Copyright in Post-secondary Institutions: A Primer

Introduction

As part of their public mandate to support an environment of learning and research, post-secondary institutions and their libraries connect students and faculty with educational materials. How they accomplish this has come under attack from intermediary organizations like Access Copyright. They erroneously claim that universities are infringing on the copyright of literary authors and publishers by reproducing materials without appropriate permissions or compensation.
These claims are false. Post-secondary institutions are heavily invested in purchasing licences to access to various types of resources that support teaching, research and learning activities. Every year, libraries spend hundreds of millions of dollars purchasing this access directly from publishers and vendors. On top of that, students purchase textbooks directly from publishers and other online retailers.

Only in rare cases do post-secondary institutions use copyright protected materials under the fair dealing exception in Canadian copyright law, which allows for limited copying for education, research, private study, criticism, review, news reporting, parody or satire. Institutional policies and procedures, which are informed by copyright law, guide librarians and faculty members’ decisions and behaviour in this area.

The delivery and consumption of course materials in Canadian post-secondary institutions have changed significantly over the past twenty years. There has been a dramatic shift to using and relying on electronic resources, particularly library-licenced databases that contain eBooks, journal articles, newspaper articles, audio-video collections, and other materials.

The result is a competitive environment of licensing options, which institutions navigate working with expert librarians, copyright staff and legal counsel. Publicly funded post-secondary institutions have a responsibility to canvass all available licensing options and select the licences and resources that provide the best value for students, at an affordable cost. These professionals and their staff also offer a range of support to instructors as they select and provide students with access to course materials. Supports and services include:

• Developing copyright best practices and compliance mechanisms, such as copyright related pop-up messages and click through notices in learning management systems.
• Delivering copyright literacy programming to support decision-making about the use of copyright-protected materials in the classroom and beyond.
• Administering tutorials and FAQs about licenced library resources in the classroom.
• Assisting instructors with the use of licenced e-resources to ensure the terms of use in negotiated licence agreements are respected.
• Providing consultation and instruction regarding compliance with Canadian copyright law and institutional copyright policies related to course materials.
• Offering copyright clearance services, which involves ensuring all materials an instructor would like to assign to students, such as selections or entire books, journal articles, films, articles, etc., are compliant with library licensing agreements, provisions in the Copyright Act or have permissions in place.
• Adopting technological infrastructure that integrates with library and learning management platforms to streamline copyright processes.
• Negotiating and purchasing transactional or pay-per-use permissions, as needed.

A Typical Process for Clearing Course Materials for Use in Post-secondary Classrooms

Libraries generally seek unlimited concurrent user licences for electronic materials, whether they are eBooks, articles or films. These agreements, typically made with vendors who represent a variety of publishers, permit students, faculty and staff to share the content with each other and download a copy for their own use. Libraries spend millions of dollars (367 million dollars at university research libraries alone in 2021) licensing access to the works needed for instruction on their campuses. Author remuneration for purchased and licenced works is subject to publishing contracts between the publisher and the author, not the library or the post-secondary institution. In general, institutional copyright offices work with instructors to access course materials under the following five principles:

1. Students generally purchase required course textbooks and workbooks through on-campus or online bookstores and/or rental services. Some libraries might also purchase a small number of print textbooks for in-library student use or, more commonly, licenced access to a digital version of the textbook.
2. All other course materials (e.g., academic articles, selected book chapters, monographs, films, data sets, etc.) are checked against digital library holdings and legally available open access material available on the Internet. In many disciplines representing tens of thousands of students across Canada, additional steps are unnecessary as all course materials are available to students in the ways described above.
3. If the library does not have an existing digital copy of a work needed for instruction, or if the material is only available in print in the institution’s library collection, the library will typically attempt to purchase an electronic copy. Roughly half of these requests result in the successful purchase of a digital licence.
4. If the publisher does not support the sale of a digital copy of the item, then the expert librarians will evaluate whether the requested material is accessible within the parameters of the institution’s fair dealing guidelines. If the amount needed for the course is a small enough excerpt, such as a copy of the single book chapter, it will be made available to the students enrolled in the course for educational purposes. This category represents an increasingly small percentage of course materials, as the availability of digital licences expands.
5. If the amount needed for the course exceeds the amount stated in the fair dealing guidelines, then a transactional licence is acquired to use the content in a specific course. If the resulting fee is too high or a licence is unavailable, then it is common for the instructor not to use the material in their course. They then must find an alternative, often with the assistance of library staff.

Copyright 101: Accessing Course Materials