Tony HoravaAUL -CollectionsOALT ConferenceMay 6, 2011

Canadian Copyright Reform: What it Means for Post-Secondary Education

Outline

• How we got here: The state of copyright today• Digital copyright and our patrons• Copyright reform: Bill C-32 – key issues• Access Copyright and The Interim Post-Secondary Tariff• Implications and Best Practices• Conclusion

How we got here: The state of copyright today

• Copyright law first enacted in 1921• Phase One – 1988 – copyright collectives were given

legal power; computer works given copyright protection• Phase Two – 1997 – New copyright exceptions were

introduced for non profit educational institutions• Bill C-60 (2005): pre-empted by federal election• Bill C-61 (2008): pre-empted by federal election

How we got here: The state of copyright today

• National consultation in 2009 – over 8,000 submissions received via various media and roundtables/town halls

• Facebook group (‘Fair Copyright for Canada’) garnered 84,000 members

• Bill C-32 (June 2010): once again, pre-empted by federal election!

The world of post-secondary education today

Almost everything about post-secondary education has changed with the Internet–

how professors teach;how students learn;the range of content available; the tools & technologies used; and how libraries support learning and teaching; But copyright law seems frozen in time…

The world of post-secondary education today

“The ability to digitally reproduce anything within seconds, and to communicate multiple reproductions rapidly to any part of the world at any time of day or night is forcing academic institutions….to reconceptualize how they think about their creations” - Richard Nolan, “Campus Intellectual Property Policy Development” Reference

Services Review 32(1) 2004: 31.

Digital copyright and our patrons

Challenges:

• Lack of understanding of copyright basics• Copyright myths, ie copyright doesn’t apply in the

educational community;• Great complexity – creates a barrier to understanding • ‘Culture of free’: remixing, sharing, and creating content

regardless of intellectual property issues• Everyone is a publisher• Hostility towards copyright law: collision with freedom of

expression and cultural development

What is the purpose of copyright law?

• A limited-term monopoly for the author (or rights owner) that provides for exclusive rights to produce or reproduce an intellectual work;

• Is intended to provide an incentive to create new works and protect economic and moral rights;

• Intended to be balanced against the public interest in sharing knowledge, supporting culture and learning– The doctrine of ‘fair dealing’ is an important

exception for the educational community, and will be discussed further on

Bill C-32: Copyright Modernization Act

SUMMARY

This enactment amends the Copyright Act to(a) update the rights and protections of copyright owners to better

address the challenges and opportunities of the Internet, so as to be in line with international standards;

(b) clarify Internet service providers’ liability and make the enabling of online copyright infringement itself an infringement of copyright;

(c) permit businesses, educators and libraries to make greater use of copyright material in digital form;

Bill C-32: Copyright Modernization Act

SUMMARY (cont’d)

(d) allow educators and students to make greater use of copyright material;

(e) permit certain uses of copyright material by consumers;

(f) give photographers the same rights as other creators;(g) ensure that it remains technologically neutral; and(h) mandate its review by Parliament every five years.

Bill C-32: key clauses for libraries and post-secondary education

• Extension of ‘fair dealing’ purposes:

Section 29. Fair dealing for the purpose of research or private study, education, parody or satire does not infringe copyright.

However, there is a two-step analysis to determine if a specific use is fair:

1- Does the use fall within one of the allowable purposes;2- Does the use pass the fairness test (six factors in

relation to the CCH vs LSUC case)

Bill C-32: Reproduction for instruction

• Section 29.4 (1) It is not an infringement of copyright for an educational institution or a person acting under its authority for the purposes of education or training on its premises to reproduce a work, or do any other necessary act, in order to display it.

• This reinforces the broader view of fair dealing, but various groups (publishing industry, creator groups) feel threatened by it.

Use of videos/films on campus

• A key change is the inclusion of cinematographic works in what can be presented in a class without infringing copyright:

Section 29.5 “the performance in public of a cinematographic work, as long as the work is not an infringing copy or the person responsible for the performance has no reasonable grounds to believe that it is an infringing copy.”

