Universities should educate, not police copyright

My op-ed on why universities should focus on educating faculty and students about copyright rather than online copyright enforcement is available on The Conversation here and in various other publications.

Delhi High Court issues historic decision for access to knowledge and education

In September, the Delhi High Court handed down a groundbreaking judgement dismissing Cambridge University Press, Oxford University Press, and other academic publishers’ copyright infringement suit against the Rameshwari Photocopy Service and the University of Delhi.  Read my full post about it here on the Cambridge University Press blog.

Fair dealing and course packs: Canadian and international challenges

A draft study presented last week at the World Intellectual Property Organization (WIPO) is of particular relevance to Canada.  The revision of the Canadian Copyright Act's fair dealing provisions in 2012 to include dealing for educational purposes, as well as a Supreme Court of Canada decision of the same year relating to classroom materials, have led many Canadian universities to conclude, and to adopt the policy, that the inclusion of articles or book chapters, for example, in hard copy and electronic course packs, is fair dealing that does not require permission or payment of copyright fees.  This interpretation is currently being challenged in a Canadian lawsuit against York University.

Is the Canadian universities' interpretation of fair dealing in line with the policies adopted in other countries?  Professor Seng's study should shed some light on this question.  He notes that "Educational anthology limitations and exceptions are found in 94 provisions from 85 member states" (Sheng, 22).  However, some states place restrictions on course pack copying; 12 provisions, according to Sheng, require equitable remuneration to be paid to copyright holders (Sheng, 22).

Seng's study was introduced in the context of discussions toward a possible international instrument on copyright provisions for educational and research institutions.  Numerous states have made proposals for new international norms, some of which relate to the question of course packs.  Finland, for example, has made the main proposal on course packs.  It is very restrictive, in that it would require payment of remuneration, restrict anthologies to print anthologies only, and would allow only the use of works more than five years old (p. 26; see also p. 14).

Many of the proposals currently on the table at WIPO  (relating not only to course packs, but also to the use of copyright works in the classroom, in distance learning, in research, and in reverse engineering) are far more restrictive than current interpretations of Canadian educational fair dealing.  They are, therefore, important to watch.

Canadian universities' current interpretations of fair dealing as it relates to course packs could face two challenges: the first arises from the York University lawsuit, which may take ten years to wind its way to the Supreme Court of Canada.  The second comes from a possible WIPO international treaty or instrument that could reinforce or, just as possibly, restrict educational user rights in Canada.

Canada should take an active role in the negotiations, promoting robust and fair user rights for education.


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NB: Chapter 4 of my book International Copyright and Access to Knowledge (discount code:Bannerman2015) addresses the history and present politics of copyright in educational works.  Titled "Access to education, libraries, and traditional knowledge," the chapter notes that while, at national levels, the history of Western copyright is strongly tied to the principle of access to education, the same is not true of the international copyright system, Rather, the international system, with its mission civilisatrice, served to restrict copyright provisions for the encouragement of education.

Access Copyright licences analyzed - Trosow et al

Sam Trosow and co-authors have written an important analysis of the new licences that some Canadian universities have entered with Access Copyright.  It is a must-read for anyone interested in copyright at universities in Canada.

Trosow and his co-authors conclude:

• that the benefits secured under the licence, especially in light of the recent decisions of the Supreme Court of Canada and the new Canadian copyright act, are of little value and extend not very far, if at all, beyond what universities are already permitted to do under fair dealing and other existing licences 
• that the broad definitions of 'copy' (to include linking and emailing) and 'course collection' (to include emailed copies and hyperlinks) used by the licence extend beyond what is normally understood by such words, beyond (in the case of the former) the meaning of the word under the Copyright Act, and that the breadth of these definitions - though adopted without prejudice by the universities - triggers heavy audit and reporting requirements under the licence: 

"If links, hyperlinks and emails are pertinent to the “uses permitted” and the “reports due to Access Copyright,” as they appear to be, then it must follow that a right to conduct surveys and audits entails a right to inspect or scan any document which contains a link or hyperlink to a repertoire work including those that have been emailed. Moreover, because it is impossible to determine whether a document contains links or hyperlinks to repertoire works without some sort of scan or inspection, there must be a right to inspect or scan any document which might contain a link or hyperlink to a repertoire work." (8-9)

• that the licences, by defining 'secure network' broadly and by granting audit rights over 'secure networks' thus-defined, grant Access Copyright very broad access to campus premises, networks and computers beyond what is necessary and to an extent that is highly disturbing and invasive
• universities who have adopted the licences have, by opting for this licence rather than continuing to work through the Copyright Board, given up an important right to judicial review, proven so important by recent Supreme Court of Canada decisions;
• that continued opposition to the Proposed Tarriff at the Copyright Board is essential 

Royalty Map

This map, from Worldmapper.org, shows where the world's royalty money goes.

Nair on Fair Use

Meera Nair writes about some Canadian universities' decisions to drop Access Copyright's blanket copyright agreements; said universitites will now negotiate copyright agreements independently, making use of fair dealing where it applies, and paying for uses beyond that directly to publishers. She outlines the fascinating history of fair use in the United States, its evolution, and the recent developments on fair dealing in Canada.

Nair points out that we are now, in Canada, standing at a crossroads. Universities are deciding how they will interpret fair dealing in Canada, and she fears that univerities will interpret it too narrowly. Universities, Nair points out, have a tremendous influence on students. She fears that, in taking a conservative interpretation of fair dealing, universities will influence students, shaping their ideas of fair dealing and causing them to forget the full scope of their rights as copyright users. This could diminish the shape and scope of Canadian fair dealing for generations to come.

Turning tide? E-book text-to-speech exception

The Daily Finance has an article on how the Library of Congress' recent ruling allows the circumvention of digital locks in order to use ebook text-to-speech features. Kevin Smith thinks the latest rulemaking represents a turning of the tide in US copyright policy.

E-books and the new copyright bill

As the Canadian government prepares to unveil its new "anti-consumer" copyright bill, there is one relatively new problem that should be considered: e-books. Consumers want to be able to use their e-books over the years as technology changes. They want to use the e-books they buy today for their Kindle or their Sony E-Reader on the next generation of e-readers. Many ebooks are not only in today's format, but they are also locked by DRM to their current e-reader units. This is usually not advertised when the e-books are sold, so many consumers will be in for a surprise when they try to replace their e-readers in a few years.

The new copyright bill could potentially make it illegal to break those digital locks in the future when it's time to transfer those books onto future devices. The new bill is said to be based on bill C-61, which made the ability to format-shift your own content (froim an old format to a new format) illegal if the content had DRM on it, like most ebooks sold today do.

For many books, and especially academic ones, the price for the ebook is the same (sometimes hundreds of dollars) as it was for the print edition. Canadians shouldn't live in a world of expiring and disappearing books. Consumers should have the right to use books the way they're used to doing - i.e. to buy them and have them for life, and to use them for years to come on future generations of devices.

New book: Implementing the WIPO Development Agenda

A new book, Implementing the World Intellectual Property Organization's Development Agenda, edited by Jeremy de Beer, has come out. My chapter, which discusses both the optimism and pessimism that surround the development agenda, is available online. For those looking for an introduction to the development agenda and what it is all about, Jeremy de Beer's introduction takes a multi-faceted and insightful look at the agenda.
The book will be launched in Geneva on July 10 as a part of iQsensato's Geneva Seminars on Development.