Posts tagged schools

How educational institutions should respond to the riot

A week after the Stanley Cup game seven loss and the riot that followed, Vancouverites are thinking less about how our boys in blue were thumped by the Bruins and more about how our cityscape was bruised by the rioters.  In terms of our pride as a city, the game pulled the rug out from under us, but the riot flat out beat us senseless, prompting the inevitable soul-searching and finger-pointing that happens when any group is shocked by the depravity of some of its members.

The most interesting thing about the past week (and to think, it’s only been a week) was not the violence itself, the response from the police or city officials or the identities of the rioters.  Far and away, it has been the role of social media and, particularly, how the prevalence of cameras (primarily on cellphones) mixed with the unrestrained ability for anyone to reproduce pictures and videos at little or no cost has produced severe, and often legal, consequences for anyone mixed up in the riot.  (Paradoxically, as Kent-Daniel Glowinsky pointed out in yesterday’s Vancouver Sun, in the age of Facebook often the most damning evidence is offered up by the law-breakers themselves, foolishly unaware that they are signing their own criminal confessions.)

The most prominent example of those that have been crucified by social media is Nathan Kotylak (Globe and Mail), the 17 year-old water polo star from Maple Ridge who was caught on camera during the riot trying to blow up a police car.  Kotylak has apologized profusely.  The implications for him and his family have been dire: they have had to leave their home because of threats, and his father – a surgeon – has had his professional reputation tarnished.  Kotylak is just finished grade 12 at Meadowridge High School, though he did not attend his graduation ceremony (the Province).  He was suspended from Canada’s junior water polo squad and it’s unlikely his school has taken any steps in response.

Another student spotlighted by the media is Camille Cacnio (the Ubyssey), a biology student at the University of British Columbia.  She has not gone to the same extent as Kotylak to publicize her apology and regret (though, arguably, the crime she committed was not as obscene and she may simply have not been as appealing to news agencies), but similar issues will be plaguing her, perhaps even more so because of the racial element in much of the online chatter about her.  UBC officials have said pretty definitely that since the riot did not happen at UBC and there was no material connection to UBC, they will not be getting involved.

Employers (Vancouver Sun) have an important decision to make about how to treat employees involved with the riot.  A person who commits a crime should not necessarily be fired from their job unless there is some significant connection between the crime and the job or unless that sort of thing is covered by their employment agreement.  The decision for education institutions is far more complex: should they take any steps against students who participated in the riot?

There are a couple of factors to consider:

  1. Teenagers vs. Adult.  High schools should approach the riot differently than universities should.  Nowadays, a teenagers caught committing a crime during a highly publicized event will likely be getting it from all sides: their family and friends will probably be furious with them and feel the effects themselves; the riot will probably show whenever their name is googled for the next decade or so (unless they happen to do something even more noteworthy, good or bad);  they will have to explain themselves and apologize at interviews, etc. until they are old enough to have their own kids in high school… the list goes on.  University students will probably go through the same, with even greater concern for their professional opportunities, but the chatter will likely affect teenagers in a more acute way because their identities and self-esteem may be more brittle.  High schools are probably best served by using the riot as an educational opportunity, and they should keep in mind that the reactions (or over-reactions, as the case may be) to a crime can be more damaging than the crime itself.  Of course, if they think it’s appropriate to take disciplinary steps against a student, they should keep in mind the legal implications of doing that.
  2. The Campus Connection.  UBC officials hit the nail on the head by emphasizing that offenders are being pursued, students and non-students alike, and since there appears to be no material campus connection there is nothing that the university itself should do.  Educational institutions are not parents.  A student has many identities, and in this case the fact that a rioter also took classes at a certain school may be incidental to what happened.   Schools and universities are concerned, but it’s not their problem any more than it is the problem of other local institutions and businesses.   Students can get arrested or have criminal records, but as long as it is unrelated to their role as a student there is generally no need for the school to intervene.   The question may get more complex if unique facts are involved, such as if university property located downtown (I am thinking of buildings belonging to UBC or Simon Fraser University) was damaged during the riot by students of those universities or if one student hurt another, and so on.

Teachers or professors rioting is a whole other ballgame, and in that case the factors to consider are more employment-related than anything else.

There are many lessons, legal and otherwise, that we can all take from the riot depending on our roles in society and our connection to the city.  Above all, it’s not only about the law.  What will prevent the next riot from happening, and accomplish the most to address the fallout from this one, will come from our internal sense of community or parental obligations and how they should be applied in these and similar circumstances.

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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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Waivers may be unenforceable, but they often do the trick

A waiver of liability is a scary document for any parent to read.  You are effectively entrusting your child’s safety to someone with whom you agree, in most circumstances, should not be held accountable if something goes wrong.

Enter Wong v. Lok’s Martial Arts Centre Inc., a recent decision of the British Columbia Supreme Court.

The plaintiff in this case was a child who was injured when he was violently thrown to the ground in the course of a sparring match at a martial arts school.  The defendants were the company that owned the school and the individual who owned the company.  The child’s mother alleged that the defendants were negligent, claiming they should have taken certain preventative measures for sparring matches, including screening participants, instructing participants, requiring suitable protective gear or carefully supervising matches.

The defendants, in response, held up a waiver of liability signed by the child’s mother when the child started at the school:

CONDITIONS OF MEMBERSHIP AND RELEASE

It is expressly agreed that all exercises and treatments, and use of all facilities shall be undertaken by the student’s sole risk. LOK’S HAPKIDO SCHOOL and its affiliated studio’s (Flying Eagle Hapkido, Flying Tiger Hapkido Studio and any other studio’s) shall not be liable for any injuries, past/future medical complications, any claims, demand, injury, damages, actions or cause of actions whatsoever, including without limitation, those resulting from acts of active or passive negligence on the part of Lok’s Hapkido School.

YOU ARE RESPONSIBLE FOR ALL INJURIES.!

The mother claimed she did not understand the clause and, in any event, knew she had to sign it for her son to attend the school.  The defendants applied to have her claim dismissed.  The thrust of their argument: the clause is valid – a parent is entitled to enter into a contract on behalf of a child to waive that child’s right to bring a claim in negligence.

The court rejected the defendants’ application primarily on the basis that the Infant Act (British Columbia) “does not permit a parent or guardian to bind an infant to an agreement waiving the infant [i.e. minor]’s right to bring an action in damages in tort”.

This statement of law is surprising because waivers of liability are everywhere.  The court hinted at why this is so with a quote from the Law Reform Commission of Manitoba:

Waivers are commonly obtained from minors and their parents.  They may have some practical force in persuading minors that they cannot sue, but their legal validity is doubtful.

At the end of the day, even though these waivers are generally not enforceable, they still have the practical effect of reducing the likelihood of claims because they generally lead parents to assume they signed away rights they might have had if their child gets hurt.  Law is about what people know they are entitled to, not just what might be on the books.  Parents, in particular, should know the difference, and schools should know what they can and can’t rely on to protect themselves from liability.

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