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 ...’ This new copyright reform contains some very good news for education in Canada... 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... Bill C-11 ... 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... 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. 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...”