Universalizing fair use: An important Argentinian proposal

The government of Argentina has submitted an important proposal in current negotiations towards an international instrument on limitations and exceptions to copyright at the World Intellectual Property Organization (WIPO).

Most international treaties seek to establish minimum standards.  In the case of the current WIPO negotiations, relating to exceptions and limitations to copyright for education and research institutions and persons with disabilities, this means that all countries would agree to permit a minimum set of things, such as permitting photocopying for classroom use or reproduction for classroom display.

As the Argentinian government notes, this often does not go far enough, especially in the online context, since countries invariably differ widely in their implementation of such minimum standards, and digital transactions often involve multiple country jurisdictions.

Many everyday actions done in the context of educational institutions potentially involve multiple jurisdictions, and could be legal in one jurisdiction but not in the other:

• playing an Internet video from a web site based in one country in the classroom of another;
• uses of works in distance education, where students may be based in a different country from the instructor;
• downloading works from a web site in another country for educational purposes;
• making available or sending articles, texts, or digital course packs from one country to another.

Understanding the legality of any of these actions, along with many others, currently involves expensive legal analysis of the copyright regimes of multiple countries--an untenable situation for educational institutions, as the Argentinian government notes.

Argentina therefore proposes that "within the scope of a treaty on limitations and exceptions, lawful conduct in one territory should not be illegal in another. If reproduction or making available is valid under the treaty, it cannot then be invalid under the rules of another State jurisdiction." (p. 4).  The exact wording of the proposal is as follows:

Where performed in accordance with the exceptions and limitations set forth in this agreement, the reproduction or making available of a work shall be governed by the law of the country in which the reproduction or making available occur, without precluding the reproduced work from being delivered to or used by a person or institution benefitting from exceptions and limitations located in another Member State, provided that such delivery or use is consistent with the terms and conditions set forth in this agreement. (p. 4).

The Argentinian government has proposed a solution worthy of serious discussion at the WIPO meeting to be held next week.

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.

New Cdn Copyright Act: The future of teaching and learning in Canada

Canada's new Copyright Act passed third reading (158 to 135) in the House of Commons and first reading in the Senate yesterday, and is expected to receive final approval soon.

What does Canada's new bill mean for the future of teaching and learning in Canada?

1. Fair dealing. The new act creates a fair dealing exception for education: "Fair dealing for the purpose of research, private study, education, parody or satire does not infringe copyright."  For educational institutions, this is the most powerful provision of the new act, and has been one of the most controversial.  In the past, courts have ruled that copies made for the purposes of research were legal.  Copies made for the purposes of education, where deemed to be fair, will also now be legal.  Geist notes that in the United States, fair use includes making multiple copies for classroom use.  However, some universities may sign on to copyright agreements that restrict the new fair dealing rights of their educational communities.
2. Digital copies. The new act clarifies that digital copies of works - scans or digital files - can be made in the same manner that one might make photocopies of a work, with royalties being paid as they were with photocopies.  However, the new act only allows a person under an educational institution to print this copy once.  Lost your copy?  Spilled your coffee?  The act requires universities to prevent a second copy from being made.
3. Works available on the Internet.  The new act allows educational institutions to use works available on the Internet without fear of infringement, unless they should have known that the work was put up on the Internet without consent of the copyright holder.
4.  Displaying works, news programs, and showing movies and documentaries.  The new act ensures that it's legal to display a work in the classroom, and removes some of the onerous requirements that had been placed on teachers and professors under the old act, making it easier to play a news program or news commentary program for the class.  It also ensures that it's legal to show a movie or a documentary, as long as the copy itself is legit.
5. Distance education.  The bill ensures that it's legal to reproduce works in the context of distance education.  In this, Canada catches up to the United States, which provided similar provisions in 1976 (the same year that it encoded fair use).  In this, Canada rounds out an era of reforms begun in the '80s, addressing an issue that had been on the table for a long time and had not, until now, been addressed.  A distance learning student can now, for example, record a lesson to listen to later.  This comes with the incredible requirement that reproductions of lessons be later destroyed by both the student and the educational institution. 
6. Digital locks.    Unfortunately, e-book texts that students may have purchased may die with the technology they were purchased for.  Moving on from your kindle?  If your text is locked to the kindle, it will not be legal to circumvent the locks to transfer the book onto your new device.  Much of the knowledge that students gain comes from their textbooks, and some good textbooks are references for life.  Unfortunately, students will lose the e-book texts they purchased, wich often cost just as much as regular print versions.  Goodbye lifetime reference and life-long learning.

With some very significant exceptions (destruction requirements, single copy restriction, digital locks provisions), the new measures, and especially the expansion of fair dealing, should help to bring Canada's educational institutions into the digital age.  The expanded fair dealing provisions should give students and teachers more confidence that fair copying and use is an acceptable and important educational right.

Some Canadian universities are, however, not yet displaying such confidence as they sign on to pay higher copyright fees to Access Copyright, seemingly paying more where less is now required. They do this despite arguments from a number of prominent lawyers that "such a license is unnecessary, because educators are already permitted to copy approximately that amount without a license under existing Canadian law, or at least they will be upon the passage of Bill C-11." 

Educational institutions should stand up not just as defenders of copyright, but also as defenders of the freedoms and rights granted to educators and students under the newly updated copyright law.

The Future of the University

The mandate of P2PU - the peer-to-peer university - is "Learning for everyone, by everyone, about almost anything". Going beyond open courseware, P2PU creates actual classes - online communities - that students can join to take the courses. Course designers can participate in an online course about designing courses!
Does P2PU offer formal credits? Not yet.