Meera Nair

Posts Tagged ‘thesis’


In Posts on February 27, 2020 at 7:52 am

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.

* 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.

a tale of two licences

In Posts on July 10, 2019 at 6:07 am

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.