excerpts

Last week marked the end of submissions to the committees of Industry and Heritage. It now falls to analysts to sift through data and testimony, and assist Members of Parliament as they consider the next steps for Canada and copyright.

The most disturbing aspect of this review to-date, has been observing the predominantly uncritical response to two fabrications: (1) that Canadian Literature is in peril; and (2) that a collective license via Access Copyright is the seeming solution to the seeming problem.

(Note: In a recent column, Kate Taylor conveys this happy news: “Canada’s literary culture is healthy: Writers keep writing and Canadian-owned publishers are publishing as many titles as ever, while independent bookstores are also stable.”)

Left under-articulated is the very real risk that Canada will remain on the sidelines in a world governed by knowledge economies. This is not merely about the unfairness of holding students captive to a market that is no longer relevant, it is about the regressive attitudes to creative activity that students are subjected to.

And so, I hastened to submit one more brief, this time to the Standing Committee on Canadian Heritage, before the deadline. What follows are some excerpts.

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I commend this department’s interest in supporting Canadian artists across the spectrum of creative endeavor. However, I ask that you expand your scope of inquiry to include not only the artists we have today, but those to come tomorrow. Given the tenor of dialogue so far, students are particularly vulnerable to assume costs that are irrelevant to their studies, and irreconcilable to their means. Moreover, our youth are not being afforded the fullest opportunity to further their creative instincts through measures already available under the law. Copyright chill and abuse are real.

I reminded the Committee of our past history with the system of copyright, that it was designed to the advantage of other nations. The stunning success of Canadian Literature, with both writers and publishers deserving praise, is due to efforts outside the arena of copyright. Nick Mount, Canada’s leading authority on the subject, has been unequivocal on this point. (See also his submission to the copyright review.)

I then sought to clarify the misconception that the decline in educational collective licensing was principally due to the 2012 amendments; that in fact,

The catalyst for the exodus from collective licensing occurred two years prior. In 2010, Access Copyright sought a 1300% fee increase. Granted, the earlier fee was out of date; an increase commensurate with inflation would not have attracted much attention. But given the extent of the increase, coupled with not only heightened requirements of reporting (which raised concerns of privacy) but also an effort to redefine the very nature of copyright (something only Parliament may do), many institutions began to give serious consideration to the viability of managing their operations internally.

Drawing from a talk I gave in 2011 (based on academic literature and the publicly released Friedland report), I emphasized that Access Copyright’s operation had been challenged from the very start. It sought to serve two masters (writers and publishers); but as publishers held most of the cards,

Access Copyright bolstered payments [to writers], regardless of whether works were used in educational institutions. Unfortunately, that set the stage for an unsustainable operation. Despite some evolution, it continues today. The payments provided by Access Copyright to its creator affiliates through its Payback system, rely on creation of work, rather than the use thereof. As Access Copyright’s creator affiliates grow in number, one should expect that fees will escalate just to keep pace with distribution payments.

Yet, today, many parties have called for compulsory collective licensing of educational copying.

This is particularly disturbing given the volume of evidence that detail the rise in direct licensing between educational institutions and third-party publishers, licenses that include both journals and books, and allow for both access and reproduction. Furthermore, Canadian institutions are increasing their selection of open educational resources as primary textbooks. Taken together, we see not only the present, but a future where Access Copyright’s services are relied on less and less, but would cost more and more.

Let there be no mistake: compulsory collective licensing would place an unnecessary and unfair burden on students. When too many students are financing their education through debt, it is more than cavalier to dismiss the cost as merely that of a case of beer. Governments and educational institutions have an ethical obligation not to impose waste on students’ meagre resources.

Further to students’ disadvantage are ongoing misunderstandings about legitimate, unauthorized use of protected material. Some of the instances of copyright chill and abuse that have been brought to my attention:

1. A parent informed me that her twelve-year-old had come home “scared to death,” all because of a strident lecture at school. A teacher had forbidden the students from engaging with content found via the Internet, a prohibition expounded in the name of copyright. 
2. A parent informed me that her daughter’s creative efforts, posted to YouTube, had been removed. This budding filmmaker said to her mother: “I didn’t know it was wrong.” To be clear, she did nothing wrong. YouTube’s overzealous content-identification system had resulted in the take-down of her lawful creation.
3. A group of worried students showed me a notice from a copyright-owner, threatening them with serious consequences if they had the temerity to quote from his father’s work, without first seeking his permission and making payment.
4. A parent sent me a Use of Technology agreement required at the local high-school. Parents were asked to give consent such that the school may search a student’s smartphone if the school “feels” that a rule has been broken. Among the rules listed: “honour copyright.” This may be due to the misplaced fear that schools could be liable for the activity of students; it speaks to the reality that administrations prefer to play it safe and discourage young people from lawful uses of copyright-protected materials.

