Copyright concerns should not intrude on student work; fair dealing supports the process of learning as it naturally unfolds in higher education. Unfortunately, the heightened atmosphere of copyright compliance may lead institutions to unnecessarily curb students’ creative inclinations. Looking ahead to post-postsecondary life, people choosing to function in a creative industry will be better off if they have a fuller understanding of how the system of copyright supports intellectual development.
The point of entry into any question of copyright infringement begins with the definition of copyright itself. Section 3.1 of the Copyright Act states that copyright is “…the sole right to produce or reproduce the work or any substantial part thereof in any material form whatever….” If the amount of the work copied (for whatever purpose) is insubstantial, copyright does not arise and thus infringement is not an issue. Of course, neither substantial nor insubstantial are defined in the Act. If one feels that a substantial aspect of a copyrighted work was copied, then consider if fair dealing applies.
Evaluation of fair dealing is a two-step process. First, does the use fall within one of the accepted categories of fair dealing as defined in the Act? Paraphrasing from Sections 29, 29.1, and 29.2 – research, private study, criticism, review and news reporting are eligible. Some conditions of attribution are required. The first four categories are endemic to learning. And, as students today are well versed in the practice of citation, the attribution requirements are generally met without second thought. Therefore, it is quite likely that a student pursuing individual activity to meet an assigned project is safely within the scope of fair dealing.
The second part of the process is more challenging: was the use fair? For that we have the guidance of the Supreme Court of Canada, as indicated in their 2004 decision CCH Canadian. It may seem lengthy and dry; however, the Supreme Court indicated it is only a framework. Not every factor will apply to every situation. Or, depending on the context, added consideration may be warranted. Nevertheless, here is my interpretation of how individual student work melds with the six factors denoted in CCH Canadian.
1) The Purpose of the Dealing. Establishing the validity of purpose is quite straightforward. As noted above, most educational activities fit within research, private study, criticism, and review. (Indeed, all four uses could be present in the same assignment.)
2) The Character of the Dealing. This means, how is the copyrighted work dealt with? In general terms, in CCH Canadian the justices agreed that: “If a single copy of a work is used for a specific legitimate purpose, then it may be easier to conclude that it was a fair dealing (para.55)”
In the context of student work, two types of copying are likely to take place – copying for reference and copying for inclusion. The need for reference material sits comfortably in the CCH Canadian context. The dispute centred upon the copying of legal materials for legal research – in that situation the court stated: “Copying a work for the purpose of research on a specific legal topic is generally a fair dealing (para.67).” But copying for inclusion is more complex. Here is where the character of the dealing must meld with the use. It is likely that the copying is to serve the purpose of criticism or review, as part of the larger expression of the student’s own ideas. Whether it be a grade ten homework assignment or a doctoral dissertation, when the student has chosen an input element appropriate to his or her message and integrated that element in a new creation, such copying is likely to be fair.
Moreover, inclusion of copyrighted material is supported through the Berne Convention in the right of exception for quotation. Renowned copyright scholars Sam Ricketson and Jane Ginsburg write:
Quotation is an integral part of many kinds of intellectual activity, ranging from the writing of historical treatise and critical commentaries to the composition of polemical tracts. Accordingly, provision for it is made under most national laws, as well as under the [Berne] Convention… this is a mandatory requirement under the Convention.
In our increasingly visual world, quotation may well encompass visual elements. That does not change the legitimacy of fair dealing provided, again, that reproducing the element is necessary for the larger purpose of the student’s expression.
3) The Amount of the Dealing. This is perhaps the most unnerving aspect. Regrettably though, this anxiety is often resolved by stipulating a quantified measure. The New York Times featured an article by David Orr, titled “When Quoting Verse, One Must Be Terse” Mr. Orr describes the challenges wrought by copyright to American poetry criticism and makes specific mention of the problem of limiting copying by measure:
[It doesn’t] help to say that the standard should be, say, 5 percent of a given poem. Here’s the entirety of Monica Youn’s poem Ending: “Freshwater stunned the beaches. I could sleep.”
