I’m no copyright lawyer, so I am throwing this out in hopes that others can help me understand one of the new clauses of Canada’s new copyright law, Bill C-11.
I was reading an excellent summary from Contact North on the implications for online and distance learning of Bill C-11 (HT to @veletsianos via Tony Bates blog for the lead), and, while the news seems quite good for educators in general, there was one clause that made me start seeking out more info.
The report notes that Bill C-11 has a distance learning provision, but (emphasis mine):
The implementation of a distance learning provision, though use of the exception features significant restrictions that require the destruction of lessons at the conclusion of the course.
Hmmm. Destruction of lessons at the conclusion of the course. Sounds ominous.
So, I went to the source (excuse the legalese here) and honed in on section 30, which begins by defining a lesson, which is really anything that uses content under the newly expanded fair use clause of Bill C-11
30.01 (1) For the purposes of this section, “lesson” means a lesson, test or examination, or part of one, in which, or during the course of which, an act is done in respect of a work or other subject-matter by an educational institution or a person acting under its authority that would otherwise be an infringement of copyright but is permitted under a limitation or exception under this Act.
The section goes on to state that a student can create a copy of that lesson, but the student has to destroy it 30 days after the course closes:
(5) It is not an infringement of copyright for a student who has received a lesson by means of communication by telecommunication under paragraph (3)(a) to reproduce the lesson in order to be able to listen to or view it at a more convenient time. However, the student shall destroy the reproduction 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.
Okay, fair enough, I guess. But the kicker is the next section, which states:
(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;
So, if I am reading this correctly, an educator who teaches an online course and who uses copyrighted content under the newly expanded definition of fair dealing (which is quite broad) will have to destroy that course material 30 days after the course ends? Am I reading this correctly?
Hi Clint and others – I just noticed that your last 2 post were spam. I had to turn off comments on one of my blogs as a result of a deluge of junk being sent as comments. I know this is not the current topic and maybe we could move this conversation but are there ways of preventing this junk being inserted into otherwise meaningful conversations?
Hey Stu,It is a never ending battle. You should see what the filters do catch (for every one that gets through I have another 100+ sitting in the spam folder). I do get an email whenever a comment – spam or legit – is posted so I did see these messages sitting there. Just had not got around to deleting them yet. They are gone now. Thanks.
So in other words you become your own spam filter.
It's a combination of machine & human. When someone (human or spam) posts a comment here, it first goes thru a spam detection filter called Akismet (http://akismet.com/). If it passes that, the comment then gets filtered thru a second level called Intense Debate (which may also use Akisemt as their back-end, but still catches a whack of spam). I never really see what doesn't get through. I only see what does get through those two levels. If a comment makes it past that, it gets posted to my blog and I get an email with the comment. At that point, I see the comment and can decide if it is legitimate or spam. So far, the volume has been low becuase I don't have a ton of comments to deal with. But lately I have noticed the level increasing. This weekend, I had 5 get thru the filters (2 on this post alone), which is unusual. Normally I get one or two spam a week. It's not a perfect system, but comment spam is part of the price of running a blog I figure.
I believe you are interpreting the law as proposed correctly, however the big hope is that recent SC rulings around Fair Dealing in education make this moot. Otherwise the biggest danger will be the need to archive curricular materials due to grade challenge requirements, which typically extend long past 30 days. This is one thing motivating some schools to stay in Access Copyright (even though their repertoire likely doesn't cover much of this digital use) and another thing that is motivating many institutions to start looking at copyright management software like ARES. Finally – "who polices this?" It'll likely be the same as it ever was – it's not a problem until it's a problem. Legislated limitations to punitive damages will hopefully calm down our risk adverse institutions.
Bill C-11 also will be problematic if the content is taught, destroyed and there is an appeal on the grade received – most institutions hold this information for years in case of grade appeals.
Good point. One of the other problems we could have is that our learners have access to all their courses for the duration of their program. As long as they are enrolled, they don't lose access to previous materials and resources. From a learning perspective, the idea is that material can be used to help bridge into later courses. This clause could have implications into that academic policy.
There's a lot of gray area with this if you compare it with sec. 29.22 (Reproduction for Private Purposes). It looks like it's okay if student receive copies legally to keep them for private purposes, which receiving resources from instructors/during class is.
Yet I wonder which clause supersedes the other. Does the 30-day provision apply to materials distributed directly to students as in provided a link for a direct download? I wonder if something like the UBC e-link goes around the rule since if students click on it, they get to the library's entry for the article/ebook, not the material itself. It's something anybody can do, regardless if they're part of a class or not.
Interesting – and… ultimately who is the police-person? Is this a carte blanche destroy or what if the conversations (ie the classroom) take place inside a social networked learning environment say for example the way that parts of the UBC MET program are structured using WordPress sites and Wikis?
What about the use of open access e-journal material licensed under creative commons such IRRODL? If that was the only material used would the course have to be destroyed?
All good questions. I read the clause as relating only to the use of copyrighted material in a course that hasn't been explicitly cleared. The new fair dealing exemption for education gives online educators a great deal of flexibility in using a lot of content (especially content on the web) in their online courses for the duration of their course without having to get official copyright clearance. But if you use uncleared material then, according to how I read the clause, you have to destroy not just the copyright piece, but the entire lesson that contained that piece 30 days after the course closes. As for CC material, that is interesting. In real terms, you would probably be okay as the owner has given you the okay to reuse based on conditions of the CC license. But in a strict interpretation of the law, then yeah, I suppose you would since CC does not nullify copyright on a work. But I don't think that is a likely scenario as those who license with CC are probably not likely to push a copyright claim forward. They want their stuff to be reused and shared.
I don't think even under a strict interpretation of the law that CC licensed materials would have to be removed. "…that would otherwise be an infringement of copyright but is permitted under a limitation or exception under this Act…" With CC content, you have irrevocable permission from the copyright holder, so that content's use would not be infringing or excepted under this law, as long as you're acting per the terms of the CC license. You can still use CC licensed content in a way that is not consistent with the given CC license through other methods, such as a separate licensing agreement or fair dealing, in which case the law's provisions might take effect, but that is outside the scope of the CC license.