Such misinformation spread among our nascent creators is not what will place Canada in positions of strength in decades to come:

If we train generations of Canadians into believing that creative effort, scientific inquiry, technological advancement, or a free press, are all predicated on a system of permission-then-payment, Canada’s creative future looks bleak.

This will be all the more painful when we consider that current technology and current modes of engagement offer promise to young creators today. They now enjoy what eluded Canadian creators in the nineteenth century: the capacity to promote themselves at minimal cost. Upcoming creators have the opportunity to find their own audience;^[1] a lack of publisher no longer limits awareness of Canadian talent.

Given that our Prime Minister has particular interest in fostering the next generations, it would be entirely appropriate for the Department of Canadian Heritage to give particular attention to how youth, students, and amateur creators, fare under the system of copyright, as it exists now and how it may change next year.

As Minister of Youth, it’s my job to make sure young people’s voices are counted when we make plans that shape this country’s future. Good meeting with CASA to hear directly from students on what matters to them – and how we can help better equip them for the jobs of the future. pic.twitter.com/ECV0ckYo3S

— Justin Trudeau (@JustinTrudeau) December 11, 2018

I closed with six recommendations. As the Heritage website has not yet been updated, my complete brief is here.

As I write this, my daughter is finishing her third year of engineering studies. The outcome of the copyright review is not likely to have any direct bearing on her remaining time as an undergraduate student, but there are many more like her to come.

 

[1] Canada’s Instagram poet Rupi Kaur comes to mind; her own self-promotion led to a publisher and then 77 weeks on the New York Times’ best-seller list; see Tariro Mzezewa, New York Times. Similarly, 2011 Canada Reads’ winner Terry Fallis began his successful journey via his own podcasts; see Shannon Rupp, The Tyee. Martin Kerr is a much-loved singer/songwriter/musician based in Edmonton; through his own talent and hard work, he has been independently producing music for ten years. Kerr began by singing in markets and festivals; today he sells out the Winspear Centre. One generation earlier that would have been an impossibility. With dreams of making it big, too many musicians were conscripted by record companies and emerged with only debt to show for it.

my remarks to the Industry Committee

Last Wednesday I had the pleasure of appearing before the Standing Committee on Industry, Science and Technology, to speak on the subject of the copyright review.  Also participating were Carys Craig (Associate Professor of Law at Osgoode Hall Law School) and Patti-Anne Tarlton (Chief Operating Officer of Ticketmaster, Canada).

Due to internal delays, the meeting was quite late in starting. Unfortunately, Carys and I had flights to catch that evening and so were unable to fully participate in discussion with Members of Parliament.

My remarks drew from the brief I submitted some months ago. In my allotted time I endeavored to place emphasis on the importance of supporting our next generations as they hone their capacity for creative and innovative thought—a capacity that Canada needs. I also reminded the Committee that altering copyright law must be placed in the context of Canada’s particular copyright history–a history where our law was designed to support foreign corporations.

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Good afternoon. My name is Meera Nair, I am the copyright officer for the Northern Alberta Institute of Technology, but I am here in my capacity as an individual. For nearly fifteen years, my research interest has been with systems of copyright, both contemporary and historical.

One of the challenges in dealing with copyright is that people tend to forget that it was designed to regulate industries. Because of an accident of vocabulary, it now includes individuals. People also forget the baggage we have carried for 150 years; that our system was largely designed by other countries, to serve their advantage. To the extent that we have successful writers, musicians, artists and publishers, those gains came despite the system, not because of it.[1]

So, what are we talking about? The system of copyright is composed of two parts; there are rights of control and there are rights of use. Why do we have it? For a very long time, we had no purpose. Copyright was simply one of 29 responsibilities handed to the Federal Government in 1867, with no explanation attached. But if we look at our multicultural roots—the influence of both civil law and common law—we see a shared goal: to protect the process of creativity.[2] While our Supreme Court has operationalized this as seeking a balance between creators and users,[3] it might be helpful to take one step back and simply think about this process; how do we enhance it? How do you assist individuals to maximize their creative potential? And from that, there is reasonable historical data to believe that larger social wellbeing will follow.

