Redefining research

The last month has seen extraordinary changes in the copyright law of Canada, including two Supreme Court decisions that I wish we could import south of the border to the U.S.

At the end of June a comprehensive reform of the Canadian copyright law known as bill C-11 received its final approval in the Canadian Senate and “royal assent.”  It seems that this means C-11 is now formally the law in Canada, although according to University of Ottawa law professor Michael Geist the reforms do not actually take effect until after there is an “order in council” process that creates the new regulations around the bill.

This new copyright reform contains some very good news for education in Canada.  I have not studied the bill thoroughly, but will note the handful of reforms that seem most important.

First, the exception to the exclusive rights of copyright in Canada that is known as “fair dealing” was expanded by the addition of three additional purposes to the two — research and private study — already mentioned in the provision.  Those new purposes are education, parody and satire.  The way fair dealing works, in order for a finding that an activity that implicated one or more of the exclusive rights was not an infringement because it was fair dealing, a court must first decide if the activity fit into one of the enumerated purposes, and then do an analysis to decide if that activity within one of the purposes was fair.  The Supreme Court of Canada enunciated six factors that are used in this second step of the process, which really look a lot like US fair use.  But the absence of education from the list of dealings that were eligible for a finding that they were fair (the first step in the analysis) was a significant problem for universities and schools.  Bill C-11 remedied that problem, and it has really changed, I would imagine, the debate over the license for universities that has been offered by the collective rights group know as Access Copyright (which recently jumped in price from $3.75 per student to $26).

Another major benefit for universities in the bill, and another reason the Access Copyright license seems less worth the major increase, is that there is now explicit permission for instructors to show films and other works that can be performed to an audience of students on the premises of the institution.  This, of course, sounds a lot like the US provision for face-to-face teaching found in section 110(1) of our copyright law.  There are also new provisions in C-11 that explicitly authorize reproduction by institutions and their employees for the purpose of instruction and that address the rights of distanced students to receive lessons via “telecommunications.”  There is a helpful summary of the impact of C-11 on education here, from the British Columbia Library Association.

Less that two weeks after the royal assent to bill C-11, the Supreme Court of Canada ruled on five copyright cases that had been before it.  Two of those cases had major implications for the definition of “research” in the fair dealing provision which is outlined above.  Collective rights organizations had challenged two practices — Access Copyright had asserted that teachers making copies for students was outside the scope of fair dealing, and a misic licensing organization called SOCAN had made the same assertion about short preview clips of songs that consumers could listen to before buying the complete piece.  Both organizations were seeking additional licensing fees for the challenged practices, and both lost.

In her opinion, Justice Rosalie Abella significantly expanded the definition of research, following a 2004 Supreme Court decision that had stated that the word should be read expansively.  She ruled that those short music clips should be encompassed as research, recognizing that the term can encompass casual information seeking in addition to formal academic study.  And she held that the private research of students does not require that they actually make the copies; that research and researchers can be guided by a teacher without giving up their rights under fair dealing:

With respect, the word “private” in “private study” should not be understood as requiring users to view copyrighted works in splendid isolation. Studying and learning are essentially personal endeavours, whether they are engaged in with others or in solitude. By focusing on the geography of classroom instruction rather than on the concept of studying, the Board again artificially separated the teachers’ instruction from the students’ studying.

Another important part of these decision about instructional copying is that Justice Abella found little or no harm to the market for published work caused by this copying.  The excerpts copied were short, forcing students to buy the entire books was unrealistic, and there was no link demonstrated between this copying and any evidence of declining textbooks sales.  This sounds quite a lot like Judge Evan’s conclusion in the Georgia State case that permission income for publishers was of negligible importance  and that there was no evidence that the permission fees lost because of fair use actually threatened the well-being of publishing businesses.  I hope we are seeing the beginnings of an international consensus around the idea that limited copying for educational purposes is more important for societies to support than a small additional  revenue stream for publishers is.

The reason I really like this expanded definition of research in Justice Abella’s opinion is that it gets at the heart of the analogy issue that was central to the Georgia State case.  The plaintiff publishers in that case wanted the court to accept a strict analogy between electronic reserves and the commercially printed course packs that were found not to be fair use in the Michigan Documents Services case, while many of us argued that, in the absence of a for-profit copy shop’s involvement, the better analogy was physical reserves, where a copy of a work is made available for students to use (in this case by downloading into their own computers) or not.  By tying the copying done by an institution to the private study purpose of the individual students, Justice Abella makes this latter argument for us.  In cases like Georgia State (and the UCLA streamed video case) the law clearly allows individual students to view and even to copy works for private study.  In both situations, technology simply enables the same group of students to use the materials in essentially the same way, but at their own convenience.  Instructors are, as Justice Abella puts it, simply guiding the students to the resources which they will then use for their private research.

US courts are often quite reluctant to be seen to be influenced by international law.  But at the very least, this ruling from the Supreme Court of Canada shows the plausibility of the analogy that sees traditional, allowable educational activities simply being transferred to an online environment.  The change in technology should not entitle rights holders to additional fees any more than, in Canada, the human inter-mediation of a teacher does.