guideline v. practice

In continuation to my last post, it is important to address concerns that AUCC’s proffered guidelines would lead to the limiting of fair dealing. Such limiting presents itself through two questions: (i) Would unauthorized copying inevitably be severely constrained and only occur as fits AUCC’s stipulated amounts? (ii) Does the very presence of such pedantic guidelines suggest that courts will limit their interpretation of fair dealing to match the approach taken within the postsecondary community? At stake is the currently robust, flexible provision that evolved through a decade of measured activity elicited from both the Supreme Court of Canada and the Government of Canada.

There are good reasons for establishing general guidelines of copying at postsecondary institutions – not the least of which is that these educational institutions have the opportunity to educate their communities about a realm of law that is pivotal to daily life. However, setting down guidelines, without history, without explanation, and without showing the importance of context to decisions of future copying, will not lead to broader understanding of fair dealing. Nor will it safeguard the measure as we know it today.

In my last writing, I gave the Supreme Court background to this discussion—the history that allows postsecondary communities to engage with confidence in some unauthorized copying for teaching and research. Readers are likely familiar with the six factors laid out by the Court in CCH Canadian as illustrative of the way an inquiry into fair dealing should occur. (The Court also stipulated that not all factors may apply all the time, and that other factors might be relevant to individual situations.) In evaluating the third factor, the character of the dealing, the element of practice came up:

In assessing the character of a dealing, courts must examine how the works were dealt with. …. 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).

Practice should be the precursor to guidelines. Esoteric rules are not easy to understand or accept; a recognizable activity adds credence to the process. Certainly, not all practices may be desirable. But discussion of existing practises is a necessary conversation if legitimate practices are not to be stunted. Out of the gamut of all practices will come the institutional option to facilitate the best of them.

Canada would do well to study the work of the Center for Social Media at American University; Patricia Aufderheide, Peter Jaszi and their colleagues lead the field in development of fair use best practices for a range of communities.* One of the more recent projects involves fair use for Academic and Research Librarians. (Via the link is an info-graphic which includes a concise comparison between guidelines and best practices; it would not be out-of-place to the current Canadian situation.) The collections of practices address dance, film studies, journalism, media literacy, open-courseware, poetry, …  It is an impressive array of work and all recommendations begin by examining the field in question through its own participants.

For instance, the development of best practices in the field of communication was led by twenty scholars of the International Communication Association with participation from 387 members. It became evident that:  “… copyright ignorance and misunderstanding hamper distribution of finished work, derail work in progress, and most seriously, lead communication researchers simply to avoid certain kinds of research altogether” (emphasis added). With the grassroots input, four situations were identified as needing guidance and a fair use practice for each was devised. All practices were reviewed by a legal team before publication of Best Practices for Scholarly Research in Communication (2010).

For example, one situation is described as:

Quoting Copyrighted Material For Illustration: Communication scholars often reproduce copyrighted material in their term papers, conference papers, academic presentations, journal articles, books, theses, and audiovisual media productions as illustrations or examples of an economic, social, or cultural phenomenon with which their scholarship is concerned. Depending on the illustrative context, these reproductions may be partial or complete.

How the principle of fair use supports such work is then explained:

Scholars may invoke fair use to reproduce copyrighted material where it serves to explain or illustrate their scholarly insights or conclusions about communications in relation to social, cultural, political, or economic phenomena. Generally speaking, such uses transform the material reproduced by putting it in an entirely new context; thus, a music video clip used to illustrate trends in editing technique or attitudes about race and gender is being employed for a purpose entirely distinct from that of the original, and is typically directed to an entirely distinct audience from that for which it originally was intended. This is true even in situations where the media object in question is not subjected to specific analysis, criticism, or commentary.

The resolution to the question of copying is to be determined by each scholar; the best practices explain what factors will limit the copying:

–A scholar should determine the nature of the excerpt (or the use of a work in its entirety) based on the scholar’s academic objective in choosing the illustration; merely decorative or entertaining uses of copyrighted material, under the guise of illustration, are inappropriate. However, should a work chosen for its significance to a scholarly argument also be entertaining, that fact should not disqualify the use from being considered fair.

