Tag Archives: education

Canada’s Copyright Board Finds Most Educational Copying is Fair Dealing

*This week is Fair Use Week, an annual celebration of the important doctrines of fair use and fair dealing. It is designed to highlight and promote the opportunities presented by fair use and fair dealing, celebrate successful stories, and explain these doctrines.  

Today’s post is by guest blogger, Wanda Noel, a Canadian lawyer with a practice focused exclusively on copyright. Noel was legal counsel in three recent Supreme Court of Canada and Canadian Copyright Board decisions interpreting the fair dealing provision in the Canadian Copyright Act, including acting as counsel to the objectors in this matter.* 

On February 19, 2016, the Canadian Copyright Board issued a decision setting the Access Copyright Elementary and Secondary School Tariff, 2010-15. With its decision, the Copyright Board set a tariff rate of $2.46 for 2010-2012 and $2.41 for 2013-2015 per full time equivalent student per year to copy print materials such as books, magazines and newspapers.

The announced tariff rate is substantially lower than the per-student rates requested by Access Copyright, a copyright collective representing educational publishers and authors. Access Copyright initially requested rates of $15.00 for the years 2010-12 and $9.50 for the years 2013-15. These rates were a significant increase over the prior rate of $4.81 set by the Copyright Board in 2009. The Copyright Consortium of the Council of Ministers of Education, Canada (CMEC), representing the ministers of education in every Canadian province and territory, except Quebec, and the school boards of Ontario objected to the proposed Access Copyright rates and requested much lower rates.

This Copyright Board decision is the first application of fair dealing in educational institutions since two significant events in 2012 altered the copyright landscape in Canada. First, the Copyright Act was amended to add “education” as a new purpose in the fair dealing provision. Second, the Supreme Court of Canada issued a landmark decision interpreting fair dealing to permit teachers to copy and use short excerpts from published works for students in their classes.

The Board attributed the decrease from the prior rate of $4.81 to the decision of the Supreme Court of Canada in Alberta v. Access Copyright, [2012 SCC 37.] That decision established that copying short excerpts of copyright-protected works for student instruction, assignments or class work did not require royalty payments because the copying was fair dealing. This conclusion resulted in the Board’s finding that a significant proportion of copying by elementary and secondary schools was fair under the fair dealing provisions of the Copyright Act. Based on data available from a large-scale copying study in Canadian schools, the Board found that 97.2% of copying from books, 98.1% of newspapers and 98.5% from periodicals was fair dealing. This large volume of copying therefore did not require a licence from the owner of the copyright.

The royalty payments of $2.46 and $2.41 set by the Board relate primarily to the copying of consumables. Consumables are works that are intended for one-time use and contain a statement that copying is not permitted. An example is a workbook with questions and answer sheets to be completed by students. The Board found that none of the dealings with consumables were fair. Over three quarters (79% for 2010-2012, and 81% for 2013-2015) of the tariff value is attributable to consumables.

This Copyright Board decision is noteworthy because of the Board’s findings relating to fair dealing. For a dealing to be fair, two tests established by the Supreme Court of Canada in 2004 in CCH v. Law Society of Upper Canada 1 SCR 339 must be met. First, the dealing must be for one of the purposes set out in the Copyright Act. The Board found that the vast majority of copies being considered passed the first test because they were made for one of the following purposes captured by the copying study: research, criticism, review, future reference, private study or student instruction. Only copies made for entertainment and administration did not pass the first test.

The second test is that the dealing must be fair. To determine fairness, the Board applied six fairness factors established by the Supreme Court of Canada in its CCH decision: purpose of the dealing, amount of the dealing, character of the dealing, nature of the work, alternatives to the dealing, and effect of the dealing. These six factors were applied separately to books, newspapers, periodicals and consumables. The Board’s fairness analysis for consumables differed from the other genres particularly on the factors of the nature of the work and alternatives to the dealing.

The Copyright Board also accepted the position of the CMEC Copyright Consortium with respect to several issues besides fair dealing, including the fact that significant amounts of copying are not substantial (and therefore do not trigger any royalty payments under the Copyright Act), the limited nature of Access Copyright’s repertoire, and Access Copyright’s inability to adequately licence the copying of sheet music.

