Friday, August 11, 2006

SFU Snafu

I was alerted recently to an outrageous example of what I call “Copyright Correctness” - or “respect for copyright” gone mad.

This concerns Simon Fraser University (“SFU”).

According to a publication by the SFU “Thesis Office”, written permission is required from the copyright owner for the author of any thesis to include more than "500 words or 2%" of any work or any “Tables, figures, photos and all forms of images obtained from any copyrighted source, including websites, professor’s lecture notes, or any material provided directly by the copyright holder.”

The rule about "500 words" is said to be a "University rule". The 2% requirement in the context of "Reproduction of Substantive [sic] portions" is said to be "lawyer recommended". In any case, the two criteria appear to be mandatory. It's not clear whether we are talking about the greater or lesser of "500 words or 2%" in any given instance. 2% of an op ed piece could be dozen words, or three or four words or less from a letter to the editor or a poem or an encyclopedia entry. On the ohter hand, 500 words could be only a couple of paragraphs of a 1,000 page book.

These categorical requirements are frankly nonsense. There is nothing in Canadian law to support or require them. This is especially odd considering that the document is dated October 13, 2004 - more than seven months AFTER the March 4, 2004 Supreme Court of Canada's CCH v. LSUC decision, of which SFU is apparently oblivious - as is the Copyright Matters! publication from CMEC published in 2005.

The document contains the seriously misleading statement that:
“There is no special exemption for scholarly non-profit use under Canadian law.”
"Research or private study", anyone? CCH v. LSUC, anyone? "Users' rights", ayone?

Besides, it will frequently be necessary to quote more than 500 words from one source, not to mention tables and figures.

I understand that non-compliance with these rules can result in a student's thesis being "denied".

The document is apparently based upon an earlier 1997 SFU publication. And the absurdity is compounded in a more recent iteration from July 18, 2006 which contains the astounding proposition that:
What is not permitted…

- Using material the use of which is expressly prohibited by a use or copyright statement accompanying the material in published website
or printed format.
- For example, Microsoft Inc expressly prohibits using any photo of Bill Gates without permission in advance for each use.
Microsoft can no more legally control the non-commercial use of Bill Gates' image than King Canute could stop the tide. So why does SFU take it upon itself to try to do so?

The only source referred to for “more information about Canadian copyright requirements” is Lesley Ellen Harris’s 2001 book, which is described as "the indispensable guide for publishers, web professionals, writers, artists, filmmakers, teachers, librarians, archivists, curators, lawyers and business people." Even at the time this book was published in 2001, its use required great caution. For example, it contained some serious errors of omission in its discussion on fair dealing. On page 128, the book failed to note that the trial decision in Allen v. Toronto Star had been reversed on appeal in 1997. In the important appeal decision, the Ontario Divisional Court allowed, as fair dealing, the use by the Toronto Star of a photograph of the entire cover of the November 1985 issue of Saturday Night, which included the plaintiff's photograph of Sheila Copps on a motorcycple on the basis of the nature and purpose of the use in question. Ms. Harris's discussion of parody on page 129 of her book omitted some key case law, including the very important leading case of Michelin v. C.A.W. that had been rendered by the Federal Court about five years before the 2001 edition of her book was published.

A much more helpful source and reference would have been David Vaver’s quite readable book (for librarians and lawyers alike) published in 2000 - which is actually seriously concerned with “users’ rights” and had a whole chapter so entitled four years before the Supreme Court of Canada’s decision in CCH v. LSUC. Vaver’s book is also very reliable, and has been cited several times by the Courts - including the Supreme Court of Canada in the CCH decision.

There is a disconnect at SFU. A university should be encouraging students to do research, not scaring the hell out of them, and threatening to deny their right to graduation if they dare use more than 500 words from one source. The university should not force or encourage their students to waste any time getting unnecessary permissions. On the point of getting permission, the document provides such helpful thoughts as:
Express appreciation for the originator’s work, when honestly felt
“Flattery will get you everywhere”, but keep it dignified.
You can make somebody’s day.
Finally, ironically, this document contains a copyright notice, which might come as a surprise to the management at SFU, by whom the author is presumably employed.
© 2004 Penny Simpson Assistant for Theses, SFU Library
Normally, the employer of a work created by an employee in the course of her employment is the first owner of copyright in the work.

I hope I haven’t quoted more than 500 words or 2% of Ms. Simpson’s work. ;-)

If I have, perhaps I should confess to Captain Copyright.


PS - One eternally vigilant reader has already pointed out UBC has virtually the same policy and language.

Is there something in the air or water out there?

BTW, both the SFU and UBC web pages seriously misuse the term "public domain", i.e.
Copyright protection applies regardless of whether the work in question is published (such as a book or an annual report) or not (such as an internal company memo), and whether someone has put it out in the public domain (such as on a web site) or not.
I haven't done a precise word count but, by the SFU criteria, I wonder whether the UBC web page is infringing the SFU (or, should I say. Ms. Simpson's) work? ;-)

If anyone knows of any similar categorical rules elsewhere at Canadian or other universities or learning institutions, please let me know.



  1. I wonder how the "University rule" works in the case of really, really, really short works?

  2. On page 4, there is a section called "Can I pass the following checklist." One of the items on this checklist, which is supposed to relate to whether permission should be sought from the copyright holder, is the following: "Am I engaged in comparison and criticism in a constructive, fair and balanced way?"

    While the "fair and balanced" use of materials is certainly a legitimate concern for the thesis advisor or the thesis committee, is it of any relevance under Canadian copyright law? Under U.S. copyright law, this should be irrelevant. My hunch is that it is irrelevant under Canadian law also, but I would be grateful for any clarification on this point.

    (The word "fair" obviosuly means something different in the phrase "fair and balanced" than in the phrase "fair use.")