I am drawing from the work of B. Zorina Khan, an economist who explored American intellectual property policies at the time of their nation building years. The U.S. deviated from the IP norms of the day, and instead focused on educating its people and creating a framework which encouraged everyone to enter the arena of creativity.[4]

A part of that framework was the theft of other nations’ work—to be clear, I am not recommending that. But we could adopt the best aspect of current American policy: their structure of fair use. It would give leeway for new ideas to take form. It bears remembering that the United States has capitalized on this, with repeated development of billion-dollar industries.[5]

A speaker from an earlier meeting alluded to challenges faced by Americans with respect to fair use; he quoted Lawrence Lessig as saying: “Fair Use was simply the right to hire a lawyer.” Just to put that in context; Lessig wrote those words after losing a pivotal Supreme Court case in the United States. He had led a constitutional challenge, arguing that Congress had overstepped its bounds by lengthening copyright term. The loss was hard to take; while fair use is meaningful, it is no substitute for shorter copyright terms.

Adding to Lessig’s distress was likely the reality that the United States had made a bit of mess of fair use in later 20th century. They are correcting that misstep; but at the time, their courts began treating fair use as simply a response to market failure.

Fortunately, the Canadian judiciary has already ensured that Canada can avoid such a self-defeating approach.[6] Creativity is a cumulative affair; whether we are talking about books, music, software, medicines or a free press, creativity relies on exposure to and use of prior work. Some uses must remain above the cycle of permission and payment, if creativity is to be sustainable.

In 2012 we came up short on fair use.[7] But one pleasant addition stood out: Section 29.21 (known as the YouTube/MashUp exception). I would have called it the Creativity exception. It gives future Canadian creators some reassurance that their government does not wish them to be prosecuted for doing what Canada needs them to do–which is to hone their creative skills.

We need our next generations to be at their best to address the intractable problems that are being left for them to solve. Drawing from the combined wisdom of Julie Cohen and the late Oliver Sachs, it is important for individuals to play with whatever content they are interested in, to cultivate a capacity to see something that others cannot, to build the curiosity and determination that we hope will carry them into ground-breaking intellectual effort across all disciplines.[8] Much is being made of our innovation agenda—we will not get innovation just for the asking, we need to nurture it.

Regardless of whether we have strictly enumerated exceptions, or a more flexible condition of fair use, we cannot gain the fullest potential on either unless we adjust the current language of digital locks.

This Committee has been asked repeatedly to do more to support Canadian writers and Canadian publishers; this is a worthy goal. But I hope proposed solutions will not include billing students for materials already paid for, or worse, billing students for works that are not prescribed at all.

Moreover, if we want to target Canadian operations, copyright is not an effective means. More money will leave the country than will stay in. As I wrote in my brief: “Copyright is a blunt instrument; it cannot distinguish between literary superstars and novice writers, between fostering a homegrown operation and serving an international conglomerate, or, between writing for an audience and writing for financial gain.”

As I mentioned at the start, our Act draws from both our common-law and civil-law ancestry. The Copyright Act has long been recognized as being bi-jural; we cannot help but see two of our Founding Nations in it. However, the third is present. Indigenous paradigms about creative endeavor and property are implicit to the system of copyright as we practice it today.[9]

Acknowledging this will not solve the difficulties encountered by Indigenous communities with respect to protecting their intellectual property. But given the objectives of the Truth and Reconciliation Commission, we ought to recognize that the Copyright Act is tri-jural.

I would like to close by acknowledging that we have gathered on the lands of the Algonquin people.

I look forward to your questions. Thank you.

 

[1] Meera Nair, “History begins with geology (a response to Margaret Atwood),” Fair Duty, 20 September 2016.

[2] “Where social utility meets with natural rights is in the belief that creativity itself is valued. Otherwise, the underlying purpose of copyright in either tradition becomes meaningless, raising the question of why have such laws at all? Therefore, natural rights must apply to everyone, including past, present, and future creators. Likewise, consideration of societal benefit must ensure that future creative processes are not stifled by the system purporting to encourage creative effort;” Meera Nair, “Copyright and Ethics—an Innisian Exploration,” (2009) Global Media Journal (Can. Ed.) Vol. 2, Iss. 1, (23-39) 30, .

