Copyright expert Lesley Ellen Harris recently posted at IP Osgoode about an important but seldom-addressed issue involving post-secondary institutions and copyright: When a librarian answers a question about using copyrighted works, is she giving legal advice? Given that more universities are opting to handle copyright compliance in-house rather than outsourcing it to a copyright collective, the answer becomes more and more significant. The answer will not be found in my post; instead, I’ll relate some of the thoughts I had after reading Harris’s post.
[Note: The thoughts below are based on the IP Osgoode post; some of them might already be addressed in Harris’s full article upcoming in the Intellectual Property Journal.]
What does it mean to give legal “advice”, as opposed to “information”? As a law school graduate who has not started the licensing process, I sometimes get questions from family and friends about legal issues (copyright-related and otherwise). I always preface my response with the caveat that I’m only providing legal information, and not advice. (I don’t know if they appreciate the difference, or even care, but I say it anyway.) It is illegal for someone who is not licensed to practice law to provide legal services to another person, including providing advice with respect to their legal interests (Ontario Law Society Act). A person who is providing legal services while unlicensed could attract the attention of the Law Society of Upper Canada, be subject to prosecution, and possibly fined. Hence the caveat.
So I can tell my family and friends what they might need to know in order to tackle the issue they’re faced with. I can tell them what their options are. I can tell them what they could do; I cannot tell them what they should or may do. But isn’t that what librarians are doing when they, for example, tell a faculty member it’s OK to upload an article to the course management system, or show a YouTube video during class for educational purposes? Perhaps the library or institution has a policy that enumerates acceptable uses. But what if the use is not specifically listed, and requires further analysis? Who is qualified to undertake the analysis?
It’s essential that an educational institution has a fair and reasonable copyright policy or guideline. Not only will this assist individuals (including librarians) in determining acceptable uses of copyrighted material, it will protect the institution in the event of a lawsuit. The Supreme Court’s decision in CCH v. LSUC tells us:
Persons or institutions relying on the s. 29 fair dealing exception need only prove that their own dealings with copyrighted works were for the purpose of research or private study and were fair. They may do this either by showing that their own practices and policies were research-based and fair, or by showing that all individual dealings with the materials were in fact research-based and fair. (para. 63)
The Court provided a framework for determining whether a particular use can be considered “fair dealing”. But it is just that: a framework. The particular outcome depends on the facts of the situation; the facts are interpreted according to the law, and here the law is in the form of a fair dealing analysis. It’s hard to avoid the conclusion that in these circumstances, the librarian is providing legal advice (albeit supported by preexisting policy or guidelines, which, as Harris notes, are usually created by, or under the supervision of, licensed lawyers).
Interestingly, the Supreme Court in CCH seemed to accept (or at least did not object to) the role of librarian as copyright decision-maker. The Great Library’s Access Policy stated that “Requests for substantial copying from secondary sources (…) will be referred to the Reference Librarian and may ultimately be refused.” (para. 61) That the reference librarian has the discretion to deny requests as being unreasonable is cited by the Court as one of the reasons that the Access Policy (and the dealings that fall under it) is fair (para. 68). We can assume the opposite as well: the reference librarian may grant requests for copying that are outside the amounts stated in the policy (“one case, one article, one statutory reference”) and the dealing may still be fair. Nowhere in the decision does the Court require, or even allude to, the need for a lawyer’s opinion, and it seems unlikely that the reference librarian would in fact consult LSUC counsel every time a patron requested more than the “usual” amount of materials.
Maybe librarians are not providing legal advice in the sense that the Law Society Act intended. Maybe librarians have some special lawyer-lite role in these circumstances. Maybe as long as the institution is OK with librarians doling out copyright advice, there is no real problem. If the Supreme Court doesn’t object to it, we should be safe. (Please do not interpret the foregoing as legal advice.)