Tutoring Aids, Course Packs and Copyright in Educational Resources
UofT and three professors recently sued a purveyor of tutoring materials called Easy EDU for allegedly copying course materials and including them in its "course packs". Anyone who engages in selling tutoring materials that incorporate existing educational resources should take note of this.
Creating helpful educational resources that supplement existing copyright-protected materials is a growing industry. It also comes with significant exposure to liability for copyright infringement.
Those engaged in such activities, for profit or otherwise, should pay careful attention to how copyright law applies to such activities and how to mitigate the risks of being successfully sued.
COPYRIGHT INFRINGEMENT
Generally speaking, copyright subsists in all original literary, dramatic, musical, or artistic works, as defined by the Act, that require skill and judgement to create. Lecture slides, exams and other course materials would be examples of copyright-protected literary and artistic works. Copyright does not protect ideas, facts or concepts - only the tangible ways those ideas are expressed or fixed. The author/owner of copyright, which might be a professor or a university, has the exclusive right to reproduce, adapt, and present their works. These rights may be licensed to others under certain terms that restrict how the works may be used. Reproducing copyright-protected works without permission is an infringement of copyright. Universities and professors may be particularly motivated to bring copyright infringement claims against those who reproduce and repackage course materials without a license and for profit, especially if the materials are being marketed in a way that suggests they have been approved of or endorsed by the university or professor. The potential exposure one faces is not limited to compensatory damages (i.e. the financial harm to the copyright owner) or to the profits made from the infringement. The court also has discretion to award “statutory damages” where it may consider factors such as the impact of infringement, the good (or bad) faith of the infringing party and the need to deter such infringement in the future. These damages may be up to $20,000 for each work infringed if the infringement is for commercial purposes (see s. 38.1 of the Copyright Act). In a single claim, an owner of copyright may allege infringement of multiple works (i.e., each photograph in a collection, or each question on an exam).FAIR DEALING: THE EDUCATION EXCEPTION
Fair dealing is an exception to copyright infringement and applies where the use of the work that would otherwise be infringing is for the purpose of research, private study, education, parody, satire or, under certain conditions, “criticism or review” or news reporting. In determining whether an activity is defensible as fair dealing, the court must first determine whether the purpose of a dealing meets an identified fair dealing exception and secondly, whether the dealing itself should be considered 'fair'. In the York University v Access Copyright 2021 Supreme Court of Canada decision, Justice Abella described the modern approach to fair dealing to be one that achieves "the proper balance between protection and access". Courts have liberally interpreted the prescribed purposes for fair dealing. So use of copyright protected course materials for tutorials would likely meet the educational purpose in the first step of the fair dealing analysis. The second step, determining whether the dealing is “fair”, involves consideration of at least six factors. No one factor is determinative, and the court has discretion to consider additional factors that may help determine whether the dealing was fair. The six factors that have been identified in the case law are the following.- Purpose of the dealing – Does the purpose of the dealing fall under the set categories (research, private study, education, parody, or satire)? The purpose can be both commercial and non-commercial (as seen in SOCAN v Bell)
- Character of the dealing - How were the works dealt with? E.g., single vs multiple copies, destruction after use etc.
- Amount of the dealing - How much of the work was taken? This is quantitative and qualitative assessment that is to take into account not just the quantity of what was taken but also the importance or significance of what was taken.
- Alternatives to the dealing - Were there comparable non-copyrighted works that could have been used instead?
- Nature of the work - Is there is a wider public interest in dissemination of the work?
- Effect of the dealing - Does the dealing compete with the original work?
BEST PRACTICES TO MITIGATE RISKS OF COPYRIGHT INFRINGEMENT:
- Consider rearranging, redesigning, or presenting concepts or lessons in a new and unique way that reflects your own thoughts and ideas.
- It is best to produce your own content and examples to explain terminology, concepts, or problem-solving techniques.
- Using multiple sources as reference would allow you to draw inspiration from different perspectives of the same concepts and help develop content that is not based on a single work of one author.
- Mention the author(s) of all sources used in the materials.
- Use short excerpts or examples to demonstrate a technique or reference a lesson or concept, but you should avoid copying substantial amounts of information or materials.
- Scan a source’s ‘Terms of Use’ page or FAQs that outline what you can/cannot do with their content, materials, attachments etc.
- Look for open-source materials licensed under a Creative Commons license which are usually quite flexible with their permissions.