[3] “…a balance between promoting the public interest in the encouragement and dissemination of works of the arts and intellect and obtaining a just reward for the creator …;” Théberge v. Galerie d’Art du Petit Champlain inc., 2002 SCC 34 at para 30.

[4] Those policies fostered American ascendency from, “an undistinguished developing country with an agricultural economy to world leader in less than one century;” B. Zorina Khan. The Democratization of Invention: Patents and Copyright in American Economic Development, 1790-1920. (Cambridge: Cambridge University Press, 2005) 5.

[5] Meera Nair, “Outdated copyright law hinders innovation and growth,” Edmonton Journal, 12 September 2018. Details here.

[6] Fortunately, Canada has already taken steps to avoid falling down this rabbit hole; “The availability of a licence is not relevant to deciding whether a dealing has been fair. As discussed, fair dealing is an integral part of the scheme of copyright law in Canada. Any act falling within the fair dealing exception will not infringe copyright. If a copyright owner were allowed to license people to use its work and then point to a person’s decision not to obtain a licence as proof that his or her dealings were not fair, this would extend the scope of the owner’s monopoly over the use of his or her work in a manner that would not be consistent with the Copyright Act’s balance between owner’s rights and user’s interests;” CCH Canadian v. Law Society of Upper Canada, 2004 SCC 13 [CCH] at para 70.

[7] Numerous organizations sought to discredit fair use; “… to each objection raised, a nuanced explanation or rebuttal exists;” see Meera Nair, “Fair Dealing at a Crossroads,” From Radical Extremism to Balanced Copyright—Canadian Copyright and the Digital Agenda, ed. Michael Geist (Toronto: Irwin Law, 2010): 90-120 (103).

[8] “Both copyright law and policy have shown little interest in understanding the processes by which these roles are performed, nor in inquiring what users need to perform their roles in a way that optimizes the performance of the copyright system as a whole (348).” See Julie Cohen,“The Place of the User in Copyright Law,” Fordham Law Review, Vol. 74, (347-374) 348, 2005. “Imitation and mastery of form or skills must come before major creativity;” see Oliver Sacks, “The Creative Self” in The River of Consciousness (2017) 137.

[9] Meera Nair, “Indigenous paradigms,” Fair Duty, 25 June 2018.

how Canadian education really hurts creators

Last week, this tweet made the rounds:

Discussing at the Frankfurt Book Fair how education copying policies hurting creators & publishers https://t.co/WQB3yzMoai #CreativeCanada

— Access Copyright (@AccessCopyright) October 13, 2017

The article referenced insists, yet again, that Canada’s 2012 copyright amendments are the reason for declining fortunes among Canadian publishers and creators.

Such a lopsided assessment of Canada and copyright is nothing new. While it is important that members of the education community continue to press Members of Parliament to engage in a comprehensive exploration of this matter, it is as important to turn our gaze inwards and redress the real failure of Canadian education with respect to nurturing creators and creative activity.

The creators I speak of are not those who belong to any union or collective society; most of these creators are still under-age.

Two weeks ago, a mother said to me, “My daughter is terrified of using anything off the Internet.” The daughter is of middle-school-age, and the source of that terror: dire edicts driven in at school. Thou shalt not steal from the internet for the purpose of schoolwork.

Judicial pronouncements notwithstanding, this is not an isolated misconception.

If generations of Canadian students are instilled with the view that education and creativity are contingent on permission from others; that every scrap of content (even when employed for something as innocuous as homework) must be paid for, Canada’s future looks bleak.

The irony of the current situation is that too many Canadian creators are deemed to have been ruined by virtue of our inclusion of “education” into fair dealing, while the fact is that too many Canadian educators are unaware of fair dealing to begin with. Fair dealing would certainly protect a student who wants to use a published picture, a video-clip, or a quotation of text, towards fulfilling an assignment, regardless of the provenance of that content.

Moreover, in addition to fair dealing, the Copyright Act offers many avenues by which a student’s copying in aid of learning finds legitimacy. But are educators aware of these measures?

For instance, are they aware of the importance of S29.21? Hailed by Ruth Okediji as a mark of integrity by Canada, that we as a nation support the type of copying that is the very foundation of creative effort, S29.21 is quite capable of also sheltering a school project. Northrop Frye’s immortal words bear repetition; poetry can only be made out of other poems…

Are Canadian educators aware of the very structure and language of the grant of copyright? S3.1 clearly indicates taking an insubstantial amount of work would not raise a question of infringement.

