Thursday, May 30

CUSMA and Technical Protection Measures

Thursday, May 30, 2019, 9:45 – 10:15 am
Robert Tiessen, University of Calgary

Abstract
If CUSMA (aka USMCA or MUSCA) is ratified it will severely limit the ability of the Canadian Government to limit the impact technical protection measures on Canadians and Canadian libraries. Section 41 of the Copyright Act is already a Canadianized version of the US Digital Millenium Copyright Act.

After CUSMA is ratification, the Government will be extremely limited in making any changes to Section 41 of our Copyright Act because of the limits placed on Canada (and Mexico and the US) by the trade agreement. Going against CUSMA would require Canada to either convince both of its trade partners to amend CUSMA; or it would need to withdraw from the agreement.

This presentation will take a look at how TPMs have evolved in international arena from the WIPO Copyright Treaty in 1996 through to current times. Then it will look at what kind of flexibility and exceptions CUSMA does allow member countries and what kinds of regulations or amendments to the Copyright Act that we might want to lobby for.

Open Access Policies and Traditional Publishing Agreements

Thursday, May 30, 2019, 10:30 – 11:25 am
Dr. Rumi Graham, University of Lethbridge
Allan Bell, University of British Columbia
Dominique Lapierre, Université Laval
Mark Swartz, Queen’s University

Abstract
To ease the problem of paywall-blocked access to scholarly articles arising from publicly funded research, some universities have adopted a rights-retention OA policy. In this type of policy, faculty grant to the university a blanket non-exclusive license to make the accepted manuscript version of their scholarly articles publicly available in the university’s research repository. But what happens if a university adopts an OA policy and faculty subsequently continue to sign publishers’ standard publishing agreements that typically require an author to either transfer all copyrights or provide an exclusive license to the publisher? This panel will outline a project that explores this question within Canadian copyright law.

Crown Copyright: More Than Just an Outdated Provision

Thursday, May 30, 2019, 11:30 – 12:00 pm
Amanda Wakaruk, University of Alberta

Abstract
Section 12 of the Copyright Act is at odds with the aims of Open Government and many government works have become inaccessible, or even been lost due to Crown copyright chill. This session will report on recent advocacy work to persuade Canada’s federal government to update an antiquated and undemocratic copyright provision.

Bio
Amanda Wakaruk (MLIS, MES) is the copyright librarian at the University of Alberta, where she develops copyright literacy programming, supports various faculty projects, and continues her own research / advocacy work related to Crown copyright and its intersection with the stewardship of government information.

Copyright and Social Media, Navigating Risks and Exceptions

Thursday, May 30, 2019, 2:15 – 3:15 pm
Dr. Hayleigh Bosher, Brunel University London

Abstract
Since copyright protects books, films, music, art and images, we evidentially need to use copyright protected works in our teaching for illustration, reference and resource. On top of this, social media is being increasingly used in the classroom, and as a medium for teaching and learning. However, many teachers and lectures are unaware of the copyright implications of social media use.

There are certain exception to copyright which allow for free use of the material without permission, however these are qualified and narrow. If a teacher is using social media, this would fall outside the remit of the educational exception. Other exceptions could be explored such as critique or quotation which may apply in certain circumstances.

One of the key issues with using social media is that once content is uploaded to a platform, the platform is granted the right to share it, under the user agreement. This means that often users are licensing their work without knowing it, or worse, sub-licensing someone else’s work without permission! Social media user agreements are controversial, and leave users vulnerable to copyright infringement claims.

Social media can be a valuable teaching device to enhance student experience and engagement, as long as risks are appropriately mitigated. This presentation will take a look at using copyright protected materials and social media in higher education. In particular, it will consider risk management, relevant exceptions and the controversial nature of the terms of use.

Bio
Dr Hayleigh Bosher is an internationally published legal academic, speaker and legal consultant specialising in intellectual property, media and entertainment law. She is a Lecturer in Intellectual Property Law at Brunel University London, Visiting Research Fellow at the Centre for Intellectual Property, Policy and Management, Book Review Editor and blogger for IPKat, Director of the Intellectual Property Awareness Network (IPAN), and founder of the World IP Women (WIPW) network. She holds a PhD in Copyright Law from Bournemouth University.

