Meera Nair

Archive for the ‘Resources’ Category

AUCC – ill at ease

In Posts, Resources on September 8, 2013 at 3:12 pm

Early last week Michael Geist informed us that the Association of Universities and Colleges of Canada (AUCC) had commissioned detailed guidelines concerning fair dealing from Osler, Hoskin & Harcourt. AUCC’s request was prompted by Access Copyright’s lawsuit against York University; a lawsuit launched earlier this year on the dubious claim that York University’s fair dealing policies were encouraging infringement. As I wrote then:

Access Copyright is once again trying to roll back the interpretation of fair dealing fostered in Canada by both the Supreme Court of Canada and the Government of Canada. This progressive interpretation took shape slowly, with Court decisions spanning 2002-2012 and Government efforts at amendment benefiting from more than ten years of deliberation. Both bodies took measured steps that recognize the importance of maintaining copyright’s limits. Access Copyright is setting its sights on the educational community that took guidance from the government and the Court.

On Friday, Howard Knopf posted a very thoughtful assessment of the guidelines, drawing attention to their conservative nature. He is concerned that “these guidelines could become a ceiling rather than the foundation or ground floor of fair dealing.” Together with Geist’s assessment that “the guidelines provide useful information for teachers and students,” we see the range of possibilities.

The guidelines are only that: guidelines. How each institution might incorporate that material is a different matter. The first challenge is the form of the guidelines. It seems that these were written by lawyers, to be read by other lawyers. (No disrespect is intended to any lawyer; it is only that the text conjures up the worst of stereotypical imagination.)

There is an underlying assumption that potential readers are well-versed in Canada’s new millennium judicial history concerning fair dealing. If that is in fact true, these guidelines will not curb legitimate fair dealing where the copying exceeds the bounds of what is suggested. (As to whether the very presence of these guidelines narrows fair dealing in the eyes of a court, that is a different issue and one I will address another day.)

Before enunciating limits on amounts and dictating habits of practice, a guidance document should set the stage by giving details of the Supreme Court decisions that facilitated fair dealing to this point. Particularly so, as research and teaching, two key activities of post-secondary institutions, were addressed.

In CCH Canadian v. Law Society of Upper Canada (2004) the Court upheld individual copying of journal articles, made by a library at the request of a patron for the purpose of research. The Justices unanimously declared that research should be given a “large and liberal interpretation” and that the mere presence of licensing options did not eliminate fair dealing. (Also contained within that decision was the clear stipulation that the library was not responsible for the conduct of patrons using copying equipment within the library.)  And, the Court reminded Canadians that librarians could stand in the fair dealing shoes of their patrons.

In Access v. Education (2012) the Court upheld the copying of supplemental short excerpts of copyrighted material for distribution to students in a classroom. Central to the decision is that the works were supplemental. A welcome comment was the recognition that teachers shared the fair dealing purposes of their students, effectively standing in those shoes.

[And, if one wishes to be thorough about it, it should be pointed out that, when the Supreme Court of Canada had the opportunity to address technological neutrality, it resoundingly supported the principle in 2004 and again in 2012.]

Taken together, there is no reason that fair dealing cannot comfortably protect the creation and delivery of short excerpts of copyrighted material to students in an manner that enhances efficiency for students, teachers, librarians and researchers.

Brief snippets of these cases are found in my Notable Supreme Court Decisions; links to each case are within. As I wrote three years ago, our Supreme Court has made a habit of presenting decisions such that all Canadians may understand what is happening at the highest court in the land. Moreover, the decisions have been the subject of many books and articles. Canadian academia need only appeal to their very strength and treat this subject as any other academic issue – something to learn about and engage with. If that happens, documents like AUCC’s guidelines are less intimidating and less likely to foreclose discussion on fairness.

And, we should not be surprised by the somewhat stilted guidance, as historically AUCC has not been at ease discussing fair dealing. That the guidelines themselves are not available at the AUCC website (they were only circulated to universities, Knopf very kindly posted links to the documents) is symptomatic of the organization’s unease. An earlier guideline was equally absent, as I discovered in 2011.

