protection

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 (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.

misrepresentations

In 2008, as part of my doctoral research, I had surveyed university rules concerning use of copyright-protected materials by graduate students – to rather dreary results. CCH had not made any appreciable impact on institutional awareness of fair dealing; there was no sign of the “large and liberal interpretation” of fair dealing as was prescribed by a unanimous Supreme Court in 2004. Nor were institutions particularly moved by the Court’s reminder: “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).“ Higher education in Canada apparently had no qualms about cultivating permission as the practice among their following generations of researchers.

Bleak as those findings were twelve years ago, the situation looks worse now. Despite the continued development of fair dealing by our Courts (not by the Supreme Court alone but also through lower court decisions such as Warman (2012) and Blacklocks (2016), and Parliament’s continuing support for use and expansion of exceptions,* fair dealing is even further from a solid footing in Canada’s university sector. What may be most frustrating is that some institutions have devolved from a timidity with fair dealing, to an outright misrepresentation of it.

For instance, from the University of British Columbia:

When copying copyrighted works for use in a thesis, such copying is primarily for the purpose of research. As understood in the context of the fair dealing exception, the research purpose does not contemplate distribution to the public (i.e., publication of your research). 

Because the University requires you to submit your thesis to cIRcle (which, as mentioned above, means that it is published online) and also to submit your thesis to the Library and Archives Canada, the fair dealing exception is not available for use in your thesis. (Emphasis in the original.)

As most graduate students do not have a deep understanding of fair dealing or its history, they are only too prone to believe this diktat as truth. Even if they have such knowledge, being at the mercy of the institution means compliance is the likely outcome.

But as the stakes are too high to let such misrepresentation go unchallenged, I offer the following deconstruction:

When copying copyrighted works for use in a thesis, such copying is primarily for the purpose of research.

Two aspects of copying endemic to research have been conflated. The first is copying from reference materials in order to become knowledgeable about a subject in order to embark on a scholarly path of one’s choice. A student copying some material has a compelling claim to legitimacy through consideration of: what is or is not protected content, whether the copying was substantial, the research purpose of fair dealing, other exceptions, and, the fact that journals/ebooks are commonly licensed for use by institutions and expressly permit copying of some content by faculty, staff and students.

The second use concerns copying information in order to create something new. Creating a scholarly work often means invoking other works, sometimes through quotation, when the newer scholar wishes either to make a point or to refute one. This behaviour is akin to review or criticism, both are permissible uses under fair dealing. (And again, whether the excerpted words are even eligible for protection would come under consideration before one thinks about potential infringement.)

 As understood in the context of the fair dealing exception, the research purpose does not contemplate distribution to the public (i.e., publication of your research).

Research’s life blood lies in distribution. Findings kept to oneself do not propagate further work; the test of good research is whether it can withstand the scrutiny of one’s peers. And from that scrutiny, and acceptance or rejection, the discipline itself is perpetuated.

Fortunately, the system of copyright was, and is, equal to this task. The records from the negotiations that led to the Berne Convention (1886) reveal a fascinating discussion about unauthorized uses of scientific and educational materials.  As Sara Bannerman shows, at the outset, the Convention’s provisions placed scientific articles on the same footing as newspaper and periodical articles; meaning in the public domain! An author or publisher was required to claim their copyright in such works. Recognizing that existing bilateral agreements among various countries permitted the use of excerpts of scientific and educational matter, individual countries were afforded the right to establish such provisions in their domestic laws. And, it was revealed that the right of quotation was an active practice among several countries, even when it was not prescribed by domestic law. Perhaps most notable was that in France (the powerhouse of arts and science in those days), “…works of science or criticism made very extensive uses of the right to quotation (p.115).”

Closer in time and space, Canada’s implementation of fair dealing began through the Copyright Act of 1921, as copied from the U.K. Copyright Act of 1911.  That marked the first time that fair dealing was codified in English law. Thanks to Isabella Alexander and Ariel Katz, we know that the legislators of the day sought to create in fair dealing a flexible standard that encompassed existing unauthorized uses which were endemic to the publishing sector (such as printing excerpts as necessary for review) as well as provide the basis for other reasonable uses.

Because the University requires you to submit your thesis to cIRcle (which, as mentioned above, means that it is published online) and also to submit your thesis to the Library and Archives Canada, the fair dealing exception is not available for use in your thesis

I have previously drawn attention to David Vaver’s explanation that the tradition of making graduate student work available is not in conflict with fair dealing. While the conduit of such availability was previously the university’s library, the fact that institutional repositories are now the norm does not affect its legitimacy. Our Copyright Act is technologically neutral.

