The university needs to appreciate better the intertwined relationship between values, policies, and technologies with respect to copyright issues.
Universities are knowledge-based organizations that bear a challenging and complex relationship to copyright and intellectual property issues. The university represents a diverse community of creators, owners, and users of copyrighted materials. An intensive use of information resources and research materials to create new knowledge is a hallmark of the university, as both faculty and students spend their time in reading, sharing, and analyzing knowledge in multiple formats and containers. This leads to the creation of new works of scholarship and a diversity of student assignments based on learning goals in the curriculum. Equally significant is the scale and scope of collaboration with individuals and researchers outside the institution; this has intensified in recent years as universities have become much more global in their reach. A greater emphasis on sponsored grants, international research projects, exchange programs, research team activities, and public-private partnerships are related indicators of this cultural shift in the generation and dissemination of knowledge.
In this context, copyright discourse exists at the crossroads of several key dimensions in academia: values, policies, and technology. An analysis of these dimensions can lead to an informed understanding of how copyright discourse can play an effective role in supporting the mission of the academy. Technology provides the infrastructure tools for using and creating intellectual works as well as the means for copyright enforcement; values represent the ethical foundation for the range of intellectual activity in the institution; and policies are the collective and tangible embodiment of institutional goals and directions. These three dimensions fit together in an intricate and multi-layered manner, much like the pieces of a 3D jigsaw puzzle. I would like to muse upon this puzzle and provide a few reflections in regards to the copyright challenges that we face in academia.
Information abundance and university responses
In this era of information abundance, the need to strike a delicate balance between the interests of creators, owners, and users of copyrighted materials has never been greater. The university needs to recognize the importance of these separate interests. Most university members are creators, owners, and users of copyrighted knowledge in the daily course of their activities, and the wearing of multiple hats creates significant complexity in the areas of intellectual property and copyright. University members such as faculty are intensively using copyrighted materials (e.g., text, video, audio, data formats) as well as public domain materials to carry out their activities. Knowledge production in the discipline-based communities of practice can assume many modes of formal scholarly communication (i.e., articles, books, conference proceedings, and reports) and informal modes of communication (blogs, wikis, websites, videos, media mash-ups). The breathtaking speed and scale of knowledge production and the elasticity of forms of expression today are a reflection of the interdisciplinary, global marketplace of ideas in the digital era. Creating, owning, using, sharing, citing, and ultimately building upon intellectual works to create new knowledge is the lifeblood of the university environment. Students look upon remixing and mashing of content from a broad range of online sources as a standard process for problem solving and for developing their own creations to reflect a collaborative and highly personal approach to learning. Questions of ownership and permissions are often not considered. Faculty pursue multimedia research projects that involve data mining and primary source analysis of texts, manuscripts, and multimedia cultural objects that reflect new methods of inquiry enabled by the age of hyper-connectivity.
Therefore, developing an effective strategy to delineate rights and obligations is very daunting for the typical university. Margaret Ann Wilkinson, in her 1999 article “Copyright in the Context of Intellectual Property: A Survey of Canadian University Policies,” notes that, “Perhaps because of the complexity of the rights involved, and also because of the nature of the works involved, the university’s position with respect to the acquisition of copyrighted material is more difficult to analyze perhaps than that with respect to the acquisition of inventive know-how.” Along with the complexity of rights is the equal challenge of ensuring adequate awareness of the basic responsibilities involved in using copyrighted materials; the media’s extensive coverage of recent copyright reform attempts in Canada (in 2005, 2008, and 2009-10) have raised general awareness of these issues. However, this has led to a polarized and emotionally-charged public discourse that makes copyright education all the more important and problematic for universities and their communities.
There have been several significant regulatory responses within the university to the rapid swell of intellectual property in the digital age. Universities have developed policy frameworks articulating the use of copyrighted materials and the obligation to respect copyright law. Secure network infrastructures and codes of conduct for the use of computing systems have been widely implemented. Copyright officers have been hired and tasked with ensuring that the use of works requiring permission and the payment of royalties to rights holders takes place efficiently and legally. Copyright officers have also taken on an important coordination and teaching function. A web presence for copyright issues has been firmly established in most universities for educational, communication, and due diligence purposes. University-wide copyright committees can also play an important role in shaping the collective strategy.
Libraries, as organizations that select, acquire, manage, make accessible, preserve, and teach the use of information resources, are critical partners in this conversation. The more libraries can do to embrace and lead this campus dialogue, the better will be the quality of the outcome. Often seen as the heart of the campus, the library has the expertise and the resources for managing and making information accessible for multiple audiences and for teaching students and faculty in the responsible uses of information. Print and electronic reserve systems, interlibrary loans, document delivery, and licensing of digital resources are some of the major services that require libraries to manage information responsibly and effectively for the university community. Acquiring and delivering information resources of many types to the university community – such as books, journals, maps, films, musical works, dissertations, and rare collections, whether in print or online – means that the library is on the frontline of the copyright challenges we face every day.
