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.

what happened to January?

January seems all but a blur  — two new courses to teach are keeping me busy. But I had a glimpse of the outside world, long enough to notice the SOPA/ACTA protests, the growing list of digital lock dissenters, and the implications for Bill C-11. (Thank you, Michael Geist.)

Two other interesting developments occurred in the last few days. On 30 January 2012, Access Copyright issued a statement, describing an agreement reached with the Universities of Toronto and Western Ontario in relation to copying of materials in paper or digital form. The statement does not give too much by way of detail, other than to say a fee was agreed upon ($27.50 per full-time student), the agreement is backdated (how far back we do not know) and that an “indemnity provision increases the university’s legal protection against copyright infringement.”

The last clause is a curious one. It is unclear how precarious either university’s position was in terms of a viable charge of copyright infringement. But it invites the question — how stringent are the terms of the agreement as to have each university feel further protected?

Moreover, applying a set fee to all students, regardless of whether they use course packs or not, suggests a marked increase in funds flowing to Access Copyright. According to the statement, neither the universities nor Access Copyright knows how much copying is happening: “Over the course of the next year, a method will be jointly developed to assess the actual volume of copying of copyright protected materials which will assist in determining the appropriateness of the royalty structure in subsequent years.”

Could not the copying have been assessed first, and then the contract drawn up? In the meantime, as other universities have opted to do, permission and payment for copying could be handled directly with the publishers.  A task that is part of a publisher’s duty.

Howard Knopf has a good post about this matter.

A far more agreeable announcement came from the Association of Research Libraries (ARL). The Code of Best Practices in Fair Use for Academic and Research Libraries is now available. Developed in partnership with the Center for Social Media and the Washington College of Law at American University, the code describes reasonable copying that can be taken under fair use, in the pursuit of academic inquiry and higher education:

This code of best practices identifies eight sets of common current practices in the use of copyrighted materials in and around academic and research libraries, to which the doctrine of fair use can be applied. It articulates principles describing generally how and why fair use applies to each such practice or situation.  Each principle is accompanied by a list of considerations that the library community believes should inform or qualify it, limitations that should be observed to assure that the case for fair use is strong, and enhancements that could further strengthen that case.

Of course, fair use is not fair dealing and the American context differs somewhat from Canadian circumstances. But reading this code is instructive towards recognizing how Canadian practices may already support a healthy practice of fair dealing.

This is not the first such effort by the Center for Social Media, similar codes organized by genre or media practice are available here. And, the Center’s founder, Patricia Aufderheide (American University, Professor of Communication) with Peter Jaszi  (American University, Professor of Law) are the co-authors of Reclaiming Fair Use (2011).  Details are available here.

A must read article

An article, Myths About Fair Use by Patricia Aufderheide, appeared in today’s issue of Inside Higher Education. Professor Aufderheide is the Director of the Center For Social Media at American University and a long time advocate of fair use. The Centre has been at the forefront of educating people about fair use; they offer guidance for best practices in many areas including film, communication and media literacy. While  fair use and fair dealing differ in specific language, the challenges that Professor Aufderheide addresses are common to both. In her article, she begins by saying:

Academics potentially enjoy some of the greatest benefits of U.S. copyright law’s doctrine of fair use — which lets them use copyrighted material without permission or payment, under some circumstances. Now if only they knew they did. In Peter Jaszi’s and my research for “Reclaiming Fair Use”, which charts the resurgence of fair use and explains how to use it, we came across as much mythology as knowledge among our colleagues.

It is interesting that she describes the United States as encountering a resurgence of fair use. Fair use is a very old practice; its first judicial appearance occurred in 1841 in a dispute over competing biographies of George Washington. Known as Folsom v. Marsh, the case is credited to be the starting point of shaping fair use as an identifiable practice. Yet fair use did not officially enter into American law until 1976.

The past 170 years have been eventful for fair use in the United States. It encountered its share of growing pains, but as copyright’s depth and breadth expanded so too did the impetus to better understand the remaining limits on copyright. Because it is through its limits that copyright can achieve what we ostensibly believe to be its purpose: furthering creativity and innovation. Those activities are heavily reliant on building upon past work; fair dealing and fair use are the only measures within the law that allow existing copyrighted work to be freely used in the practices endemic to creativity and innovation. Hence the resurgence. In terms of making the best use of fair dealing, Canada could learn much from the experiences of the United States. We are in an enviable position of being offered maturity without enduring the trials of adolescence.

However, deeper understanding of fair dealing will take some time to come to fruition. Fair dealing has greater visibility than ever seen before, yet it has come with a slightly unkempt appearance. Despite the vital role fair dealing plays in creative engagement, recent discourse is confined to emphasizing that copies of curriculum materials must not be made freely available en masse to students. Arguably, this is important; faculty need to be informed that fair dealing is not a means of unbridled redistribution. However, for the faculty that will only know of fair dealing through these events, fair dealing has been reduced to prohibition on behaviour that lacks legitimacy to begin with.

Fair dealing is much more than an uninvited guest. As Professor Aufdeheide’s work attests to, fair dealing is a dynamic and ubiquitous element within academe.