Copyright, a category of intangible proprietary rights, has always been an important consideration in the delivery of Canadian primary and secondary education (“K – 12”). This is because K – 12 educators and students make up two prominent groups of copyright users – those who use the property of copyright owners for educational purposes. But why has copyright law become so popular within the K – 12 sector, both as a study topic and topic of hot debate? The answers to these questions may be complex, but they are undeniably relevant to both educators and students alike now more than ever before.
What exactly is copyright? In the simplest terms, “copyright” means “the right to copy.” In general, copyright means the sole right to produce or reproduce a work or a substantial part of it in any form.
What then is a work? The legal definition holds that a work is the product of original creative effort, or authorship, reduced to fixed expression in a tangible form. In practical terms, a work subject to copyright may fall within any one of the following categories: literary, artistic, musical, dramatic, photographic, sound recording, film, live performance and even software code. Copyright includes the sole right to perform the work or any substantial part of it or, in the case of a lecture, to deliver it. If the work is unpublished, copyright includes the right to publish the work or any substantial part of it.
When delivering K – 12 educational content, educators necessarily use works subject to copyright protection. In practical terms, a work subject to copyright may fall within any one of the following categories: literary, artistic, musical, dramatic, photographic, sound recording, film, live performance and even software code.Equally, when students receive educational content and further pursue educational goals set for them, they use works subject to copyright protection. These are simple truths. However, firmly placed in the background of our educational system is a balancing of legal rights. Put simply, copyright law seeks to find a balance between opposing interests. On the one side are the interests of copyright owners; those who have created works and are seeking both commercial return and creative control over those works. On the other side are the interests of users of copyrighted works; those who seek to use existing works to build and create new works for the amelioration of both individual and society.
Copyright owners have long used fee-based copyright permission regimes to allow for use of copyright-protected works within the K – 12 sector. Use of copyright-protected works without such permission is known as infringement unless the use can be justified under one or more legal heads of exceptions to infringement.
However, the context in which K – 12 education is carried out has changed – and continues to change rapidly. First, in this digital age, copyright-protected works may be used and disseminated more freely than ever before. Both copyright owners and users have benefited from this change, but the traditional distribution models for copyright-protected works have been disrupted. This disruption has caused both sides of the issue to focus on the idea of technological neutrality in an attempt to rebuild the balance of rights in the digital dimension. However, the result of such efforts remains uncertain, due entirely to the head-on challenge digital media presents to the idea of control over copying.
Second, copyright law in Canada has recently undergone an interpretive shift by virtue of a suite of decisions handed down by the Supreme Court of Canada in July, 2012. One decision in particular, Alberta (Education) v. Canadian Copyright Licensing Agency (Access Copyright) 2012 SCC 37 (“Access Copyright”) is most relevant to the K – 12 sector. The Access Copyright decision introduced a new exception to copyright infringement, the educational purpose, as part of Canada’s general law of fair dealing with copyright. Thereby, the Access Copyright decision undoubtedly affirmed a place for user rights in the context of Canada’s copyright law and recalibrated the traditional balance between copyright owners and users.
Building upon its earlier approach to fair dealing with copyright as one that requires a ‘large and liberal’ interpretation of research and private study (both exceptions to copyright infringement), the Supreme Court made it clear that the relevant perspective is that of the copyright user when considering the permissible scope of fair dealing. The Access Copyright decision introduced a new exception to copyright infringement, the educational purpose, as part of Canada’s general law of fair dealing with copyright. The Court found that if a copyright user is engaged in research or private study when using copies of copyright-protected works, the copier of such works (on the facts, educators who distributed copies of content excerpted from text books) may also be considered to be engaged in research and private study. In other words, the copier’s actions should not be artificially cleaved from the actions of the copyright user if the predominant purpose of the copyright user is allowable under the scope of fair dealing.
The Access Copyright decision clarifies that educators of primary and secondary students, when copying short excerpts of copyright-protected works and providing such copies for students’ research and private study, do not engage in a separate purpose of ‘instruction”. Rather, by providing such copies, the “teacher/copier shares a symbiotic purpose with the student/user who is engaging in research or private study”.
Key to the Court’s ruling in the Access Copyright decision is the finding that educators “have no ulterior motive when providing copies [of reading materials] to students”. In other words, an educator is engaged in the same allowable purposes under fair dealing as his/her students. The educator’s purpose, along with his/her students’ purpose, is fair.
However, the Access Copyright decision does not disturb the test for fairness in fair dealing as set out by the Court in its earlier decisions.
For instance, the majority of the Court agreed that the educators in question restricted themselves to copying short excerpts from copyright-protected works. Key to the Court’s ruling in the Access Copyright decision is the finding that educators “have no ulterior motive when providing copies [of reading materials] to students”.l A short excerpt, while not expressly defined, is measured upon examination of the proportion between the excerpted content and the entire work. Further, the Court emphasized the importance of maintaining a distinction between the amount of the copying from one work (the ‘proportionality’ factor) and the character of the copying (the ‘cumulative’ factor or the aggregate number of pages distributed to multiple students). By focusing only on the cumulative amount of copying for multiple students, one may overlook that only a limited portion of a copyright-protected work is actually copied. When considering alternatives to the copying and the effect on the work caused by the copying, the Court underscored the limited resources available to primary and secondary schools. The Court found that it was not reasonable in all of the circumstances for schools to purchase multiple copies of text books. The reproduction of short excepts for students’ use did not replace a thriving market for text book sales.
In the result, we are left with an interpretation of copyright law that favours users engaged in an educational purpose that is fair. What does this mean in practice for our educators and students? Clearly, it does not mean that use of copyright-protected works is without legal bounds. Instead, it means that copyright users should be knowledgeable about the proprietary rights that exist in the background of everyday learning activities so that they may exercise their user rights to the fullest extent possible. Such knowledge and the resulting confidence in user rights only benefits the educational mandate.
About Samantha Kernahan
