Copyright & ESL? What are the rules and how to avoid breaking them?
Written by Brian Grover   
Co-Presented: TEAL '97. With Paolo Rossetti

For a variety of reasons, some self-serving, copyright law remains poorly understood throughout the TESL community. For most of us, whether we are aware of it or not, copyright infringement is a daily ritual. Copyright infringement is also against the law.

The primary reason for so much confusion in our field is that the law has never been specifically defined by the lawmakers in Ottawa. Instead, a few general yet ambiguous guidelines have been established and interpretation of those guidelines has been left solely up to the courts. Of course by the time the courts have become involved it's too late to avoid the act of infringement. The best one can hope for is a degree of leniency on the part of the presiding judge.

A second important reason for our bafflement lies in unwitting cultural imperialism from our big neighbour south of the border. When the elephant snores even the fleas tremble. The mere presence of such a big and influential country next door means most Canadians know what a misdemeanor is but how many are aware that summary offense is Canadian legalese for the same American term? The rumour mill, the internet, the boob tube, your daily rag, even "international" teaching journals are all excellent sources of misinformation on the copyright front. US copyright law is substantially different from its Canadian counterpart with many specifically proscribed educational exemptions. The idea, which many Canadian educators hold, that some certain magic percentage of a publication can be copied without running afoul of the law is an American invention inapplicable to our situation.

A third reason so many misconceptions persist is that it has historically been in the best short-term interests of most ESL institutions to keep the lie alive. Rather than grapple with the complex issues of licensing or curriculum development or even the adoption of course books schools have found it cheaper and less nerve wracking to pass the buck onto the teachers by dumping most responsibilities for developing quality programming in the individual teacher's job description. Coupled with a relatively high number of contact hours teachers typically are required to teach can we reasonably expect anything more than ho hum output nationwide. And while there may be many teachers who shine even under these conditions there are also, industry-wide, very few programs that do.

The incentive, of course, is for teachers to do the bare minimum prep-wise and bluff their way through the next class. We all know teachers who breeze in to school 20 minutes before class commences, rifle through a couple of texts "generously" provided by their institution, queue up for the photocopier like hogs to a trough and then run off two or three sure-fire topics to make it through until coffee time. This is far from hyperbole; this is the norm in the TESL industry in Canada. Of course the students, who pay $800 ~ $1500 for a month for this level of quality, are the ones, as always, who end up getting ripped-off.

School administrators delude themselves into believing that by providing extensive teaching resources and a photocopier complete with a standard admonishment against photocopying they have somehow fulfilled their responsibilities to the students, to the teachers and to the law. As we will soon find out, they haven't.

Legal Stuff

Adding further confusion to the chaos, the publishing industry distinguishes between "copyright violations" and "reprint violations." The former would be akin to running off copies of your favourite ESL text and selling them to friends and colleagues while the latter is what most of us do daily on the job. In the eyes of the law however, both are illegal. And while most of us would be horrified at the thought of committing the first atrocity does that make us any less guilty when we make a few copies here and a few copies there, day after day, week after week, year after year, churning out lessons that someone else created and a third party invested thousands of dollars in publishing? Of course it doesn't. The second kind of infraction has been pursued both criminally and civilly with much success in Canada.

Fair Dealing

In Canada the only allowable exceptions to copyright law are defined under a concept called Fair Dealing. Fair Dealing is the crack in the law that most teachers and administrators like to believe they fall through. As we shall see, they don't. Prentice-Hall Regents uses an in-house definition of 50 words or less. More generously, CanCopy defines fair dealing, for those who have a license, as the one time use of up to 10% of a publication, textbooks not included. Use it twice and you're toast. In fact if you use even a single page regularly you are in violation. In either case above these are not legal definitions. Rather they represent situations where you can be reasonably sure the parties involved would not bother to pursue the matter in the courts.

The Copyright statutes define a number of different instances of Fair Dealing.

    i. Copying any work for the purposes of private study or research. If you feel the need to copy that terrific book on reserve in the library to finish off your master's thesis, go ahead: it's legal. Use it to prop up the broken back leg of your threadbare couch too when you're finished because you can't use it for much else.
    ii. Feel free to excerpt any book, song or performance for the purpose of any review, criticism or summary in the media. You must however give credit where it is due by including such details as authour, publisher, date of publication and so on. So if your school has a charming little in-house newsletter tremble not at quoting memorable lines from your students' favourite movies. You can quote "Adriane!" as belonging to Rocky One through Fifty-One or "I'll be back" as perhaps the most prophetic line in all of Arnold Schwartznaegger's films.
    iii. You may back up any computer program but not your language teaching tapes. Just don't get caught letting your friends "borrow" your back ups.
    iv. If you decide to compile an anthology for educational purposes called Dead Poets you can include the odd bit of material belonging to live poets too. Don't forget to name your sources.
    v. Directly related to TESL is a provision allowing musical performances in a church or school aimed at furthering religious or educational goals. A cloze of Black Sabbath's Black Sunday would pass this test though perhaps it would be wise not to play it backwards in church at any rate. A court might distinguish between the "goals" of a private, for profit, ESL school as compared to an elementary school ESL program so consult your lawyer.