Even after the 2012 decisions by the Supreme Court of Canada, AUCC still did not make their position  on fair dealing prominent. If one searches for “fair dealing” at the AUCC website, a document titled  “Fair dealing policy for universities” can be found among the resulting hits. The document is brief, but helpful in providing a rule-of-thumb guidance, with encouragement that fair dealing is a flexible provision. The document begins with:

The fair dealing provision in the Copyright Act permits use of a copyright-protected work without permission from the copyright owner or the payment of copyright royalties. To qualify for fair dealing, two tests must be passed.  First, the “dealing” must be for a purpose stated in the Copyright Act: research, private study, criticism, review, news reporting, education, satire or parody. Educational use of a copyright-protected work passes the first test. The second test is that the dealing must be “fair.” In landmark decisions in 2004 and in 2012, the Supreme Court of Canada provided guidance as to what this test means in educational institutions.

And then, a standard guidance is given concerning limits (i.e., 10% of work, one chapter, an entire illustration, etc.…). This is more useful than the offering of last week as this document givens the contours of fair dealing and individual institutions can build upon this. Yet, AUCC was unwilling to publicize this document either.

At their website, AUCC makes mention of copyright as part of their policy work. However, the listed content is far out of date and only pertains to advocacy for amendment. That is, of course, important to policy development in Canada. But, getting one’s hands dirty is the next step in policy development and AUCC is reluctant on that score.

Fortunately, as both Geist and Knopf point out, many universities and colleges have made copyright and fair dealing a priority on their campuses. People are talking about these matters; this is a significant step forward. Institutions have prepared guidelines of their own and are working towards educating faculty, staff and students about the nuances in the system of copyright.

For BC’s educational community, in association with the open textbook project, BC Campus has compiled a list of all post-secondary institutional sites on copyright; see here. (I checked, almost all the links are still active.) And, for everyone, a more readable set of guidelines, dated to February 2013, is available from Canadian Association of University Teachers (CAUT); see here. Note that the amounts described for copying by CAUT are consistent with AUCC’s guidance, but the development and presentation of the topic is much better and thus enhances understanding of the issues.

housekeeping II – another resource

In Resources on August 4, 2013 at 11:46 am

Some days ago I noticed a query in the search terms that led someone to this site. The wording was along the lines of: “are public buildings public domain”.

I think the writer was inquiring as to what happens when pictures are taken of publicly situated buildings–that is, could the architect claim control over pictures?  The short answer (if you are in Canada) is: No.

Courtesy of our Copyright Act, Section 32.2 (Miscellaneous), this little-discussed exception allows for reproduction of publicly-situated art and architecture:

32.2 (1b) It is not an infringement of copyright for any person to reproduce, in a painting, drawing, engraving, photograph or cinematographic work

(i) an architectural work, provided the copy is not in the nature of an architectural drawing or plan, or

(ii) a sculpture or work of artistic craftsmanship or a cast or model of a sculpture or work of artistic craftsmanship, that is permanently situated in a public place or building

The subject of exceptions is prominent in a chapter (The System of Copyright) that I prepared last year for an upcoming edition of MediaScapes. I have posted my text here. As I indicate in the opening pages, this is not a comprehensive explanation of copyright in its entirety.  “It can only acquaint readers, in broad brushstrokes, with some of the aspects of copyright that touch us in the pursuits of learning, creativity and sharing.”


From MediaScapes – New Patterns in Canadian Communication,4th edition. Edited by Leslie Regan Shade, published by Nelson Education (released February 2013, © 2014).

With permission from Nelson Education, this chapter is posted to my blog Fair Duty. The content is governed by the Creative Commons license of Attribution and Non-Commercial use.

