Note: None of the allegations described below have been proven in court, and as at the time of writing, Easy EDU has not yet filed a defense.
It seems that every day, course notes, slides, readings, assignments, exams, etc. from post-secondary institutions across Canada are being posted on a variety of online platforms, and handed over to private tutoring businesses. These businesses then use these materials as part of their paid services. All too often, students who use these tutoring services, wittingly or unwittingly, end up committing academic misconduct. And while this problem arises most often in the post-secondary context, we are seeing evidence that the culture of unauthorized academic assistance (i.e. cheating) is spreading to other contexts as well, as the recent issues around the Law Society of Ontario’s licensing examinations demonstrate (involving law school grads, no less).
There are often calls for institutions to take action against students or these businesses. But action is made difficult by the fact that a common (and some may say inherent) feature of post-secondary law is that faculty members (not the institution) own the copyright in course materials. Therefore, faculty members are frustrated to learn that it is their prerogative and responsibility as copyright owners to undertake the sometimes tedious task of enforcing their rights by submitting takedown notices and sending cease-and-desist letters.
Many institutions have taken steps to stop business from misappropriating their trademarks or passing themselves as affiliated with or authorized by the institution, and to assist faculty members enforce their rights, but to take meaningful action, an institution can only be as effective as their faculty members are dedicated to the effort.
So it is with great interest that we learned that, on March 9th, 2022, three faculty members and the University of Toronto combined forces to file a lawsuit against an international education and tutoring business known as “Easy EDU”, on the basis that they infringed copyright and moral rights in various course materials, and sold the infringing materials as part of their tutoring services.
On what basis can the University itself sue?
As noted above, faculty members at the University of Toronto own the copyright in their course materials.
On what basis, then, can the University of Toronto itself bring this claim against Easy EDU?
It is because two faculty members assigned their copyright in several of the course materials to the University of Toronto. Without this assignment, the University would not have standing to sue as a copyright owner.
Moral rights, of course, belong only to the author of a work, and cannot be transferred (though they may be waived). Therefore, the faculty members themselves (and not the University) bring allegations of moral rights infringement.
The statement of claim asks the Court for various forms of relief against Easy EDU, including a return of the infringing course materials, an accounting and disgorgement of the profits made by Easy EDU and damages, either as proven at trial or in the form of statutory damages of up to $20,000 per infringement. The statement of claim also seeks $500,000 in punitive and exemplary damages.
The bigger picture
Copyright and moral rights are obviously the focus of this claim, and the court’s power to award remedies are focused on measures to stop further infringement, provide financial compensation and even exact a measure of punitive sanction, but the statement of claim goes to the effort of putting the claim in the broader context.
This claim appears to not be about the money and less about these legal principles than it is about the negative consequences on students, who are allegedly given the false impression that Easy EDU is associated or otherwise endorsed by the University and/or its faculty members. While this does have a negative impact on the University and faculty members, the most damaging real-world impact is alleged to be on the students who, wittingly or unwittingly, commit academic misconduct as a result (for example, by getting assistance answering exam questions or completing assignments). This is particularly important when one considers that the Easy EDU customer-base is skewed to the international student market, where students are not as well versed in Canadian academic practices and standards, and are under the additional pressures of studying abroad. The consequences of academic misconduct are very serious, including suspension and expulsion—these are particularly devastating to international students who then may lose their study permit and have to return to their home country.
What does this mean for other institutions?
For faculty members whose course materials are found in any of Easy EDU’s service offerings, it is notable that the University of Toronto’s action is not a class action. It is a claim based on the specific facts alleged to have happened at the University of Toronto. Therefore, faculty members (and institutions) who believe that their copyright and moral rights have been infringed by Easy EDU may not simply join in this particular lawsuit. However, they may wish to take this opportunity to assert (or reassert) their rights by contacting Easy EDU, and potentially filing their own claims.
It is, however, important to emphasize that this lawsuit would not have been possible without the extraordinary commitment of the three named faculty members, who not only agreed to be a part of the lawsuit, but agreed to transfer copyright in certain course materials to the University so that it could lend its considerable authority and resources to defend their rights and protect their students.
Copyright, in most instances, can only be enforced by rightsholders (the author, the publisher, the distributor, etc.); the role of law enforcement is very limited. And for many (if not good, then practical) reasons, enforcement tends to be light…this gives some the false impression that copyright is not something that rightsholders care about, and it’s a free-for-all.
While that is certainly not true (rightsholders, generally, do care very much), there’s only so much time, energy and money one can devote to enforcement, especially when it appears to be an endless game of whack-a-mole.
For this reason, the claim by these faculty members and the University of Toronto is important. It is putting students and an industry of private tutors and content providers on notice. Commercial entities and private tutors who do not respect copyright are not just breaking the law—that’s the tip of the iceberg: they’re putting students’ academic careers at risk and contributing to a culture of cheating that is damaging in and of itself, and which we can see spreading into and causing harm in different contexts too.
Lawsuits are one important step, but it takes more to effect real change–it’ll take more cooperation and collaboration, as well as an empathetic understanding of the broader educational and cultural context, to protect academic integrity and focus on student success. Given the number of academic misconduct cases winding their way through the system at every institution in the country, it’s an ‘all hands on deck’ situation. Luckily, in my view, we have all of the resources we need to address it. We just need the will and the leadership to tackle it.