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CAUT Intellectual Property Conference Report

Ottawa, October 27-29, 2006

by Sharon Wang, Assistant Librarian, Osgoode Hall Law School

6 Nov 06 - Intellectual property, especially copyright, is becoming an increasingly hot topic in the academic world. The CAUT IP conference, focusing on IP issues in the educational context, was a comprehensive class for the members of CAUT on IP and its impact on our teaching and research. The conference objective was “to provide a forum to discuss the role of intellectual property in the academic environment and to identify means by which the academic community could control its impact on campus”. I attended the conference from October 27 to October 29, 2006, in Ottawa, as a representative of YUFA.

There were three major topics at the conference:

  • Copyright issues: technologies and copyright; copyright law reform; academies as copyright users

  • Intellectual Property in the international context

  • Intellectual Property ownership on campus 

The conference began with an overview of copyright legislations and principles. On October 27, Prof. Michael Geist, in his opening address, reviewed some recently developed information technologies (e.g., RSS feeds, Weblog, podcasts, Internet space, wiki…) which have great influences today on how information and knowledge is disseminated in our society. Geist also introduced some new formats of publishing in comparison with the traditional methods. Open sources, open access, and creative commons licenses have been increasingly used in the academic community to encourage wide distribution of knowledge. Geist took his own recent publication, In the Public Interest: the future of Canadian copyright law, as a successful example of creative commons licenses. Geist addressed his point that although copyright law was initially created to encourage more creations, copyright protection is not the sole motive for authors to create. The interests of both sides of copyright protection - the rights holders and the users - need to be balanced in the copyright legal regime. The good news, as set out by Geist, included the CCH decision made by the Supreme Court of Canada, in which the court strengthened the fair dealing exception in copyright law. On the other side, the bad news was that the recent trend in digital copyright legislation, for example, the protection of digital rights management (DRM), would largely affect the existing fair dealing doctrine, by adding more restrictions to it. At the end, Geist called for a stronger role that CAUT and the larger academic community should play in the current copyright law reform and he made a list of 10 suggestions that need the attention from the educational community: DRM, open access, open licensing, expanded fair dealing, use CCH decision, drop “Internet exception” from the copyright law, form a national digital library, abortion of the “Crown copyright”, freeze copyright protection terms, and add contractual limits with publishers. 

Michael’s address was followed by Panel one: Copyright Action. In this panel, discussions continued on copyright issues from the user's perspective. Laura Murray from Queen’s University shared her experience on campus with using copyrighted materials for teaching purpose. Laura pointed out that for the general public, the ideal law should be guidance rather than commands. That is to say, good laws do not make people confused of what should be legal or illegal. In the context of copyright issues, it should be fairly straightforward to identify fair dealing practice if the law is properly made. If for the purpose of teaching and research, a scholar has to spend a tremendous amount of time in order to determine whether he/she is able to use someone else’s work without the author’s permission, the law becomes a command instead of guidance. Laura suggested using the users’ kit, which includes section 29 of the Copyright Act (R.S.C. 1985, c. C-42) and the CCH decision (CCH Canadian Ltd. v. Law Society of Upper Canada, [2004] 1 S.C.R. 339), to defend fair dealing. Laura further addressed that fair dealing does not conflict with the long time existing academic authenticities and she pointed out that citing other’s work was required even before copyright law was created. Laura echoed Geist’s call at the end of her presentation to invite more involvement of academic community in addressing users’ rights in the copyright regime.

Angela Regnier, the vice president of Canadian Federation of Students (CFS), shared with us the student's view of current copyright issues and the efforts CFS has made so far in order to “educate” more students about copyright and why it matters to them. A very interesting statement made by Angela was that one of many negative effects of enhanced copyright protection would be the raised tuition due to the increased cost of knowledge. Angela also mentioned the importance of uniting the CFS with CAUT in fighting for users’ rights.

Paul Whitney, the City Librarian from Vancouver Public Library, discussed the role of libraries in facilitating the distribution of knowledge and the position of libraries on fair dealing issues. Paul readdressed Laura’s points and agreed that the users’ rights should not be ignored.

After Panel one, all attendees and speakers were divided into 7 groups to discuss the copyright challenges facing the academic community and the possible responses to these challenges. In my group, members talked about some examples of dealing with copyright issues in their teaching, especially when preparing for course materials. The general community lacks the basic knowledge about copyright and fair dealing. Users’ rights tend to be ignored and most attention of copyright is given to copyright owner. Suggestions were made that there should be a centralized copyright officer at the university level, and this person would deal with all issues related to the usage of copyrighted materials. Best practice in this field should be shared among institutions to avoid any unnecessarily duplicated efforts.