The present Copyright Board’s decision follows another recent tariff decision relating to Access Copyright issued in May of 2015 covering copying by provincial and territorial government employees, where a number of the legal issues were similar. Access Copyright had sought rates as high as $24 per full-time employee, but the highest rate certified was only $0.49. This government tariff decision is currently the subject of a judicial review application in the Federal Court of Appeal brought by Access Copyright.

Misconceptions About GSU Electronic Reserves, Coursepacks and the Media Neutrality Doctrine

In recent testimony (both written and oral) at the House Judiciary Subcommittee on Courts, Intellectual Property and the Internet Hearing on Copyright Issues in Education and for the Visually Impaired, Allan Adler, representing the Association of American Publishers, asserted that in the Georgia State e-reserves case, the Eleventh Circuit erred in rejecting applicability of the media neutrality doctrine, the principle that copyright law should apply in a similar manner to similar works in different media. Invoking the media neutrality doctrine, Mr. Adler essentially argued that the “coursepack” cases – Basic Books Inc. v. Kinko’s Graphics Corp. and Princeton University Press v. Michigan Document Services – should control and that the use of copyrighted material in Georgia State’s e-reserves was not fair use. This argument ignores several important points regarding the facts of the case, including the fact that the coursepack cases were distinguishable on grounds that had nothing to do with media neutrality.

First, the coursepack cases do not apply because material placed in electronic reserves are not the equivalent of material that is collected and bound together in a coursepack. A coursepack is like an anthology sold to all the students in a course, which the students can place on their bookshelves and continue to use long after the end of the course. By contrast, in an e-reserves system, the university provides students with temporary access privileges that terminate at the end of the semester. A student can continue to access the materials that were in the course e-reserves only if the student became the volitional actor by printing out the materials while she still had access to them. That copying by a student for her personal use unquestionably is a fair use. The media neutrality doctrine applies only in cases where the cases are truly analogous.

Additionally, the coursepack cases are not controlling because the circumstances of those cases were very different than the facts in Georgia State. In particular, the coursepack cases clearly involved commercial, for-profit copy shops and the coursepacks were sold to students for a profit. By contrast, the e-reserves at issue were run by Georgia State University, a non-profit educational institution and the use was also a non-profit, educational use. This distinction is significant under the first fair use factor which looks at “the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes.” As the Eleventh Circuit pointed out in rejecting the coursepack cases that in these cases:

. . . the nontransformative, educational use in question was performed by a for-profit copyshop, and was therefore commercial . . . [Courts have] refused to allow the defendants, who were engaged in commercial operations, to stand in the shoes of students and professors in claiming that their making of multiple copies of scholarly works was for nonprofit educational purposes.

However, in both of the coursepack cases, the courts expressly declined to conclude that the copying would fall outside the boundaries of fair use if conducted by professors, students, or academic institutions. See Princeton University Press, 99 F.3d at 1389 (“As to the proposition that it would be fair use for the students or professors to make their own copies, the issue is by no means free from doubt. We need not decide this question, however, for the fact is that the copying complained of here was performed on a profit-making basis by a commercial enterprise.”); Basic Books, 758 F. Supp. at 1536 n.13 (“Expressly, the decision of this court does not consider copying performed by students, libraries, nor on-campus copyshops, whether conducted for-profit or not.”).

Reliance on the coursepack cases is therefore misguided as they involved off-campus, for-profit copy shops rather than non-profit educational institutions. The courts in these coursepack cases explicitly note that the holdings of these cases do not reach the issue of copying by students, professors, libraries, or the academic institutions. In Georgia State, the e-reserves system was clearly run by the university. The coursepack cases are therefore distinguishable based on the analysis done under the first fair use factor.

Additionally, the coursepack cases are clearly not binding precedent on the Eleventh Circuit. These cases were decided in different jurisdictions – in a district court in New York and by the Sixth Circuit – and therefore not controlling. While the decisions in these cases may have had persuasive value, even if they had analogous fact patterns such opinions would not bind the Eleventh Circuit.

Finally, the decisions are more than 15 years old. Fair use jurisprudence is always evolving. There is no way to know if courts in the Second and Sixth Circuits would reach the same conclusion today that they reached in the last millennium.

While the media neutrality doctrine is an important copyright principle, it – and the coursepack cases – simply do not apply in the Georgia State decision. The Eleventh Circuit correctly rejected this holdings in this line of cases when considering the fair use of Georgia State’s e-reserves system.

