The Canadian Association of University Teachers (CAUT), a prominent lobby group in the campaign to remove an effective collective licensing right from Canada’s professional writers and other artists, has published an astonishingly irresponsible document purporting to provide authoritative guidelines to copyright and fair dealing practice within Canadian classrooms.
The CAUT Guidelines for the Use of Copyrighted Material has little to say about the rights of professional creators to benefit from the use of their works. It doesn’t really mention key details like existing collective licensing arrangements and tariffs that would allow university administrations to acquire affordable, hassle-free access to any amount of any material their teachers wish to use in the classroom.
Indeed, the “guidelines for use” define copyright primarily as a collection of user permissions teachers might be able to depend on to avoid collective licensing or tariff obligations. In other words, the CAUT publication is little more than an instruction booklet on how to help university administrations not pay for content. Here’s all the stuff you can use without permission or payment – use that stuff only please, because, um, it’s your right to do so.
Not surprisingly, the guidelines make direct reference to one Supreme Court of Canada decision (CCH Canadian Limited v. Law Society of Upper Canada) in an attempt to show how broad and flexible the Canadian fair dealing provision can be for educators. They even go so far as to spell out all six parts of the SCC’s “fairness test” found in that highly controversial decision. Should teachers be satisfied in just knowing the six-part fairness test exists? No, according to CAUT:
“It is essential that members of the educational community understand and be able to apply these criteria.”Yes, teachers and professors, we know you’re very busy imparting knowledge and teaching at the highest professional level, but if you don’t mind we need you to also memorize a Supreme Court decision and be ready at any moment to apply it through a complex six-part legal construct so we can save a few bucks. Oh, and if you get it wrong, we all get sued.
Alright, let’s all get out there and teach!
You’d think if teachers are being asked to play this game of legal roulette, they’d be given some authoritative rules to follow; yet CAUT’s guidelines are full of these vague gems of encouragement:
“Making a single copy of a work is likely to be fair… Making an electronic copy of an optional or supplementary reading is likely to be fair.. etc.”Likely to be fair? Thanks. I feel “likely” to be not sued.
My own confidential sources deep within the bunkers of post-secondary education tell me of frighteningly militant instructional meetings in which administration representatives direct faculty on how best to avoid the use of collective license and/or tariff materials – essentially downloading the responsibility for not being sued over copyright infringement to the individual classroom level.
Really? This is what we want our teachers to be worrying about and concentrating on while they try to educate the next generation of Canada’s knowledge workers?
That CAUT is even participating in this process of cost- and responsibility-download onto its members shows a depressing absence of leadership within the association. CAUT should be demanding less exposure to potential liability for its members, not happily agreeing to lock them outside in a legal blizzard.
Even worse, CAUT does little to hide its ideological motivation in publishing these guidelines at this exact moment. In one of its many “cautions” to teachers, they explain:
"CAUTION – The CCH decision specifically indicates that copying is more likely to be fair if it conforms to existing custom and practice within an institution or community. Educators currently exercise their fair dealing rights in a robust manner and this document, developed in consultation with the academic community, reflects existing practice."
In other words, CAUT wants teachers to push the boundaries of what is “likely” fair in order to establish these “likely” practices as “existing custom.” There’s probably a legal term for this tactic, and it’s probably not very complimentary. I think the plain language term for it is squatting. I know I’m trespassing on your property, but if I sit here long enough it’ll seem like I belong here.*
The current educational tariff negotiation is, at its core, a labour dispute. On one side, “workers” (Canada’s writers, professional creators and copyright holders) are demanding fair pay for the work they provide for use in the classroom. On the other side, the “bosses” (Canada’s post-secondary educational administrations) are hoping to get a great deal of that work for no cost whatsoever. Ideally, labour disputes are moments for fair-minded and good-faith negotiation. Such a disingenuous campaign of inaccuracy and intentional trespass for the sake of brinkmanship shows no faith at all and lives deep within the territory of unfairness.
Caught in the middle are the teachers and their students, who just want to be able to use professionally created work in the classroom without having to obtain a law degree first. And because the CAUT has clearly been taken over by a small group of free-culture theorists, teachers now have nowhere to turn for help.
I think it’s time for Canada’s teachers and professors to demand better leadership from both their administrations and their professional association. It is absurd and needlessly contentious to encourage educators to push legal boundaries in their classrooms as a test-case for fair dealing expansion. Teachers are being bullied to put their own professional ethics aside. My hope is they recognize the danger to which they’re being exposed in the name of ideology, that they push back at their administrations and regain control over their own association.
If not, who will be showing up to defend a teacher in court the first time s/he gets the six-part fairness test wrong?
*Ironically, the CAUT’s insistence on an existing culture of robust fair dealing within the classroom is in direct contradiction to the educational lobby’s (which includes CAUT) equally strong insistence that they need a special educational category of fair dealing. During the recent C-32 Copyright Modernization hearings in Ottawa, we saw representative after representative (often the same free-culture bulldog) claiming teachers needed greater freedom of use in the classroom. Well, which is it – is there a custom of free use, or is there a need for it? CAUT clearly wants it both ways.