Who gets hurt by bad advice? The advisor, or the advised?
Things have been relatively quiet on the copyright front during the summer, but that doesn't mean copying policies have not continued to change on campuses and within educational administrations across the country. Educational budget-makers seem determined to interpret recent minor changes to the Copyright Act and recent narrow court rulings as broadly and dramatically as possible in a Hail Mary legal maneuver designed to save their schools from paying author royalties on lengthy materials copied for course packs.
What this means for professors and instructors is unprecedented legal uncertainty and potential liability as they go about their business.
I've been having a quick look at various university websites to see how the changes are trickling down. Administrations and copyright offices across Canada are, almost without exception, adopting the position that somehow, magically, an entire chapter of a book, an entire short story from a collection, up to 10% of work in fact, can suddenly be considered a "short excerpt" - available for royalty-free, permission-free copying and distribution in curriculum course packs. This despite the fact that nowhere in the revised Copyright Act, nor in any of the recent Supreme Court of Canada copyright decisions, is a "short excerpt" so defined. There is, as far as I have seen, zero settled law in existence in this country that supports such a radical change in the copyright landscape.
So, what does this mean? It means professors and instructors seem to be "authorized" by the best available advice of their administrations to copy vast amounts of work without compensating copyright holders. Potentially, millions of pages of professional writing - writing that has traditionally been paid for - will now be copied and used to teach tuition paying students, and the writers of that work will not be paid for those uses.
So, let's say you're a prof at Simon Fraser University. You go to the copyright pages of their website and you're told this:
A short excerpt means:
(i) Up to 10% of a copyright protected work (including a literary work, musical score, sound recording and an audiovisual work),You put together and distribute a course pack that is a collection of single chapters from 12 different books. You've essentially compiled and published a 12 chapter anthology, and not a single one of the authors who put all that work into writing the anthology was paid a dime for your use. Too bad for them, great for you.
(ii) One chapter from a book,
(iii) A single article from a periodical...
What could possibly go wrong?
You know how you, as a professional, expect to be paid for your work? Turns out professional authors feel much the same way. What's more, the authors know about that course pack you put together, and they know the law has not actually changed to allow you to do what you've done. Sounds like potential legal action is in the air. But you, the professor, are covered, right? I mean, you were only doing what your school said you could do, right?
Did you catch the small print in the SFU copyright policy?
5.1 (i) University employees and students have responsibility for complying with the requirements of this Appendix, Canada’s copyright law and the University’s copyright policy R30.04 and related policy documents using the available institutional resources and services...And one last thing:
Note: The information obtained from or through this website is provided as guidelines for using works for educational purposes and is not intended to constitute legal advice. The Copyright Officer is available to assist you with any questions or concerns you may have. The Copyright Officer is not a lawyer or legal expert in copyright law and is able to provide a professional and not a legal opinion.You know what, you just go ahead and follow that new policy. Everything's probably going to be just fine (also not an actual legal opinion).
Professors and instructors - have a look at what your professional colleagues think about this absurd new definition of "short excerpt."
Writers' Union of Canada Educational Copying Survey Report