LCA Statement for House Judiciary Subcommittee Hearing on Education and Visually Impaired

Today, November 19, 2014, the House Judiciary Subcommittee on Courts, Intellectual Property and the Internet will continue its copyright review with a hearing on “Copyright Issues in Education and for the Visually Impaired.” Witnesses for the hearing include Jack Bernard, Associate General Counsel, University of Michigan; Allan Adler, General Counsel, Association of American Publishers; Scott LaBarre, State President, Colorado, National Federation for the Blind; and Roy Kaufman, Managing Director, New Ventures, Copyright Clearance Center.

In advance of the hearing, LCA submitted a statement for the record. The statement discusses the exceptions to the Copyright Act enabling libraries to support educational institutions and concludes that revision of these provisions is unnecessary. It also discusses the Chafee Amendment and fair use doctrine, provisions allowing libraries to provide accessible format copies to the print disabled.

WIPO Standing Committee on Copyright Limitations and Exceptions Meeting This Week

This week, the World Intellectual Property Organization (WIPO) Standing Committee on Copyright and Related Rights (SCCR) will meet from June 30-July 4. The agenda for this session of SCCR includes discussion of broadcasting, limitations and exceptions for libraries, and limitations and exceptions for educational and research institutions and for persons with other disabilities.

At the last meeting of SCCR which took place from April 28-May 2, the EU blocked the conclusions of the meeting, refusing to agree to language referring to “text-based” work on limitations and exceptions for libraries. Ultimately, the Chair of SCCR released the conclusions as a Chair’s document, rather than as the agreement of the WIPO member states. Because WIPO operates on the basis of consensus, a single country or group can block action at WIPO, including for example, blocking adoption of conclusions or agreement to hold a diplomatic conference. By blocking the conclusions, the EU has potentially made it more difficult to move forward on work on limitations and exceptions at SCCR.

A live webcast of this week’s SCCR, as well as meeting documents, is available here.
Additional coverage of SCCR is available here.

White House Report to President Obama on Big Data

On May 1, 2014, a report by Administration officials to President Obama on big data was released. The report was signed by John Podesta, Counselor to the President; Penny Pritzker, Secretary of Commerce; Ernest J. Moniz, Secretary of Energy; John Holdren, Director of the Office of Science & Technology Policy; and Jeffrey Zients, Director of the National Economic Council. The report is the result of a ninety-day study by the review group, convened at the request of President Obama at a January 17 speech at the Justice Department.

The report discusses some of the concerns and challenges with respect to big data and ultimately makes several recommendations. The report is broken into six parts: 1) Big Data and the Individual; 2) Obama Administration’s Approach to Open Data and Privacy; 3) Public Sector Management of Data; 4) Private Sector Management of Data; 5) Policy Framework for Big Data; and 6) Conclusions and Recommendations. Highlights from the report, including are included below.

Big Data and Education
One portion of the report specifically focuses on big data and education, recognizing the wide range of technology and platforms used at all levels of education. The report notes that new technologies allow institutions to personalize education and improve learning, but also raise concerns regarding student privacy. For example, the report states that:

Data from a student’s experience in massive open online courses (MOOCs) or other technology-based learning platforms can be precisely tracked, opening the door to understanding how students move through a learning trajectory with greater fidelity, and at greater scale, than traditional education research is able to achieve. This includes gaining insight into student access of learning activities, measuring optimal practice periods for meeting different learning objectives, creating pathways through material for different learning approaches, and using that information to help students who are struggling in similar ways. [… ]

The big data revolution in education also raises serious questions about how best to protect student privacy as technology reaches further into the classroom. While states and local communities have traditionally played the dominant role in providing education, much of the software that supports online learning tools and courses is provided by for-profit firms. This raises complicated questions about who owns the data streams coming off online education platforms and how they can be used. Applying privacy safeguards like the Family Educational Rights and Privacy Act, the Protection of Pupil Rights Amendment, or the Children’s Online Privacy Protection Act to educational records can create unique challenges.

The report further notes that user information from education platforms “can be very personal” and that the U.S. Department of Education released guidelines for online educational services in February 2014. These guidelines highlight the importance of compliance with FERPA when entering into agreements with third parties regarding student data. The report concludes that “The Administration is committed to vigorously pursuing these questions and will work through the Department of Education so that all students can experience the benefits of big data innovations and teaching and learning while being protected from potential harms.”