Continuing along the lines of first principles, do Canadian educators understand the existence of the public domain? That not every artifact (whether in print or digital) is protected by copyright. Facts and ideas are never protected material; copyright is only gained by creation of original expression. A grant of copyright will expire; from that time forward, anyone may use the creation for any purpose. And the exercise of a statutory exception renders protected-material, in that instant, as public domain.

Returning to the situation at hand, what about the long-sought-after Internet exception S30.04? Its language is clumsy, but given that Canadian education fought for this exception, to see it lying by the wayside is frustrating. Granted, the exception is framed in the language of “institution,” but it is only logical that a student attending an institution could rely on the same protection. Given the forceful language surrounding plagiarism in all educational institutions, it is safe to say that the attribution requirement will be met. (Further conditions limit the exception to some degree, but in the context of a student working on an assignment, those conditions will likely also be met.)

But, for simplicity, fair dealing is all that needs be said about an individual student engaged in learning. S.29 states: “Fair dealing for the purpose of research, private study, education, parody or satire, does not infringe copyright.” There are no fixed conditions; multiple Supreme Court decisions emphasize the contextual nature of fair dealing and provide guidance on determining fairness. The typical uses put forward by students (for a picture here, a quotation there) would easily stand up under such an analysis.

Children, teenagers and post-secondary students should not have to take on the task of learning all about copyright before they can comfortably do their homework. That responsibility falls squarely on Canadian educators. While it is undoubtedly easier to simply adopt a no-copying regime, it will not place Canada on any strong footing in a global economy where success is determined by a country’s capacity to think broadly, to be creative, and to develop knowledge-based industries.

Ideally, the word copyright would never need to be uttered to one under the age of 21. But as life is less than ideal, the best we can do for students is to reassure them that their constructive use of broad shoulders of the past to stand on, is not unlawful.

Students today are confronting a world not of their making, but are being handed the responsibility to fix it. To be able to rise to this demand, they need to engage fulsomely with the resources around them to further their creative aspirations, to cultivate their capacity to see something that others cannot, and to dream beyond the constraints of contemporary problems. This cannot happen if copyright angst is the manner in which students choose how to learn.

students, food insecurity, OER

My last post focused on a very one-sided report bemoaning the fortunes (or lack thereof) of the educational publishing industry. That industry apparently needs our support in the form of continued high-priced payments. This, without regard for either developments in law or legitimate and innovative efforts on the part of the educational community to lighten the financial burden imposed on students, parents and taxpayers.

According to the report, without such an industry, our authors would no longer be able to support themselves. The trope of the starving author is a familiar one in the realm of copyright lobbying. Every expansion of copyright (beginning with its establishment in the 18^th century) has included references to writers who needed copyright protection to survive. (Yet even in those days, not every writer agreed with publishers’ pronouncements on this matter.) If authors are still struggling after 300 years of relentless expansion of copyright’s ambit, perhaps copyright is neither the problem nor the solution.

Moreover, there is another segment of society where money is tight, or tighter still, and food insecurity is real. (Dietitians of Canada indicate that the main cause of food insecurity is poverty.) Year after year, the difficulties facing post-secondary students are covered in the press. Here is just a small sample of recent discussion:

• Matthew Robinson, Vancouver Sun, 18 July 2015
• Madeleine Cummings, Edmonton Journal, 27 July 2015
• Rachel Grant, Nexus, 18 August 2015
• Emanuela Campanella, London Free Press, 28 August 2015

Many factors play into student poverty, but the rising cost of education cannot be ignored as the principal driver. With tuition and housing as necessities, food is seen as optional. Citing Michael Waglay (coordinator for Beyond Campus Foodbanks) Rachel Grant writes: “the first campus food banks appeared in 1991 at the University of Alberta. Now, … there is a food bank on almost every campus.”

Also appearing on every campus are shelves upon shelves of very expensive textbooks. The educational publishing industry would have us believe that only they can produce such works. Open Education Resources (OER) demonstrates otherwise. Looking for an illustrative example that would have widespread use, I examined materials for pre-calculus. OpenStax’s contribution stands out, based as it is upon a thorough development and review process. A comprehensive book (1400+ pages), it is lucid in delivery and robust in its treatment of the subject. (To ensure a knowledgeable opinion, I placed it in front of my first guide in mathematics; a woman of 35 years’ post-secondary mathematics teaching experience, spanning two countries. Full disclosure – she is also my mother.)