Hayleigh is particularly interested in the interaction between intellectual property and social media. She has published a detailed paper on the fundamental tensions between copyright and social media: The Legal Implications of Sharing Images on Instagram. You can read a summary version titled “10 things you should know about Instagram Terms and Conditions” on The Conversation. For a summary of implications for using social media in higher education Hayleigh wrote for the Copyright Licensing Agency blog.

Find out more about Hayleigh here, follow her on Twitter here.

Language and Discourse in the Copyright Act Review

Thursday, May 30, 2019, 3:30 – 4:00 pm
Jennifer Zerkee, Simon Fraser University
Stephanie Savage, University of British Columbia

Abstract
What conclusions can be drawn from the briefs submitted to the INDU committee by stakeholders during the Copyright Act review? This presentation will share some early results of our investigation into the language and substance of the briefs. Many recommendations have been put forward by stakeholders, and in addition to the content a range of language and arguments from emotional to practical have been used in the briefs. This reflects the wider discourse and polarization of viewpoints in Canada around copyright reform and fair dealing in particular. These briefs provide a snapshot of the copyright landscape in Canada at this time. We have begun analysing the text in the briefs using a Grounded Theory method. We hope to pull out themes and look at the ways arguments have been made by different parties, and eventually look for connections with the outcomes of the review.

Bio
Jennifer Zerkee is a Copyright Specialist in the Simon Fraser University Copyright Office, where she develops and delivers copyright education and provides copyright information to instructors, researchers, students, and staff. She has an interest in author rights, the publishing process, and open access, and assists SFU authors in making their work available in Summit, SFU’s repository.

Stephanie Savage is a Scholarly Communications and Copyright Services Librarian at the University of British Columbia. In her role she provides copyright education and support to the UBC community and advocates for policies and infrastructure to further the transition to open scholarship. She is also the Open Journal Systems (OJS) technical support lead for over 30 journals hosted on the UBC instance of OJS.

Negotiating Copyright in Online Creative Spaces: How Canadian Fan Writers Navigate and Learn about Law

Thursday, May 30, 2019, 4:00 – 4:30 pm
Rebecca Katz, McGill University

Abstract
The Internet makes it easier than ever for users to access, ‘remix,’ and distribute content. This technological/cultural revolution makes creators of us all – and makes copyright more relevant to more people. However, the ease of creating and sharing media online (as opposed to simply consuming media: see Lessig, 2004) has not necessarily increased public copyright literacy. Amateur online creators typically lack formal copyright training, which may lead to legal misunderstandings or concerns, as well as a culture of informal copyright norms for negotiating the law.

This research uses fan fiction writers as one example of online creators. Fan fiction refers to stories based on identifiable segments of popular culture, such as books, movies, or TV shows (Tushnet, 1997). Fan fiction is typically amateur-written and shared in free online communities. Fan writers are one among many online subcultures who create second-generation works drawing on pre-existing media, and who are therefore copyright stakeholders. Prior research with fans indicates that copyright norms are prevalent in fan communities. Norms may track or integrate legal doctrine to varying degrees; however, misinformation also circulates in fan spaces. Fan creators often turn to peer sources, possibly because they find legal texts inaccessible (Fiesler, Bruckman, 2014; Fiesler et al, 2015; Freund, 2014).

This presentation reports on the author’s preliminary findings regarding fan writers. The research is interdisciplinary, drawing on scholarship in law, information studies, and fan studies. The presentation will also review the literature on the subject as well as discuss the results from a pilot study consisting of qualitative interviews on how Canadian fans negotiate copyright. This research adds a Canadian perspective to the literature on online creators’ copyright knowledge, research, and needs. It also adds further qualitative data about how stakeholders outside law, libraries, and publishing negotiate copyright law in a global, digital context.

Friday, May 31

The Decline of Collective Copyright Licensing in Canada’s Post-Secondaries Explained Using the Theory of Fields

Friday, May 31, 2019, 10:30-11:20 am
Donald Taylor, Simon Fraser University

Abstract
Fligstein’s and MacAdam’s Theory of Fields was used to analyze how Access Copyright lost its incumbent advantage in the traditionally stable field of copyright administration in Canadian post-secondaries and why that field is still unsettled today.