Panel Two focused on the second topic - the international aspect of IP. David Robinson, Associate Executive Director of CAUT, and Myra Tawfik from Windsor talked about Canada’s treaty obligations and the impact of some international IP treaties on Canadian IP laws. As a member state of many international IP treaties, Canadian IP law developed not only in accordance to Canada’s domestic economic and social changes, but also in response to IP’s international trends. David explained the impact of globalization on education and research, listing some key issues including the recruitment of full fee-paying oversea students, public/private partnerships, branch campuses, franchises, brand licensing, e-learning and distance education. The treaties with the most influence on Canada’s education system are the Agreement on Trade-Related Aspects of Intellectual Property Rights (the TRIPs Agreement) and the General Agreement on Trade in Services (GATS). Canada currently has no commitments on education services and has just some commitments on research and development services under the CATS and this should be continued. Myra emphasized the WIPO (World Intellectual Property Organization) treaties and addressed some negative trends in the international IP legal regime including anti-circumvention and anti-tampering obligations, new level of copyright protection, potentially eliminating “fair dealing” and other permitted uses; leading to chilling of research and development in computer and related technologies, affecting development of 3rd party technologies, and invading the privacy of users.

The third topic was heavily discussed at the conference through three panels and one workshop, that is, IP ownership on campus, a traditionally discussed topic on IP issues in our community. The three panels had a wide participation of faculty association representatives, law professors, librarians, university legal counsel, and a guest from Australian National Tertiary Education Union.   

We heard the news from the collective bargaining front by Paul Jones. The importance of addressing IP ownership issues in the collective agreement was highlighted. Paul analyzed the reasons why ownership issues were brought to the front and he defended the institutions’ by pointing out the negative effect of educational institutions being under-funded.  Paul called on academic staff to challenge the notion that “academic work is properly categorized, first and foremost, as property” and to make sure that individual authors have the control on their works through ownership on the agreement negotiating table. Sam Trosow from Western Ontario reviewed some basics of copyright and patent to clarify when and why a created work is the property of the author and when and why it belongs to the employer. Sam cited section 13 (1), (3), and (4) of the Copyright Act and noted the importance of contract wording in dealing with the ownership disputes. The overall trend of commercialization of universities was also discussed by Sam and he pointed out that campus IP issues are important for the future of academic work.

Panel four continued on ownership issues. The difference between copyright and patent was discussed. Martin Phillipson from University of Saskatchewan gave advices on how to protect individual authors’ rights on their academic works. Martin suggested getting language into the collective agreement, different for patents and copyright, and seeking professional assistance while affordable. The language should be broad other than specific, to leave rooms for interpretation and contemporary re-interpretation. Collective agreement language is not expected to deal with all issues, so side agreements dealing with specifics are recommended. Martin also encouraged the involvement of graduate students and technical staff and advised faculty associations to widely educate their members of the importance of IP ownership before problems arise. He warned to avoid DIY agreements and micro-managing.

The last Panel further discussed the creative commons license, open access movement update, and moral rights in IP. Creative commons licenses allow the author to remain certain control over his/her work while transferring the rest to the publisher. In this way, authors do not need to give up all their copyright in order to have their works published and they are able to widely share their work with the community while not giving out their copyright completely. Open Access (OA), another publishing style, enables authors to publish their works online, “free of charge, and free of most copyright and licensing restrictions” (Peter Suber). Kathleen Shearer from Canadian Association of Research Libraries brought us the recent updates on OA movements. The fundamental purposes of OA are to enhance the dissemination of knowledge, accelerate research, enrich education, share learning among the haves and the have-nots. The costs required for OA usually come from some combination or variation of authors’ pays, subsidized, advertisements, society membership fees. In some countries, such as the United States and the United Kingdom, there are initiatives from the research granting agencies of encouraging OA to enhance public access to the results of funded research. Kathleen recommended faculty members to try to publish some of their works through an OA journal in their field to support this movement.

In overall, the conference was full of useful information and it opened my eyes to such an important issue on campus in our everyday teaching and research. I certainly enjoyed being there.

Other Reports from this Conference:
John Blazina's Report
Ruthann Dyer's Report
Jay Rahn's Report
Dominque Scheffel-Dunand's Report