Tuesday, June 14, 2011

Fair-Dealing Case Law

Many of my recent posts have touched upon copyright as it relates to the self-directed learner and their use of copyrighted materials as educational resources. I believe this is an important issue for the adult learner. Therefore, I continue to look for case law related to this important issue in adult education. To date I have found no case law which includes an independent / self-directed learner using copyright materials for their private study. I believe it is important to define what I mean by independent / self-directed learner. An independent / self-directed learner is a person who is using any and all resources (copyrighted or otherwise) available to them while learning outside of any formal education program or institution. The independent / self-directed learner chooses subjects that interest them. They explore and learn all they can in the subject using all available resources (regardless of source). This independent / self-directed learning is also supported by the pedagogical practices of writing, reflection and discussion; therefore, leading to the use of the internet as a public publishing platform which also deepens the individuals learning. All of what the independent / self-directed learner does should be considered research and private study.

Recently, I was re-reading an article written by Michael Geist speaking to the issues around Bill C-32. It gets close to discussing the issue of fair-dealing as it relates to the individuals use of copyright materials. I say close cause it doesn't speak of an individual but of students within educational institutions. This is as close to case law on the independent / self-directed learner within fair-dealing I can find. What stood out for me within the Geist post and embedded ruling were three main themes;

First theme:
The two part test; where first, the dealing needs to fall into one of the following categories to be considered fair;
  • research;
  • private study;
  • criticism;
  • review; or
  • news reporting
I believe an independent / self-directed learner is engaged in research and private study, even review. This then takes us to the second part of the test, where the dealing is considered for its fairness via the following six factors, this is how I see these six apply to the independent / self-directed learner;
  • the purpose of the dealing;
  • its private study; not hard to convince a judge, if what you are doing is genuinely research and private study.
  • the character of the dealing;
  • its personal-improvement, professional development, self-directed learning done under your own initiative; again, not hard to convince a judge, if what you are doing is genuinely research and private study.
  • the amount of the dealing;
  • you will only ever be copying any resource once, maybe twice. Your not copying for your own profit but your personal learning; again, its research and private study.
  • alternatives to the dealing;
  • there will be alternatives, but as an independent learner you want to read, listen to, watch as many resources on the subject to deepen your understanding; again, its research and private study.
  • the nature of the work; and
  • If the resource was specifically created for and to be sold to the independent / self-directed learner, then it may be a good idea to pay for it rather than find another way to access it. So here is an exception... Wow. I didn't expect that. If the resource wasn't specifically created for the independent / self-directed learner then use it.
  • the effect of the dealing on the work.
  • I believe that your use of a resource and your public reference to the resource from within your private study will attract more people to the resource. In most situations this is good for the publisher of the resource.
Second theme:
The use of the table (found on page 10) describing how materials could be copied, and how all parties agreed that as long as the copying was within the first three approaches it should be considered fair-dealing. In my opinion, this is a significant endorsement for the independent / self-directed learner to use educational resources with reckless abandon as it falls within research and private study. I'd strongly suggest you reference the source when using these resources for your learning. Beyond that, go wild, learn with reckless abandon!

Third theme:
The distinction of education vs. private study was further clarified (on page 19). And fell in favor of the independent / self-directed learner;
The adjective "private" is intended to exclude from fair dealing the commercial use of copyright protected material that has no educational value. I fail to see how the word "private" should be equated with "non-commercial". "Private study" presumably means just that: study by oneself. If Parliament had wished to exclude only commercial exploitation it could have used words to the effect of "non-commercial" or "not for profit". A large and liberal interpretation means that the provisions are given a generous scope. It does not mean that the text of a statute should be given a meaning it cannot ordinarily bear. When students study material with their class as a whole, they engage not in "private" study but perhaps just "study".
This document contains much more description of "private study", and in my opinion further supports the independent / self-directed learner. As this federal court of appeal points out, it depends on the facts of each case. Therefore, we need more fair-dealing rulings, particularly with the independent / self-directed learner.