Meera Nair

Breaking Ranks

In Posts on August 23, 2009 at 7:23 pm

August is flying by, and the deadline for submission of opinions to the consultation process is fast approaching – September 13, 2009. (I’m still working on mine…) Both the Canadian Alliance of Student Associations and the Canadian Federation of Students have submit thoughtful and well articulated proposals.

Unfortunately, I must break ranks with my host community – the Association of Universities and Colleges of Canada. With all due respect to the AUCC staff, I have concerns with some of their remarks, particularly this one:

Students and professors need to know that they are not breaking copyright law when they engage in teaching and learning activities that involve the use of publicly available works on the Internet. Copyright law should be amended to clarify that publicly available works on the Internet can be used for education and training purposes without infringing copyright.

Judging by the positions of the two student associations, students in Canada are already aware that accessing publicly available material from the Internet is a legitimate activity. There are a variety of ways that such behaviour could be considered legitimate, but, as always, fair dealing is the most viable. The access generally sought after in the name of learning, teaching and research is already on firm ground through fair dealing.

To request amendment to the law to engage in legitimate activity concedes infringement where none has happened. This is not merely peculiar, it is dangerous. If this amendment is tailored as a special exception solely for educational institutions, other Canadians who perform the same activity, but are not sheltered by an educational institution, will be at risk for a charge of infringement.

And to hide behind such an amendment means universities and colleges are choosing to exempt themselves from understanding and upholding their individual obligations under the terms of copyright law. The latitude that is permitted by fair dealing, precisely for the kind of work carried out by the students, teachers, researchers and librarians of these institutions, comes with the obligation to use fair dealing responsibly.

Fortunately, our two student bodies seem up to the task, as are Canadian librarians. (The CLA position paper, available from the August 10, 2009 submissions on the consultation website, makes for good reading.) It would be nice if universities and colleges would follow.

  1. Teaching is not a fair dealing purpose. And though you do talk of the need to use fair dealing responsibly, you don’t apply it to the use of publicly available material, where the terms and conditions might provide for limits on what can be used. As I see it, the big risk of the PAM exception is that more content will be locked down or even kept off the web altogether.

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