A colleague raised a concern that license agreements by which many institutions obtain research publications, might contain language prohibiting further republishing. In terms of students’ uses, we have no case-law on this matter and likely will not, as such a dispute would not be favorable to a vendor. Students are not party to the negotiations of the institutional license, raising doubts as to how binding that language can be. In terms of the broader question of contracts v. the Copyright Act—which one will prevail?—in Royal Trust v. Potash (1986) the Supreme Court ruled that with respect to a benefit enacted in the public interest, “the long standing rule against waiver or contracting out should apply (para 40).” Of particular relevance to this analysis, was the Court’s position that the long standing rule applied regardless of whether or not the statute gave explicit protection to the benefit.

Finally, if institutions are so uncomfortable with relying on the indeterminacy of fair dealing (although, again, if committee members have done their work, students’ uses will implicitly be legitimate), we should not forget the precision of S29.21 (NonCommercial User Generated Content), which expressly protects unauthorized use of content as it pertains to the creation of a new work in which copyright subsists. Section 29.21 is not without conditions, but the nature of what a thesis or dissertation is makes abiding by those conditions seamless to the student.

Regardless of which measures under the Copyright Act a student leans on, or where their work is stored, a categorical claim that fair dealing does not apply to the creation of a thesis or dissertation is demonstrably false. Students, like all Canadians, are governed by the Copyright Act and entitled to all the rights therein.

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* Among the purposes listed for amending the Copyright Act in 2012 was to “allow educators and students to make greater use of copyright material.” And at the completion of the Copyright Review in 2019, the Standing Committee for Industry, Science and Technology recommended fair dealing be amended such that its purposes served “as an illustrative list rather than an exhaustive one (p. 69).”

 

Update 17 March 2020
Am happy to report that I was informed that UBC has been working on revising their instructions to graduate students regarding fair dealing.

ten years on

Ten years have passed now since Fair Duty came into existence. In July 2009, having recently completed my doctorate, the title to my dissertation served as inspiration for the name of my blog. (Had I known then that this venture in writing would continue beyond a decade, I might have named it something else.) My dissertation had involved examining university policies with respect to application of fair dealing in the hands of graduate students, doctoral candidates in particular. That project had been prompted by my own earlier experiences.

Just prior to the unveiling of CCH Canadian v. Law Society of Upper Canada —a unanimous decision by the Supreme Court of Canada, affirming fair dealing in the realm of research—I was at the post-defense, deposit-the-thesis, stage of my MA and thus jumping through the requisite copyright-hoops. After reading CCH, and looking forward with the naiveté of a doctoral student, I assumed the end of institutional limitations on students-and-fair dealing was nigh. Yet during my data gathering of 2007, 2008 (and confirmed again in 2009), it was evident that policies concerning use of copyright-protected material by graduate students still reflected a pre-CCH attitude.

Any disappointment with my own community was mitigated by the one inescapable challenge that faced institutions and students alike: meeting the copyright stipulations of Library and Archives Canada (LAC). Before digital distribution became the norm, that venerable institution offered greater exposure and enjoyment of graduate students’ works, through the medium of microform. At that time, the condition for inclusion with LAC was to abide by stringent rules with respect to use of third-party work in theses and dissertations. Even in 2009, CCH’s promise was not enough to overcome fair dealing’s ill-fated twentieth century history. (More on that another day.)

(Fortunately, LAC’s conditions now reflect an awareness that fair dealing is relevant to graduate students’ work; although LAC does so without actually using the words “fair dealing.”)

Ten years ago, I came to the conclusion that, whether driven by caution or misunderstanding, or both, Canadian institutions regarded fair dealing as lawful in the hands of a student, up to the point of depositing a thesis or dissertation in the institution’s library. But thereafter, with the added exposure through LAC and potential for further distribution, institutions appeared to believe that fair dealing no longer applied.

Today, despite favorable (almost coaxing) judicial and statutory developments of fair dealing, perhaps because deposit now means in a publicly available institutional repository, I wonder if caution might still be narrowing institutional positions on fair dealing, when exercised towards the creation of a thesis or dissertation by graduate students.

If apprehension still exists, David Vaver beckons. He has spoken to these issues for over 20 years. Apart from numerous journal articles, he has also written three books: Intellectual Property Law: Copyright, Patents, Trade-marks, (1997), Copyright Law (2000), and Intellectual Property Law: Copyright, Patents, Trade-marks (2nd ed. 2011).

Before even touching fair dealing, Vaver would remind us all to begin from first principles—what is copyright?

Section 3.1 of the Copyright Act states: “For the purposes of this Act, copyright, in relation to a work, means the sole right to produce or reproduce the work or any substantial part thereof in any material form whatever … .”

If a reproduction is insubstantial then copyright does not arise. And if one needs more than the inherent logic of that conclusion, in CCH the Supreme Court of Canada indicated, that where “the amount taken from a work is trivial, the fair dealing analysis need not be undertaken at all because the court will have concluded that there was no copyright infringement (para. 56).”

