Meera Nair

protection

In Posts on March 3, 2020 at 8:17 pm

My last post focused on institutional rules surrounding the creation of a particular category of works: theses and dissertations created by Masters and Doctoral students. As I explained, the origins of the post date to 2008-2009 when I was working on my own dissertation.

At that time, I was dismayed by the propensity across Canada to limit or withhold fair dealing from students. As I sought explanations for those rules, a thesis coordinator informed me that it was for the students well-being. The institution sought to protect them from copyright infringement lawsuits. This reasoning left me perplexed; lawful uses should not need protection. However, the doorstep of a Ph.D. was no place to work that one out.

My subsequent exploration did not uncover any incident of a Canadian graduate student being taken to task in a courtroom for alleged infringement. What I found instead was Boudreau v. Lin (1997).

This case was covered in some detail between March and October 1997, by various newspapers in Canada (The Ottawa Citizen, The Vancouver Sun, and The Toronto Star) as well as by the Associated Press and The New York Times. Perhaps the most detailed coverage came from Allison Hanes writing for The Charlatan. Her article began with: “When Paul Boudreau teaches his lesson on the production of circuits in his micro-electronics course at Algonquin college this fall, his students can rest assured their instructor knows his material – he has spent the last six years proving it.”

Boudreau v. Lin concerned the plagiarizing of a paper written by Paul Boudreau, an MBA student taking a directed studies course at the University of Ottawa, by his instructor Dr. Jimming Lin. As was revealed through the legal proceedings, Lin made some minor changes to Boudreau’s work, removed Boudreau’s name as author, added a co-author from another institution, presented the paper at a conference, included it among course materials sold to subsequent students, and listed Boudreau’s work as Lin’s own original research in his application for tenure.

Boudreau’s efforts to find justice within his own university were met with the barest minimum of response; the institution felt that Lin had made substantive contributions to the paper and had only erred in forgetting to include Boudreau as a co-author. The university counselled Lin “to be more prudent in the future (para 21).”

Relying solely on his own funds, Boudreau brought forward a legal challenge. At the end, Justice Monique Métivier did not mince words:

I find as a fact that the professor offered editorial suggestions, and, on a conceptual level, that he attempted to direct the student in his paper to a less technical and more management-oriented view, as befitted a course of study in the Masters of Business Administration program. But, it was clear from the evidence, the professor was neither the originator nor the developer of any substantive ideas or concepts. His contributions consisted of general comments that were directed to polishing the paper and were those which one expects from a professor who is editing and discussing a paper written by a student. None of the changes he proposed affected the substance of the paper (para 26).

Mr. Malouin’s (Dean of the Faculty of Business Administration) said it was not his mandate to determine if Professor Lin was truly a co-author but more to see if the student’s name had been left off. He concluded such omission was an honest mistake. On the other hand, he also said he had considered what was the relevant contribution of each, and had concluded that Professor Lin had input in the paper. He did not appear to have considered the details of the respective contribution which Professor Lin had provided in his application for a promotion or inquired into their veracity. The simplest inquiry would have revealed the misstatements. I find as a fact that the plaintiff Mr. Boudreau was the only author of the work in question. I have no difficulty in finding Professor Lin is not a co-author (emphasis mine, para 35.)

As was noted in several articles, Boudreau was able to pursue justice because he was gainfully employed, and that his career did not depend on approval or assistance from the professoriate. Most graduate students have neither the finances nor the independence necessary to claim their rights in a court of law.

These news stories, and the case itself, ought to have become compulsory reading for every university administrator and tenured, or tenure-track professor in Canada. Yet Boudreau v Lin seems to have made no appreciable impact on the postsecondary community. If anything, it seems to have contributed to a misrepresentation of fair dealing as, in his defense, Lin claimed fair dealing. (A claim that was soundly rejected.) Yet over time, Boudreau v. Lin was reduced to a bland statement that fair dealing was inapplicable if a work is distributed without authorization.