OpenStax College is an initiative of Rice University, with the support of many philanthropic organizations. Its goal is to offer high-quality textbooks which are free online or low-cost in print form. The array of institutions who have adopted OpenStax books is impressive, ranging from high schools and community colleges to exclusive preparatory schools and Ivy League universities.

Returning to my pursuit for pre-calculus learning materials, an informal survey of conventional offerings showed sticker prices beginning at the $150 mark and escalating quickly. With the option to reduce that cost to zero, or near zero, that saving alone could make a meaningful difference to a hungry student.

But there are barriers to the adoption of OER materials. It is not a trivial undertaking to rework an existing course to rely upon a different textbook. Students can only hope that sympathetic professors will consider such exertion worthwhile. Traditional teaching/research institutions could support both parties by recognizing such work as “service” (that component of duties essential to advancement of tenured and tenure-track alike). Yet another barrier is awareness; too many of the professoriate remain unaware that such works even exist. Finally, advanced courses or highly specialized areas are less likely to be served by OER at this time.

But barriers to some are opportunities for others. Institutions which support OER usage, or, better still, invest in OER development, can enjoy a competitive advantage among the student market. A success story that made the rounds of Creative Commons’ enthusiasts is that of Tidewater Community College (Virginia) which shifted an entire program of study to OER materials. Mike Palmedo recounted the early details in March 2014:

 Tidewater identified 21 courses and signed up faculty members to design the curriculum. They started with the desired outcomes for each of the courses, and then built the curriculum with OER materials that would meet those outcomes. Developing the curriculum took about 12 months. One year into the program, the early results are highly positive.

The initiative was not only about eliminating the prior price tag of $3679 for materials, it was also about improving teaching impact. Continuing the story, via an Inside Higher Education webinar this year, Cable Green (Director of Global Learning, Creative Commons) gave additional good news: better grades, higher rates of completion and increased student enrollment.

Closer to home, the Justice Institute of British Columbia (JIBC) is showing great leadership in the development of OER materials for their students, and is enjoying the attendant institutional benefits. Details were first presented at Open Education 2014 in Washington DC by Tannis Morgan, Associate Dean for the Centre of Teaching, Learning and Innovation at JIBC. Morgan emphasizes that not only is this effort “the right thing to do” but also that “being open has actually increased the bottom line.”

teachers and students, copyright and liability

Congress 2014 was held at Brock University this past spring; included among the customary panel discussions was a series of debates concerning copyright, fair dealing, licensing and open access. Titled Copyright and the Modern Academic, the series sought to widen discussion about the means by which information flow is facilitated in learning, teaching and research. Videos of the series are available at the Canadian Association of Learned Journals (see here) and at the Brock Video Centre (see here).

I was particularly interested in the third debate, Access Copyright—Friend or Foe, with speakers Howard Knopf and Roanie Levy. Knopf is a lawyer with Macera & Jarzyna, author of Excess Copyright, and a long-standing advocate for a more nuanced understanding of copyright and fair dealing. Levy is the Executive Director for Access Copyright, formerly General Counsel and Director of Policy & External Affairs for Access Copyright, and equally passionate about the roles of protection and licensing towards development of content. (Fuller biographies of both speakers are given approximately 5:30 minutes in.)

The arguments of Knopf and Levy were lively and thought-provoking, but what remains uppermost for me is the first issue raised from the audience at the beginning of the Q/A (at approximately 58 minutes in). It focused upon Access Copyright’s licensing terms that protect teachers and students in the context of teaching and learning, but not the subsequent behaviour of the student:

Most of us use Blackboard or Moodle; we upload links to articles, we upload articles, we create wikis, we want students to comment, we are creating a discourse community among our students asking them to critically analyze concepts or issue … It is not surprising that many times students download those articles and then those articles could now be posted on a student’s blog or on a student’s Facebook page … we all know how things move across the Internet. … I would personally find [the licensing terms] quite limiting, if I had to worry about that (emphasis mine).

