Imagining How to Expand Fair Dealing & User Rights into University & College Libraries

Mark Weiler, PhDMLIS Student (just finished)

Faculty of Information and Media Studies Western University

22/20

Fair Dealing

A mechanism built into copyright laws to allow

uncompensated use of copyrighted

materials for the purpose of a recognized public interest within parameters of fairness.

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What are the purposes recognized by the Copyright

Act?

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1.New reporting

2.Review

3.Criticism

4.Private Study

5.Research

6.Parody

7.Satire

8.Education

What are the parameters of fairness?

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4

6

2

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1.The purpose of the dealing2.Character of the dealing3.The amount of the dealing4.Alternatives to the dealing5.Nature of the work6.Effect of the dealing on the

work7.(perhaps more)

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Monster: Uncertainty

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Master Piece: Flexibility

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Fair Dealing Policies 2010 – Israel: Code of Best Practices for Fair Use

2012 – United States:

Assoc. of Research Libraries: Code of Best Practices in Fair Use

Visual Resources Assoc.: Statement on the Fair Use of Images for Teaching, Research, and Study

Code of Best Practices in Fair Use for Poetry

2012/13 –

ACCC/AUCC: Fair Dealing Policy

University of Toronto’s 2012 Fair Dealing Policy

Western University’s 2013 Fair Dealing Policy12/20

Fair Dealing Fair

13/2113/20

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Fair Dealing Analysis

Digitizing a Collection of Print Government Documents: A Fair Dealing AnalysisBy Mark Weiler and Kevin Fox

ScenarioA teaching and research university library has a large print collection of government (federal, provincial, and territorial) documents.

The library would like to create a digital gov docs repository of its publicly accessible government documents (excluding foreign gov docs).

Requires copying: print item -> digital copy -> making it available to the public.

Copyright Analysis of the Gov Docs Repository Does copyright subsist in government documents?1. Are the government documents original? Yes

2. Are the grant applications still protected by copyright? Yes

Canadian government documents are subject to Crown Copyright (section 12 of Copyright Act). Generally, government docs produced before January 1, 1964 are in the public domain

3. Does the repository require substantial copying? Yes

Question: Does the Copyright Act allow the university library to digitized the entire collection of government documents and make them accessible to the university community through an on-line repository?

Fair Dealing Analysis

• We use the Fair Dealing Exception Guidelines at Western University

• Fair dealing analysis requires considering complex factors: “The relevance of the factors depends entirely on the context. Sometimes, certain factors will be much more significant than the others. It is also not necessarily the case that all six factors need to be satisfied” (Western University)

A. Purpose Test

• Education, research, private study, criticism

B. Scope Tests (1-6)

1. Purpose• As indicated above, since it is a teaching and research

library and the materials will be used for purposes of education, research, criticism, and/or private study

• Can implement an on-line authorization to verify users are member of the university community AND

• “Click through” where user verifies their purpose is for education/research/private study/etc.

2. Character of the Gov Docs Repository• We identified two types of implementation that imply two

types of dealing• Both dealings are consistent with the custom of

government documents being made available to the public

Option 1. Allow user to download digital copy of the gov docs • Copy made on user local computer for viewing• Concern: Could the copy be used later on in a way that

infringes copyright because of loss of institutional control?

• Response: Unless there’s evidence to the contrary courts must assume library only authorizes lawful use (CCH vs LSUC)

• Include notice “The copyright law of Canada governs the making of reproductions of copyright material. Certain copying may be an infringement of the copyright law. This library is not responsible for infringing copies made by the users of this service” (see CCH vs LSUC)

Option 2. Allow user to view digital copy in their browser only (no downloading) • Access is provided by web-browser to avoid “downstream

infringement”• Addresses issues of whether there were available options

that could have be more fair

3. The Amount of Copying in the Gov Docs Repository• The purpose of government documents is to allow people

to understand what their governments are doing. Fractional amounts of information is not useful.

• We argue for copying all of the documents (“It may be possible to deal fairly with a whole work” (CCH vs. LSUC))

4. Nature of the work• Government publications are meant to be consumed by

the public so they can stay informed of government actions

• Lends itself to full copying

5. Available Alternatives to the Gov Docs Repository

• Alternative 1. Come to the library to view the documents. But is it really a practical alternative, or even possible, for distance education students or faculty living far from campus? No

• Alternative 2. Library materials could be made into circulating materials (But could be concerns about conservation, preservation, etc.? Is it fair to propose an alternative that would requires changing library practices: circulation policy, bibliographic records, reshelving?)

6. Effect of the Gov Docs Repository on the Gov Docs?• Government not making money on publications so

dealing does not compete in a commercial sense

Interesting Discoveries• Government documents in obsolete media (e.g., CD-

Roms) can be migrated to new media according to section 30.1(1)(c)

Questions arising:• Can copying government documents in their entirety still

be fair if there are commercial rivals (e.g., ProQuest’s Canadian Research Index starts providing access to full-text electronic government documents)? Yes. The availability of a licence is not relevant to deciding whether a dealing has been fair. (CCH vs LSUC)

• How can libraries respond to the issue of “downstream infringement” (i.e., user’s first copy is fair but subsequent copying is unfair?) Libraries should not worry about this. Unless there’s evidence to the contrary courts must assume library only authorizes lawful use (CCH vs LSUC)

Fair Dealing Anslysis ConclusionOption 1 (Download Digital Copies)• Fair to copy full material

Option 2 (View Digital Copies in Browser Only)• Fair; perhaps more fair to copyright owner.

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Poster Titles

“To Stitch or Not to Stich”

“Movies and Your Library”

"Making a Book Cover, Table of Content and Index Available on an Online Catalogue”

“Fair Dealing and License Agreements”

“Using Fair Dealing to Advance a University's Research Mandate: A Digital Repository of Grant Applications”

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Western’s new Fair

Dealing Guidelin

es

I’ll review your

posters

Fair Dealing Fair

We can’t do that!

Knowledge =

confidence

We’re can use our

imagination!

Misconceptions about copyright

17/20

Lessons Learned Invitations to broad range of

groups

Fair dealing workshop (+)

Package (+)

Examples

Institutional fair dealing policy

Reading materials

Draft submission for feedback

Fair Dealing Fair

Make posters available to the university community (+)

Centre for Teaching

Innovation/Faculty

Development

Copyright or Scholarly

Communication Office

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Composing Confidence

Fair Dealing Policy Fair Dealing Training

On-line Guides Info Sessions Fair Dealing Fair

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Thank You

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(Slide 2) Huffington Post, Parliament of Canada (3) Armagh: The POS Specialists, (5) Stephen DesRoches,(7) borneoinsider.com, Free Gifs and Animations, Clker.com,(10) ZombieFit, (13) PrintAsObject.com, Zombiewoodpines.com,(14) Annick Lapalme PLG Student Chapter(17) http://www.librarygirl.net/2013/09/how-to-survive-zombie-librarian.html @jenniferlagarde cc-by; http://www.clipartlord.com/category/halloween-clip-art/monsters-clip-art/zombie-clip-art/ http://deadrising.wikia.com/wiki/File:Dead_rising_metal_barricade_alternate.png http://vector.me/browse/440648/campfires_and_cooking_cranes http://www.fancyicons.com/free-icon/101/diamond-medical-icon-set/free-first-aid-kit-icon-png/ http://www.edimage.ca/interactif/index.cfm?voir=bootstrap/alternative-header (19) http://www.math.utah.edu/~cherk/teach/opt/course.html Bridgeman Art Library

Sources