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May 28, 2021
Attn: Innovation, Science and Economic Development Canada
RE: Consultation on a modern copyright framework for online intermediaries
snwey lelm - Langara College is writing in response to Canada’s public consultation on a modern copyright framework for online intermediaries.
Langara is a teaching-focused community college located in Vancouver, B.C. and a member of Colleges and Institutes Canada (CICan). Colleges are pillars of post-secondary education in Canada. They offer more than 10,000 education and training programs to a broad range of students, and play a critical role in supporting a strong, resilient middle class by helping youth access education, graduates launch careers, and mature workers reskill in response to a changing labour market. The Conference Board of Canada estimates that post-secondary education (PSE) institutions generate over $55 billion annually through their operations.
In this submission, we write to express how one subset of online intermediaries, ‘homework’ sites such as Course Hero, OneClass, and Chegg, impact the work of Langara faculty and Canadian post-secondary educators more broadly.
The consultation document provided by Innovation, Science and Economic Development Canada (ISED) notes that, “as [online intermediary] services have proliferated, their business models and practices as well as their legal liability and obligations have inspired debate.” Regarding the former, these homework sites use a “freemium” model wherein students upload study materials to gain access to content uploaded by other users. Study materials attract new users to these sites, which offer other paid-for services such as virtual tutoring. An annual subscription to Course Hero costs $9.95 per month, or $39.99 for one month of access. Tech Crunch estimates that Course Hero earned upwards of $100 million in revenue in 2020 alone.
According to the College’s Intellectual Property Policy (B3006), Langara instructors own copyright in the teaching materials they create (see also: Langara Faculty Association Collective Agreement, pg. 66). In recent years, the Langara Copyright Office has fielded numerous inquiries from Langara educators who have found their course materials (i.e. lecture notes, handouts, quizzes, practice tests) posted to Course Hero, OneClass, and Chegg without their permission. At the time of writing, a search for “Langara College” on Course Hero retrieves over 22,000 results –most of which appear to be infringing. Some include the educators’ names and personal contact information intended for their students (i.e. email addresses, phone numbers, and office locations).
Course Hero does provide copyright messaging when users upload content: “Let's get uploading! Students have shared practice problems, assessments, study guides, and past midterm and final exams that they have permission to upload.” This statement is not accompanied by mechanisms to ensure that the uploader is the legal rights holder. Even then, content filters and other automated monitoring and action measures are not a panacea; as the consultation document notes, these tools “[can] and do misidentify or fail to identify certain content, resulting both in infringing content being overlooked and non-infringing content being acted upon.”
The only recourse available to rights holders in this context is to regularly monitor these homework sites and submit online take-down requests when they identify illegal use of their content. These activities are incredibly time-consuming for educators whose efforts are better spent in the classroom. As a preventative measure, some Langara faculty now include a note on their course syllabi reminding students that pedagogical materials are the instructor’s intellectual property and, in turn, not to be shared without express permission.
Our qualms lie specifically with the problematic business model adopted by this subset of online intermediaries. These sites encourage individuals (who, as the consultation document notes, “may not appreciate they are engaged in [infringing] activities”) to illegally upload copyright-protected content by way of incentives. As such, we endorse the following measures outlined in the consultation document to address this imbalance:
4.1.1 Recalibrate the knowledge standard for eligibility
- Adjust the degree to which an intermediary must know that its services are being used for infringement to be excluded from safe harbour protection;
- Extend this knowledge standard, which currently exists only for the "hosting" safe harbour, to the "mere conduit" and "caching" safe harbours.
4.1.2 Clarify the permitted involvement of qualifying intermediaries
- Clarify that one or more of the safe harbours apply only where an intermediary acts in a neutral manner with respect to the copyright-protected content concerned;
- Clarify this principle by codifying that, to be protected, an intermediary's involvement must be limited to the provision of merely technical, automated services and must not amount to an active role in the infringing activity;
- Specify clearer factors indicating such an active role; this should include remunerating the primary infringer (e.g. with site access) for the content or activity;
- Clarify that, to be protected by the safe harbours, an intermediary cannot receive a financial benefit directly attributable to the infringing activity.
4.1.3(a) Enact new obligations for qualifying intermediaries
- Require intermediaries to: (1) implement mechanisms allowing persons to notify them of specific instances of claimed infringement being facilitated by their services, and (2) take some action in response, where they believe it is justified (e.g. remove or disable access to the content, or limit, suspend, or terminate the intermediary's services to the alleged infringer.)
4.4.1 Establish a statutory basis and procedure for injunctions against intermediaries
- Amend the Copyright Act to provide expressly for injunctions against intermediaries to prevent or stop online copyright infringement facilitated by their services even where they are not themselves liable for it, such as where they may be protected by the safe harbours;
- Reduce the burden of proof on a plaintiff seeking to establish that a person has provided online or other network services primarily for the purpose of enabling infringement;
- Implement measures to provide individual or less well-resourced rights holders with more accessible paths for enforcing their rights.
A compulsory licensing scheme wherein intermediaries host uploads without requiring rights holders’ authorization in exchange for royalties (see consultation document, s. 4.2) is not fitting in this context. It does not account for educators and other rights holders who, simply put, do not want their educational content exploited by commercial enterprises without their consent.
During the statutory review of the Copyright Act, the Industry, Science and Technology (INDU) and Heritage committees emphasized the importance of intermediary accountability. We reiterate the parliamentary committees’ message, while acknowledging that the Internet poses new challenges for lawmakers seeking to create and maintain balanced copyright regimes. We thank the Government for considering how the business model and practices of online intermediaries specializing in study resources impact the work of post-secondary educators.
Respectfully submitted,
Copyright Office,
snwey lelm - Langara College
Contact: copyright@langara.ca