Levy was reassuring that the discourse community, composed as it is of students and teachers (more broadly speaking, the educational body associated to the license) were safe within their actions. Levy was also emphatic that the educational community did not extend to the world at large: “students need to be made aware that content cannot just be shared with the entire world … sharing proprietary content that is not their own should not be encouraged.”

To which Knopf immediately stated that such sharing should be encouraged: “if what the student or professor is doing is fair dealing.”

Levy’s and Knopf’s remarks are not mutually inconsistent – quite the opposite in fact. Each statement reinforces the other. It is entirely plausible, and beneficial, for teachers to simultaneously state that piracy is undesirable and fair dealing is desirable. Discussion will, over time, encourage students to understand the nuance and care that goes into an evaluation of fair dealing. In the more immediate future, such conversation between teachers and students further exemplifies that post-secondary institutions take this matter seriously and are developing systems of good practice that amount to more than merely posting rules to a website.

Regrettably, with time running out and other questions waiting for attention, the crux of the first question was not addressed. More specifically, does a teacher have to worry about the personal conduct of a student outside the activities encouraged within class, with materials licensed at the choice of the teacher? The short answer is No.

A longer answer would suggest that in the scenario where a student’s personal behaviour is alleged as infringing, the copyright holder of the material in question might bring a complaint to the attention of the ISP providing the platform used by the student. Depending on the jurisdiction, the ISP might remove the material (under notice-and-takedown as found in American law) or forward the complaint to the student (under notice-and-notice as set within Canadian law). In neither case is the teacher involved.

An even longer answer would suggest that if anyone should insinuate that the teacher and/or university were liable, a look at CCH Canadian will quickly allay any worries. While that case is known best for its support of fair dealing, the Justices also confronted a claim that libraries were responsible for the conduct of its patrons with regard to self-serve photocopiers. Chief Justice Beverley McLachlin, writing for a unanimous court, rejected that claim:

[E]ven if there were evidence of the photocopiers having been used to infringe copyright, the Law Society lacks sufficient control over the Great Library’s patrons to permit the conclusion that it sanctioned, approved or countenanced the infringement. The Law Society and Great Library patrons are not in a master-servant or employer-employee relationship such that the Law Society can be said to exercise control over the patrons who might commit infringement. … Nor does the Law Society exercise control over which works the patrons choose to copy, the patron’s purposes for copying or the photocopiers themselves (para 45).

If the Supreme Court of Canada has deemed that a library is not responsible for activity conducted within its premises, with materials provided by the library and via the library’s own equipment, because of an absence of control of people, materials, or equipment, then it is illogical to suggest that a teacher is liable for activity of a student, carried out by the student’s own initiative, on a platform independent of the classroom.

Regardless of the status of the material involved (licensed, purchased, or utilized through exceptions to copyright), teachers are not implicated by personal copyright infractions of their students.

fair dealing for students (and their teachers)

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.

Please, not now – I’m marking

The misrepresentation of fair dealing continues – an op/ed here and a brief here. I’ll spare my readers the rebuttal that they have read so often from me (here, here, here and here). Instead, I will send everyone to Michael Geist – yesterday he posted a detailed response to the brief, Copyright Fear Mongering Hits a New High.

Right now – I have papers to mark.

The assignment I gave to my 146 students was to write an op/ed on any copyright related issue. There were a few requirements, including the need to provide some explanation of what copyright is. I implored my students to give their work some “life”! Many obliged; I particularly like the work of a student who clearly states his disinterest in documentary films and then gives a nice explanation of the copyright-induced headaches endured by documentary filmmakers.

This assignment is a regular feature of my teaching; students practice the art of prose and become further acquainted with the topic of copyright. Over the past year, some trends are showing in the writings of these twenty-somethings:
– File sharing is not the most popular topic.
– The topic of Creative Commons is rising in popularity.
– Copyright is an ethical issue; so-called solutions grounded on fixed contracts and punishment will not work.
– Digital technology presents challenges and opportunities, just like every past development in media technologies.
– Moral rights infringement is a greater concern than changing a business model for income stream.
– Students recognize that their own futures may lie in the development of intellectual property.

Granted, these students are pursuing the study of communication — the discipline is a staging ground for working in cultural industries. However, many students relate copyright and moral rights to their current life experiences — they reside in the world of the amateur musician, photographer, and writer. In a very insightful paper, a student spoke of her resentment that her generation was targeted not only by the music industry as the problem, but also by copyright-collectives as the cash-cow solution.

Back to the marking…