Running Head: COPYRIGHT V.

COPYLEFT: EDUCATIONAL IMPLICATIONS

Copyright v. Copyleft: Educational Implications

Kimberly Wagner
ETEC 510: Foundations of Educational Technology
University of British Columbia
Dr. Matiul Alam
December 3, 2012

COPYRIGHT V. COPYLEFT: EDUCATIONAL IMPLICATIONS

1. Introduction
Copyright1 laws in Canada are embedded in the founding principles of the Canadian
Charter of Rights and Freedom2. Canada, like other nations before it3, have developed and
modified copyright laws several times since the first law was passed in Britain, the Statute of
Anne (1710), which was an act for the encouragement of learning,4 and the frequency of
change has become increasing relevant in the modern world due to advancements in
technology. There is a great deal of contention in our society5 concerning copyright since those
advancements. Publishers, broadcasters, and other Intellectual Property (IP) producers
advocate tougher laws and protection while academics and average content users protest such
changes claiming violations to constitutional rights. At the same time, the open source software
movement has inspired the development of an open content licensing system. Creative
Commons and other copyright experts are suggesting solutions that are consistent with the
original intent of copyright laws. Changes to these laws have several implications for education.
2. Background
The Statute of Anne was passed to address the concern of the printing press ability to
easily duplicate text. In the years following, each country has developed copyright laws to
address the concerns of IP creators and protect the interests of society. The Canadian
Copyright Act of 1921 quite simply regulated the professional right to copy (Gervais, 2005).
Over the 20th Century, rights were added for public performance, radio broadcasting, and other
communications as deemed necessary due to technological developments. Its primary purpose
1

Copyright can be defined as protection for ones authorship of original works in a variety of mediums:
literary, musical, dramatic, pictorial, graphic, motion pictures, sound recordings, or architectural; it is
the exclusive right to reproduce and distribute the work, or authorize others to do so, prepare derivative
works based upon copyrighted work, and display or perform it publically (Frantsvog, 2012, p. 16).
2
similar to the Bill of Rights in the American Constitution
3
the United States (US), the United Kingdom (UK), and the European Union (EU)
4
Republished online by Yale Law School: Lillian Goldman Law Library as part of The Avalon Project
(http://avalon.law.yale.edu/18th_century/anne_1710.asp).
5
For the purpose of this paper, society refers to Canada and its primary influences: the United States, the
United Kingdom, and the European Union.

COPYRIGHT V. COPYLEFT: EDUCATIONAL IMPLICATIONS

was not to protect the economic interests of the creator; it was an incentive to create in society
(Herrington, 2010). The corporate objection to the public access of information has occurred in
recent years because of the users ease in copying digital content (Herrington, 2010). The
Internet has been regulated by analogy of what has happened with other communication
systems, but in this medium, the broadcaster does not have control over the dissemination of
content as the user has taken control (Gervais, 2005). The individual users greater access to
technology is a threat to media communications since industry cannot control it as they did with
radio, television and film (Geach, 2009): Hundreds of millions of Internet users are
downloading, altering, mixing, uploading, and/or making available audio, video, and text content
on personal web pages, social sites, or using peer-to-peer technology to allow others access to
content on their computer (Gervais, 2012, p. 65). Industry has successfully lobbied for more
stringent legislation to protect their content through Bill C-116 in Canada. Copyright is an
ongoing issue as we continue to negotiate a balance between citizens and IP creators.
3. Argument of Ethics
According to DeVoss and Porter (2006, p. 185), Copyright lawis essentially
characterized by a balance between (a) creating a system of incentive by rewarding the authors
labor [sic] and (b) encouraging benefits to society from the flow of information that can stimulate
new ideas, inventions, and creations. Bill C-11 has tipped the balance in favour of creators
(Craig, 2010); thus, the good of society has been ignored when it should be considered most
important (DeVoss, 2006). According to Geach (2009, p. 137), Law professor at University of
Hertfordshire in the UK, Overprotection stifles the very creative forces its supposed to nurture.
Copyright was never designed to protect copyright owners but to maximize the creation,
production and dissemination of knowledge and access thereto (Gervais, 2005, p. 324). It was

It was given royal assent in August 2012. The American Digital Millennium Copyright Act (DMCA) of 1998 also
overly-favoured the creator and limited the reasonable rights of users; however, its been since amended
to restore the balance with exemptions issued in 2000, 2003 and 2006.