Beginning then from the question of substantiality, and drawing from all three of Vaver’s books:

One should first screen out what cannot in law be a substantial part. ‘Part’ means ‘portion’ not ‘particle.’ A copyright owner cannot therefore control every particle of her work, any little piece the taking of which cannot affect the value of her work as a whole. Copying ten such particles is as inoffensive as copying one.

The lesson here is to curtail any temptation to measure the aggregate of uses from a single third-party source.

Vaver, of course, acknowledges that quantity alone does not determine substantiality; quality is a consideration. As he wrote in various ways, is the taking of something distinctive from a third-party work? Is it something into which the author expended “skill, effort or ingenuity.” Is it the heart of the work? In the context of academic research, it may be that the answer is “Yes.” When developing one’s own ideas, we are looking for portions of other works that exemplify either their merits or shortcomings. This is how we form the basis of our own analyses and from there derive new conclusions.

And that is precisely why we have fair dealing. To encourage research (and other activities beneficial to the public interest) that relies on reproduction of substantial parts of other works.

In Copyright Law (2000), and again in his 2011 publication, Vaver specifically addressed the nexus of research, fair dealing, and graduate students’ works:

A doctoral thesis is clearly written for research purposes, even though copies are routinely deposited in the National Library and other public libraries and the thesis is destined for publication. Research is part of process that routinely involves dissemination of results and supporting evidence to facilitate further research, including open review, criticism and verification (emphasis mine).

It is worth remembering that Copyright Law lay at the heart of CCH. And Vaver’s 2011 book was also cited in SOCAN v. Bell (2012), another, unanimous, Supreme Court decision relevant to fair dealing in research.

More precisely, in SOCAN, the Supreme Court gave a resounding “Yes” to the question of whether music previews constituted fair dealing in the hands of consumers. That affirmation came by affording consumer-activity recourse to the word “research.” Readers may recall that the Court was asked to weigh in on the very nature of what “research” is:

 SOCAN offers the definition of “research” as being “the systematic investigation into and study of materials and sources in order to establish facts and reach new conclusions.” Moreover, SOCAN argues, the goal of the “research” must be for the purpose of making creative works, since only uses that contribute to the creative process are in the public interest (para. 20.)

The Supreme Court disagreed with SOCAN’s definition:

Limiting research to creative purposes would also run counter to the ordinary meaning of “research”, which can include many activities that do not demand the establishment of new facts or conclusions. It can be piecemeal, informal, exploratory, or confirmatory. It can in fact be undertaken for no purpose except personal interest. It is true that research can be for the purpose of reaching new conclusions, but this should be seen as only one, not the primary component of the definitional framework (para. 22.)

Good news as this was, it is worth noting that SOCAN’s desired (narrower) definition of research, “systematic investigation … study of materials… to establish facts and reach new conclusions,” very neatly encapsulates what graduate students do. Furthermore, through writing theses and dissertations, those same students are making creative works, and thus still meet SOCAN’s view that serving the public interest only occurs through creation of literary, dramatic, artistic and musical works. If one takes SOCAN’s opinion as representative of the preferred stance of copyright-owners, it is reassuring to see that graduate student work would have no difficulty in qualifying as “research” under those expectations.

But of course, settling the purpose of the use is only the first step of determining fair dealing.

In terms of the fairness analysis, SOCAN was not a particularly taxing occasion for the Court. With recourse to CCH and the earlier Copyright Board decision on this matter, the remainder of the analysis was dispatched with great efficiency (paras. 37-49). One element carries neatly into the topic at hand; it arose under the exploration of whether there are alternatives to consumers using previews when choosing music for purchase. The Court reminded us that: “A dealing may be less fair if there is a non-copyrighted equivalent of the work that could have been used, or if the dealing was not reasonably necessary to achieve the ultimate purpose (emphasis mine, para. 44).”

SOCAN had “argued that there were other methods available, like advertising, to help users identify potential music for purchase. Many of the service providers, for example, offered album artwork, textual descriptions, and user-generated album reviews (para. 45).” But the Court declined to accept that argument, concurring instead with the Copyright Board’s earlier assessment that “[l]istening to a preview probably is the most practical, most economical and safest way for users to ensure that they purchase what they wish (para. 46).”

This is the crux of the matter from where to consider whether inclusion of a work, or a portion thereof, is fair dealing. Herein is why a dealing will be “reasonably necessary.” Because the inclusion must be in aid of the purpose of the user. In this context, a research question must have been addressed. Therefore, inclusion of third-party work, must support the process of exploration necessary to meet this goal.

Crafting the work that conveys this scholarly journey, making those decisions about inclusion of other works, these are functions that invariably flow from engagement between student and supervisor; and later, with the examining committee. These senior members of the field will be looking for students’ own voices—their own expression of their own ideas—buttressed by other voices, but only as needed to confirm the student’s mastery or skill with the subject. An excessive quotation will be called out, as will gratuitous illustrations. The legitimacy of what was used and how much was used, depend on the subject and the particular method of exploration, and the guidance of experts in the field.