–A scholar should determine the extent of use (both as to the number of illustrations employed and the amount excerpted from each) based on the scholar’s illustrative objective. Scholars should provide citations in a form and manner typically used in communication scholarship for the material used in any publication of shared results of the study.

[As an aside; throughout all of the Center’s best practices documents is a constant reminder that best practices form neither the floor nor the ceiling on legitimate activity.]

Canada does not have an institutional body on the scale of the Center for Social Media; more’s the pity. However, that need not preclude each institution from shaping its own best practices. At the end of the day, institutions might use some of the suggestions provided by AUCC. But it would serve fair dealing, and Canadians, far better if the guideline is genuinely supportive of teaching, research and learning practices instead of giving the appearance of shaping teaching, research, and learning practices along the lines of very conservative, oh-so-safe, behavior. Because, in this situation, safety is an illusion. As Knopf pointed out, there is no assurance that unnecessary concessions on the part of Canadian educational institutions will lead to an absence of mischievous litigation.

A better pre-emptive defense is an informed community. And that returns us to CCH Canadian. At that time (2004) the Court stated:

[Is] it incumbent on the Law Society to adduce evidence that every patron uses the material provided for in a fair dealing manner or can the Law Society rely on its general practice to establish fair dealing? I conclude that the latter suffices. Section 29 of the Copyright Act states that “[f]air dealing for the purpose of research or private study does not infringe copyright.” The language is general. “Dealing” connotes not individual acts, but a practice or system. This comports with the purpose of the fair dealing exception, which is to ensure that users are not unduly restricted in their ability to use and disseminate copyrighted works (para.63).

Thus, if each institution upholds fair dealing as a practice which ensures that users are not unnecessarily restricted in their uses, this may usher in safety of a different nature – the confidence that future Courts will not be constrained to reduce the scope of fair dealing on the grounds that institutions were indifferent to fair dealing’s situational, contextual, or flexible nature.

* Reclaiming Fair Use by Aufderheide and Jaszi (University of Chicago Press, 2011) is well worth reading.

AUCC – ill at ease

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.

thank you Madame Abella

A week has passed since our Supreme Court issued five decisions concerning copyright in the analog and digital age. The commentary is fascinating; see Howard Knopf here, Bob Tarentino here, and ongoing, detailed coverage from Michael Geist here.  In his posting today, Geist emphasizes that the long-term prospects for Canada are very good: (i) The language of user rights is not merely a conceptual term; it is a robust principle which will affect all future examinations of copyright. (ii) The Copyright Act must be read as technologically neutral; developments in technology cannot be assumed as sufficient reason to extract added licensing fees from people. (iii) Fair dealing is positioned for continued growth via the Court’s support of the “large and liberal interpretation” first enunciated in CCH Canadian.

To which I would add one more note of satisfaction. In Alberta (Education) v. Canadian Copyright Licensing Agency (Access Copyright),  the Supreme Court reminded Canadians that libraries were places where students and teachers may access and copy work germane to the pursuit of education. It borders on the absurd that we should need such a reminder but, as I wrote a year ago, AUCC’s copyright and fair dealing policies include an edict that material placed on reserve should not serve as a substitute for purchased copies. To which my question was, “What is the purpose then of library reserves, or indeed libraries in general?

The decision penned by Madame Abella debunks any idea that libraries should not serve as a source for required readings. In Education v. Access Copyright the material under consideration was quite specific: “… copies of works made at the teachers’ initiative with instructions to students that they read the material. Teachers would photocopy short excerpts from textbooks and distribute those copies to  students as a complement to the main textbook … (para. 7).” Clearly, if students are instructed to read the material, it could not be described as optional. To the suggestion that schools purchase individual copies of all copyrighted material for all students, Madame Abella was quite direct:

In my view, buying books for each student is not a realistic alternative to teachers copying short excerpts to supplement student textbooks.  First, the schools have already purchased originals that are kept in the class or library, from which the teachers make copies.  The teacher merely facilitates wider access to this limited number of texts by making copies available to all students who need them.  In addition, purchasing a greater number of original textbooks to distribute to students is unreasonable in light of the Board’s finding that teachers only photocopy short excerpts to complement existing textbooks.  Under the Board’s approach, schools would be required to buy sufficient copies for every student of every text, magazine and newspaper in Access Copyright’s repertoire that is relied on by a teacher.  This is a demonstrably unrealistic outcome.  Copying short excerpts, as a result, is reasonably necessary to achieve the ultimate purpose of the students’ research and private study (para. 32 – emphasis mine.)