The relationship between technology and copyright has always been an uneasy one. Today’s wider distribution and market potential for an intellectual work is inevitably associated with a greater opportunity for infringement of copyright. Christopher Jensen, in a 2003 article in the Stanford Law Review entitled “The More Things Change, The More They Stay the Same,” notes that “As technologies change, the statutory injunction against copying remains the same: not quite ‘Thou shalt never copy,’ but rather ‘Thou shalt never copy under certain circumstances and conditions.’ But when a new technology arrives on the scene, it rarely comes packaged with a clear-cut definition of what a ‘copy’ is or what these ‘certain circumstances and conditions’ ought to be.” New technologies that have emerged in the past century, whether they are piano rolls, microfilm readers, photocopiers, CDs, DVDs, or digital files, bring new possibilities and uncertainties that re-ignite the quest for a copyright balance between rights holders and users of copyrighted materials. The mass advent of ubiquitous and simple copying technologies, such as the photocopier and the Web browser, has publicized and ratcheted the debate in a highly visible manner. The issues of balancing the rights of ownership with the claims of public and cultural interest have become much more visceral and personal. Copyright owners fear loss of control and loss of revenue of their intellectual works. However, many individuals and groups have come to perceive the broad flow of digital objects in the non-commercial public space as critical to how culture is created, disseminated, and remixed. Everyone has a stake, and the university is not immune to this large-scale public debate. One need look no further than the US DMCA (Digital Millenium Copyright Act) or the unsuccessful Bill C-32 to recognize the importance and complexity of access and use of copyrighted works that are controlled by various technological protection measures. Many would argue that the balance of rights has swung clearly in the direction of copyright holders, to the detriment of users. The explosion in information availability online has been matched in many cases by control mechanisms that unduly limit user rights. New communication technologies add to the complexity and uncertainty of rights and uses, particularly in knowledge-based organizations such as universities.
In academia, technology serves as the agile enabler of new forms of learning, teaching, and scholarship. The university faces a steep challenge in providing basic education to its community on these copyright issues, which go to the heart of the teaching and scholarly enterprise of the institution. Information technology is a Janus-faced phenomenon: on the one hand, it throws open an infinity of possibilities in intellectual expression and innovative methods of inquiry and on the other hand, creates subtle and not-so-subtle walls of constraint around our ability to use information resources for learning and scholarship. The transformation in how postsecondary education is conceived, prepared, and delivered is driven by many factors, the principal one of which is the digital technology landscape. Our digital tools, services, and platforms are profoundly shaping our forms of communication, our methods of learning, our formulation of problems for inquiry, and the varied dissemination and formats of scholarship today. Our very thinking is mediated and channeled by these tools that we employ on a daily basis. Marshall McLuhan noted in The Medium is the Massage that, “…electric technology is reshaping and restructuring patterns of social interdependence and every aspect of our personal life. It is forcing us to reconsider and re-evaluate practically every thought, every action, and every institution formerly taken for granted.” The remarkably malleable human brain has allowed us to profoundly change our habits of work and thought in the short space of a decade or so. The push and pull of digital technologies affects our daily lives and habits in a thorough manner – including the intellectual property and copyright dimensions that are inherent to this tidal flow of information.
Values represent the set of ideas or beliefs that express themselves in our actions. As such, they govern the hundreds of large and small decisions in the educational enterprise. There are several core values in academia that can be highlighted: freedom of inquiry, or the ability to create new knowledge in an autonomous fashion, regardless of how controversial the criticism may be; a democratic emphasis on equity of learning; confidentiality of research and the respect for individual privacy; and an altruistic service ethic in regards to the broader community, as seen in the partnership with cultural, economic, and scientific organizations. Interwoven with the above is a common understanding of the “gift economy”, whereby new scholarship and knowledge production in general is freely shared with the global academic community in order for others to use and build upon for their own creativity and problem-solving. A 2008 Canadian Association of University Teachers Intellectual Property Advisory notes that, “When academic staff do assert their copyright, it is often to protect academic freedom, scholarly integrity and open communication rather than for personal economic gain.” These values inform the DNA of the university, whether spoken or unspoken. They have been developed and shaped over the course of generations, particularly since the Second World War. It is not surprising that the above values surface with geyser-like intensity in the landscape of copyright discourse, both within the university and in the broader public policy arena.
There are various approaches that universities and their faculty can adopt to further the goals of more open communication of research outputs, within the constraints of copyright law. Promoting Creative Commons licensing and publication in open access journals is one approach. The Directory of Open Access Journals lists over 6,100 free, peer-reviewed scientific and scholarly journals in all subject areas and languages. Self-archiving one’s journal articles on an institutional repository or subject repository (where permitted by the publisher) is another important means of disseminating and preserving one’s research. The importance of negotiating and retaining various authors’ rights when publishing in a commercial journal is an important strategy to maximize the distribution of research in a teaching and scholarly environment. The SPARC Canadian Author Addendum is a valuable instrument in this regard. Books, software, video, primary research data, and other media outputs are being made available under licensing that permits sharing and re-use, within prescribed limits. All of the above approaches are rapidly transforming the ways in which research are carried out. They speak to the scholars’ ability to use these resources without any permission being required, thus furthering the educational goals of the institution while disseminating scholarship more broadly than before.
