WHAT HAPPENED TO SOCRATES?
The Socratic teaching method gained popularity in the early 1900s due to its pedagogical advantages of teaching students to apply their knowledge critically by thinking on their feet; however, during the mid to late twentieth century, the method began to plateau and fall out of popularity. While there are many reasons that can be cited for this occurrence, the one that seems to be consistent is that students are not coming to class prepared.
One may look to how law school has changed over the years for an explanation: attendance is not forced; grading has become anonymized; and lectures are recorded enabling students to forgo the long commute and listen after the fact. These changes, along with the ever-increasing pool of distractions associated with the Internet, among other things, have resulted in the Socratic method being all but eliminated from law schools, and along with it, the critical thinking skills it previously indoctrinated.
REDISCOVERING ANCIENT RUINS BURIED IN COPYRIGHT
A resurrection is possible, however. The question must turn to how educators can stimulate class preparation. One of the ways this can be accomplished is to proliferate standardized derivative works for students to leverage in their studies such as textbook abridgements, summaries, and video tutorials. This would enable students to more easily digest the historical iterations of the law in less time, and now at home in the wake of COVID. Standardization would ensure that no student has an upper hand.
One of the main inhibitors however is copyright law. In Canada, a “fair dealing” defence for derivative educational works is recognized under section 21 of the Copyright Act, “for the purpose of…education”. The work must also be “fair”, defined as a question of fact determined by six non-exhaustive criteria laid out in the landmark case of CCH Canadian Ltd v Law Society of Upper Canada, [2004] 1 SCR 339. What this means is that professors, educators, and students who wish to create, sell or distribute helpful educational works risk copyright infringement, which seems to have been enough to prevent proliferation altogether.
One solution could be to wait until the owners of the original works – namely publishers – step up and begin to create derivative works. In the wake of COVID-19, publishers may very well respond to the increase in demand for online education with derivative works that can be leveraged by educators. However, I believe the better answer would be an online platform that holds the rights of the original works on behalf of creators (via a licence from a publisher) and allows them to create content without having to seek a license themselves. While this concept is largely unexplored, I hypothesize that creators will seek out works most in demand and begin creating and selling derivatives on the platform.
THE NEED FOR PRESERVATION VIA MODERN TECHNOLOGY & THE WAY FORWARD
As the law continues to iterate over time and the distractions of technology increase, the need to leverage that technology to better distill information to students is at all an all time high. Derivative educational works are a part of the answer. And while copyright creates some unique barriers, a unified platform with a business licensing strategy may be all that it takes to create the education of the future that the present has been desperately waiting for.
Written by Joseph Simile, a second year JD Candidate at Osgoode Hall Law School. Joseph is also the editor of the IP Law Journal.