Following the multi-facetted guidance set by CCH Canadian, Madame Abella deemed such copying as fair dealing. The entire decision is well worth reading; a legacy point is:

It seems to me to be axiomatic that most students lack the expertise to find or request the materials required for their own research and private study, and rely on the guidance of their teachers.  They study what they are told to study, and the teacher’s purpose in providing copies is to enable the students to have the material they need for the purpose of studying.  The teacher/copier therefore shares a symbiotic purpose with the student/user who is engaging in research or private study.  Instruction and research/private study are, in the school context, tautological (para.23).

By requiring that the conduct of copier and end-recipient be examined together, this Court is ensuring that fair dealing be as malleable as possible to address situations as of yet unknown.

Again, it must be emphasized that the Court was examining the copying of excerpts of additional material used by teachers. Fair dealing is not license to copy entire textbooks for an ulterior motive of profitable mass distribution, and in no way can this decision be read as such. But it ought to be clear to AUCC, and the post-secondary community at large, that libraries should be allowed to function as per their central purpose — to facilitate widespread access to legitimately acquired material.

they’re back

Access Copyright (AC)  and the Association of Universities and Colleges of Canada (AUCC) announced today an agreement of a model license that will allow for reproduction of copyrighted materials in print and digital format. Details of the agreement are minimal but the price is explicit: “The model licence will see institutions pay Access Copyright a royalty of $26.00 per full-time equivalent student annually. This royalty includes what used to be a separate 10 cents per page royalty for coursepack copying, so there will no longer be a separate royalty for such copying.”

Left unsaid is that the previous arrangement was set upon a much smaller base rate, $3.38 per full-time equivalent student. Also, the prior arrangement included royalty charges only when actual copying occurred. A reasonable condition — a customer pays only when something is actually bought. Now AC is set to receive a yearly windfall, regardless of whether all students’ education requires use of any kind of coursepack, digital or otherwise. It is conceivable that humanities, social sciences, and arts teachers utilize course packs for some courses, but it is inconceivable to assume that all have shunned textbooks for coursepacks. I remain skeptical that mathematics, physics, biology and chemistry have much use for coursepacks at all, particularly for the early years of undergraduate studies.

My skepticism could be laid to rest if AUCC (or AC) would disclose what the actual use of resource material is at Canadian educational institutions. But neither entity seems to know: “Over the course of the next six months, a survey methodology will be designed jointly to gather reliable bibliographic data and volume of usage trending data to allow Access Copyright to make fair distribution of royalties to its affiliates and to assist in establishing appropriate future licence rates.”

I hope that current and future license rates appropriately exempt open source materials, publicly available websites, journals already licensed for by libraries, and, offer a discount for textbook chapters developed by the professoriate with a healthy contribution of funding courtesy of taxpayers. (And let’s not forget fair dealing.)

While AUCC is to be congratulated for striking a harder bargain than the Universities of Toronto and Western Ontario (their negotiators could only achieve a per full-time equivalent fee of $27.50) it is disappointing that the organization that claims to have “the voice of Canadian universities”  settled on an agreement that is not in the best interests of Canadian university students. AUCC negotiated a fee that does not reflect actual consumption of copyrighted materials for each student, yet the fees will likely be paid for by all students. Paul Davidson, president of AUCC, indicates that the agreement provides “long-term certainty on price.” No doubt AC was happy to accommodate.

