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Teacher Newsmagazine   Volume 25, Number 1, September 2012  

Education is a big winner in copyright changes 

By Larry Kuehn  

The copyright environment is suddenly much freer when it comes to using materials in education. A combination of a new law and Supreme Court of Canada decision changes the rules for teachers.

The new copyright law has expanded dramatically the range of materials that can be copied and used for education without getting permission or paying fees. The “fair dealing” provisions are now closer to the wider permissions that teachers in the US have long had under “fair use” rules.

These are some of the new education-related elements:

  • The law expands “fair dealing” to include education, dramatically widening the materials that can be copied without permission or payments.
  • As a matter of principle, both producers and users have rights that should be balanced, not primarily on either side.
  • The Supreme Court decision provides that a teacher can copy for students material for research and private study. Justice Abella in the decision says:

Teachers have no ulterior motive when providing copies to students. Nor can teachers be characterized as having the completely separate purpose of “instruction”; they are there to facilitate the students’ research and private study. It seems to me to be axiomatic that most students lack the expertise to find or request the materials required for their own research and private study, and rely on the guidance of their teachers. They study what they are told to study, and the teacher’s purpose in providing copies is to enable the students to have the material they need for the purpose of studying. The teacher/copier therefore shares a symbiotic purpose with the student/user who is engaging in research or private study. Instruction and research/ private study are, in the school context, tautological.  

Further, Abella states:

…photocopies made by a teacher and provided to primary and secondary school students are an essential element in the research and private study undertaken by those students. The fact that some copies were provided on request and others were not, did not change the significance of those copies for students engaged in research and private study.  

Abella also refuses to limit “private study”:

With respect, the word “private” in “private study” should not be understood as requiring users to view copyrighted works in splendid isolation. Studying and learning are essentially personal endeavours, whether they are engaged in with others or in solitude. By focusing on the geography of classroom instruction rather than on the concept of studying, the Board again artificially separated the teachers’ instruction from the students’ studying. 

  • However, fair dealing does not give an unlimited right to copy, even for education—education ministries should produce information on fair dealing that clearly provides guidelines for teachers.
  • The Court defined a new principle of technological neutrality, meaning that the same rules should apply for online and hard copies. Michael Geist describes the intent as “copyright law should not stand in the way of technological progress and potentially impede the opportunities for greater access afforded by the Internet through the imposition of additional fees or restrictive rules that create extra user costs.”
  • Limits to the use of publicly available material on the internet are removed. Contents on millions of web sites can be used without permission or compensation.
  • All created material—in print or online—has long automatically had a copyright without the need for the creator to claim it. To be clear legally, educational institutions needed to seek permission and sometimes pay fees to use web content. That is no longer a requirement.
  • Public performances in schools are entitled to some new exceptions—that will reduce licensing costs for schools for music and drama productions.

Two negatives for education in the new Copyright Act—digital locks and electronic disposal

Despite extensive lobbying, the new act prohibits breaking digital locks. These are limits built into the software to stop access outside of a specified use. These locks are possible to break with other software—existing or to be developed when new locks are invented.

The act makes it illegal to break these locks, even if the user has the legal right to the content. For example, content that could be used in education under the fair dealing provisions could not be used because it is behind a lock that is illegal to break.

A huge campaign had dozens of organizations oppose the provisions, but corporate interests were successful in getting the Conservative government to leave those provisions in the new law.

The other negative is a requirement that some digital course content, such as in online learning, must be destroyed within 30 days after the offering of the course is completed. This provision presumably applies to online material with a copyright and which is being used using the fair dealing education provisions.

The wording of the Copyright Act is:

6) The educational institution and any person acting under its authority, except a student, shall

(a) destroy any fixation of the lesson within 30 days after the day on which the students who are enrolled in the course to which the lesson relates have received their final course evaluations. 

This is not just unclear (“fixation of the lesson”), but makes no sense from the practical perspective of courses that are offered more than once—requiring the teacher to start over every time the course is taught?

Getting the word out

The new rules require information for teachers about the practical implications. The ministry should undertake an information campaign such as the one carried out when the Access Copyright licensing was adopted.

Because the new rules will allow copying without charge under rules similar to the current license with Access Copyright, the province should not renew the license as it is. The millions of dollars saved should be shifted to funding school libraries for the purchase of resources. The funds would still go to creators, but with access for students to more learning materials.

Larry Kuehn, director, BCTF Research and Technology Division 


Contact North publication, “The Perfect Storm: Canadian Copyright Law 2012.” contactnorth.ca/sites/default/files/pdf 

– Michael Geist blog, www.michaelgeist.ca 


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