This chapter was written during a time of flux in Canadian copyright. The Copyright Act was due for amendment (through Bill C-32 and its later reappearance as Bill C-11) and the Supreme Court of Canada was set to review five cases concerning copyright. The amendments received royal assent on 29 June 2012 and the Supreme Court released its decisions on 12 July 2012. With much-appreciated latitude from the editor and publishing team, the chapter was updated at the eleventh hour of the production schedule to reflect the broadening of perspective regarding copyright in the new millennium. (Although, some aspects of Canadian policy making remain the same.)

I offer my thanks to Leslie Regan Shade for inviting me to contribute to MediaScapes, and to the staff at Nelson Education for their assistance. Any errors are entirely my own.

And housekeeping continues. After reviewing all 123 entries of Fair Duty, I am starting the dreary-but-necessary-task of re-indexing some of the content. The posts themselves will not change; I hope only to make it easier to find material.

housekeeping I – Trove

In Resources on July 13, 2013 at 9:59 am

The boxes still await resolve, but housekeeping on this blog seems more pressing. After four years of eclectic blogging, re-thinking and re-organization may be in order. As I contemplate the challenge of properly categorizing and indexing all the earlier content, I am inclined to settle for a more modest task, at least for the time being, of collecting resources of published material.

Many organizations have taken great pains to encourage use of their collections of published material, either by making specific reference to the content as from the public domain, or simply making the request that use be confined to non-commercial, personal, educational, etc. uses. I have listed some of my favourite collections on the new page titled Trove.

Please bear in mind that, while the generosity of such people and organizations must be received with gratitude, fair dealing is always available towards all published materials. Fair dealing does not rely upon permission from any copyright holder. So said Chief Justice Beverley McLachlin during CCH Canadian.

The scope of the rights granted by copyright is vast—copyright holders reserve the right to produce, reproduce, perform, translate etc.—but copyright holders do not have the right to withhold exceptions to copyright. Exceptions exist in order to ensure that the rights of copyright do not impede the goals of copyright which might be loosely described as furthering both creativity and knowledge dissemination.

Therefore, at the moment when any copyright holder may claim copyright in a published work, so too any copyright user may claim fair dealing. Of course, it is incumbent on both parties to make legitimate claims.

While housekeeping continues, please excuse the work-in-progress disorder.

fair dealing for students (and their teachers)

In Resources on September 15, 2011 at 11:09 am

Last weekend’s conversation with artists was very enjoyable, but one thread of discussion was disturbing: copyright-angst continues to impede students’ learning experiences.  As I have written elsewhere, art is not well served by fair dealing.  But art created through an educational pursuit has better shelter through fair dealing.

I have yet to fully understand why copyright is an issue in terms of learning. What happens between teacher and student, in any discipline, is entirely their business. If a student handed in an assignment that is largely the work of someone else, the teacher would have a conversation about that. In all likelihood, copyright would not be the central focus of discussion – the teacher would emphasize the importance of doing one’s own work. But in the act of learning how to use other works in a manner befitting new scholarship, students will fall into fair dealing and the copyright concern is anonymously laid to rest.

Unfortunately, anonymity is no longer sufficient.  To that end, I’ve added a new resource page: Fair Dealing, for students.

Benjamin Kaplan, 1911-2010

In Posts, Resources on August 20, 2010 at 9:30 pm

Professor Kaplan, who served as justice for the Massachusetts Supreme Judicial Court and was the Royall Professor of Law Emeritus at Harvard Law, passed away two days ago. It seems a little eerie; his classic book, An Unhurried View of COPYRIGHT (1967), was lying open on my desk when I came upon his obituary. I had returned to the little book specifically to write this week’s post. Perspective is needed for the current Canadian debate and Professor Kaplan’s work came to mind.

In the foreword of the book, then-Dean of Faculty of Law for Columbia University, William Warren wrote:

The timeliness of Professor Kaplan’s analysis of the law of copyright in light of technological and social developments is underscored by current efforts, begun some ten years ago, by the Register of Copyrights, to accomplish a sweeping revision of our Copyright Law … Even more recently, new aids to dissemination including the growth of computer technology, have magnified the problem of control in securing “exclusive rights,” and increased the numbers of claimants for protection.

