The sometimes complicated life of a syllabus
When a post-secondary institution approves a course of instruction, it establishes a number of course elements such as subject matter, learning outcomes, and competencies. Instructors bring courses to life, planning the sequence of lessons, readings, lectures, and assessments, including term papers and exams, and putting these together in a syllabus. We refer to these generally as “teaching materials.”
The application of intellectual skill and effort, not to mention creativity, means that teaching materials are generally protected by copyright. Who owns the copyright, and who may use the materials and for what purpose, has a number of important practical implications for instructors and institutions in terms of enforcing rights and liability for infringement.
The owner. Section 13(3) of the Copyright Act states that the employer is the first owner of a work made in the course of employment, in the absence of any agreement to the contrary. In many institutions, copyright ownership is either addressed in a collective agreement, or in a binding institutional policy. A common (but not universal) model is that the instructor owns their teaching materials, but provides a license to the institution to use teaching materials in certain ways.
With ownership comes power. As copyright owners, instructors are faced with students who have always (and now even more so) shared instructor-provided lecture notes, PowerPoint slides, and reading materials. Students share amongst themselves but increasingly, whether knowingly or not, they share them with the world through open platforms like YouTube, Facebook and Reddit. Some commercial operators actively encourage and reward such distribution. Some instructors expressly allow such sharing (i.e. copying), but most instructors either expressly or implicitly restrict the broadest form of sharing and certainly object to sharing their teaching materials for commercial purposes.
When an instructor finds their teaching materials distributed in ways they do not agree with, as the copyright owners, instructors may enforce their rights. If the materials are shared on a website, they may use the complaint processes embedded in that site or otherwise contact the site’s operator. However, given the time and energy required to continuously police the Internet, there have been calls for collective action by institutions. In response, one has to ask: may the institution take action on the copyright owner’s behalf, and is that a responsible allocation of scarce institutional resources? Collective action, if otherwise desirable and achievable, would require, at minimum, standardized copyright notices on all teaching materials, and express authorizations from each instructor for each course.
With power comes (vicarious) responsibility. Instructors often incorporate third-party copyrighted works into their teaching materials. Such works may be incorporated legally, either with the copyright owner’s consent, or through a user right such as fair dealing. Should there be a claim of copyright infringement, the instructor’s actions are of central importance and liability may follow. However, instructors are employees of the institution, and teaching is a central component of their employment activity, so, as demonstrated in Canadian Copyright Licensing Agency v. York University, 2017 FC 669 (CanLII) at para’s 242 – 243 (under appeal), vicarious liability may be found with a minimum of analysis. That may well be appropriate vis-à-vis the third party, it is also appropriate to consider remedial actions the institution may take under the applicable collective agreement.
In the end. Teaching materials are copyrighted and so the dynamics of each institution need to be understood in order to ensure that all parties are operating and cooperating in keeping with one another’s rights, responsibilities and capabilities.
Michael Serebriakov is Legal Counsel at the University of British Columbia. Michal Jaworski co-chairs Clark Wilson’s Higher Learning Practice group.