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Laying the Foundation for Copyright Policy and Practice in Canadian Universities

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Laying the Foundation for Copyright Policy and Practice in Canadian Universities Western University Scholarship@Western Electronic Thesis and Dissertation Repository 11-29-2016 12:00 AM Laying the Foundation for Copyright Policy and Practice in Canadian Universities Lisa Di Valentino The University of Western Ontario Supervisor Samuel E. Trosow The University of Western Ontario Graduate Program in Library & Information Science A thesis submitted in partial fulfillment of the equirr ements for the degree in Doctor of Philosophy © Lisa Di Valentino 2016 Follow this and additional works at: https://ir.lib.uwo.ca/etd Part of the Intellectual Property Law Commons Recommended Citation Di Valentino, Lisa, "Laying the Foundation for Copyright Policy and Practice in Canadian Universities" (2016). Electronic Thesis and Dissertation Repository. 4312. https://ir.lib.uwo.ca/etd/4312 This Dissertation/Thesis is brought to you for free and open access by Scholarship@Western. It has been accepted for inclusion in Electronic Thesis and Dissertation Repository by an authorized administrator of Scholarship@Western. For more information, please contact [email protected]. i Abstract Due to significant changes in the Canadian copyright system, universities are seeking new ways to address the use of copyrighted works within their institutions. While the law provides quite a bit of leeway for use of copyrighted materials for educational and research purposes, the response by Canadian universities1 and related associations has not been to fully embrace their legal rights – rather, they have taken an approach that places emphasis on risk avoidance rather than maximizing use of materials, unlike their American counterparts. In the U.S., where educational fair use is arguably less flexible in application than fair dealing, there is a higher level of copyright advocacy among professional associations, and several sets of best practices have been created to guide the application of copyright to educational use of materials. Canada is lagging behind the U.S. in this respect, placing Canadian universities at a relative disadvantage. The goal of this study is to lay the foundation for the development of policies and guidelines in the use of copyrighted works, and the provision of copyright literacy education in universities. The research will be undertaken from a critical perspective, with the goal of promoting fair dealing and other exceptions as user rights within the institution, and a reduction in risk aversion. The methodology employed is both qualitative and quantitative and includes legal analysis, content analysis of policies and guidelines, and collection of survey data. Keywords copyright, universities, policy, literacy, higher education, fair dealing, fair use, intellectual property law, comparative law 1 This dissertation will focus on the activities of universities rather than colleges, for two reasons. The first reason is for space and time purposes, and the second is that universities and colleges in Canada have somewhat different missions that influence their use of copyrighted works. ii Acknowledgements To my father Antonio, my mother Marcia, and my stepfather Ces, for supporting my choice to return to school (again), even though I had to leave a great job where I was actually making money for a change. To my siblings, Tanya, David, Stefanie, and Alexandra, for listening to me go on about copyright and pretending it was interesting, and for inspiring me with their own successes. To my niece Kiana and nephew Ashton, for being so understanding when Zia Lisa couldn’t play because she had to do her homework. To my supervisor and mentor, Prof. Sam Trosow, for seeing and nurturing my potential back in law school and encouraging me to pursue it in graduate school. To my examination committee – Prof. Jacquie Burkell, Prof. Ajit Pyati, Prof. Ariel Katz, and Bobby Glushko, for their comments and guidance. To Prof. Jacquie Burkell and Prof. Victoria Rubin for their invaluable intellectual and emotional support. To my family, friends, and colleagues for cheering me on and demonstrating how it’s done. To the music makers, for transporting me to another plane of existence whenever I needed a sanity check. iii Table of contents Abstract ................................................................................................................................ i Acknowledgements ............................................................................................................. ii List of tables ....................................................................................................................... ix 1 Introduction and organization .......................................................................................... 1 1.1 Problem statement ..................................................................................................... 1 1.2 Justification ............................................................................................................... 5 1.3 Theoretical framework .............................................................................................. 7 1.4 Objectives ............................................................................................................... 11 1.5 Research questions .................................................................................................. 12 1.6 Thesis ...................................................................................................................... 13 1.7 Methodology and organizational plan .................................................................... 14 2 Context: Canadian copyright and the information society ............................................ 17 2.1 Copyright in Canada ............................................................................................... 17 2.2 Information society ................................................................................................. 23 2.2.1 Claims and assumptions of the information society ........................................ 23 iv 2.2.2 The information society and copyright policy ................................................. 27 2.2.3 Legislative policy ............................................................................................. 32 2.2.4 Judicial interpretation....................................................................................... 38 2.2.5 Institutional policies and library science research ........................................... 41 2.2.6 Identifying assumptions ................................................................................... 45 2.2.7 Conclusion ....................................................................................................... 46 3 Canadian fair dealing and U.S. fair use ......................................................................... 48 3.1 Introduction ............................................................................................................. 48 3.2 Background ............................................................................................................. 48 3.3 The law of fair dealing and fair use ........................................................................ 49 3.4 Comparison of fair dealing and fair use .................................................................. 52 3.4.1 Fairness purposes ............................................................................................. 52 3.4.2 Fairness factors ................................................................................................ 54 3.4.3 Transformativity .............................................................................................. 57 3.4.4 Amount and substantiality ............................................................................... 61 3.4.5 Market harm and licences ................................................................................ 65 3.4.6 Institutional practice and internal policy .......................................................... 72 v 3.4.7 Summary .......................................................................................................... 75 3.5 Conclusion .............................................................................................................. 79 4 Contract and copyright law ............................................................................................ 80 4.1 Introduction ............................................................................................................. 80 4.2 Digital subscriptions: Framing the issue ................................................................. 81 4.3 Contracts and the Copyright Act ............................................................................. 86 4.3.1 Jurisdictional approach .................................................................................... 87 4.3.2 Purposive analysis approach ............................................................................ 95 4.3.3 Statutory right approach and privity of contract .............................................. 98 4.4 Contracts and digital materials.............................................................................. 108 4.5 Technological protection measures....................................................................... 113 4.6 Conclusion ............................................................................................................ 115 5 Review of Canadian university fair dealing policies ..................................................
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