Professor Kaplan’s emphasis on the desirability of greater freedom of dissemination of ideas is especially significant because it is at odds with the strong contemporary trend towards more restrictive and longer protection of the exclusive rights of writers and composers. In addressing himself to the challenging issues involved in the protection of literary property with clarity, erudition, and wit, he renders a special service by questioning some of the timeworn assumptions in the copyright field.

An Unhurried View of COPYRIGHT was one of the first books on copyright that I found. I had no knowledge of the law and no recognition of the name “Benjamin Kaplan.” I read his book, all the while completely unaware of his history as a jurist and as a copyright expert. What had drawn me to the book was its modest size and accessible prose. But the unpretentious demeanor of the book should not be confused for a lack of rigour – Professor’s Kaplan talent was such that he could convey the intricacies of copyright to those outside his discipline.

Professor Kaplan is quoted, as saying “I had no thought of a career … If I had, I might have become a reporter or something to do with writing.’’ Speaking of the challenge in explaining a case’s outcome, he said it requires a judge to “explain it in a way that satisfies not only the Bar and the specialists but also the general intelligent public. There is not much difference in the end between judging and teaching. The job of the judge, like that of the teacher, is to instruct, to educate.”

BTW: This theme of accessible language is present in Canadian courts as well. Former Canadian Supreme Court Justice Right Honourable Robert George Brian Dickson (1916-1998) was noted for the clarity of his writing. I remember reading years ago that Justice Dickson was the pioneer in making our high court decisions readable. After sifting through a heap of old newspaper clippings I found the article: “Doing the write thing,” by Richard Blackwell for the Globe and Mail. (A further hunt through Google puts the date at 5 November 2005). Dickson was keenly aware that the nature of the disputes that reached the Supreme Court had relevance to large segments of the Canadian population and thus should be comprehensible.

Coming back to Professor Kaplan’s wisdom, the last pages from An Unhurried View of COPYRIGHT are prescient. He speaks of a “bedtime story or pipedream which you are at perfect liberty to disbelieve.” That pipedream takes form as:

… linked or integrated systems of networks of computers capable of storing faithful simulacra of the entire treasure of accumulated knowledge and artistic production of past ages and of taking into store new intelligence of all sorts as produced. The system will have a prodigious capacity for manipulating the store in useful ways, for selecting portions of it upon call and transmitting them to any distance, where they will be converted as desired to forms directly or indirectly cognizable … (p.119)

At the end he suggests:

Probably the law of the future will lose patience rather quickly with the mere idiosyncratic withholding of access. But I should hope there will be play for the humane development of the “moral rights” of authors to prevent abuses in the exploitation of their creations. This will be especially important if copyright itself recedes as a significant control … It may appear sensible to displace copyright and substitute other, perhaps more direct, encouragements to original production. We may in any case expect legislators of the future to regard copyright as only one among a number of expedients for stimulating creativity. (p.120-122).

In a companion piece, Bryan Marquard of the Boston Globe writes: “Those fortunate enough to sit in his classrooms at Harvard Law School, however, had the greatest proximity to a professor who, along with the subject at hand, taught them how to write, how to think, how to love language.” Benjamin Kaplan died August 18, 2010 from pneumonia. He is survived by a son, daughter, grandchildren and great-grandchildren. He was 99 years old.

Saturday morning update:
Last night I kept wondering about the work of Felicia Lamport, Professor Kaplan’s late wife. As described in some of the links above, she was a well-known poet and satirist. Yet I had a feeling that I had seen her work in a different context. This morning I found it: Heteronyms!! This piece was originally published in the Smithsonian Magazine in 1988.