It is not the purview of copyright practitioners to assess the use of those other works; those decisions are the responsibility of qualified members within each discipline, under whose aegis the work is offered. Lest that should alarm the professoriate, their responsibility is discharged simply by remaining true to the principles of the vocation they have chosen.

By virtue of successful completion of a graduate degree, the most vital element of the fairness analysis—as to why specific uses of third-party works are necessary—will have been successfully navigated.

a tale of two licences

Kris Joseph recently penned a thoughtful column concerning institutional procedures that affect graduate students in terms of access and use of their work. After defending his thesis, he had eschewed the typical copyright statement (“Copyright Kris Joseph, 2019”) for his work and chose instead to deposit his thesis with his institution under an open licence. It took some persuasion on his part before his institution would accept his wishes.

Joseph describes a seeming offer of compromise that came at an intermediary point in the negotiation:

To keep my thesis deposit from being rejected, they suggested I remove the open licence from the front of my thesis, use the “standardized” copyright notice on the title page, and then place my Creative Commons licence inside the thesis, at the end of the frontmatter. On the surface this seems fair, but it isn’t: it suggests that the front of my thesis should say “this is mine and you can’t use it,” but if you keep reading and look carefully, you’ll see that I actually mean “this is mine and I want you to use it and thank God you thought to check the 11th page otherwise how would you know?”

The happy ending is that Joseph’s thesis was accepted as he wished to license it. But as he astutely noted, many students would have hesitated to push back on what appears to be a matter of institutional policy.

Graduate students across the country are required to deposit their work in their institution’s online repository—this is the millennium version of the former custom of leaving a copy in the institution’s library. In the later twentieth century, it became addedly necessary to enable a copy to be sent to Library and Archives Canada, to further the goal of making publicly-supported work more widely available to the public. (Moreover, it heightened the possibility that a thesis or a dissertation might actually be read by those continuing in the field.)

To achieve the twin goals of public dissemination and broader awareness of one’s work, Joseph was asked to sign a form that gave:

… the university library and Library and Archives Canada a non-exclusive licence to “archive, preserve, produce, reproduce, publish, communicate, convert into any format, and to make available my Thesis in print or online by telecommunication to the public for educational, research and non-commercial purposes.”

Compare this against Joseph’s own sentiments regarding his intent with his work:

A Creative Commons licence is a convenient way to say “yes, this work is mine and I have copyright. I want you to know that you are free to share it or adapt it or rework it without asking me first, as long as you give me credit and don’t trade it for lucre.”

In neither case would Joseph (and scholars like him) receive any financial reward for enabling public access to the work in question. Interestingly though, it is only in Joseph’s choice of Creative Commons’ licensing terms that a user is deliberately asked to acknowledge who created the work. (The university/LAC license seeks only to ensure that those institutions may legitimately store and distribute the work; it does not bind them to declare how a work should be used.)

Granted, in Canada, moral rights ought to ensure users give due attention to the necessity of attribution, but that is not necessarily true in other countries. (For instance, the United States has a very limited view of moral rights’ obligations.) Whereas Creative Commons is globally recognized and explicitly makes attribution a condition of use.

Of course, the university/LAC license makes no specific allowance for adaptation or re-working, but both functions may well occur under that licence’s broad allowance of “… to make … available to the public for educational, research and non-commercial purposes.”

The irony of Joseph’s experience is that his chosen Creative Commons’ license more closely aligns with academic experience and the social contracts made by higher education/research entities with the public.

Joseph called on universities to make a better effort in educating graduate students with respect to the nature of copyright and its multi-faceted personality, comprising rights of use and rights of control. I concur.

And to which I may add, a better understanding of copyright is needed among staff involved in research and education, across all universities. Not an easy objective to be sure—Joseph’s experience illustrates the challenge that lies ahead for all those attempting to raise the level of copyright literacy: old-world ideas about how copyright is managed are difficult to dislodge.

At its core, that old world was a thicket of gatekeepers.  Copyright was largely exercised by those who produced and distributed the finished product, under arrangements that might not favour the creator of the work. (The dispute between L. M. Montgomery and L.C. Page comes to mind, as does the more recent discord between Taylor Swift and Scooter Braun.) Academia has its own share of copyright difficulties—ranging from the external problem of proprietary journals excluding access to the very community that provides labour and content for free, to, an apparent discomfort in seeing their charges taking charge of their own work.

The critical difference between the two licences of this story, is that in one scenario a middle-entity is given a privilege of, and responsibility for, distributing the work, whereas in the other, the creator seeks to offer the work directly to any interested party willing to transact in the principal currency of academia: the citation.