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Across the Border and Across the Pond

Important copyright and open access news has come out of Canada and the UK in the past several days:

Supreme Court of Canada Issues Several Copyright Rulings
On July 12th, the Supreme Court of Canada issued its rulings in five separate copyright cases.  Four of the five cases concerned music royalties and the fifth case concerned the charge of royalties for photocopying short excerpts of works for use in education. (The controversy over assessment of this tariff was previously discussed on this blog.) In sum, the Court’s rulings established a broader reading of “fair dealing” — a phrase nearly equivalent to “fair use” under U.S. copyright law. Specifically, the Court held that photocopying textbooks for or by students for private study, even if in the context of instruction, or research is fair dealing, thereby dismantling the expensive licensing scheme put into place by Canada’s version of the CCC, Access Copyright. Duke University Scholarly Communications Officer Kevin Smith made a nice analogy of the Canadian Court’s ruling to the recent decision in the Georgia State University e-reserves case.  He writes:

Another important part of these decision about instructional copying is that [Supreme Court of Canada] Justice Abella found little or no harm to the market for published work caused by this copying.  The excerpts copied were short, forcing students to buy the entire books was unrealistic, and there was no link demonstrated between this copying and any evidence of declining textbooks sales.  This sounds quite a lot like Judge Evan’s conclusion in the Georgia State case that permission income for publishers was of negligible importance  and that there was no evidence that the permission fees lost because of fair use actually threatened the well-being of publishing businesses.  I hope we are seeing the beginnings of an international consensus around the idea that limited copying for educational purposes is more important for societies to support than a small additional  revenue stream for publishers is.

The reason I really like this expanded definition of research in Justice Abella’s opinion is that it gets at the heart of the analogy issue that was central to the Georgia State case.  The plaintiff publishers in that case wanted the court to accept a strict analogy between electronic reserves and the commercially printed course packs that were found not to be fair use in the Michigan Documents Services case, while many of us argued that, in the absence of a for-profit copy shop’s involvement, the better analogy was physical reserves, where a copy of a work is made available for students to use (in this case by downloading into their own computers) or not.  By tying the copying done by an institution to the private study purpose of the individual students, Justice Abella makes this latter argument for us.  In cases like Georgia State (and the UCLA streamed video case) the law clearly allows individual students to view and even to copy works for private study.  In both situations, technology simply enables the same group of students to use the materials in essentially the same way, but at their own convenience.  Instructors are, as Justice Abella puts it, simply guiding the students to the resources which they will then use for their private research.

UK and EC Mandate Open Access for Government Funded Research
The Research Councils of the United Kingdom (RCUK), a body representing the UK’s seven government-funded grant agencies, announced on July 16th that it had approved a policy mandating that all publications produced from grant funded research have to be made public 6 months after publication beginning in April 2013. (The blog for the  journal Nature provides a great summary of the policy and its effects.)  A day later the European Commission announced that it would similarly mandate open access. Its proposal endeavors to open up all the work funded by its Horizon 2020 research program, set to run in the European Union from 2014 to 2020 and disburse €80 billion (US$98.3 billion).  The EC says that it is aiming for 60% of all European publicly funded research articles to be open access by 2016. Meanwhile, in the United States, the National Institutes of Health remains the sole federal agency mandating open access for grant funded research, and a bill (FRPAA) proposing to expand this mandate to all federal agencies remains in limbo until after the November 2012 elections.

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