That's it. If you regularly use portions of the same book -- even a page or two here and there -- you are breaking the law. Cambridge University Press didn't go to all the bother of publishing and distributing that great idea called "Great Ideas" by Leo Jones so every school in the world with a copying machine could buy a single copy.

Ramifications

Probably the most obvious ramification of industry practice has been the drying up of great ideas. Rather than commit extensive resources to brave new publishing ventures what we see are the same old things dressed up in new, copy- resistant graphics. Full colour reproduction costs money, however, so the price of good class texts soars higher.

Jazzed up, the Streamline series by Oxford University Press, the recently refurbished Spectrum Series will have to do for some time to come. Broadly popular, these publications will continue to receive the development dollars while other specialty publications that cannot generate enough sales because too many schools buy a just a single copy will be shelved for some more enlightened future time.

Likewise, good regionally-oriented materials cannot be profitably published so they aren't. Instead, the bigger markets of England and the United States dictate that we end up teaching British and American content in a Canadian context. And still we wonder why there are no good Canadian texts out there.

Internationally, in countries like Bulgaria and China that routinely flout copyright law, publishers now refuse to release their newest and best materials.

Tried getting a review copy from a publisher lately? When living and teaching in Japan I ordered around 500 textbooks for my students annually. Needless to say I was on every publisher's mailing list imaginable.

On the flip side, if copyright infringement were to be somehow eliminated imagine the job opportunities that would suddenly be opened up for those in the industry with a creative streak. Think of the new resources that would suddenly hit the market on every imaginable subject. I, myself have written and designed the better part of a Vancouver-based pairwork/groupwork book. I've decided to shelve the project because I simply don't feel like wasting any more time only to sell 120 copies to 120 local schools.

In addition to borrowing materials, schools have been living on borrowed time. By encouraging teachers, tacitly or otherwise, to rely heavily on copied materials schools have left themselves wide-open to costly litigation. If a disgruntled employee or a malicious competitor or a publisher exasperated with working within the system were to make a complaint to the police they would have no alternative but to investigate. Professionalism, ironically, has protected schools and teachers from their unprofessional conduct: we don't rat out on our peers.

The trend in Vancouver is to hire teachers with less and less training, less and less experience for less and less money. Will some kind of professional code of conduct prevent these "teachers" from picking up the phone when a dispute arises between them and their tightwad employers?

In the past publishers have been reluctant to aggressively pursue even the most flagrant abusers of copyright among ESL teachers due to what has been euphemistically called "PR considerations." As one publisher's representative more succinctly put it "I can't very well threaten someone and then in the same breath try to sell him a class set." In the past year however the publishing industry has solved this dilemma. Banding together under the aegis of the Canadian Book Publishers' Association, they have begun a concerted effort to nab and prosecute violators.

Alternatives

Copying is not the only trick we teachers have up our sleeves. Some obvious alternatives include adopting class sets of published materials or having students actually purchase texts and workbooks. Of course many teachers do compile their own excellent materials already. Many other teachers complain that there is simply not enough time to create a curriculum and teach too. The sad fact is we have been "financing" the relatively high number of contact hours typical in the TESL industry in Canada by pilfering the intellectual property of others. Put another way, we have been financing the profits of our industry at the expense of our students, ourselves, since we typically teach far greater number of contact hours than in other parts of the world, and finally, at the expense of those whose livelihood is to create teaching materials.

Numerous copying companies, like Kinko's, offer intermediary services, applying for permission to use copied materials on behalf of schools and collecting royalties from schools on behalf of the publishers. Of course this kind of service costs money and takes time. To date, few schools have been willing to spend either.

Major news networks [CNN, NBC, CBC, etc.] encourage the one time educational use of news broadcasts by placing transcripts of the previous day’s news broadcast on their Web sites for download. PBS likewise makes some of their documentary broadcasts available on a limited scale for educators. Details of limitations are available on their website.

One alternative that has been viewed as a panacea by many in the teaching field, is, upon examination, really just sleight of hand. Many have felt that licensing by CanCopy would automatically entitle them to conduct business as usual as far as copying course materials is concerned. Nothing could be further from the truth.

CanCopy is a non-profit collective established by Canadian creators and publishers to specifically protect their rights against illegal reproduction. In 1995-96 CanCopy grew to 2,974 creator members [up 22% over the previous year] and 232 publisher members [up 14%.] With revenues of $12.7 million last year CanCopy will be able to distribute $9.6 million this year to its membership. That leaves more than $3 million in the kitty for operating expenses including litigation. CanCopy has a mandate from its members to actively pursue compliance to intellectual property law in the courts. As we can see, they are hardly under-funded.

