Why universities can’t be expected to police copyright infringement
November 21, 2017
As the new school year approaches, Canadian universities are grappling with the Federal Court of Canada’s recent copyright decision against York University.
The court ruled that York could not rely on its fair dealing policy and per-use licensing to copy works as a part of course packs, but must pay millions of dollars in licensing fees to Access Copyright, which sells blanket copyright licenses to organizations.
Publishers felt vindicated, while fair dealing advocates have argued that the decision is incorrect, fails to follow Supreme Court of Canada precedent and is likely to be overturned on appeal. York has announced that it will appeal the decision.
Twin problems arise from the decision.
One, as some have noted, is the danger of a new, more restrictive interpretation of fair dealing when it comes to educational materials.
Fair dealing, which permits limited copying of copyright works and parts of works without permission or payment, was expanded by Parliament in 2012. The Supreme Court of Canada affirmed that teachers’ handouts for elementary school classes is fair dealing.
The other problem, less discussed, is the danger that universities could be enlisted as copyright surveillance and enforcement watchdogs.
The Federal Court emphasized a lack of enforcement mechanisms at York. It said that while York did “set up programs where instructors and students agreed to copy within York’s copyright guidelines and it did initiate procedures (on internal course web sites) to remind users of copyright obligations,” the university “has no monitoring or enforcement mechanisms to address compliance with copyright laws or even its own policies” on course sites.
The court appears to be suggesting that universities should go beyond education and reminders and should monitor the activities of users inside online classrooms.
There is a difference between educating — clearly an important role of universities — and the surveillance, monitoring and enforcement of copyright compliance on campus.
Off campus, the latter roles are played by copyright holders and legal authorities. In the digital world, Internet Service Providers (including those on campus) have a role in passing on notices of infringement. But they’re not generally required to continuously monitor their networks or autonomously enforce copyright provisions on them.
That’s appropriate, because copyright monitoring and enforcement is onerous and complex and can easily slide into over-enforcement that impedes speech.
No spying requirement
The Supreme Court of Canada, in its famous CCH case, decided that the Law Society of Upper Canada did not commit copyright infringement by providing photocopiers to its patrons. It ruled that “courts should presume that a person who authorizes an activity does so only so far as it is in accordance with the law.”
In other words, universities should have clear copyright policies in place, should educate about copyright and copyright policies and should remind users of these policies. But they are not required to spy on students and faculty in libraries or online.
Universities, like most organizations, have frequently erred on the side of caution in the past when setting copyright policy, often ignoring fair dealing altogether. It makes sense for organizations to be conservative to avoid copyright lawsuits, but it doesn’t serve students and faculty well.
Copyright monitoring can raise concerns about privacy and academic freedom, which Access Copyright itself acknowledges. Its model agreement notes that its audits collect only anonymized bibliographic data, and acknowledges that entering student and faculty email and chat rooms would be inappropriate.
Universities should educate, not spy
Collecting anonymized data for the purposes of distributing royalties is one thing, but broad copyright surveillance and enforcement is not a job for universities.
Universities should teach students and faculty how to comply with copyright, should confirm that its agents are following policies correctly and should then be able to presume that those copying are doing so properly.
It may be appropriate for universities to collect anonymous data on what is being copied by university employees, as they’ve done in the past, but trolling through online classrooms and emails looking for infringement by students is not the role of universities.
Universities, university faculty associations, and Universities Canada should continue to insist on the appropriate role for universities in copyright: education.