Colleges and Institutes Canada (CICan) (00438)

Teaching and Learning in a Digital World: A response to “A Consultation on a modern copyright framework for online intermediaries”

Submitted to:
The Government of Canada
(Innovation, Science and Economic Development Canada and Canadian Heritage)

May 27, 2021

Colleges and Institutes Canada (CICan) welcomes the opportunity to provide feedback to the Government of Canada in response to its Consultation on how to help the Government ensure that Canada’s copyright framework for online intermediaries reflects the evolving digital world.  

Recommendation

CICan recommends the Government strongly consider the importance of the diverse services offered by post-secondary institutions and not add language to the Copyright Act that restricts the work of these institutions or their libraries where not appropriate.

Introduction

CICan is the voice of Canada’s publicly, supported colleges, institutes, CEGEPs and polytechnics (hereinafter referred to as “colleges”). Its 138 members have a significant footprint in the country with over 670 locations in urban, rural, remote, and northern communities. Over 95% of Canadians live within 50km of a college or institute.

Copyright matters to colleges, their students, faculty, and staff because it recognizes the importance of both creators’ and users’ rights. Copyright legislation affects the way students and educators can access and use copyright-protected materials, and consequently, impacts teaching, learning and research. In this digital age, it is imperative that the Copyright Act supports new ideas, allows the dissemination of knowledge, permits access to education, embraces technological innovation, and is flexible enough to accommodate the evolving needs of students and educators.

Teaching and learning in a digital world

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.

CICan’s members contribute to inclusive growth by working with industry and community partners to ensure curriculum is aligned with marketplace needs and to provide students with work-integrated learning opportunities. The development and delivery of quality, employer-relevant training programs requires fair and reasonable access to learning materials including copyright-protected works.

The COVID19 pandemic has fast-tracked the digital shift for learning and work, as well as underscored the vital need for a post-secondary system equipped with the digital infrastructure to support anytime/anywhere learning, which relies on an innovation ecosystem capable of rapid technology transfer. Facilitating access to digital content has never been more important than it is today to effectively address the skills and training needs of Canadians and the labour market and skills shortages faced by employers.

Colleges generally do not consider themselves as “internet service providers” but do facilitate student, faculty, and staff access to online materials by offering diverse services primarily to these same closed groups. Today’s learners need access to online tools such as learning management systems, assessment tools, e-portfolios, and blogs.

In order to be effective, teaching and learning also require access to a robust public domain. Substantial increased pricing for access to journals and books is forcing many educational institutions to advocate for open educational resources and open access.  Providing an opportunity for new materials created by students and faculty to be accessible and available to their communities, and in some cases to the public, is essential. As such, colleges are preserving these resources in repositories that permit uploading of content by end users. Despite the challenges in buying e-books, libraries are purchasing mostly digital content and are providing access to Open Educational Resources’ sites such as BCcampus Open Textbooks and Creative Commons. These digital library sites are able to provide free universal access to openly licensed or public domain works in a digital format by working with thousands of partners globally. They help address the challenges libraries face in securing electronic licences that are either not available, only available with strictly controlled parameters/restricted access, or simply just too expensive for their limited budgets.

In Canada’s Digital Charter, the Government has committed to protecting Canadians’ rights online. Given the current rapidly evolving digital environment, it is imperative that the access to online content afforded to educational institutions and their libraries not be negatively impacted by legislative changes to the copyright framework for online intermediaries. Education is a public good and since it is likely to retain a strong online component for the future, it is not in Canada’s best interests for our system of copyright to impede access to vital educational resources.

Complying with copyright law

Colleges respect copyright and the importance of compliance. They have copyright compliance mechanisms and policies administered by dedicated staff and apply the Fair Dealing Guidelines developed jointly by CICan, Universities Canada and the Council of Ministers of Education, Canada. Despite high costs and onerous processes, they make every effort to contact the owners/rights holders of works to secure permission and pay for access to copyright-protected works when it is appropriate to do so. In addition, colleges regularly engage students, faculty and staff in copyright-related training and provide tools to ensure that the importance of compliance remains top-of-mind.