COPYRIGHT V. COPYLEFT: EDUCATIONAL IMPLICATIONS

also never meant to be focused on the end users who are neither pirates nor act with intent of
commercial gain (p. 331). Finally, originality plays a critical role in determining what can be
subject to copyright as its the authors labour that results in a specific, unique arrangement
(Gervais, 2005).
3.1 Constitutional Rights
There are two Canadian rights that should be taken quite seriously in relation to
copyright laws: the right to privacy7 and the right to free expression8 as defined in the Charter of
Rights and Freedoms. Again, the private sphere of the user was never the focus of regulation,
and regulating the private sphere can only be done if privacy rights are violated (Gervais, 2005).
The freedom of expression described in the constitution is significant in relation to the right to
fair dealing9 as described under copyright laws; an individual can fairly use the copyrighted
material for research, criticism or review, or news reporting if attribution is given. 10 Fair dealing
was upheld in the 2004 CCH Canada v. Law Society of Upper Canada ruling when a group of
publishers sued the Law Society for providing photocopy services to researchers; the court
ruled that fair dealing would be compromised if limits were placed on a technology that can be
used for non-infringing purposes (Gervais, 2005). The purpose of free speech is to allow
citizens to give and receive information for the pursuit of truth and the fair use allowance is
essential to constitutional rights (Herrington, 2010). The US DCMA did not allow for fair use
since it was not permissible to remove the digital locks for any reasonwhich amounted to
censorship (Herrington, 2010); however, in 2010, the law was amended to allow for fair use
(Valenza, 2011). In Canada, the current Bill C-11 contains the same digital locks restriction that

The current Privacy Act outlines current privacy laws in Canada

(http://www.priv.gc.ca/leg_c/legislation/02_07_01_01_e.asp#002). Privacy rights are also supported by
the 1950 European Convention for the Protection of Human Rights and Fundamental Freedoms.
8
Article 2 of the Charter defines this as a fundamental freedom (http://laws-lois.justice.gc.ca/eng/Const/page15.html). The Charter was absorbed into Part I of the 1982 Constitution Act.
9
Fair dealing is equivalent to fair use in US copyright laws.
10
This was according to Section 29 of the 1985 Copyright Act in Canada.

COPYRIGHT V. COPYLEFT: EDUCATIONAL IMPLICATIONS

the US has already abandoned. It is in direct contradiction to fair dealing and should be a
concern to citizens (Craig, 2010).
3.2 A New Digital & Writing Ethic
The digital era has changed our perspective of writing and information sharing. The
Internet is a democratizing space where information can be freely accessed (DeVoss & Porter,
2006). The frequent file sharing online has created confusion over what is owned in online
environments where information is freely shared. There is also confusion over what constitutes
writing. According to DeVoss and Porter (2006, p. 179),
Napsterrepresents a paradigm shift: from an older view of writing as alphabetic text on
paper, intended for print distribution, to an emergent and ill-understood view of writing as
weaving digital media for distribution across networked spaces for various audiences
engaged in different types of reading. Writing is no longer just alphabetic textwriting is
also audio and video. And writing is hypertext and the delivery of multimedia content via
the Internet and the Web. And writing is chunks of tagged text and data floating within
databases and underneath the Internet in P2P spaces.
The explosion of cloud computing and meme creation demonstrates the strong desire to remix
culture: All these bits of human culture tend to be imitated and adapted (Gervais & Hyndman,
2012, p. 64) in the plethora of multi-media creations users publish online. This shift in
perspective will be further explored under Implications for Education.
4. Copyright Solutions
4.1 Open Source Applied to IP
In reaction to the growing restrictiveness of copyright and the issue of the shrinking
public domain, the copyleft movement has developed. Although the supporters of this
movement have a strong disdain for modern for-profit intellectual property practices

