Pernicious Permissions Policies in Canada

Padraic Ryan, CC license

Library and Archives Canada (“LAC”), that esteemed national public institution and repository of Canadian knowledge, has some seriously misleading language in the license it requires for the deposit of all graduate theses and on its website. This reflects an apparently inadequate understanding of the Supreme Court of Canada’s landmark CCH v. LSUC ruling. This is nothing if not ironic, given that the LAC and the Supreme Court of Canada are next door neighbours in Ottawa.

LAC requires the author/depositor of a graduate thesis to agree to the following:

I represent and promise that my thesis is my original work, does not infringe any rights of others, and that I have the right to make the grant conferred by this non-exclusive license. [HK: So far, so good.] If third-party copyrighted material was included in my thesis, I have obtained written copyright permission from the copyright owners to do the acts mentioned in paragraph (a) above for the full term of copyright protection. [HK: Not good, to say the least]

The second bolded sentence, if read literally as many have not surprisingly done, suggest that any excerpt from any copyrighted work requires written permission from the copyright owner. This is simply wrong from both a legal and academic standpoint. The error is repeated and compounded at the part of the LAC site that provides information about copyright to students and universities here:

Please ensure that you haven't included copyrighted material from other sources unless you've received written permission from the copyright holder(s).

This may take quite some time especially if some of the copyrighted material is older, if the copyrighted source(s) you need to contact is out of the country and/or you need to contact multiple sources. We strongly recommend that you contact the copyrighted source(s) early in your thesis preparation.

This erroneous, or at the least badly drafted, language has caused a lot of confusion in the university community, as I have seen in several instances.

Clearly, it is a basic principle of copyright law that the quotation of a less than a “substantial part” of copyright work requires no permission. This is hardwired into s. 3(1), which is keystone arch of the Copyright Act, and explained in lots of case law. S. 3(1) states that

…“copyright”, in relation to a work, means the sole right to produce or reproduce the work or any substantial part thereof … (emphasis added)

Many institutions understand that much, even if it’s far from clear on the LAC site. But they don’t necessarily go on to explain the next step as to why permission will rarely be required for quotations in graduate theses, namely the users’ right of “fair dealing".

Even when the quotation is a “substantial part”, it is still permissible to use it without permission, if it falls within the very big and “flexible” tent of “fair dealing” for purposes such as “research” or “criticism or review” – which will be the case in most if not all properly done graduate theses.

See s. 29 of the Copyright Act, and see the Supreme Court of Canada's decision in CCH v. LSUC. Unfortunately, many who should know better in the educational community and some of the lawyers who advise them have apparently still not assimilated this landmark decision and/or are in denial as to its implications.

The LAC language should have made it clear that permission is only required when the quotation is “substantial” and when it does not fall within “fair dealing”. That is the law. The LAC passage suggests that permission will indeed be routinely required - which will rarely be the case in the context of graduate theses.

It’s hard to imagine a thesis that wouldn’t include “third-party copyrighted material.” How else can the writer demonstrate that his or her work is in fact new and creative and adds something of value to the state of knowledge in a particular field? All competent research builds on previous research. Remember Isaac Newton, who said “If I have seen further it is by standing on the shoulder of giants.”

Most theses, especially in the humanities, are quite properly replete with quotes, which are invariably attributed, as required by norms of academic protocol and strict policies against plagiarism. Mostly, they will be so short that they don’t constitute a “substantial part” of the work they come from or they will fall within fair dealing for the purpose of “research” and/or "criticism or review" of the work of other scholars. Furthermore, the purpose of reading such theses will invariably be for “research”. They are usually not particularly entertaining.

Moreover, the problem of excessively long quotes that go beyond fair dealing is normally self-regulating because any competent thesis supervisor and committee, if applicable, wants to read the work of the student, and not someone else's work. There cannot and should not be any absolute or formulaic rules about how long is too long.

It is very disappointing that LAC would adopt such language in this important document and on its website. This license document confronts all successful Canadian graduate students who have written a thesis. I’m told that even some publishers who ought to know better have now accepted that such language actually represents the state of the law in Canada and are refusing to publish books based on a thesis unless all permissions for all quotations have been obtained. I can understand why even some publishers might rely on LAC, given its prestige and role. But, in this case, I'm sorry to say that LAC has got it wrong.

Badly drafted, ill-advised and/or ill-conceived language that gets included in important public documents has a way of creeping into the common vocabulary and acquiring virtually authoritative status. This has apparently already happened in this example of LAC, and is clearly quite harmful because of LAC’s prominent and official role.

In fact, I gather that LAC compounds the problem by devoting taxpayer resources to vetting theses for copyright violations before putting them online. This is also a problematic policy for many reasons which I won’t go into here because this post is already too long. One obvious question, however, is how much taxpayer money is being spent on such efforts, and how many graduates students have had their research work wrongfully interfered with by such a process.

This is even worse in some ways than the arbitrary, unfounded and incorrect 2% or 500 word requirement that was in force and still may be at Simon Fraser University and still is on the website at UBC and who knows where else. It is astonishing that leading Canadian institutions presumably dedicated to research can promulgate policies that are so antithetical to it and just plain wrong. I’m sure that they don’t intend this to be the result.

Not surprisingly, Access Copyright has done its bit to compound the confusion here with misleading and incomplete information that will discourage legitimate permissible quotation that doesn’t require permission.

I don’t know how Canadian students can write decent theses, much less expect to make them available online, publish them and compete on the world stage, if they believe that they have to get permission to quote material that doesn’t require permission to quote.

Here’s an actual example of how all of this muddled and wrong thinking has translated into a seriously incomplete, misleading and counterproductive statement on thesis requirements from no less illustrious an institution than York University:

No substantial amount of copyrighted material may be included in the thesis/dissertation. Under the Copyright Act, if more than a reasonable extract of another person’s work is included in the thesis/dissertation, written permission must be obtained from the copyright holder(s).

Who knows what “reasonable” means? Why not refer to “fair dealing”, quote s. 29 of the Copyright Act, and at least point to the SCC decision in CCH. v. LSUC?

I hope that LAC and the Canadian universities that have misunderstood or misstated the role of copyright law in the writing and publishing of theses take appropriate steps to correct the current misinformation situation.

"Respect for copyright" is not increased by mindless insistence on clearance and permission when none is necessary. In fact, the result is quite the contrary.

I will address this and other issues in a pre-conference talk at the CLA conference in Edmonton on June 2, 2010. Unfortunately, although Access Copyright had agreed to send a senior person to this event, it has since backed out and no replacement speaker from Access Copyright will be on the program.

HK

PS June 1, 2010: UBC now appears to have removed the "2% or 500 word" language - but still has this chilling and incorrect statement on the page heading up the "Avoiding Copyright Violations" section of its website:

When you submit the final copy of your thesis, you must sign a document confirming that you have permission to use any copyrighted material in your thesis. (emphasis added)

Even the University of Toronto appears oblivious to the "substantial part" threshold and the "fair dealing" exception. See this:

When is Copyright Permission Required?

Does your thesis contain someone else’s work (third party materials)? For example, text, figures, maps, images, questionnaires, photos, etc.

1. Does your thesis contain your own previously published materials (e.g. journal article)?
2. Does your thesis include material (e.g. a chapter, an article) that was co-written with another author(s)?

If you answered “yes” to any of these questions then you must obtain written permission to reproduce the material from the copyright owner (e.g. journal publisher and/or co-authors).