July 24, 2014

New copyright guidelines for Canadian universities and colleges – but do they add clarity?

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© law.ubc.ca, 2013

© law.ubc.ca, 2013

Geist, M. (2013) Schools navigate learning curve for new copyright rules, Toronto Star, August 30

According to this article, AUCC (the Association of Universities and Colleges of Canada) has contracted a major Canadian law company to provide guidelines ‘that offer more detailed, specific recommendations for many common copyright uses within education environments.‘ (The article says the guidelines were developed earlier this month, but I couldn’t find them on the AUCC web site. If you want a copy, try contacting AUCC’s Steve Willis, 613-563-3961).

The reason for these guidelines is because Access Copyright, a copyright collective, launched a lawsuit against York University over its reliance on fair dealing for much of its copying, after Access Copyright had signed an agreement with the AUCC following the Supreme Court of Canada’s five landmark copyright decisions and copyright reform legislation passed by the Canadian federal government.

According to Geist, the documents contain the following AUCC guidelines, all around the interpretation of ‘fair dealing’:

  • teachers and professors are advised that they may provide up to 10 per cent of a work as a handout to students, email a copy of the work to students enrolled in a class, post a copy of the work on a password-protected website that is accessible only to students, or display a copy of the work in a class presentation.
  • fair dealing covering the activities above also applies to online learning delivered through learning management systems, but the university must operate or control the system (services such as Dropbox are excluded), password-protect the site, and conduct regular audits to ensure that the fair dealing guidelines are being applied appropriately
  • fair dealing can also be applied for course packs, which are customized printed compilations of readings. However, the guidelines require that no profit be made in the production or sale of course packs and that they be sold to students directly by the university.

Geist concludes the article as follows:

The AUCC guidelines confirm that the benefits of the user rights approach articulated by the Supreme Court of Canada are emerging as an integral part of campus copyright policies. For teachers and students alike, the new policies will mean greater flexibility in the use of copyrighted materials, fewer restrictive reporting requirements, and access to more materials as universities reallocate funds from unnecessary collective licences to digitization of materials and wider access to electronic databases.

Comment

It’s really hard to comment without seeing the actual guidelines, but on the basis of this article, I find it hard to agree with Michael Geist’s optimistic conclusion. Why is Access Copyright still fighting legal battles after an agreement with the AUCC (and the recent Supreme Court rulings)?  It seems to me that Access Copyright is now acting in bad faith and I hope the court agrees with me.

More importantly, these guidelines seem to be the opposite of open access, open publishing and ‘fair dealing.’ For instance, this suggests that if I use WordPress or other tools within my course design, I will at a higher risk if I include or even link to third party materials without permission. And who says Access Copyright will accept these guidelines? (After all, it’s one legal firm’s opinion against another’s).

More depressingly, the clarity I had hoped for after the Supreme Court’s rulings and the new federal copyright bill is unfortunately being deliberately clouded by Access Copyright’s legal action against York University.

As someone who has published 11 books through commercial publishers, I do want some return on the effort, but more importantly I want my work used. Access Copyright – and the publishers themselves – seem to do all they can to limit access to published work, rather than adapt their antiquated business models to the digital world. And yes, I am sick of my publishers taking more than 90% of the sales for doing almost nothing that I can’t do myself these days, and do a lot more effectively. It’s hard to see why any self-respecting academic would now go through a commercial publisher.

Lastly, these are guidelines from the AUCC. I know some universities have already developed their own guidelines which may be different (less restrictive/conservative?) than AUCC’s – so check with your own institution.

One last note for non-Canadian readers: ignore this post as the law is almost certainly different in your country. Lawyers rule – OK?

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