In addition to collecting royalties on behalf of its members, CanCopy grants specific kinds of legal access to published works. Typically a licensee pays $3 per year per full-time student. In exchange, ESL schools are allowed to make incidental copies. This includes copying up to 10% of a publication, once, unless that publication is a textbook. If so, and that's what most in the ESL field routinely copy, then the school, not you, is only allowed to copy up to 5% of any member's textbook every five years. Any copies that are to be sold must be tracked and reported to CanCopy and cost 5 cents per page. Only 15% of any publication can be thus copied for resale and only once. Keep in mind that, if you charge tuition for your students then the materials they receive are purchased not gratis. Only public schools, church- operated free ESL programs, and possibly some LINK programs could argue that the copies were not for resale.

In every case the percentage above refers to the licensee not to the individual teachers at your school. Put in the simplest possible terms this means that while under Canadian law no one may ever copy a single page of Great Ideas, with a CanCopy license the sum total of all copies of any publication copied at your school may add up to one of the above figures depending on the circumstances of the act of copying.

Confused yet? One of the biggest complaints about collectivization of the publishing industry is that, rather than clarifying they have added further "murk" to the already muddy waters of copyright rights and wrongs.

CanCopy and its ilk certainly do not license the status quo. Naturally, there are severe limitations to license holders that come nowhere near to approaching what has traditionally been standard practice in the TESL industry.

The Future

In the past schools could skirt their responsibilities by placing a warning notice on or near their photocopiers and avoid directly telling anyone to copy published materials. In fact, the more often they warned teachers of the possible repercussions the more smug they could be but of course they had to have an answer handy to the inevitable question: 'What do we do then?' Few had that answer so they largely avoided the topic altogether or devised Mickey Mouse® systems to side-step the issue altogether.

One such common placebo has been requiring teachers [on their own time of course] to fill out little header labels to attach to originals prior to copying. Teachers were led to believe they had complied with the law simply by jotting down source information on those labels. Administrators too convinced themselves that they had deflected the messy little issue and could get on with the business of running a school. Future legislation will close these dubious loopholes.

An examination of Bill C-32 should give us a glimpse of the future of copyright law in Canada.

Bill C-32 The Legislative Future

Please Note: Bill C-32 was enacted as law and all references to it are currently law in Canada.

1. Bill C-32, if enacted as law, will strengthen the hand of collectives like CanCopy. According to Howard Knopf, one of the foremost authorities in Canada on intellectual property rights, the likely beneficiaries will be lawyers and the managers of collectives rather than the authors and creators of published works.

2. If we see Bill C-32 as a blueprint for the Brave New World of copyright law, participation in collectives will no longer be an option for schools such as ours. This, in spite of the fact that severe limitations of CanCopy agreements render participation essentially worthless.

3. Newly empowered collectives will have a mandate and plenty of money to actively seek damages through civil litigation on the part of their creator members.

4. While we still won't have to pay additional royalties to do a music cloze in our classroom, we will have to send off payments to Hollywood whenever we show movies as part of our lesson plans.

5. Minimum damages for knowingly copying a printed work will be anywhere from $500 and $20,000 per work. Even those who erroneously infringe will be liable for $200 per work. So if you copy three pages from three separate texts mistakenly thinking that you are covered by your CanCopy agreement you could have to pay $600 even though it was an honest mistake.

6. Under Bill C-32 those who neglect to pay for participation in a collective could be held criminally responsible on top of their civil damages.

7. Schools will be responsible what happens on their copy machines. Warning notices or participation in a collective will no longer provide any protection. "Several educational exemptions are narrowed even further, most notably by the elimination of the exemption for liability for free standing photocopying machines in cases where a collective is in operation.
" - Howard Knopf; Financial Post

8. Everyone, not just ESL schools, will have to pay a royalty on blank audio tape in the belief that most tape sold is used to infringe copyright. According to Knopf: "Despite commendable efforts to retain a portion of the monies collected for the benefit of the Canadian music industry, it is likely that much, if not most, of the tens of millions per annum likely to be raised will leave this country. We can expect virtually no payments in return from the USA on this front."
-Howard Knopf

Technological Impacts

1. McGraw Hill: Developing a database of lessons that can be ordered separately, billed accordingly

2. Heinle & Heinle: experimenting with publishing chapter by chapter.

3. A new kind of non-copyable paper has been developed by Xerox and is currently being tested.

4. Books sold in five and ten packs instead of singles.

5. Once new copyright legislation is passed expect a spate of test cases that will seek to define the law in practice. You or your school could easily get caught up in such a dragnet.

Second Guest Speaker: The future of publishing & copyright in Canada

1. Computers replacing books

2. Internet: More and more useful web sites that provide interactive, multimedia lessons or activities on-line, public domain lesson plan archives, free teaching software available.

Conclusions

There is a profound need for teaching [TEAL, TESL CANADA] labour unions and private school umbrella [PELSA] organizations to adopt and actively promote workable strategies to their respective members. All concerned will have to make hard choices in order to stay ahead of the law.

Schools will have to recognize that teachers require additional time to organize their curricula in advance or face prosecution.

Labour or professional organizations will have to realize that their members are being asked break the law. Collective bargaining will have to grapple with the issue in order to protect their members from prosecution.

Industry organizations will have to set standards of conduct that protect their member schools from their own short-sighted goals. Only schools which refrain from copying or pay royalties for the use of materials will be safe from prosecution.





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