This means that public performance rights would no longer be required

Bill C-32: ‘Communication by telecommunication’ (Distance education)• Distance education is recognized and substantially

strengthened:

• Subject to certain conditions, “to communicate a lesson to the public by telecommunication for educational or training purposes, if that public consists only of students who are enrolled in a course of which the lesson forms a part or of other persons acting under the authority of the educational institution” Section 30.01 (3) (a)

• However, the ‘lesson’ material needs to be destroyed within 30 days after the end of the course (both for students and professors)

Bill C-32: Internet exception (for use of copyrighted materials)

• Section 30.04: “it is not an infringement of copyright for an educational institution, or a person acting under the authority of one, to do any of the following acts for educational or training purposes in respect of a work or other subject-matter that is available through the Internet:– (a) reproduce it;– (b) communicate it to the public by telecommunication, if that

public primarily consists of students of the educational institution or other persons acting under its authority;

– (c) perform it in public, if that public primarily consists of students of the educational institution or other persons acting under its authority; or

– (d) do any other act that is necessary for the purpose of the acts referred to in paragraphs (a) to (c).

Bill C-32: Maintenance and management of collections (eg creating preservation copies)

Section 30.01: It is not an infringement to copy a work

“ …in an alternative format if the library, archive or museum or a person acting under the authority of the library, archive or museum considers that the original is currently in a format that is obsolete or is becoming obsolete, or that the technology required to use the original is unavailable or is becoming unavailable”

Currently this is an infringement of copyright unless the format is already obsolete….

Bill C-32: Interlibrary loans – Digital transmission

This is permitted, but with limitations….

Section 30.5 (02) : “A library, archive or museum, or a person acting under the authority of one, may, under subsection (5), provide a copy in digital form to a person who has requested it through another library, archive or museum if the providing library, archive or museum or person takes measures to prevent the person who has requested it from:

(a) making any reproduction of the digital copy, including any paper copies, other than printing one copy of it;

(b) communicating the digital copy to any other person; and(c) using the digital copy for more than five business days from the day on

which the person first uses it.

Bill C-32: Technological Protection Measures (digital locks)

41.1 (1) No person shall(a) circumvent a technological protection measure within the meaning of

paragraph (a) of the definition “technological protection measure” [TPM] in section 41;

Definition of TPM: controls access to a work, to a performer’s performance fixed in a sound recording or to a sound recording and whose use is authorized by the copyright owner;

Problem: this doesn’t permit circumvention for non-infringing purposes, such as research, private study, and education. This clause trumps all of the user rights & library/educational exceptions…thus undermining the favourable provisions of the bill

Bill C-32: User-generated content (‘YouTube clause’)

Subject to various conditions:“It is not an infringement of copyright for an individual to use an existing work or other subject-matter or copy of one, which has been published or otherwise made available to the public, in the creation of a new work or other subject-matter in which copyright subsists and for the individual — or, with the individual’s authorization, a member of their household — to use the new work or other subject-matter or to authorize an intermediary to disseminate it… (section 29.21)

-This would encourage creativity and innovation in teaching and learning practices.

Persons with perceptual disabilities

• The law would have permitted alternate formats to be made for persons with perceptual disabilities, BUT there is a requirement that this “not unduly impair the technological protection measure”

• In effect, this means that alternate formats could be illegal, depending on circumstances

CCH v Law Society of Upper Canada (2004)

“The fair dealing exception under s. 29 is open to those who can show that their dealings with a copyrighted work were for the purpose of research or private study.“Research” must be given a large and liberal interpretation in order to ensure that users’ rights are not unduly constrained.”

CCH Canadian Ltd. v. Law Society of Upper Canada, [2004] 1 S.C.R. 339, 2004 SCC 13 , para 51)

The decision established six factors to be considered in assessing whether a dealing is fair

• The purpose of the dealing, e.g. Is it commercial or educational / non-profit?

• The character of the dealing, e.g. What was done with the work? Was it an isolated use or an ongoing, repetitive use? How widely was it distributed?

• The amount of the dealing, e.g. How much was copied?

The six factors (cont’d)

• Alternatives to the dealing, e.g. Could the purpose have been achieved without using the work?

• The nature of the work, e.g. Is there a public interest in its dissemination? Was it previously unpublished?

• The effect of the dealing on the work, e.g. Does the use compete with the market of the original work?

Application of the six factors

• No set formula - The six factors are viewed holistically and provide an analytical framework for judicial assessment of fairness.

• The first factor, however, (‘the purpose of the dealing’) must be met before the other factors are considered.