Update — April 17, 2012 — Michael Geist’s comments on the agreement.

the $16 textbook

The first textbook I bought for my university studies was Calculus with Analytic Geometry, by Howard Campbell and Paul Dierker, or C&D as students dubbed it. It was an 800+ page tome priced at $48. At the time I thought this was outrageous; an unbelievable demand of cash from first-year mathematics students. Later, as I confronted slimmer, yet more expensive books, I developed an affection for C&D. Serving as it did for three consecutive courses, it became the most economical purchase of my undergraduate studies.

But not everyone bought their books.

There were many for whom it was simply not viable. Years later a friend told me that during her first winter in Canada, a stark choice presented itself: buy boots or buy a textbook. She opted for the boots and managed her coursework by going to the library frequently and reading a copy available from the reserves. She was by no means the only one to do so, but the limiting of borrowing time mandated by the library effectively ensured access for everyone in need.

As Michael Geist reported this week, the University of Calgary, Queen’s University and the University of Waterloo all signaled their intent to move away from collective bundled licensing of copyrighted material. Allied to this movement, post-secondary institutions are becoming more aware of fair dealing. However, as I wrote before, the leading institutional policy on fair dealing, by the Association of Universities and Colleges of Canada (AUCC),  sets a very narrow interpretation of fair dealing. Their apologetic tone could have the undesirable effect of establishing practices that undermine the discriminating power of fair dealing. Only time can tell; much will depend on how faculty members respond.

But an even more deleterious policy is finding voice through these measures — students cannot rely on library reserves for their required course reading. The AUCC fair dealing policy explicitly addresses what material can be borrowed. In Section III University Library Reserves, instructions are given toward the creation of paper or electronic copies of course material. It is AUCC’s directive that only optional reading material should be included in reserves; “no more than 25% of the required reading.” Of any material (required or optional) up to three copies can be deposited in reserves, allocated on the ratio of one copy per 30 students.

However, that instruction is followed by this canonical statement:

(16c) The use of library reserve must not substitute for the purchase of books, coursepacks, or other published materials.

What is the purpose then of library reserves, or indeed libraries in general?

This same language has made its way to Queen’s University; see Schedule B, Fair Dealing Copying Guidelines – Interlibrary Loan, Library Reserve and Document Delivery of Copyright At Queen’s Policy.

In many respects Queen’s copyright policies are laudable,  but that the university supports limiting reserves in this way is disappointing. Moreover, following AUCC in situating the restriction as allied to fair dealing is disturbing. Fair dealing may arise from a use of material, borrowed or otherwise; fair dealing is not the filter by which to limit access to the material.

If post-secondary institutions insist that course materials cannot be borrowed, that is their prerogative. But to represent that policy as related to fair dealing only further undermines fair dealing in the eyes of the very constituent body that can most significantly benefit from it: the post-secondary community.

AC, AUCC and CAUT – making sense out of acronyms

Two days ago Access Copyright (AC) posted some remarks titled “Fair Dealing in the Post-Secondary Environment.” These were directed at the Fair Dealing Policy of the Association of Universities and Colleges of Canada (AUCC). Which raises a question – what is the AUCC policy on fair dealing?  At this time, there is no specific information at their website. (In the copyright section the last document posted is dated to February 15, 2011 – it contains the remarks of AUCC President Paul Davidson to the legislative committee for Bill C-32.)

Fortunately, Google is there to help and I found the AUCC policy in the University of British Columbia Library Collections. Unfortunately, it reads like an amalgam of rote text from the Copyright Act coupled with previous Access Copyright licenses. This does not facilitate what presumably was the objective of the policy: to help people understand what fair dealing is and when it can be used.

Moreover, I am troubled by some of the AUCC stipulations which are then further stiffened in the hands of AC.  For instance, according to AUCC, fair dealing does not permit “making copies of required readings for library reserve.”  The AC interpretation leads to “required course readings cannot be put on library reserve.”  Neither position reflects the traditional use of reserves – to ensure that all students have a means of accessing and reading required course material. And fair dealing draws legitimacy, in part, from past custom. A point also emphasized by the Canadian Association of University Teachers (CAUT); their fair dealing guidelines are more accurate in terms of the law and more clearly written.