As I wrote in my dissertation then, “Given that the defendant had plagiarized another work, the rejection of fair dealing was fitting.” To put it plainly, fair dealing is not camouflage for an utter collapse of ethical conduct.

When I first read this case, I was shocked that a graduate student could be treated so badly by a professor. In the 12 years since, I’ve come to the realization that it happens more often than the academy wishes to let on. While the majority of the professoriate are good mentors, abuse of graduate students remains an ongoing problem. And those students are rightly concerned that speaking up will jeopardize their future prospects. As a consequence, the culprits are exposed only in whisper networks.

All this leaves me wondering whether, on the issue of copyright, graduate students have more to fear from within their institutions than from an external challenge. 

Well-intentioned as the motive to protect students from an irate copyright-owner might have been, denying fair dealing made little sense to me in 2008 and even less now. Such fear assumes that the owner would rush to serve said student with papers and then romp to victory in court. It is an extreme assessment of risk to say the least. And is not borne out by existing case law which favored fair dealing with third-party work used in the creation (and distribution) of a new work, one that is aimed at furthering discussion of issues at hand. A definition that aptly describes a thesis or dissertation.

Canadian universities may be interested in Allen v. Toronto Star (1997), Vancouver Aquarium v. Charbonneau (2017), and Wiseau v. Harper (2017); Canada is not lacking for good material relevant to this point.

misrepresentations

In Posts on February 27, 2020 at 7:52 am

In 2008, as part of my doctoral research, I had surveyed university rules concerning use of copyright-protected materials by graduate students – to rather dreary results. CCH had not made any appreciable impact on institutional awareness of fair dealing; there was no sign of the “large and liberal interpretation” of fair dealing as was prescribed by a unanimous Supreme Court in 2004. Nor were institutions particularly moved by the Court’s reminder: “It may be relevant to consider the custom or practice in a particular trade or industry to determine whether or not the character of the dealing is fair (para 55).“ Higher education in Canada apparently had no qualms about cultivating permission as the practice among their following generations of researchers.

Bleak as those findings were twelve years ago, the situation looks worse now. Despite the continued development of fair dealing by our Courts (not by the Supreme Court alone but also through lower court decisions such as Warman (2012) and Blacklocks (2016), and Parliament’s continuing support for use and expansion of exceptions,* fair dealing is even further from a solid footing in Canada’s university sector. What may be most frustrating is that some institutions have devolved from a timidity with fair dealing, to an outright misrepresentation of it.

For instance, from the University of British Columbia:

When copying copyrighted works for use in a thesis, such copying is primarily for the purpose of research. As understood in the context of the fair dealing exception, the research purpose does not contemplate distribution to the public (i.e., publication of your research). 

Because the University requires you to submit your thesis to cIRcle (which, as mentioned above, means that it is published online) and also to submit your thesis to the Library and Archives Canada, the fair dealing exception is not available for use in your thesis. (Emphasis in the original.)

As most graduate students do not have a deep understanding of fair dealing or its history, they are only too prone to believe this diktat as truth. Even if they have such knowledge, being at the mercy of the institution means compliance is the likely outcome.

But as the stakes are too high to let such misrepresentation go unchallenged, I offer the following deconstruction:

When copying copyrighted works for use in a thesis, such copying is primarily for the purpose of research.

Two aspects of copying endemic to research have been conflated. The first is copying from reference materials in order to become knowledgeable about a subject in order to embark on a scholarly path of one’s choice. A student copying some material has a compelling claim to legitimacy through consideration of: what is or is not protected content, whether the copying was substantial, the research purpose of fair dealing, other exceptions, and, the fact that journals/ebooks are commonly licensed for use by institutions and expressly permit copying of some content by faculty, staff and students.

