K-12 Scenarios with Copyright and Fair Dealing

INTRO MUSIC


HOST
Welcome to our podcast exploring Canadian copyright law and User Rights. In this podcast we will take you through two fictional scenarios that will illustrate how copyright law and Creative commons licensing influence K-12 educators in their use of educational resources as part of their teaching.
Teachers of all grades and disciplines must gather educational resources to ensure their students receive the required curricular content. The ability to create, revise, reuse, remix, and redistribute such resources, highlights the need to understand copyright, creative commons licensing, and the use of Open Educational Resources.  
Please note that the situations are best understood if listeners know  the definitions of Canadian copyright and Fair Dealing.  
We spoke with Jim Swanson, a Calgary lawyer who specializes in Intellectual Property and copyright law to address the issues highlighted in each scenario. 
Please note that although the following podcast covers Canadian copyright law, it is not to be taken as legal advice. Copyright law is constantly evolving and Jim’s remarks may not be applicable in all cases.
Our first scenario looks at a kindergarten teacher who has decided to video record herself reading aloud to her class. The story she reads is , “Love You Forever” by Robert Munsch and was first published by Firefly Books in 1986.  The teacher intends to create a series of recorded videos based on Robert Munsch stories. The purpose of the videos are for parents and students to watch at home. 
We asked Jim what the implications regarding copyright and user rights might be for this teacher. 




JIM SWANSON
A video of the teacher reading the story is going to result in a few things that are probably prohibited under copyright law, including converting the Munsch work into a different work, reproducing, performing or displaying the Munsch work in the video, presentation of the Munsch work in the video. It could also be an adaptation of the Munsch work from literature into a video. So there’s lots of different terms under the Copyright Act we could apply but the act of reading the story and recording it in a video is going to be at least one of those and probably most if not all of them. 
If the video is  made available for download from a website - and I’m not clear from the scenario if that’s the case. It could be a private website that the url of which is provided to only certain parents and their children but even that is probably “Telecommunication to the public” which is also reserved to the copyright holder. 
So all the things I‘ve listed: all the reproductions and adaptations  and communications and so on are actions that are reserved to the copyright holder so, assuming that Robert Munsch still has copyright, or somebody holds it (because it’s possible that Robert Munsch may have assigned it or transferred it) permission will have to be sought. If the teacher was making the video for his or her own personal use, that would likely be Fair Dealing, because it would probably be for research or private study. But as soon as you give copies to students and their parents it’s turning into communication to the public, or publication of copies of the work without authorization  and I tend to think it would not fit under Fair Dealing. And this is one of those situations where I could be wrong, because there’s a lot of shades of grey and not necessarily black and white. But I wouldn’t recommend that a teacher do this without getting some sort of permission to do it.
If, on the other hand, it was the teacher making a video, just reading a passage from Robert Munsch and then a passage from some other author, you know in terms of a paragraph or a few sentences and then making comments about how they relate to each other or are different - that sort of thing - that turns into Fair Dealing because now we’re just using small snippets.
So if the teacher is giving a lecture about the Munsch stories and maybe quoting some passages , but mostly inserting comments and content from the teacher as opposed to from Robert Munsch that’s probably Fair Dealing. Or if the teacher is talking about Munsch’s life, or his history as an author, again, small excerpts  or quotes are probably Fair Dealing for the purposes of criticism or review, or for the purposes of education. But when it’s the whole work being recorded in a video, that probably crosses the line.


HOST
Our second scenario involves a Grade 5 class. Their teacher has asked them to use content from the internet to complete an assignment for their media literacy unit. The  project is to remix a video that describes the student’s “digital identity” The students are encouraged to use anything they find online to remix the video and then post it to youtube. 
We asked Jim what the implications were for both the teacher and the student when it comes to remixing and uploading digital content.


JIM SWANSON
This likely comes under the fairly new exemption, for what we call non-commercial user-generated content in the Copyright Act, which came into force in June 2012. The exemption for non-commercial user-generated content allows a user of a copyrighted work to use it in a non-commercial sense, and  to authorize the dissemination of it. And by dissemination I mean something like having Youtube make it available, or other social media. It would  then be online ,available to the public. But if it’s done in a way that fits under this exemption it would be okay to do it and you wouldn’t need permission from the copyright holders. And I say holders because presumably there’s a number of them when you start mashing up various videos into a new video. Now, until the video is posted, the student’s working on it maybe at home or in the classroom, it would likely come under “Research and Private Study” so it would be Fair Dealing. However, once it’s posted, it’s now available to the public and you’re going to have to be sure you come under the non-commercial user-generated content exemption. So to fit within the exemption, there’s a section of the Copyright Act (Section 29.21) that talks about it and  the requirements in summary, and I’m simplifying this a bit, are that what you’re using must be an existing work that has been published or made publicly available. So this has to already be out there. You can’t have taken it from somebody’s private cache so to speak. The use must be to create a new work with its own copyright. So it has to be a new original work to be subject to its own copyright. And that has to be done for the purposes of using the new work or authorizing an intermediary to disseminate it. The intermediary would be somebody  like Youtube or social media of some variety or other.  The use must be only for noncommercial purposes. It can’t have any commercial value to it at all you can’t be making any money on it. The source must be mentioned. YOu have to give credit to the source and if it’s a mashup maybe there’s 10 sources. You have to give credit to all of them in some fashion. Including the name of the author, performer or maker or broadcaster if  it’s mentioned in the work you’re taking. So you can’t just edit out the credits on a small video. You could edit them out, but somehow or other you still have to give that credit as part of your dissemination of this new mashup or other noncommercial work. Assuming it’s reasonable circumstances because that’s what the act says, so you know, whether it’s reasonable or not to include it is going to depend on the actual format of the video or other work is. And, there’s a condition that the user dissemination by the students or by the teacher must not have a substantial adverse effect, which could be financial or otherwise on the exploitation or the potential exploitation of the work that you’re using. And it can’t have a substantial adverse effect on a existing or potential market for that work. And it can’t be a substitute for it. So if you’re doing a mashup that has so much of, say a Van Halen video in it, that becomes a substitute for Van Halen’s work and people will just the mashup instead of buying a copy of Van Halen’s work that will not fit you within this exemption. It has to be very much noncommercial. And I would suggest the intent is that the portions of the works you copy into a mashup are going to be fairly short, and they may overlap and blend into each other and that sort of thing. But that’s the exemption. If you can fit within that, the Grade 5 class project where the students are making mashups will be perfectly legal. As long as you can fit within that exemption and you’re doing it fairly.


HOST
With the growing ease of digital tools, non-commercial and user-generated content will continue to grow on the web. This scenario illustrates that current copyright law recognizes this trend and that teachers can request such assignments within the limits of copyright law. 
As teachers move towards being not just consumers of educational content but also creators, remixers, and publishers of such resources, the need to understand Open Educational Resources, copyright, and user rights will continue to grow. 
We hope you have enjoyed listening to this podcast and will take some time to explore other podcasts in this series, including additional scenarios featuring K-12 teachers and how their creation and use of educational resources may be influenced by Canadian Copyright Law.
Special thanks  to Jim Swanson for being a part of this podcast series.    
This resource was funded by the Alberta Open Educational Resources (A-B-O-E-R) Initiative, which is made possible through an investment from the Alberta government.
In keeping with principals of Open Education, this podcast is available under an open license, CC-by-SA.
The music "AM-Trans" and "Cash Rules" is licensed under a Creative Commons Attribution, Share-alike 4.0 International license.


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