AC does its best to distance the AUCC guidelines from legitimate activity, stating that:

Institutions must also understand that the AUCC Fair Dealing Policy is not sanctioned by rights holders or Access Copyright. The policy will be the subject of heated debate at the Copyright Board. The Board or the courts may determine that some of the copying activity sanctioned by the AUCC policy is not fair dealing.

Given the extremely conservative nature of the AUCC policy it is hard to imagine that an institution following those instructions would incur the wrath of any court. The greater risk of the AUCC policy is that students, staff, teachers and librarians will come to see it as an upper bound on fair dealing. Furthermore, the merit of an unauthorized exception to copyright will be blunted with the excessive administrative processes called for by AUCC.

To understand fair dealing, one ought to review its history.  But in the absence of a comprehensive study, the minimal starting point is CCH Canadian (2004). As the Federal Court of Appeal noted in 2010, no discussion of fair dealing can occur without reference to this case.

To their credit, AC mentions CCH Canadian and gives a pertinent quotation:

The Supreme Court of Canada on Fair Dealing
“To conclude, the purpose of the dealing, the character of the dealing, the amount of the dealing, the nature of the work, available alternatives to the dealing and the effect of the dealing on the work are all factors that could help determine whether or not a dealing is fair. These factors may be more or less relevant to assessing the fairness of a dealing depending on the factual context of the allegedly infringing dealing. In some contexts, there may be factors other than those listed here that may help a court decide whether the dealing was fair.” (para. 60)

The CAUT guidelines give a little more information about these six factors, but readers would do well to also look at an earlier CAUT Intellectual Property Advisory (2008) which describes the fair dealing aspects of CCH Canadian in detail. (Or you can read my account here.) Navigating fair dealing is easier when policy rules are set upon context.

And as far as sorting out the instructions of AUCC and the interpretation of AC, that will take longer than a blog post.

My Submission…

My letter to the Ministers and my submission…

September 4, 2009

Honourable James Moore
Minister of Canadian Heritage and Official Languages
House of Commons
Ottawa, Ontario
K1A 0A6

Honourable Tony Clement
Minister of Industry
House of Commons
Ottawa, Ontario
K1A 0A6

Re: Submission for Copyright Consultation

Dear Ministers Clement and Moore,

Thank you for the opportunity to convey input to the copyright consultation process. As evidenced by the volume of submissions, Canadians are eager to engage with the task of designing a copyright law that mediates between the challenges and opportunities of digital technology coupled with world-wide networks of circulation. However, given the polarity of opinion on this subject, responding to Canadian input will not be easy. One way forward is to consider, not only the content of opinion, but the line of thought that underwrites each remark or submission. The unspoken debate addresses the construction of copyright itself.

Many Canadians have unconsciously voiced a salient element of our current law, that copyright is a limited right. This needs to be consciously voiced now. Copyright is not, and has never been, a grant of absolute control. However, technology combined with licensing offers the possibility of such control. To succumb to that temptation means changing a structure of cultural policy that has been in place since its inception in 1710. Is Canada prepared for the consequences of such a change? Do we even know what the consequences could be?

To say the least, caution is advisable. I hope you will both be guided by a view often expressed at the roundtable discussions, the townhall meetings, and the submissions, namely, the importance of fair dealing. Fair dealing upholds the limitation upon a copyright holder’s reach. It is designed to enhance individual creativity through learning, teaching, and research – the ingredients necessary for innovation to thrive in Canada.

The challenge, and benefit, of fair dealing is that its legitimacy is not granted by the copyright holder, but is achieved through the actions of those wishing to use the copyrighted material. This places added responsibility upon individuals, which could be fostered through our educational and library institutions. Doing so would place Canadian creators on strong footing; it is in the space outside of a copyright holder’s reach that critical thought can flourish and enable new developments in both technological form and creative content. Something Canada cannot afford to ignore in the much-touted knowledge economy of the day.

Please find below my submission towards amending the Copyright Act. For your convenience, I have also attached this document as a pdf file.

These remarks are my own, and not the opinion of any institution I work with. I write this based on my experiences as a student, small business owner, researcher, educator, and parent.

Regards,

Dr. Meera Nair
Burnaby, British Columbia

Breaking Ranks

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.