COPYRIGHT V. COPYLEFT: EDUCATIONAL IMPLICATIONS

(Frantsvog, 2012, p. 19), it is grounded in the same purpose of copyright which is the incentive
to create or invent (Dusollier, 2003; Herrington, 2010). The movement is also driven by the
craving for intellectual freedomsharing information openly, building on one anothers work,
and a playful aversion to authority (Frantsvog, 2012, p. 19). Knowledge and creations are the
collective property of humanity (J. P. Barlow in Dusollier, 2003, p. 285) within this perspective.
The Free Art License (2000) was the first General Public License (GPL) inspired copyleft
licenses, and it became the main method of Copyleft-ing artistic works. Later, the Free Software
Foundation developed an Open Source (OS) license for documents based on their original
software licenses, the 2006 GNU Free Document License. Note that it is still possible to violate
copyleft license conditions which results in copyright being reinstated (Dusollier, 2003).
3.2 Creative Commons
Lawrence Lessig, an advocate for copyright change to allow for a more open system of
sharing and remixing, founded the Creative Commons (CC) in 2011; Wikipedia is the largest IP
licensed under the CC. Like its predecessors, CC licenses have varying flexibility in their
definition as to what can be shared, copied, remixed, or attributed. Lessigs main concern is the
existence of a public domain reserve of works, stories, images, texts, patterns, sounds
discursive fragments that are not owned or controlled by anyone, that are re-usable, and that
anyone can pick up and use to create some new product (DeVoss & Porter, 2006, p. 192).
There are few academic dissenters to the concept of the CC; however, R. Jones (2009) posits
that OS and the CC do not solve the problem of the IP regime being an enemy to the
development of folklore because it is used within an existing [IP] regime (Jones, 2009, p.
116). As well, Geach (2009, p. 138) argues that people can simply not comply with the
conditions of a CC license as they do now for traditional copyright; thus, governments should
simply decriminalize an act thats occurring regularly. Despite these objections, CC is an

COPYRIGHT V. COPYLEFT: EDUCATIONAL IMPLICATIONS

alternative to traditional copyright. Frantsvog (2012) believes that the copyleft movement will
continue to expand and grow in both scope and momentum (p. 20).
4.2 Extended Repertoire System
D. J. Gervais (2005), Law professor and expert on copyright in Canada, outlines the
concept of an Extended Repertoire System (ERS) as a solution to current copyright issues. He
made the recommendation that such a system be generated in Canada where creators can join
a collective who will license on behalf of a rights holder. Within the ERS, creators can easily
obtain rights to use IP of another creator in the collective since users have access to the content
of other subscribers; he explains that the difficulty in obtaining licenses legally results in
frustration for all involved. In addition, educational institutions should be permitted to access
content while being exempt from user fees to satisfy the right of fair dealing; he adds that
copyright for online educational purposes should be abolished and the government should
subsidize textbooks and other materials to balance publisher and user rights (Gervais, 2005, p.
345). This solution has been largely unexplored.
4.3 Traditional Cultural Expressions Database
R. Jones (2009) firmly advocates for a solution that will protect folklore from copyright,
in particular from being appropriated from the public domain. Since folk music has evolved
through the folk process, it should never be permissible to remove it from that realm. The
practice of approbating access to music from the public domain is contrary to the creative
process. He believes that these Traditional Cultural Expressions (TCE) should be preserved,
protected, and promoted in an online database; then this information can be released into the
public domain as prior art, preventing its subsequent approbation into intellectual property
regimes (p. 120). Once a song is determined to be folk, it would be firmly fixed in the public
domain and could never be subject to restrictive copyright again. This solution may be difficult to
enact, but if accomplished would be a move in a positive direction.

COPYRIGHT V. COPYLEFT: EDUCATIONAL IMPLICATIONS

5. Implications for Education

To the average person, copyright has become synonymous with corporate rights. Its
purpose is actually directly linked with education since it was a mechanism to support creators
in their furthering of Arts and Science. Thus, it is a subject with which educators and students
should be familiar in terms of students rights as users and creators, Post-Modern views of
writing, and educator responsibilities.
5.1 Students as Users & Creators
At the core of education is critical commentary; thus, students should be well-versed in
fair dealing which should be actively taught throughout a students educational journey.
According to Herrington (2010), [the] classroom experience is extremely valuable to students
as a means of introduction to the dialogic process of learning, and fair use provides a stated
based of support for transmitting otherwise protected materials that make the classroom
dialogue possible (p. 140). Currently, Bill C-11 hampers this democratic process of interaction
(p. 16) due to the stringent digital locks circumvention clauses. If limited to the public domain,
which has in essence been crippled by the lengthening of copyright, students would be lacking a
great deal of current, relevant knowledge and critical commentary.
Students are creators of content in their academic career, and thus, have copy rights
over their creations. Currently, we are not dedicating much attention to informing students of
their rights, but they should learn their basic rights and their options to copyright or copyleft their
works. In addition, students should employ the fair dealing clause to their advantage as they
make critical comment on society; they should know what is permissible in terms of remixing to
make critical comment on issues they deem important. Note that group work complicates
copyright because the participants are co-owners of the IPrequiring them to work together
arbitrarily creates a legal relationship (Herrington, 2010). This fact may not seem important in
the early year; however, it becomes quite important at the post-secondary level, where students