Homage and Homage

In Posts, Resources on May 22, 2010 at 9:49 am

A few days ago Don Martin, writing for the National Post, reported that a new copyright bill will be unveiled next week. As I went looking for more information, something else caught my eye. From James Adams, writing for the Globe and Mail, came this story, “College and sculptor resolve dispute over destroyed art.”

The family of Hadyn Davies has reached an agreement with Sarnia’s Lambton College of Applied Arts and Technology concerning the destruction of a work by Davies. His Stonehenge-inspired sculpture, Homage, was commissioned by the college in 1974, then destroyed by the college in 2005. The administration of the time stated that the sculpture had deteriorated to such a point that it was unsafe. Davies, who passed away in 2008, had filed suit claiming that the destruction was a violation of his moral rights and that the college had breached “…its obligation to maintain the work.”

What isn’t clear from the article is whether Davies had a separate contractual agreement with the college to maintain the sculpture, or whether the obligation mentioned is that as found under the condition of moral rights. At the time of the destruction, the Sarnia Observer wrote: “The artist owns copyright on work and has moral rights that prevent the work from being altered or mutilated in a way that would hurt the artist’s honour or reputation. Is destruction by backhoe not a mutilation?”

[Davies’ life story is interesting to read, see here. ]

I don’t think anyone could dispute that destruction by backhoe is a mutilation. The problem is that, technically, the destruction of the sculpture itself wasn’t a violation of moral rights. As indicated in the Observer story, the way moral rights have been written into law, the artist has to prove that their honour or reputation was damaged, before a claim of moral rights could succeed.

Infringement of Moral Rights, in particular the integrity right, is found in Section 28.2 of the Copyright Act / Loi sur le droit d’auteur:

The author’s right to the integrity of a work is infringed only if the work is, to the prejudice of the honour or reputation of the author,
(a) distorted, mutilated or otherwise modified; or
(b) used in association with a product, service, cause or institution.
Il n’y a violation du droit à l’intégrité que si l’oeuvre est, d’une manière préjudiciable à l’honneur ou à la réputation de l’auteur, déformée, mutilée ou autrement modifiée, ou utilisée en liaison avec un produit, une cause, un service ou une institution.

This places the burden of proof on the artist to show the loss of reputation. Not an easy thing to do, even for established artists. In Copyright Law (2000) David Vaver makes reference to a similar case in Quebec where artists’ claims were dismissed on the grounds that if their work was out of sight, their reputation could not have suffered (p.162).

A better coding of moral rights would be to follow a structure similar to fair dealing – where the onus is on the individual manipulating the work to do so in accordance with general guidelines that are respectful of both the work and the artist’s wishes. Moral rights are really about homage.

Happy New Year

In Resources on January 2, 2010 at 7:41 pm

Here is a site worth reading. Addressing jurisdictions where copyright protection lasts for life plus fifty, and life plus seventy, years, the writer has identified individuals whose published work is no longer under copyright.

Public Domain

In Resources on July 13, 2009 at 7:02 am

Trying to get this blog off the ground is proving to be challenging.  Before I can adequately convey the importance of fair dealing (or fair duty), I first have to introduce the principles of copyright and its language.  One key element is the public domain.

The term public domain is not defined in our Act. Connotation of the phrase ranges from the benign (that which is freely available to the public) to an aura of degradation (to fall into the public domain implies a loss of stature). Common to both interpretations is the belief that material in the public domain is not protected by copyright.

Yet much greater scope is legitimately possible.  For more information see the Public Domain. For now I’ll cut to the chase. The World Intellectual Property Organization defines the public domain as:

 “… the realm of works which can be exploited by everybody without any authorization (emphasis mine).”

This includes work lacking copyright protection, however, it also includes currently copyrighted material legitimately accessed in accordance with exceptions detailed in our Act. Exceptions remove the requirement of authorization from a copyright holder.  And, one such exception is Fair Dealing. 

Think about it – every book, picture, film, musical composition, photograph, etc., is part of the public domain.  It becomes such, by virtue of how you use the material…