Volume 34 No. 6                                            Editor: Arnd Bohm                                                 March, 2004

Copyright / Intellectual Property / Plagiarism

Copyright has been in the news. Recently the Supreme Court of Canada ruled that the library of the Law Society of Upper Canada was not acting illegally by providing photocopying facilities that allowed patrons to copy from the library's holdings. In another instance, a student at McGill complained because a professor's requirement that student essays be submitted to a professional plagiarism-checking company violated the students' copyright, since the company routinely uploaded all such submissions into its database. And then there is the opening of Canadian dissertations to the general public via electronic access through PORTAL, with new implications for obtaining copyright permissions in all theses and dissertations. These events relating to copyright and intellectual property provide a good occasion for reminding CUASA members about sources of information on what is a confused and difficult terrain. Alas, the tone of these comments is rather imperative and admonishing -- but there are grave consequences for not knowing or following the correct procedures.

It is particularly important that new faculty members familiarize themselves with the relevant laws and regulations. Recent immigrants to Canada also need to be aware that Canadian law is much stricter than elsewhere, including the USA and the European Union. In particular, duplication of print materials as well as showing films or playing music for teaching purposes are NOT considered fair dealing (fair use) but must be paid for.

Academics have three different roles within the context of copyright and intellectual property : as individuals (private citizens), as researchers, and as teachers in the classroom. Corresponding to these are different sets of rights and obligations.

1. As Private Citizens

All individuals are, of course, both protected by and required to heed the law. Basically, all original examples of intellectual and creative work, including, but not limited to, texts, images, music, works of art, architectural designs and videos, are protected from the moment of their creation against being physically copied or performed by others without fair compensation to the holders of the reproduction or performance rights. A useful guide to Canadian copyright law.

If a problem should arise concerning your individual responsibility under the law, CUASA can only help you to locate appropriate legal counsel.

2. As Researchers

When we are acting as employees of the University, research and the production of intellectual property are governed by the Collective Agreement, particularly Article 14 on Technology Transfer, Patents and Copyright, and 15.5 on Rights and Responsibilities as a Scholar / Researcher.

Plagiarism and similar forms of research fraud, while not against the law, are considered unethical (see for example the statement of the American Historical Association). Because confirmed cases are highly embarrassing to the institution, the universities tend to deal with them severely (for Carleton, see "Policies and Procedures for Dealing with Allegations of Misconduct in Research".) Various forms of sanction are also imposed by the respective disciplines and by funding agencies.

All original work by graduate and undergraduate students is protected by copyright and may not be duplicated for any purpose whatsoever without the explicit written permission of the owner. Written and spoken utterances by anyone, including students, such as interviews, questionnaires and audio or visual recordings of people, are also protected and governed by the very strict federal legislation on the ethics of research involving human subjects.

Should any dispute between you as an employer-researcher and the employer ever come up, do contact CUASA as soon as possible, so that your rights may be safeguarded.

3. Teachers

Canadian copyright law does NOT have a doctrine of fair dealing (fair use) that extends to teaching (overview). The University has therefore made arrangements to pay the necessary copyright fees. All copying for handing material out in class or deploying copyrighted material, such as showing a film in class, is now governed at Carleton by the agreement with ACCESS (formerly Cancopy). Thorough and important instructions are posted under Instructional Media Services. Special attention should be paid to the exclusions, especially to the ban of making copies from photocopies, the absolute ban on duplicating sheet music, the ban on copying from workbooks, and to the regulations on the making of slides and showing of movies or videos.

Note that, since the employer has made arrangements for dealing with the duplication of copyrighted material, you cannot legitimately claim that violations of copyright were required by the employer. You would be personally liable for any copyright infringements. Therefore, it is extremely important to follow the rules, particularly with respect to the preparation of Course Packs (also bear in mind that the Government of Ontario does not allow you personally to charge money students for any course materials you distribute). Perhaps you could ultimately win a case brought against you by a publisher, but the legal costs would be astronomical and would be borne by you personally.

Copying of software is only permitted according to the specific licensing agreement that comes with the software. On software licensed for University use, see Computing Services .

The laws relating to the Internet and to websites continue to shift and develop (recent thoughts). To be on the safe side, it is best to treat all posting, whether on a site or as transmissions to others, as a form of publication. No material under copyright should be ever be uploaded unless you have explicit written permission from the holder of the copyright. All material on the Internet is basically under copyright and should not be copied without permission. If using sites in the context of a course, you should work with links, but only once you have asked for and been granted permission by the owner. A useful guide

Material that is made available on subscription databases via the Library should be dealt with according to the specific provisions for each such database. In general, it is illegal to download, distribute electronically or retain (i.e. store for longer than necessary for the completion of the immediate project) substantial portions of information from databases. Where it is not prohibited, you may link from a course page to the database. If in doubt about what is permitted, check with the Library.

With increasing reliance on the interlibrary loan service, you should be aware that there are regulations governing and limiting its use. It is not permitted to any make copies for third parties, including students and other professors, of any material you order through interlibrary loan. Since interlibrary loan material is obtained expressly for your personal study or research, it may not be inserted into teaching contexts, whether by putting a copy on reserve in the library, by duplicating it for a class, or by using it as the base copy for a Course Pack. If asked to make your own personal copies available for such purposes, you should decline. The international agreement on interlibrary loans.

As teachers we have obligations to make sure that our students know and understand the laws and rules on copyright and plagiarism. By setting a clear example, we can do much to combat the unfair appropriation of intellectual property. You should never agree to do anything as a teacher that would infringe on copyright or violate the relevant agreements and contracts. The law is especially alert to systematic abuses, such as encouraging students to make copies of material from a textbook that is available in print.

The employer has an obligation to facilitate teaching by making necessary resources available -- but you have an obligation to know the rules and to work within them. Again, if at any time problems arise around such issues, contact CUASA as soon as possible.