The second use concerns copying information in order to create something new. Creating a scholarly work often means invoking other works, sometimes through quotation, when the newer scholar wishes either to make a point or to refute one. This behaviour is akin to review or criticism, both are permissible uses under fair dealing. (And again, whether the excerpted words are even eligible for protection would come under consideration before one thinks about potential infringement.)

 As understood in the context of the fair dealing exception, the research purpose does not contemplate distribution to the public (i.e., publication of your research).

Research’s life blood lies in distribution. Findings kept to oneself do not propagate further work; the test of good research is whether it can withstand the scrutiny of one’s peers. And from that scrutiny, and acceptance or rejection, the discipline itself is perpetuated.

Fortunately, the system of copyright was, and is, equal to this task. The records from the negotiations that led to the Berne Convention (1886) reveal a fascinating discussion about unauthorized uses of scientific and educational materials.  As Sara Bannerman shows, at the outset, the Convention’s provisions placed scientific articles on the same footing as newspaper and periodical articles; meaning in the public domain! An author or publisher was required to claim their copyright in such works. Recognizing that existing bilateral agreements among various countries permitted the use of excerpts of scientific and educational matter, individual countries were afforded the right to establish such provisions in their domestic laws. And, it was revealed that the right of quotation was an active practice among several countries, even when it was not prescribed by domestic law. Perhaps most notable was that in France (the powerhouse of arts and science in those days), “…works of science or criticism made very extensive uses of the right to quotation (p.115).”

Closer in time and space, Canada’s implementation of fair dealing began through the Copyright Act of 1921, as copied from the U.K. Copyright Act of 1911.  That marked the first time that fair dealing was codified in English law. Thanks to Isabella Alexander and Ariel Katz, we know that the legislators of the day sought to create in fair dealing a flexible standard that encompassed existing unauthorized uses which were endemic to the publishing sector (such as printing excerpts as necessary for review) as well as provide the basis for other reasonable uses.

Because the University requires you to submit your thesis to cIRcle (which, as mentioned above, means that it is published online) and also to submit your thesis to the Library and Archives Canada, the fair dealing exception is not available for use in your thesis

I have previously drawn attention to David Vaver’s explanation that the tradition of making graduate student work available is not in conflict with fair dealing. While the conduit of such availability was previously the university’s library, the fact that institutional repositories are now the norm does not affect its legitimacy. Our Copyright Act is technologically neutral.

A colleague raised a concern that license agreements by which many institutions obtain research publications, might contain language prohibiting further republishing. In terms of students’ uses, we have no case-law on this matter and likely will not, as such a dispute would not be favorable to a vendor. Students are not party to the negotiations of the institutional license, raising doubts as to how binding that language can be. In terms of the broader question of contracts v. the Copyright Act—which one will prevail?—in Royal Trust v. Potash (1986) the Supreme Court ruled that with respect to a benefit enacted in the public interest, “the long standing rule against waiver or contracting out should apply (para 40).” Of particular relevance to this analysis, was the Court’s position that the long standing rule applied regardless of whether or not the statute gave explicit protection to the benefit.

Finally, if institutions are so uncomfortable with relying on the indeterminacy of fair dealing (although, again, if committee members have done their work, students’ uses will implicitly be legitimate), we should not forget the precision of S29.21 (NonCommercial User Generated Content), which expressly protects unauthorized use of content as it pertains to the creation of a new work in which copyright subsists. Section 29.21 is not without conditions, but the nature of what a thesis or dissertation is makes abiding by those conditions seamless to the student.

Regardless of which measures under the Copyright Act a student leans on, or where their work is stored, a categorical claim that fair dealing does not apply to the creation of a thesis or dissertation is demonstrably false. Students, like all Canadians, are governed by the Copyright Act and entitled to all the rights therein.


* Among the purposes listed for amending the Copyright Act in 2012 was to “allow educators and students to make greater use of copyright material.” And at the completion of the Copyright Review in 2019, the Standing Committee for Industry, Science and Technology recommended fair dealing be amended such that its purposes served “as an illustrative list rather than an exhaustive one (p. 69).”