What’s 5 percent of that? “Fr”?
This same dilemma arises when dealing with a visual work. How can you make a meaningful comment if you can only display a partial image?
Fortunately, the aspect of choosing an appropriate amount is precisely what students will learn. The integration of other works must be towards the expression of each student’s own ideas, and they have teachers to help them make these decisions. No third-party should try to artificially set rules on this instructional process. An interesting point of discussion at Artists in Conversation was a concern by artists themselves – did they transform an input work enough? Their thinking was not prompted by any question of copyright infringement, but reflected their own creative intentions.
Mr. Orr presciently suggests that one should rely on the custom and practice of the discipline. While the United States has not made that directive explicit, nothing precludes consideration of custom there. Whereas in Canada that directive was explicitly included by the Supreme Court in CCH Canadian (para. 55). Institutions need not worry about choosing what their students can incorporate into projects – that is a decision shaped by both teacher and student according to the long-standing custom called teaching.
4) Alternatives to the Dealing. In CCH Canadian, the justices commented that “If there is a non-copyrighted equivalent of the work that could have been used instead of the copyrighted work, this should be considered (para.57).” Since the time of CCH Canadian, the volume of Creative Commons work has grown considerably. Students can be encouraged to look for such material. But this does not rule out using copyrighted material. (This is why we have fair dealing.)
An obvious place where reproducing an entire copyrighted work may be imperative is in the arena of popular culture. Rosemary Coombe writes, “the imagery of commerce is a rich source for expressive activity. In consumer cultures, most pictures, texts, motifs [etc.] are governed, if not controlled by regimes of intellectual property.” If the purpose of the new creation is to comment upon or criticize a popular culture phenomenon, it may well be necessary to reproduce the visual representation.
5) The Nature of the Work. This raises the question of whether greater dissemination of the copyrighted work is of benefit to the public. Bear in mind that this factor was enunciated in the context of CCH Canadian and centred upon the distribution of entire research articles. In the realm of completing a school assignment, this factor has less relevance. Again, we are speaking of a situation where a copyrighted work (in part of in whole) is reproduced in aid of a new expression serving a different idea. Wider distribution of the copyrighted work seems a moot point. (Whereas one could argue that the newly created work serves a public benefit.)
6) The Effect of the Dealing on the Work. This speaks to the likelihood of affecting the market of the original. Will utilization of the copyrighted material result in unfair competition?
When a student incorporates copyrighted work for the purpose of a school assignment, it is unlikely that the student’s work could substitute for the original. Even if the student has incorporated the entire work, assuming they did so in a creative manner that changes the context and conveys a new interpretation, the resulting work would not serve the same purpose as the original. A Canadian court has already given support to transformative use.
And for those who might worry that existing systems of licensing imply that permission (or payment) is necessary for any use of a copyright work, in part or in whole, in CCH Canadian the Supreme Court gave us this memorable instruction: “The availability of a license is not relevant to deciding whether a dealing has been fair (para. 70).” In effect, our Justices have positioned Canada to avoid the disarray that happened in the late 90’s in the United States, where market-concerns took precedence over fair use. (Fortunately, the United States has progressed beyond this interpretation.)
p.s. As some might remember, CCH Canadian brought forward a helpful reminder; that a library can stand in the fair-dealing-shoes of its patrons. So if students turn to their librarians for help in retrieving copyrighted work, the librarian has not implicated the institution in any unseemly behaviour.
CCH Canadian Ltd. v. Law Society of Upper Canada [CCH Canadian] 2004 SCC 13.
My synopsis of CCH Canadian.
Sam Ricketson and Jane Ginsburgy, International Copyright and Neighboring Rights: The Berne Convention and Beyond 2nd Edition (Oxford:OxfordUniversity Press, 2005).
Rosemary Coombe, The Cultural Life of Intellectual Properties: Authorship, Appropriation, and the Law (Durham: Duke University Press, 1998).