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.

and this one is for teachers …

Tomorrow we shall see what form of copyright amendment is coming back to Parliament for debate and realization into law. If the inclusion of “education” to fair dealing has survived the campaign to discredit it (see here and here) and becomes a legitimate category in fair dealing, this will help to protect teaching practices. But, if education should not survive, we can still do quite a bit with fair dealing as it exists.

As has been written many times on this blog, fair dealing is not license to copy and distribute at will. It is a nuanced exception within the system of copyright. But the atmosphere of copyright, at this time, is one of confusion.

The movement away from Access Copyright bundled licenses towards more varied approaches for purchasing and distributing learning materials is a positive step. Monopoly practices never produce quality and variety to the benefit of consumers; it doesn’t matter which industry one talks about. Unfortunately, the adjustment is messy. Post-secondary teachers across Canada are unsure of what materials they can copy. A recent article from the Canadian Press sums up the situation:

The resulting wariness means students aren’t getting the same course material they received in the past as guarded professors choose to simply eliminate material from classes they teach rather than risk a lawsuit. … Libraries and copyright officers have been swamped with work this fall, trying to clear the course materials assigned for classrooms.

Sorry as I am to hear that, the larger problem is the degree to which existing teaching practices are scrutinized for copyright infringement. Individual teachers have been implicitly, or explicitly, instructed to remove any copyrighted material from display during lectures. Such a directive has no basis in law. It ignores fair dealing entirely. The purposes of criticism and review (found within existing fair dealing) favour the use of quotations, illustrations, diagrams, flow charts, film clips and software snippets – in short, any copyrighted material – when such inclusion serves the purpose of conveying concepts to students. To fortify this behaviour under fair dealing, attribution is important. But with citation being the backbone of academic practice, it is likely that teachers already take care to identify their source materials to students.

Furthermore, bans on inclusion of copyrighted material in a lecture presentation ignore the status of the teacher as an author in his or her own right and the originality that implies. Preparing a lecture is much more than assembling a sequence of copyrighted material. Teachers bring their own language into the lecture, shaped as it is by their own perspectives. And they exercise the skill and judgment befitting an original creation as described by Chief Justice Beverly McLachlin in CCH Canadian.*

A lecture is an original  expression of an idea. Said another way, a lecture is a copyrightable work on its own merits. The fact that this work contains copyrighted elements is not a negation of the copyright status of those elements but neither does it require permission or payment for those elements. This is precisely the behaviour that fair dealing protects; provided one can fall within the existing categories of private study, research, criticism, review and news reporting.

(If this all sounds too esoteric, Canada has an appropriate example of a successful fair dealing defense of an inclusion of copyrighted work into a new work. In this case, a photograph was incorporated into a news story.)

Of course the question will arise, can this work  – known as the lecture – be distributed to students? That is a decision for the copyright holder of the work, namely the author-teacher. I read of Professor Jeremy Richards’ decision to remove some elements before distributing his slides to students – that is his prerogative. I do not have much sympathy for students who require a lecture-to-go. Professor Richards makes a cogent point that students could gain more by taking notes by hand instead of “letting it all wash over [them].” But in any case, the decision to distribute remains at the discretion of the individual who created the whole work, not the copyright holders of the constituent parts.

Good Luck.

* While in this blog I have focused upon the development of the framework of inquiry for fair dealing as brought about through CCH Canadian, the case had another side: a discussion of originality. On that point the Chief Justice wrote:

For a work to be “original” within the meaning of the Copyright Act, it must be more than a mere copy of another work. At the same time, it need not be creative, in the sense of being novel or unique. What is required to attract copyright protection in the expression of an idea is an exercise of skill and judgment. By skill, I mean the use of one’s knowledge, developed aptitude or practised ability in producing the work. By judgment, I mean the use of one’s capacity for discernment or ability to form an opinion or evaluation by comparing different possible options in producing the work. This exercise of skill and judgment will necessarily involve intellectual effort. The exercise of skill and judgment required to produce the work must not be so trivial that it could be characterized as a purely mechanical exercise (para.16).

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.