COPYRIGHT V. COPYLEFT: EDUCATIONAL IMPLICATIONS

collaborate on significant research with other students, and sometimes with faculty as well. If the
educational institution is funding the research, there may be expectations to relinquish personal
Copyright. These agreements should be clearly defined at the onset of the research.
When students construct an essay or other critical product, they are weaving together
the ideas of other people. DeVoss and Porter (2006, p. 193) make this comment on what they
call the new writing:
People do not make new works out of nothing. They borrow and intertextually stitch and
massage fragments into new works. The act of writing is fundamentally collaborative
social, and reliant on an existing repertoire of texts existing in a community or
culture.
To build on this concept, since writing is now collaborative and social, it is necessary to
renegotiate our personal and institutional approaches to plagiarism (p. 197). In the new
writing, a writer uses bits of text, audio, video, images, etc., and weaves them together to
create new meaning, and to create a new product (p. 200). Writing is very much about
building a community through sharing, and we should be teaching a positive ethic of
sharing.
5.2 Post-Modern Structuralism
The new writing is firmly associated with Post-Modern Structuralism where the work is a
process in which many authors take part. Many texts have become communal where the public
creates the work together. These works are evolving: they involve exchange, collaboration,
modification, and constant exposure to new acts of appropriation (Dusollier, 2003, p. 290). Its
recognized that all work builds on prior work (DeVoss, 2010, p. 212). The Internet affords
distributed authorship with the capability of facilitating the collective creation of works, even in
real time as in the example of Google Documents. The emergence of the Internet has caused

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10

the emergence of a critical, involved, participatory audience as well (DeVoss & Porter, 2006, p.
192).
5.3 Educator Role & Responsibilities
First and foremost, educators should be informed of their copy rights and how to
correctly employ the fair dealing clause. It is legal and ethical to use clips from any source,
print or digital, for the purpose of criticism; thus, its permissible to use them in teaching
materials (Valenza, 2011). Educators should address the confusion, so that students
understand what is allowed due to the fair dealing clause (DeVoss, 2010). They should be
encouraged to incorporate the CC into classroom practice so students may learn about
licensing their IP (Valenza, 2011). These practices should be at the core of education.
6. Conclusion
Copyright issues have certainly become more complicated in our digital society.
Perspective on what constitutes writing and publishing have distinctly changed, and these postmodern views which define writing in terms of multiple modes of communication and accept
writing as a communal, evolving activity bring our traditional views of copyright into question.
Educators should be conversant in copyright and copyleft practices to well-inform their students
of their publishing options. As well, students should be acquainted with their rights as IP
creators early on in their education. In Canada, we are currently in a disadvantaged position
with the digital locks circumvention law which interferes with fair dealing. It should be an issue
that we continue to confront until Bill C-11 is amended to restore the balance between creator
rights and the public good, as has already been done in the US.

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Dusollier, S. (2003). Open Source and Copyleft: Authorship Reconsidered? Columbia Journal
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DeVoss, N. D. (2010). English Studies and Intellectual Property: Copyright, Creativity, and the
Commons. Pedagogy, 10(1), 201-215.
DeVoss, N.D., & Porter, J.E. (2006). Why Napster matters to writing: Filesharing as a new ethic
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Frantsvog, D. A. (2012). All Rights Reversed: A Study Of Copyleft, Open-Source, And OpenContent Licensing. Contemporary Issues in Education Research, 5(1), 15-22.
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Jones, R. (2009). Technology and the cultural appropriation of music. International Review of
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