INTELLECTUAL PROPERTY PROVIDES STIMULATION
WITHOUT CAFFEINE
In 2008 three important intellectual property advisories from CAUT were published as Retaining Copyright in Journal Articles, Ownership & Authorship of Collaborative Academic Work and Fair Dealing. The advisories all have important implications for creators and users of intellectual property within higher education in Canada. What I offer here is a summary of the points contained within these advisories and also some of the context surrounding these issues. The full text of these advisories is available from the CAUT website by Googling “CAUT intellectual property advisories.”
Retaining Copyright in Journal Articles
If you retain copyright in your journal articles you will never have to worry about whether you can post (without permissions) your article on a publicly accessible website, put it in an institutional repository, email it to a class or scan it 200 times to send to your extended family. Your article is available and accessible to the scholarly community and the wider world, if you so choose.
The advisory Retaining Copyright in Journal Articles provides the context for retaining copyright in your journal articles, including supplying as an appendix a copy of the SPARC Canadian Author’s Addendum to Publication Agreement; this Addendum can be attached to your publication agreement in order to retain key rights. Including this addendum with your article is much less time-consuming than going through your publisher’s agreement and carefully amending that. In short, this addendum would allow you to email your work to staff, students, or faculty at any institution, put it on a publicly accessible website, put it in an institutional repository, put it in ACORN, blog it, or otherwise reproduce, communicate, perform and create derivative material from your own work for non-commercial purposes. The publisher must also provide you with an electronic copy of your published work. What does the publisher get? The publisher gets to publish your work.
Although the following option is not mentioned in the CAUT advisory it is always worth thinking about if attaching the addendum is not suitable for your particular situation. You could sign a contract with a publisher whose default policies let you keep limited rights – putting your article on your personal website or Acadia website, for example – a practice which is known as self-archiving. What is the advantage of doing this? Your students, or the world, can access the full-text of your article for free. For example, the Institute of Electronic and Electrical Engineers (IEEE) will let you put the final draft (post-print) of the article on a website as long as you use the publisher’s electronic version and the publisher’s copyright and source is acknowledged.
A quick way to discover which publishers’ standard policies allow you to self-archive is to check the SHERPA/ROMEO database (Google SHERPA/ROMEO). It is true that many publishers will let you self-archive if you approach them whatever their standard policy is, but this process may be more time-consuming than you want. The SHERPA/ ROMEO database contains details of 500 standard publisher policies and allows you to search by publisher or journal title to check if the journal or publisher you have previously published with will allow self-archiving and if there are any conditions attached to it.
Ownership & Authorship of Collaborative Academic Work
The purpose of this CAUT advisory is to “assist academic staff members in avoiding conflict over ownership and authorship rights in collaborative academic work.” Collaborative academic work is defined as work which goes beyond the conventional professorial team to projects which potentially include combinations of students, professors, instructors, librarians, or other researchers and which may or may not include funding from government granting agencies or private funding. Some of the suggestions made in this advisory may seem just common sense but the frequency that difficulties occur in collaborative teams coupled with the recent explosion of collaborative-based research means that this brief advisory is well worth reading.
In essence, CAUT suggest avoiding disputes over ownership and authorship by encouraging team members to reach informed agreements, in writing, on these issues before team work commences. Different disciplinary norms, potential hierarchies, academic competitiveness, and the pressure to commercialize all are factors which may contribute to conflict and misunderstandings within the team. An interesting and useful suggestion is that team members should “individually” and “independently” research authorship and ownership issues before reaching agreements. This seems a sensible approach preventing individuals at the top of a hierarchy from dominating the discussion. Many of the approaches outlined in this advisory, notably dealing with ownership and authorship issues within small disciplinary teams, are useful even where you do not intend to produce a written agreement for a group of people.
Fair Dealing and Copyright
Fair Dealing is a wonderful thing. Fair Dealing is the right to reproduce substantial amounts of a copyrighted work without permission or fee from the copyright owner. Fair Dealing is free, available, applies to both print and digital works, and is open to any Canadian to exercise both within and outside the educational environment. It is a right – not a defence – which is enshrined in the Copyright Act (CA) and court decisions, and its purpose is to ensure a balance between the interests of copyright owners and individuals, ensuring that individuals have reasonable access to information and knowledge for the benefit of society. How much of a work it is reasonable to reproduce using the right of Fair Dealing is a matter of exercising judgement. Nowhere within the CA or courts is it defined that reproducing, say, 10% or 20% or even 50% of a work is either acceptable or an infringement of copyright law under Fair Dealing.
You might wonder why there is an advisory now from CAUT on Fair Dealing when the right has existed for years and has increasingly been interpreted more liberally in the courts. In the words of the Fair Dealing advisory, [“Educational Fair Dealing] is now under pressure from copyright licensing agencies, publishers, and the entertainment industry; each eager to see all uses of works regulated and monetized.” For example, along with many authors I have received a pamphlet from a large commercial publisher quantifying how many words (100), sentences (“such as one or two”), figures (2 from 1 article) I may use from their articles for scholarly comment, non-commercial research or educational use. I can already do this, or more, under Fair Dealing. Rather alarmingly, the statement in the pamphlet is an endorsement of the International Association of Scientific, Technical & Medical Publishers’ guidelines. It is worrying because Fair Dealing is partly defined by the common practice within a trade – e.g. education. We need to be aware of the right of Fair Dealing and not be afraid to exercise it or let others with more limited practices define it for us.
The advisory provides plenty of context to answer the question “When can I exercise my right of Fair Dealing?” The first and most important question is, “Am I copying for the allowable purposes?” Allowable purposes are research; private study; criticism; review; or news-reporting. This is the threshold question. If you are not copying for these purposes it is not Fair Dealing – period.
Extensive detail and examples are provided within the advisory to answer the second question, “Am I going to deal fairly with the work?” The criteria which are identified in the advisory to answer this question are “the character of the dealing; the amount of the dealing; alternatives to the dealing; the nature of the original work; and the effect of the dealing on the work.” There is no simple way to summarise these, but in broad terms the following issues are of major importance. For the character of the dealing you need to consider two things: first, are you making a single copy or multiple copies? Single copies are preferable. Second, you must consider whether the type of copying corresponds to an existing practice within academia. For the amount of copying (or “amount of dealing”) you must consider whether the amount of copied material is truly necessary to achieve your purpose: irrespective of the size of the original, do you require 13% or 30% for your allowable purpose? For alternatives to the dealing or copying, you must consider whether there is a non-copyrighted equivalent available instead. The issue of the nature of the original work depends on things like is it published, confidential, etc. If the original work is confidential it is less likely to be accessible under fair dealing, but if the original work is merely unpublished and you acknowledge your source it is more likely to be viewed favourably because it could lead to wider dissemination of the original work. Finally, for the effect of the dealing or copying on the work in question you must consider whether the copy will compete with the market of the original work.
If you can answer positively that the copying you have done is for the
allowable purposes and you have dealt with the work fairly you are exercising
your right of Fair Dealing. I cannot,
however, emphasise too strongly that the practices I have outlined here are
merely guide-lines: each case has to be evaluated on its own merits, that there
are no absolutes in terms of the proportion of a work copied because no-where
in Canadian law is there a formula or definition as to precisely what is Fair
Dealing.
Ann Smith