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.

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