Tomorrow we shall see what form of copyright amendment is coming back to Parliament for debate and realization into law. If the inclusion of “education” to fair dealing has survived the campaign to discredit it (see here and here) and becomes a legitimate category in fair dealing, this will help to protect teaching practices. But, if education should not survive, we can still do quite a bit with fair dealing as it exists.
As has been written many times on this blog, fair dealing is not license to copy and distribute at will. It is a nuanced exception within the system of copyright. But the atmosphere of copyright, at this time, is one of confusion.
The movement away from Access Copyright bundled licenses towards more varied approaches for purchasing and distributing learning materials is a positive step. Monopoly practices never produce quality and variety to the benefit of consumers; it doesn’t matter which industry one talks about. Unfortunately, the adjustment is messy. Post-secondary teachers across Canada are unsure of what materials they can copy. A recent article from the Canadian Press sums up the situation:
The resulting wariness means students aren’t getting the same course material they received in the past as guarded professors choose to simply eliminate material from classes they teach rather than risk a lawsuit. … Libraries and copyright officers have been swamped with work this fall, trying to clear the course materials assigned for classrooms.
Sorry as I am to hear that, the larger problem is the degree to which existing teaching practices are scrutinized for copyright infringement. Individual teachers have been implicitly, or explicitly, instructed to remove any copyrighted material from display during lectures. Such a directive has no basis in law. It ignores fair dealing entirely. The purposes of criticism and review (found within existing fair dealing) favour the use of quotations, illustrations, diagrams, flow charts, film clips and software snippets – in short, any copyrighted material – when such inclusion serves the purpose of conveying concepts to students. To fortify this behaviour under fair dealing, attribution is important. But with citation being the backbone of academic practice, it is likely that teachers already take care to identify their source materials to students.
Furthermore, bans on inclusion of copyrighted material in a lecture presentation ignore the status of the teacher as an author in his or her own right and the originality that implies. Preparing a lecture is much more than assembling a sequence of copyrighted material. Teachers bring their own language into the lecture, shaped as it is by their own perspectives. And they exercise the skill and judgment befitting an original creation as described by Chief Justice Beverly McLachlin in CCH Canadian.*
A lecture is an original expression of an idea. Said another way, a lecture is a copyrightable work on its own merits. The fact that this work contains copyrighted elements is not a negation of the copyright status of those elements but neither does it require permission or payment for those elements. This is precisely the behaviour that fair dealing protects; provided one can fall within the existing categories of private study, research, criticism, review and news reporting.
(If this all sounds too esoteric, Canada has an appropriate example of a successful fair dealing defense of an inclusion of copyrighted work into a new work. In this case, a photograph was incorporated into a news story.)
Of course the question will arise, can this work – known as the lecture – be distributed to students? That is a decision for the copyright holder of the work, namely the author-teacher. I read of Professor Jeremy Richards’ decision to remove some elements before distributing his slides to students – that is his prerogative. I do not have much sympathy for students who require a lecture-to-go. Professor Richards makes a cogent point that students could gain more by taking notes by hand instead of “letting it all wash over [them].” But in any case, the decision to distribute remains at the discretion of the individual who created the whole work, not the copyright holders of the constituent parts.
* While in this blog I have focused upon the development of the framework of inquiry for fair dealing as brought about through CCH Canadian, the case had another side: a discussion of originality. On that point the Chief Justice wrote:
For a work to be “original” within the meaning of the Copyright Act, it must be more than a mere copy of another work. At the same time, it need not be creative, in the sense of being novel or unique. What is required to attract copyright protection in the expression of an idea is an exercise of skill and judgment. By skill, I mean the use of one’s knowledge, developed aptitude or practised ability in producing the work. By judgment, I mean the use of one’s capacity for discernment or ability to form an opinion or evaluation by comparing different possible options in producing the work. This exercise of skill and judgment will necessarily involve intellectual effort. The exercise of skill and judgment required to produce the work must not be so trivial that it could be characterized as a purely mechanical exercise (para.16).