Copyright Corner (January, 2014)

University of Lethbridge Faculty Association January / February 2014 7 1 As I continue to write up the findings of the Moodle copyright project, the importance of source attribution currently looms large in my mind. You might wonder why, since citing one’s sources is second nature for faculty. The concern relates to the main focus of the project: the permission status of materials used in Moodle authored by individuals other than course instructors. For materials such as these, copyright permission may be unnecessary when, for example, a work is in the public domain (the term of copyright has expired), the intended use aligns with the University’s fair dealing guidelines, or the use is permitted under terms governing one of the Library’s licensed e-journals. In other situations requiring copyright permission, a likely source of permission is sometimes easily identifiable— usually the publisher or the author of the work. In the Moodle project it is somewhat surprising to find that the numerically largest permission status category comprises materials for which a permission status cannot be determined conclusively because . . . the source attribution is missing. The materials lacking attribution are generally not course readings. Instead they are primarily non-textual works or excerpts embedded in materials authored by instructors—items like photographs, cartoons, graphs and clip art copied from unspecified sources and pasted into a lesson slide file, Moodle webpage or class handout. Because copied pictorial works are typically small and only supplemental to the instructor-authored content, their source and copyright permission status may not seem important to attribute and assess. But it is important, because the size of a work does not determine whether it is protected or not: copyright applies equally to original haikus and multi-volume tomes. And similarly, a tiny graphic image representing a webpage icon and a room-sized mural painting may both be eligible for copyright protection if they are original works. Whether or not permission is needed to use copied pictorial works, big or small, requires knowledge of the source. And only with source attribution in hand can we consider, for example, whether fair dealing might apply. Over the past 10 years the meaning and scope of fair dealing has been radically transformed from a narrow infringement exception into a user’s right by two Supreme Court of Canada decisions (CCH and (Alberta) Education). Moreover the preamble to last year’s Copyright Act amendment explicitly acknowledges that “the exclusive rights in the Copyright Act provide rights holders with recognition, remuneration and the ability to assert their rights, and some limitations on those rights exist to further enhance users’ access to copyright works or other subject-matter.” Fair dealing is one of those limitations on rights holders’ rights, but is not defined in the Copyright Act. We therefore look to case law for interpretations of what fair dealing means in specific contexts. In CCH the Supreme Court laid out a two-step, six-factor framework to determine whether a dealing with a work is fair. How much of the materials viewed in Moodle having an undeterminable permission status might qualify as fair dealing? It is impossible to say conclusively because the lack of attribution prevents a full fair dealing analysis. We need to expand our existing established practice of providing source attribution for course readings to include all copied works, whether textual or non-textual in nature. In January I will begin to share the main findings of the Moodle project with faculty. I am also interested in your input on the kinds of resources and processes beyond those presently offered that would assist the University community in using copyright-protected materials in copyright compliant ways. Copyright Update University of Lethbridge Faculty Association January / February 2014 8 Copyright Update continued… 2 U of T and Western License Agreements Come to an End In January 2012 the University of Toronto and the University of Western Ontario made headlines by signing Access Copyright licenses in the midst of a dispute between postsecondary institutions and the proposed tariff for postsecondary institutions filed by Access Copyright. And then in June 2013 both institutions gave notice that they would not be renewing their licenses, which were set to expire at the end of the year. Over the last several months Access Copyright and the two universities attempted to reach agreement on terms of a new license reflecting the new realities of an amended Copyright Act that now includes education as a fair dealing purpose and the Supreme Court of Canada’s momentous decision in Alberta (Education) on fair dealing in July 2012. Access Copyright recently announced a failure to reach agreement, meaning that as of January 1, 2014 both institutions will be operating in opt-out mode. As always, feel free to contact me if you would like some help sorting out whether or when copyright permissions might be needed for material you plan to distribute for use in a course, or on any other copyright-related issue. Rumi Graham University Copyright Advisor copyright@uleth.ca (403) 332-4472 (403) 33