College libraries operate using existing licences, and where public access is permitted, they ensure posted works, for example in repositories, are cleared with permission from the owners/creators. Any use of media content is controlled and authenticated through the institutions’ internal processes.  

Colleges comply with the Copyright Act, follow guidelines, and operate lawfully. In considering modifications to the liabilities and obligations of online intermediaries, the Government must not upend what post-secondary institutions are doing through exceptions and limitations available under the law.

Supporting innovation through applied research

Fostering collaboration and innovation in all sectors of the economy is a major strength of colleges. Across Canada, they are sought-after partners for Small and Medium-sized Enterprises (SMEs) and community stakeholders looking to find innovative solutions to their everyday challenges. The applied research offices and centres at Canada’s colleges play an important role in our nation’s innovation ecosystem. In offering services such as technology transfer, commercialization, prototyping and product development, they help companies de-risk innovation and provide a critical link between the fundamental research performed at universities and the research and development challenges faced by the private and non-profit sector.

Partnered applied research solves innovation challenges at the “speed of business”: In 2017-2018 applied research offices reported over 4,400 new processes, products, prototypes and services, 87% of which were completed in under one year. These were the result of over 7,300 research partnerships, 64% of them with SMEs, who often lack the resources, specialized technology and networks to solve innovation challenges on their own. College applied research is collaborative in nature and supportive of industry needs, with intellectual property (IP) remaining with the industry or community partner. Every year, over 75,000 college students across the country have an opportunity to gain valuable work-related experience through an applied research project or entrepreneurial activity. More than 90% of colleges have applied research offices and they have become key drivers of Canada’s innovation ecosystem and contribute to inclusive economic growth. 

The development of new, creative products and services requires researchers to have access to a rich array of resources in a robust public domain. As is the case when digital copyright-protected works are accessed to support the delivery of quality post-secondary education, college policies and processes ensure copyright compliance applies to all students, faculty and staff involved in applied research activities.

Any change to Canada’s copyright framework for online intermediaries must not diminish access to data and resources that support applied research and development in education. The Copyright Act must present an equitable balance between rights for creators and what is fair for users. Such an approach will continue to sustain an innovative and growing Canadian economy.

Opportunities for improvement

Clarity is needed to further define the term “online intermediaries” and which obligations and restrictions apply more to web giants as profit-making entities than entities, such as colleges, which are not-for-profit. Any revision to the Copyright Act that relates to these intermediaries must be done cautiously to ensure the post-secondary sector does not fall within more restrictive parameters.

In most colleges, either faculty or their institutions own copyright in the teaching materials they create and have found these posted to homework sites such as Course Hero, OneClass, and Chegg, without their permission. Although the services of this subset of online intermediaries are appreciated by students, the posting of these works to their sites can only be considered as infringing. The entities in question lack mechanisms to ensure that the uploaders of materials are the legal rights holders, thereby impacting the work and academic integrity of post-secondary educators. Several options for reform proposed in the consultation paper would help address this issue: 4.1.1, 4.1.2, 4.1.3 (a) and 4.4.1.

Conclusion

The use of digital content has become the norm in today’s learning landscape and post-secondary institutions must respond to learner expectations of 24/7 access to educational materials. Institutional services to meet student expectations are diverse and their policies and procedures for the collection, communication or dissemination of copyright-protected content are stringent in their adherence to existing copyright laws. Post-secondary libraries continue to increase their licensing expenditures—in effect, more and more of the use of third-party work is via paid access. In addition, institutions take great care to educate students, faculty, and staff on not only what is permitted use of copyright materials but also to respect the rights of creators.

In contemplating reforms for the obligations and liabilities of online intermediaries, we urge the Government to focus on those entities that fall in the profit-making arena and to take into account the work of post-secondary institutions in meeting the learning objectives of Canadians for generations to come.