Privacy and Law Enforcement
The report also recognizes that while big data can be a useful tool for law enforcement and security, “they also pose difficult questions about their appropriate uses.” Big data can be used to better understand criminal organizations through pattern analysis, but gathering of such data can also include information about individuals not subject to investigation. It also cautions that use of predictive technologies, while potentially useful in anticipating and preventing crimes, is controversial. It is therefore necessary to balance civil liberties and privacy interests with law enforcement goals.

Data Held by Third Parties
The big data report summarizes Fourth Amendment case law, particularly with respect to data held by third parties. It cites the seminal Supreme Court cases from the 1970s in United States v. Miller and Smith v. Maryland, both of which held that an individual does not have a legitimate expectation of privacy in information voluntarily turned over to third parties, also known as the “third party doctrine.”

In light of Supreme Court jurisprudence in this area, Congress enacted the Privacy Act of 1974, the Electronic Communications Privacy Act of 1986 (ECPA) and the Pen/Trap Act, which provide statutory protection for records held by third parties. However, these pieces of legislation may be seen as outdated and, “In light of technological advances, especially the creation of exponentially more electronic records about personal interactions, some commentators have called for a reexamination of third-party doctrine.” The report notes that the Court of Appeals for the Sixth Circuit ruled in United States v. Warshak that a subscriber has a reasonable expectation of privacy in his e-mail, analogous to a letter or phone call that would be protected. Similarly, in the recent Supreme Court case, United States v. Jones, Justice Sotomayor wrote a concurrence expressing the concern that the third-party doctrine may be “ill-suited to the digital age, in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks.”

The report notes that while post-Warshak, warrants are required for content, metadata is being collected and obtained under the third-party doctrine and suggests that examination of the metadata issue, even beyond intelligence activities, should be expanded.

The authors of the report recognize that evolving technologies have created a need to re-evaluate current practices:

ECPA was originally passed in 1986. It has served to protect the privacy of individuals’ stored communications. But with time, some of the lines drawn by statute have become outdated and no longer reflect ways in which we use technology today. In considering how to update the Act, there are a variety of interests at stake, including privacy interests and the need for law enforcement and civil enforcement agencies to protect public safety and enforce criminal and civil law. Email, text messaging, and other private digital communications have become the principal means of personal correspondence and the cloud is increasingly used to store individuals’ files. They should receive commensurate protections.

Similarly, many protections afforded to metadata were calibrated for a time that predated the rise of personal computers, the Internet, mobile phones, and cloud computing. No one imagined then that the traces of digital data left today as a matter of routine can be reassembled to reveal intimate personal details. Today, most law enforcement uses of metadata are still rooted in the “small data world”, such as identifying phone numbers called by a criminal suspect. In the future, metadata that is part of the “big data” world will be increasingly relevant to investigations, raising the question of what protections it should be granted.

The report also acknowledges the challenge that “once data is collected, it can be very difficult to keep anonymous.”

Conclusions and Recommendations

The authors of the report conclude by making six policy recommendations:

  1. Advance the Consumer Privacy Bill of Rights. The Department of Commerce should take appropriate consultative steps to seek stakeholder and public comment on big data developments and how they impact the Consumer Privacy Bill of Rights and then devise draft legislative text for consideration by stakeholders and submission by the President to Congress.
  2. Pass National Data Breach Legislation. Congress should pass legislation that provides for a single national data breach standard along the lines of the Administration’s May 201 Cybersecurity legislative proposal.
  3. Extend Privacy Protections to non-U.S. Persons. The Office of Management and Budget should work with departments and agencies to apply the Privacy Act of 1974 to non-U.S. persons where practicable, or to establish alternative privacy policies that apply appropriate and meaningful protections to personal information regardless of a person’s nationality
  4. Ensure Data Collected on Students in School is Used for Educational Purposes. The federal government must ensure that privacy regulations protect students against having their data being shared or used inappropriately, especially when the data is gathered in an educational context.
  5. Expand Technical Expertise to Stop Discrimination. The federal government’s lead civil rights and consumer protection agencies should expand their technical expertise to be able to identify practices and outcomes facilitated by big data analytics that have a discriminatory impact on protected classes, and develop a plan for investigating and resolving violations of law.
  6. Amend the Electronic Communications Privacy Act. Congress should amend ECPA. To ensure the standard of protection for online, digital content is consistent with that afforded in the physical world—including by removing archaic distinctions between email left unread or over a certain age.
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Ten-year study shows increased need for academic libraries