 

Update 17 March 2020
Am happy to report that I was informed that UBC has been working on revising their instructions to graduate students regarding fair dealing.

persistence

In Posts on February 24, 2020 at 7:16 am

As Fair Dealing Week falls just prior to the anniversary of the Supreme Court’s CCH decision of 2004, the feting of fair dealing invariably provokes reflection about that case. While the decision itself drew its strength from the earlier Théberge decision of 2002, CCH is deservedly known as a watershed moment in Canada’s judicial treatment of exceptions within the system of copyright.

Given the global tendency then to increase the depth and breadth of the scope of control afforded to copyright owners, with individual copying increasingly under scrutiny, the Canadian High Court was impelled to swim against the tide of copyright maximalism. Undeterred, the Court brought a broader perspective to the system of copyright – its rights and responsibilities, its demands and concessions. With unanimity, fair dealing was recognized as integral to achieving the system’s goal of fostering creativity.

Important as this new chapter was, it arrived wrapped in a modest dust jacket: that librarians could do for library patrons, what they could legitimately do for themselves. Looking back, that hardly seems reason for anxiety or uproar.

And yet, as observed before, the initial reaction was one of outrage from copyright owners, publishers, authors, and various Members of Parliament. The details of the Court’s decision were obscured by hyperbole and hand-wringing; that said, those doomsday predictions remain unrealized. Yet, misrepresentation persists.

Among my copies of copyright-protected work are two pages from The 2019 Annotated Copyright Act, written by Normand Tamaro and published under Carswell/Thomson Reuters Canada, containing this passage: “In CCH, the Court relied on general assumption which led it to state that it was permissible for the entire legal community to broadly reproduce a legal monograph owing to the fact that general practice established by the Great Library allowed the photocopying for research purposes (p.766).”

In connection to CCH, Tamaro also writes: “Any author of a legal monograph knows very well his work will be used for research purposes. However, if, on this ground, photocopying is permitted without any form of authorization, where are we headed? If it is not useful to buy a monograph since it is legitimate to reproduce it, and if the commercial market for this kind of work is already scarce to begin with, one need not be a fortune-teller to imagine that works created by legal authorities will all but disappear, at least in book format.”

To readers who are not familiar with the case, or perhaps have never read the decision, such synopsis and commentary looks more than a little scandalous. The inference is that entire books were copied and distributed to (at least) all the members of the Law Society of Upper Canada, all because the Library allowed works to be photocopied. Whereas, the truth is far less provocative. The behaviour under question was creation of single copies of requested material (headnotes, reported judicial decisions, case summaries, a topical index, monographs) in part, or whole (depending on the item in question), issued in response to an individual request.

The Supreme Court did not specify in detail all that was copied; that information was provided in the trial decision. Regarding the monographs:

The copying from Forensic Evidence in Canada amounted to the copying of the whole of a 32-page monograph within a 713-page textbook, which amounted to 13 percent of the whole of the textbook. In the case of the textbook Economic Negligence, which is 306 pages in length, 69 pages were copied amounting to 93 percent of one chapter and 21 percent of the pages of the textbook (para 42).

This degree of copying bears no resemblance to the spectre of entire books being copied and distributed to readers en masse, to the detriment of the creation of such works.

Tamaro’s wording is present in each edition of the Annotated Copyright Act, published from 2012-2020. (It might also be present in earlier editions since 2004, but I do not have access to those volumes to confirm it.) That he does not approve of the Supreme Court’s decision is evident; which is his prerogative. But one must ask: is it appropriate for a publication marketed expressly to assist in interpretation and understanding of the law, to be guided by opinion over accuracy?

Myths about fair dealing persist, aided and abetted by authorities of note. An equal and persistent airing of fact might be the only antidote. I shall be speaking about fair dealing’s post-truth existence on February 26 at the Fair Dealing Symposium hosted by the  University of Alberta.