Policies are courses of action or broad statements based on core principles. They point to what is seen as valuable, desirable, and practical from an institutional perspective. Whether focused on governance, information technology, or use of physical resources on campus, they embody implicit or explicit principles that are associated with values. Copyright discourse in the academy is profoundly affected by the political currents swirling around us. As Michael Geist has described in his introduction to From “Radical Extremism” to “Balanced Copyright”, “Copyright has long been viewed as one of the government’s most difficult and least rewarding policy issues. It attracts passionate views from a wide range of stakeholders, including creators, consumers, businesses, and educators and it is the source of significant political pressure from the United States. Opinions are so polarized that legislative reform is seemingly always the last resort, arriving only after months of delays.” The mainstream media has shown an intense interest in the impacts of copyright legislation on consumers living in a digital world that is saturated with new communication technologies and user-generated content in a rich multi-media environment. The complexities of copyright, however, are what bedevil the public dialogue – there are numerous caveats, rules, and interpretive grey zones in law that are not well-suited to the media’s short attention span. A basic familiarity with the jurisprudence is very important in this regard, and again this is not suited to the media’s approach.
National educational organizations have addressed the challenges of copyright reform. The Canadian Association of Research Libraries indicated in its November 2008 brief regarding Bill C-61 that, “Adapting to the digital age requires a range of amendments to allow Canadians to take full advantage of digital technology and use the Internet to learn, research, teach, create, and provide services that enable further discovery and innovation while respecting the legitimate rights of copyright holders.” This is a balanced approach to copyright and reflects the enormous potential of the Internet to drive the transformation of core university functions, while reflecting a keen awareness of the need to protect intellectual property and uphold copyright provisions. However, the scope and application of fair dealing is of critical importance to the smooth functioning of the academy in the digital age – and remains a very contentious issue in the current legal and political climate.
Copyright today in the educational sector is a high stakes game involving politics, advocacy, risk analysis, legal maneuvering, and lots of money. And the academy is intensely grappling with the issues. The broad question of how to manage the relationship with copyright collectives (particularly the rights management organizations such as Access Copyright) is of critical importance as this will shape the delivery of postsecondary education in Canada in the 21st century in profound ways and affect the balance sheets of universities in a very significant manner. Influencing the public debate regarding copyright reform to reflect educational interests (e.g. expanding the scope of fair dealing for educational purposes, as well as library exceptions, and technological neutrality) will remain a paramount concern for the foreseeable future, as well as monitoring the impact of any new legislation. In this context, the importance of creating, sharing and disseminating information resources as broadly as the law will permit is an integral policy for universities. In our information economy, this underpins knowledge production and innovation that informs all of the research, teaching, and learning activities of the institution.
Simon Marginson points to the basic tension underlying the role of the university. In an article published in this magazine in 2010 entitled, “The University: Punctuated by Paradox,” he writes, “The paradox is that [the university] serves private capital by producing public goods, and in a manner which is not itself commercial-capitalist, or at least not predominantly so. The university may be business-like, but it is not a business. It is of the gift economy in that its ‘goods’, i.e., knowledge, is given to society, in the main, without an explicit promise in return of immediate, or even future, reward.”
In recognizing this public-private paradox, it is important that universities understand the implications for their value assumptions and technology decisions and how these reflect upon policies that affect the whole university community. The nexus of issues around fair dealing, technological neutrality, educational and library exceptions, copyright protection, and copyright education, needs to be framed in this broader perspective. By broadening the discourse of this complex matter, universities are more likely to arrive at a multi-faceted strategy that its community can understand and support, while maintaining its unique and paradoxical socio-economic position in society. In so doing, the university needs to appreciate better the intertwined relationship between values, policies, and technologies with respect to copyright issues. These are three ‘siblings’ that are inseparable from each other: they are bound together in ways that are easy to overlook. Do we recognize and discuss the values implicit in our policy decisions, and in our technology choices? Do we integrate this thinking into a more holistic framework with other legal concerns? Silo thinking is not to our advantage. A wider discussion of these implications would be of benefit in helping to understand the issues and develop a cohesive approach as we navigate the difficult waters ahead, particularly in regards to the litigious tariff environment in which we now find ourselves, namely the Access Copyright Post-Secondary Interim Tariff, 2011-13. This year we have witnessed many legal developments, including the pivotal decision by many universities (and colleges) to opt out of the Interim Tariff. Apart from issues such as risk analysis and mitigation, best practices, and educational strategies, the questions around values, policies, and technology are important as well. All of our institutions are grappling with these challenges, whether they are opting out or not, and there is no doubt that the financial and legal ramifications are huge indeed (depending on the outcome). The public-private paradox will colour how universities react and adapt to the great uncertainty of our times, i.e. the tariff case before the Copyright Board.
As we certainly can’t expect ‘copyright peace’ in the coming years, we live in an era filled with challenges, opportunities, and strategizing.
Tony Horava is Associate University Librarian (Collections) at the University of Ottawa and is a cross-appointed professor at the School of Information Studies.