Apr 192012
 

Changes to Canadian copyright law are underway, with the Copyright Modernization Act (Bill C-32) presented to the House of Commons for a third reading last month, and expected to become law. This new legislation will create a new reality for faculty, especially as it is coupled with the decision last year by a majority of Canadian Universities, including the U of S, to withdraw from Access Copyright’s CanCopy Agreement.

What will this mean for us? At the Joint Committee for the Management of the Agreement (JCMA), discussions on the issue of copyright responsibilities with the employer are ongoing, but so far we have been advised that a system to verify compliance is being developed, in keeping with the Council Copyright Policy from 2009. The proposed system, which is being put to legal advisors to ensure it will serve its intended purpose, is not meant to establish a disciplinary process; rather, it is a regulatory compliance process, and one that seems to be a reasonable and respectful approach to balancing the rights of faculty and staff with the need for due diligence. Laudably, the employer has chosen not to pursue more objectionable regimes that some other universities are putting into place to verify compliance, such as randomly auditing their faculty’s materials every year. The system is meant to be minimally intrusive, and would entail instructors providing a Department Head or Dean with a table of contents or course outline for each course, along with a statement on the status of copyright for materials to be distributed. Department Heads or Deans will be provided with forms to sign, indicating that they have reviewed these statements. The employer’s proposal for the next years is a three-pronged approach of education, capacity building and verification. Expertise is available for presentations to units, and a copyright coordinator will be available to assess copyright status when the need arises. Instructors are encouraged to use more open-source materials or materials for which the library already has licenses. The employer advised that there is no personal liability if the use of copyrighted materials is challenged: it is the University that would be sued. The U of S Policy on Copyright can be found online at http://www.usask.ca/university_secretary/policies/operations/Copyright.php

This is an evolving environment and we are all learning as we move towards new ways of dealing with copyrighted materials. What follows was not written by a lawyer, nor is it intended to be legal advice. It is simply some food for thought put together by Allison Muri, one of the USFA representatives on JCMA that we thought we would pass along.

As mentioned, a copyright coordinator will be available to advise on the following matters and our colleagues in the library are a solid source to turn to, but going forward, we will have to make some tough decisions about what we distribute to our students (or whether we distribute materials to our students at all). How can we effect reasonable compliance, as opposed to excessive caution?

Public Domain – Questions about legality of use will be sure to arise and it will be important to mount defenses for the use of public domain works to establish precedent under the new law. One of the difficulties we will face in terms of assessing copyright status is understanding not only Canadian law and interpretations of it in the courts that establish precedent, but also international law. For example, under current copyright law, faculty members should be able to legally provide copies of 18th-century images to students. However, this isn’t necessarily as clear as it may seem. In the United States there is precedent for cases concerning exact reproduction of two-dimensional artworks that are in the public domain, but there is no such precedent in Canada. Even in the US situation, these rights have been disputed. Take, for example, the right of Wikimedia Commons in the US to copy and disseminate images from the National Portrait Gallery (NPG) in the UK. In 2009 the NPG threatened legal proceedings; legal counsel for the Wikipedia administrator who downloaded and posted the images from the NPG site argues that the images are in the public domain in the US. The images remain on Wikimedia but as far as we’ve been able to tell, this still hasn’t played itself out.

Another example is the claim on public domain materials by database vendors. For example, the library has licensed ARTstor, the Terms and Conditions of which state:

you may not distribute and/or make available content in the ARTstor Digital Library to persons other than as expressly permitted herein.”

This suggests you could not reproduce public domain paintings, engravings, etc., on your course website if it is open to the public.

Digital Locks – Technological Protection Measures (TPM) control access to a work or restrict using it in certain ways. The application of TPMs, commonly known as digital locks, will nullify the generous new fair dealing provisions in Bill C-32. It will sometimes be difficult to figure out what constitutes circumvention. In the NPG-Wikimedia copyright dispute mentioned above, the NPG claims that reconstructing ‘zoomified’ images circumvents a digital lock (zoomified images are pyramids of images resized and then cut into little tiles so the browser doesn’t have to load an entire large image at once in the browser window). Wikimedia counsel calls bullshit on this interpretation of digital locks: the lawyers will argue this out, but in the meantime what are the ramifications of differing interpretations of effective TPM?

Michael Geist, CRC in Internet and E-commerce law at U Ottawa (http://www.michaelgeist.ca/content/view/5097/125/) predicts that digital locks will inhibit otherwise legitimate use of materials:

In the education world, teachers and students will not break the lock because academic guidelines will make it clear that they can’t. Similarly, research will also be stifled in the same way since researchers sign ethics documents when they apply for grants that their research plan is compliant with all laws.”

What if a faculty member interprets the law differently from the copyright coordinator? – The copyright guidelines provided by the university (http://www.usask.ca/copyright/basics/copyright-policy/copying-guidelines/index.php) are, as the employer has admitted, “on the conservative side” and so could be considered to be more restrictive than is warranted. For example, the Supreme Court of Canada has found that linking is not publishing of content and that links are in essence merely references, like footnotes, but the U of S “Guidelines for Using Materials in a Digital Format” say

If you intend to link deeper than the home page of the website, consult the site’s copyright information or the terms of use to ensure that ‘deep-linking’ is not expressly forbidden”

(on linking see Michael Geist, http://www.michaelgeist.ca/content/view/6069/125/, and Howard Knopf, http://excesscopyright.blogspot.ca/2011/10/crookes-v-newton-hyperlinking-is-not.html).

