Posts tagged copyright

CAUT granted intervenor status in review of school copyright tariff decision

Paul Brent at the Law Times reported earlier this week that the Canadian Association of University Teachers has been granted leave to intervene in the upcoming judicial review (i.e. appeal) by provincial Ministers of Education of the decision by the Copyright Board of Canada last June, which raised the fees to be paid by schools on copied material to $5.16 per student.  Access Copyright, the victor in the case, claimed “governments were not paying a fair price for the hundreds of millions of photocopies used in schools as substitutes for buying the books.” 

The decision raised many interesting issues related to education and the protection of intellectual property, particularly the debate about the “fair dealing” exception in the Copyright Act (Canada).  The Canadian copyright legal regime, in ultra-brief form, basically works like this:

  • Copyright refers to the exclusive right of the owner to reproduce certain creative expressions, such as songs, plays, novels and so on.  The purpose of this rule is to protect the rights of artists, writer and others, including their publishers and producers, to certain intangible creations that are otherwise easily reproducible.  People have to make a living, and few people will pay you for something they can just get a good copy of for free. 
  • The other side of the coin is that in certain circumstances free reproduction should be permitted and even encouraged.  The largest exception of this sort is called “fair dealing”, which allows copying without the consent of the copyright owner for particular purposes. 

These are some of the relevant provisions of the Copyright Act:

29. Fair dealing for the purpose of research or private study does not infringe copyright.

29.1 Fair dealing for the purpose of criticism or review does not infringe copyright if the following are mentioned:

(a) the source; and

(b) if given in the source, the name of the

(i) author, in the case of a work,

(ii) performer, in the case of a performer’s performance,

(iii) maker, in the case of a sound recording, or

(iv) broadcaster, in the case of a communication signal [...]

29.4 (1) It is not an infringement of copyright for an educational institution or a person acting under its authority

(a) to make a manual reproduction of a work onto a dry-erase board, flip chart or other similar surface intended for displaying handwritten material, or

(b) to make a copy of a work to be used to project an image of that copy using an overhead projector or similar device

for the purposes of education or training on the premises of an educational institution.

(2) It is not an infringement of copyright for an educational institution or a person acting under its authority to

(a) reproduce, translate or perform in public on the premises of the educational institution, or

(b) communicate by telecommunication to the public situated on the premises of the educational institution

a work or other subject-matter as required for a test or examination.

(3) Except in the case of manual reproduction, the exemption from copyright infringement provided by paragraph (1)(b) and subsection (2) does not apply if the work or other subject-matter is commercially available in a medium that is appropriate for the purpose referred to in that paragraph or subsection, as the case may be. 

You get the idea.  The debate in the tariff decision focused largely on what types of copying generally done by schools falls within the exception of fair dealing.  The Copyright Board sided mostly with Access Copyright and saw much of the copying done by schools to fall outside of the fair dealing umbrella.  This generated a considerable amount of commentary from prominent intellectual property lawyers, including this from Michael Giest, this from Howard Knopf, and this from Sam Trosow.  Here is how is the Copyright Board explained its decision.

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Universities must clarify ownership of inventions in staff contracts

Where an academic staff member at a university has a eureka moment and produces a fascinating and helpful invention, who holds the rights to that invention – the staff member or the university?

Contrary to my post below regarding copyright, an employee-employer relationship does not result in a presumption that the employer holds rights to the invention.  The applicable rules in Canada were summarized in Techform Products v. Wolda:

  • the federal statute on patents says that an inventor is the first owner of their inventions, but it says nothing about what happens when the inventor is an employee being paid to do research related to those inventions;
  • the mere existence of an employment relationship does not disqualify employees from patenting inventions made during the course of their employment, even where (1) the invention relates to an aspect of the employer’s business, (2) the employee used the employer’s time and materials to bring his or her invention to completion, and (3) the employee has allowed the employer to use the invention while he or she was employed;
  • the two exceptions to the presumption favouring employees are (1) a contract that says the opposite, and (2) where the inventor was employed for the purpose of inventing; and
  • to define the true nature of an employee-employer relationship, the court will usually look at a series of factors, including whether the employee at the time of hiring had previously made inventions, whether the employer had incentive plans encouraging product development, whether the conduct of the employee once the invention was created suggested ownership was held by the employer, and so on.

A recent decision in Australia, which has rules on this issue that are similar to those in Canada, shows how these principles are applied in the university context.  In University of Western Australia v. Gray, the university claimed that it owned the inventions of the head of the Department of Surgery, Gray, who disagreed.  Gray had never explicitly assigned the rights to his inventions.  The university maintained that Gray had implicitly assigned his rights by virtue of the nature of his position.  The Federal Court of Australia sided with Gray and found he had no “duty to invent”.

The key for universities to avoid this mess: have each staff member explicitly assign his or her rights as inventors.  Put it in writing.

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Teachers selling coursework raises questions about ownership of intellectual property

The Ottawa Citizen ran an editorial last week – which it cherry-picked from a related article in the New York Times – lamenting the rise of an online marketplace for teacher’s course materials.  According to the Citizen, through sites like Teachers Pay Teachers and We Are Teachers teachers “sell each other all kinds of projects, plans, tests and even discipline standards”.

Here’s the kicker: these items are work the teachers generally prepared for their classes, not items they developed in their own spare time.

This is “double-dipping”, says the Citizen. A teacher is paid once as a government employee to generate these materials, and then they get paid again from the proceeds of sales on these websites, which with some exceptions goes to the teachers’ personal use.  This doesn’t sit well with some.

The big legal issue that arises is: who owns these materials? Taxpayers or teachers? Aside from ownership, how should school boards respond, particularly if big sums of money are involved? Are there policy reasons to discourage this behavior?

Although this issue is new to the educational context, it’s old to employment and copyright law.  The relevant arguments surround the principle in section 13(3) of the Copyright Act (Canada): there is a presumption that if a work is made by an employee in the course of his or her employment, copyright is held by the employer, absent a contract to the contrary.

In many industries, this issue is explicitly resolved in a number of ways.  First, employment agreements generally affirm that copyright to any work developed in the course of employment falls to the employer.  Second, a person can escape the “employee” status and provide a service as an independent contractor (effectively, a consultant).

The unique substance of teachers’ duties makes it unlikely that they have an employment agreement with a copyright clause or a non-employee-employer relationship with the school board.  This shows, among other things, how the internet has facilitated the commodification of education.  At this stage, the money involved may not turn enough heads, but it is a good idea for all groups involved to develop a position on this issue.

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