Theory of Fields considers actions rather than motives and explains how a field moves into crisis using the concepts of: strategic action fields composed of incumbents (Access Copyright) and challengers (post-secondaries); external shocks to a field (e.g. court rulings); the social skill of the actors, particularly how an inability to envision alternatives leads to prolonged disruption. A field enters a crisis when the challenger(s) or incumbent act in ways which causes others to attempt to disrupt the status quo. Through interviews with copyright professionals and administrators actively involved at the beginning of the period of contention (2010-2012), analysis of institutional communications and records, and analysis of judicial and tribunal decisions, I used the Theory of Fields to analyze the actions of groups in the field of post-secondary copyright management and in proximate fields such as government and the courts. This approach moves us away from hyperbole and the “us against them” paradigm with its oversimplifications of “Access Copyright got too greedy” and “universities are trying to rip off creators”. The presentation, using the Theory of Fields, will demonstrate how the actions of Access Copyright and of organizations like AUCC (now Universities Canada) led post-secondaries to challenge the status quo and how a series of actions/reactions, along with a lack of skilled social action by both incumbents and challengers, naturally brought us to the current period of contention in copyright management in the post-secondary environment.

Cultural Appropriation in Fashion: Is Copyright the Answer?

Friday, May 31, 2019, 11:20 – 12:15 pm
Brigitte Vézina, Law & Culture and Centre for International Governance Innovation (CIGI)

Abstract
The fashion world is facing a burst of accusations of cultural appropriation. Urban Outfitters made headlines in 2011 when it issued Navajo-themed items, including underwear with traditional patterns. Supermodel Karlie Kloss had to apologize for wearing a Native American-inspired feathered headdress at the Victoria’s Secret fashion show in 2012.

Cultural appropriation cases spark passionate debate because while fashion’s borrowing of stylistic elements from other cultures is common practice, it can in reality be offensive to the holders of source cultures. Misinterpretation or disregard for the cultural significance of a traditional cultural expression (TCE), even unintentional, can have drastic consequences for its holders. Calls for action to curb appropriation emphasize a need for indigenous peoples to have better control over their TCEs.

Cultural appropriation may be explained by the jarring relationship between TCEs and copyright. While TCEs, such as traditional designs or motifs, are a product of the human mind, it is difficult to protect them within the existing copyright system, which casts most TCEs into the public domain. For instance, protection remains unavailable for TCEs that have been passed down the generations and fail to meet the originality criterion.

WIPO is facilitating negotiations for the adoption of an international legal instrument for the protection of TCEs. In line with the United Nations Declaration on the Rights of Indigenous Peoples, which recognizes the IP rights of indigenous peoples, WIPO is looking at repurposing existing IP law to offer effective protection to TCEs.

This presentation explains the concept of cultural appropriation and illustrates it with multiple examples from fashion. It shows how copyright law fails to provide adequate protection to TCEs and thus make them vulnerable to appropriation. The presentation concludes by showing how copyright principles, particularly moral rights, could be adapted to offer strong protection to TCEs against cultural appropriation.

Click-Thru Agreements in Journal Author Licensing: Do These Allow for the Legally Required Right to Negotiation?

Friday, May 31, 2019, 1:20 – 1:50 pm
Lise Brin, Canadian Association of Research Libraries

Abstract
The presenter(s) will report on recent efforts by the Canadian Association of Research Libraries, in collaboration with outside legal experts, to assess the current potential for negotiating author rights through scholarly journals’ licensing agreements.

Particular attention will be given to the common practice by publishers of incorporating click-thru agreement into the article submission processes, and how this affects attempts by authors who wish to propose changes to the contract’s language regarding author rights or other terms of the contract. Reference will be made to CARL’s recent work to adjust the Canadian Author Addendum that has been available on the CARL site for several years.

This analysis will be done in the context of contract law fundamentals and related Canadian and international jurisprudence, and will posit that the practise of having authors agree to terms unilaterally during the process of submitting an article for review by a journal effectively eliminates the possibility for negotiation, a basic right that is meant to be included in all contract processes.

Software Preservation and Copyright: An Exploration of the Issues

Friday, May 31, 2019, 1:20 – 1:50 pm
Mark Swartz, Canadian Association of Research Libraries/Queen’s University
Graeme Slaght, University of Toronto

Abstracts
Preserving and maintaining library collections is an area where libraries and copyright naturally intersect, particularly in the modern age. To properly preserve and maintain print and digital library materials and the outputs of digital scholarship, libraries must make copies of works in many cases. In fact, digital works are often at risk of being lost well before the term of copyright expires. This is most relevant for formats that are either obsolete or becoming obsolete, or which require the use of computer software to use that is itself becoming obsolete.