Knopf assesses the Supreme Court’s decision as follows:

If a link or hyperlink by itself does not constitute ‘publication‘ for defamation purposes, it is difficult to see how it could, by itself, constitute publication or reproduction or any other activity covered by the Copyright Act.”

The relationship between linking and copyright is still a gray area. A statement that the University will protect our rights to link to content would be reassuring, especially given that our own guidelines currently caution against deep linking.

Another example: the U of S Copyright Poster, which you can access from the university’s copyright Guidelines and Resources page, contains a list of things “you may not” do; however, if the copyright license, such as Creative Commons Share Alike licenses, explicitly grants these rights, you can legally do all of these.

The employer has advised that there is no personal liability if a dispute were to arise. Nevertheless, there are questions that come to mind after reading the Copyright Policy approved by Council in 2009.

What’s “reasonable”? –

All members of the university community have the responsibility to respect the rights of copyright owners, to make themselves aware of federal legislation and the exceptions outlined therein, and to take the steps necessary to ensure that their use of all copyright materials is compliant. …Deans, department/unit heads and research account holders are responsible for taking reasonable steps to ensure effective implementation of this policy and to encourage continued compliance with it“ (p.3).

Is a signed statement of copyright status of all materials that will be given to students over the course of a 3-cu or 6-cu class reasonable? Perhaps. But then we might do well to avoid posting any new materials for students that arise during the back and forth of ongoing teaching and in response to current events. Is that reasonable? Perhaps. Who decides? Should it be the employer that defines reasonable steps, should it be a decision of Council, or will it be determined by entities outside the University, such as the courts?

What, exactly, is non-compliance and who makes that determination? – From page 3:

Non-compliance is a violation of federal legislation. In addition to any actions that might be taken by any copyright owner or licensing agent, the university will take action on any breaches of this policy.”

Does this mean to imply that non-compliance with the university policy is to be considered a violation of federal legislation? Will signing a document stating that we believe our materials to be legal for distribution to students demonstrate compliance? In what circumstances does action taken by a copyright owner or licensing agent against faculty or staff constitute a reason for the university to protect the accused? Does this policy give the employer sole right to determine what’s not compliant?

What about the vagaries of the law and the university guidelines? – The General Information about Copyright on page 5 outlines the Supreme Court’s criteria for determining if dealing is fair, but is it reasonable to expect that faculty or staff will be able to make that determination, even with the advice of a copyright coordinator? For example:

The amount of the dealing: How much of the work was used? What was the importance of the infringed work? Quoting trivial amounts may alone sufficiently establish fair dealing. In some cases (for example, for private study) even using the entire work may be fair dealing if it is deemed necessary.”

or:

Affect of the dealing on the work:  Is it likely to affect the market of the original work? The work used must not compete with the original copyrighted work.”

These guidelines are subject to interpretation, which will vary widely: again, how can we ensure that reasonable compliance does not become excessive and overly restrictive caution?

Public domain in which jurisdiction? – Page 6 advises that a work

is protected by copyright in Canada for the life of the creator plus 50 years after the creator’s death.”

However, page 5 advises,

When in doubt as to whether or not your use constitutes fair dealing, seek permission of the copyright holder.”

In the UK and US a work enters the public domain 70 years after the author’s death. Copyright holders in the UK, as described above, will suggest that their laws should apply to citizens in other countries. Do we take the advice on page 5 or page 6? On the interesting possibility that we could be held accountable for abuse of copyright even if we follow Canadian law, see Michael Geist, “Canadian Public Domain Told To Cease and Desist” (http://www.michaelgeist.ca/content/view/2308/125/).

What about protection of faculty and employees in the case of a copyright dispute? – We do not really think the employer intends to throw faculty and staff to the wolves in the case of a copyright dispute. We have been advised that there is no personal liability if the use of copyrighted materials is challenged, and the employer has acknowledged there are many gray areas when it comes to interpreting the law. This system is primarily to verify compliance. However, be advised that the copyright policy for the U of S includes a statement (pp. 3-4) that:

Following due process, the university may take action against anyone whose activities are in violation of this policy. The actions taken may include, but are not limited to:

  • disciplinary action for employees
  • disciplinary action for students […]
  • legal action that could result in criminal or civil proceedings”

With a new reality on campus concerning the use of copyrighted materials and an expectation that every member of the university community will be knowledgeable and responsible in the use of these materials (certainly much more so than when the Policy was approved), we would welcome information about copyright responsibilities that recognizes that there is already an existing environment here of compliance with copyright laws, and that we are protected by our employer should disputes arise.

So where does this leave us? – Changes to legislation are going to affect universities across the country. It will be important that a reasonable approach is taken to using copyrighted materials, and that we protect our existing rights by continuing to lawfully use materials that we have the rights to use. This is an evolving process and we are all learning as we go forward: the question we are left with is where we ultimately will find our footing between responsibility, reasonability, and conservative versus liberal interpretations of the new law.

 

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