, few details regarding agenda and outcomes were released for public consumption. Nevertheless, based on a leaked copy of the chapter relating to intellectual property, there is sufficient reason for concern with respect to copyright. As reported last week (see Electronic Frontier Foundation here, Michael Geist here, Public Knowledge here, and VICE here) Canada’s copyright regime is likely to be challenged on at least two fronts:

  • the role of internet service providers (will they remain as neutral providers or become key figures in policing the internet?)
  • copyright duration (will Canada’s life-plus-fifty term give way to life-plus-seventy?)

Geist reminds us that the TPP will touch more than copyright; Canada’s privacy and patenting regimes are also implicated. Indeed, the question of Canadian sovereignty with respect to patenting is already at risk, via Eli Lilly’s $500 million challenge to the Canadian government regarding the loss of two secondary-use patents. The means by which Eli Lilly has launched its claim is a consequence of the Investor-State Dispute (ISD) mechanism of NAFTA.

Courtesy of Dennis Lowe and National Geographic

Courtesy of Dennis Lowe and National Geographic

Our made-in-Canada copyright regime has been painstakingly crafted over ten years of deliberative thought; to watch it cast aside will be difficult. But more deleterious will be further entrenchment of the ISD mechanism through the TPP. Yet this issue has received little attention in Canada. Perhaps in part because the topic is not sexy; Investor-State Dispute sounds painfully dull. The phrase cannot be summarily equated to freedom of expression, invasion of privacy, or even the dubious claim that a hit television series could not have been made under the TPP. ISDs are constructed with arcane language that seemingly has little to do with everyday life, but they are potentially lethal as is being demonstrated by Eli Lilly.

Eli Lilly provides the bizarre spectacle of a corporation suing a government because a court decision did not favour the corporation. It has vehemently insisted that the decision of Canadian courts not to uphold two secondary-use patents is a violation of investor safeguards provided through NAFTA; specifically, those relating to minimum standard of treatment, non-discrimination, and expropriation. That the courts rejected the patents because the drugs concerned did not live up to the standard of utility set by Canadian law, was not reasonable according to Eli Lilly. To take action against Canada required contorting the ISD chapter of NAFTA, despite the fact that the chapter in question does not apply to intellectual property. The entire event would read like a lurid novel, if novels were written about intellectual property and national sovereignty.

In a report dated to March 2013, Public Citizen provides a meticulously researched account of Eli Lilly’s actions and the operation of ISDs within trade agreements. At that time, Canada was only facing a $100 million challenge (Eli Lilly has since upped the ante); even so, Public Citizen did not miss the irony at hand:

… while Canada faces an investor-state challenge from Eli Lilly, the country has joined negotiations to establish the TPP, which would expand the investor-state system further. To date, Canada alone has paid more than $155 million to foreign investors after NAFTA investor-state attacks on energy, timber, land use and toxics policies. Underlying Eli Lilly’s claim against Canada is the notion that government patent policies and actions are subject to the investor privileges provisions of the agreement.

Public Citizen observes that Eli Lilly’s actions marks the first occasion of an intellectual property challenge occurring under the auspices of NAFTA’s ISD provisions. Our previous “first”, the first challenge of any kind, does not offer much comfort, resulting as it did in a loss both monetarily and for public health. Briefly, in 1997 a ban on the gasoline additive MMT was repealed by the Canadian government in response to opposition by Ethyl Corporation, the American producer of the additive. At the time, Public Citizen wrote:

The Canadian government settled the NAFTA suit yesterday agreeing to pay Ethyl $13 million in damages and to cover the company’s legal costs. It will also proclaim publicly that MMT is “safe” in direct contradiction of the view of its national environmental protection agency.

With respect to Eli Lilly’s present action, Michael Geist and E. Richard Gold (Professor, Faculty of Law, McGill University) have both indicated that the corporation’s chances of winning are slim. Notably, in a briefing session recently held in Washington DC, Gold indicates that “… no competent tribunal could rule in Eli Lilly’s favor”. We can only hope that both Geist and Gold are correct. But competence might prove a relative term; so far, arbitration tribunals have not distinguished themselves in weighing public interest (as a domestic court of law would) into the decision-making process. (Public Citizen has thoroughly documented past arbitration decisions, with added detail for some of the more egregious outcomes.) Moreover, even if Canada secures a win, that does not necessarily exclude involvement in costs.

The Washington DC briefing session was hosted by the firm of Stern, Kessler, Goldstein and Fox on 5 June 2014, with all the presentations posted online. I am hard pressed to choose a favorite but Simon Lester (Trade Policy Analyst, Cato Institute) raises the issue of Canada’s increasing involvement with ISDs. Despite some indication from the Canadian government that CETA (the impending trade deal with the European Union) will mitigate the ISD risks, Lester notes that Canada is simply trying to “tweak the language” to ensure that court decisions cannot be challenged. “…  what I have seen written is that the only changes are that no claims can be made under expropriation, but there are more avenues [of claim]… the slight tweaks that Canada wants to make are probably not enough.”

If the Canadian government is not decisively protecting sovereignty within a bilateral trade negotiation, it is unlikely that we will do better in the multi-national forum of the TPP.

There is much more that could and should be written about ISDs but, for now, Lester shall have the last word. In his presentation, he asks an important question: “Normally, the Supreme Court gets the final word. But apparently, there’s an international court system above the domestic Supreme Court system.  … Is everybody okay with that?”

 

 

 

 

 

Follow

Get every new post delivered to your Inbox.

Join 33 other followers