Computer software is a class of works that presents unique preservation issues. As articulated by Krista Cox on September 24, 2018: Libraries, archives and museums hold thousands of software titles that are no longer in commercial distribution, but institutions lack explicit authorization from the copyright holders to preserve these titles or make them available. Memory institutions also hold a wealth of electronic files (text, images, data, and more) that are inaccessible without this legacy software.

Over the next six month, the Canadian Association of Research Libraries (CARL) will investigate adapting the Association of Research Libraries’ “Code of Best Practices in Fair use for Software Preservation” for use in Canada. This session will report on the progress of this investigation, and will include an in-depth examination of the use of fair dealing for software preservation. We will examine the applicability of other Copyright exceptions for preserving software in library collections (including the library preservation exception). Finally, we will discuss other legal restrictions that may stand in the way of library software presentation, including issues around licensing and anti-circumvention.
—
Citation: Krista Cox. Software Preservation Best Practices in Fair Use to Help Safeguard Cultural Records, Advance Research. ARL News, September 24, 2018. https://www.arl.org/news/arl-news/4629-software-preservation-best-practices-in-fair-use-to-help-safeguard-cultural-record-advance-research#.XC-0Q817mUI

Indigenous Knowledge, Libraries and Cultural Institutions

Friday, May 31, 2019, 1:55 – 2:40 pm
Ann Ludbrook, Ryerson University
Camille Callison, University of Manitoba
Kim Nayyer, University of Victoria

Abstract
In Spring 2018, CFLA/FCAB released a position statement on Indigenous Knowledge In Canada’s Copyright Act developed jointly by the CFLA-FCAB Copyright and Indigenous Matters committees. We will address this statement describing how it could impact libraries, archives and cultural memory institutions as well as other potential advocacy efforts to reform the Canadian Intellectual property regime to recognize Indigenous Knowledge Protection. We will outline the work of the CFLA/FCAB Indigenous Matters Committee – Indigenous Knowledge Protection/Copyright Working Group’s activities in this area over the last 2 years to implement Recommendation #8 of the CFLA-FCAB Truth and Reconciliation Committee report. We will outline local, national and global Indigenous Knowledge advocacy efforts and frameworks, and problematics.

The Sky is Not Falling—A Discussion about the Fair Dealing Guidelines

Friday, May 31, 2019, 1:55 – 2:40 pm
Meera Nair, Northern Alberta Institute of Technology
Heather Martin, University of Guelph

Abstract
Over the past year, the Federal Government has sought input from Canadians regarding the state of the Copyright Act; a particularly divisive issue has been the inclusion of “education” in the scope of Fair Dealing. Brought in via the prior amendments of 2012, authors and copyright-owners have been forthright in their requests to remove, or curtail, that inclusion. While such a prospect may appear worrisome to academic administrators across the country, the reality is that Canadian educational institutions never needed “education” to begin with.

Complicating matters is the ongoing litigation concerning York University. Yet, this should not limit application of fair dealing by students, instructors, and staff, as currently practiced under the national approach known as the Fair Dealing Guidelines. The legitimacy of those guidelines begins, not with the events of 2012 or later, but by the complete oeuvre of the famed CCH decision of 2004.

In this session, Heather Martin and Meera Nair place contemporary educational practices involving fair dealing against not only CCH’s history, but also institutions’ own histories in terms of vendor relations and acquisitions. Participants will engage in discussion with the goal of reframing the Fair Dealing guidelines in light of current events, and to more accurately reflect a principled-approach to exercising fair dealing.

Engaging Students in the Creation of Open Content

Friday, May 31, 2019, 3:00 – 4:30 pm
Heather M. Ross, University of Saskatchewan

Abstract
This session will provide an introduction to open pedagogy, which takes open educational resources (OER) as a jumping-off point for rethinking the relationship between teachers, students and knowledge, allowing learners to become creators and collaborators, and not just consumers through the learning process. The session will include opportunities for participants to generate ideas for integrating open pedagogy into courses at their own institutions.