• “ these allowable purposes should not be given a restrictive interpretation or this could result in the undue restriction of users’ rights. “ (CCH v LSUC decision)

The Rise of Access Copyright*

• As the 1990’s progressed Access Copyright approached public libraries, universities, colleges, and school boards and convinced them that copying practices that had vaguely been justified as fair dealing since photocopiers were commonly available were copyright infringement unless they had a license from Access Copyright.

*courtesy of Rob Tiessen, Head of Access Services, University of Calgary

Access Copyright and The Interim Post-Secondary Tariff

• Access Copyright agreement ended Aug. 31st, 2010 (and extended to Dec. 31, 2010).

• Rather than negotiate a renewal, Access Copyright decided in June 2010 to apply for a Post-Secondary Education Tariff with the Copyright Board

• This proposed a unitary fee of $45 per FTE (for universities) and $35 per FTE (for colleges)

• This was their choice under the Copyright Act. Many groups filed objections.

• An Interim Tariff certified by the Copyright Board on Dec. 23, 2010

• This would lead to a huge cost increase for universities and colleges!

Copyright Board of Canada – What does it do?

Mandate: “The Board is an economic regulatory body empowered

to establish, either mandatorily or at the request of an interested party, the royalties to be paid for the use of copyrighted works, when the administration of such copyright is entrusted to a collective-administration society.

The Board also has the right to supervise agreements between users and licensing bodies and issues licences when the copyright owner cannot be located.”

Access Copyright agreement: quick snapshot

• Since 1997, all universities & colleges have signed a license with two main parts:

• (A) for photocopying, including copying for course reserves, interlibrary loan, class hand-outs, administration, and personal use at photocopiers; and (B) for production of course packs. 

• In the 2007-2010 agreement, there was an FTE-based fee for “Part A copying”: $3.38 per FTE

• And a per-page cost for course packs “Part B” : 10 cents per page).   

Access Copyright and The Interim Post-Secondary Tariff (cont’d)

• Consensus among AUCC members that the Tariff is unacceptable and needs to be appealed.

• AUCC will challenge the Interim tariff at the Copyright Board on behalf of its members.

• Most universities & colleges have decided -reluctantly - to accept the Interim Tariff. Some have opted out.

• What it means: Status quo regarding terms of copying & royalty fees until the appeal is heard and the case resolved (likely several years) or the expiration of the Tariff in Dec 2013, whichever comes first.

What’s Wrong with the Tariff?*

• Access Copyright is trying to use the tariff process to make universities and colleges pay twice for digital rights.

• Claims that linking is protected under copyright• Wants payment for projecting an image in a classroom already an

educational right: Section 29.4.• For Universities, copyright royalties would go up 3.5 to 4 times the rate

under the old license. • Invasion of privacy. The institution would have to go through faculty

email and compile lists of all digital works they email to anyone. • Access Copyright would receive full access to all of an institution’s secure

networks and course management systems. *Courtesy of Rob Tiessen, Head of Access Services, University of Calgary

The AUCC/ACCC Fair Dealing policy

• This was drafted with the aim of surviving scrutiny by the Copyright Board and the courts.

• Having a fair dealing policy is essential to safe copying practices – you would be judged on the fairness of the policy. – However if you don’t have a policy, you would need

to justify every instance of copying… this is extremely difficult to do – and this would increase the tariff rate to be paid.

• For institutions that have opted out of the Tariff, the policy provides practical guidance and minimizes legal risk: a safe harbour approach.

The AUCC/ACCC Fair Dealing policy

Key contacts:

For AUCC:Steve WillsManager, Government Relations and Legal Affairs (613) 563-3961, x234swills@aucc.ca

For ACCC: Michèle Clarke, Director, Government Relations and Policy Research (613) 746-2222, ext. 3150mclarke@accc.ca

Best practices in the current environment

• Formally adopt a fair dealing policy- if we don’t, we risk seeing ‘fair dealing’ diminished as a legal defense

• Prioritize efforts for copyright education of students, faculty, and staff – using whatever resources and communication channels are appropriate

• Develop a campus-wide copyright committee to coordinate training, communication, and procedures.

• Materials that faculty make available through a course web page need to be verified for rights clearance, ie the same as for printed coursepacks.

Suggested best practices

• Instruct faculty to use links to material – rather than scanning and posting documents – this is very important.

• Discourage use of off-campus copy shops: this is very problematic, since appropriate royalties aren’t being paid to Access Copyright.

In light of the Tariff, what can be used without permission?

• Works in the public domain (remember that copyright lasts for the author’s lifetime plus 50 years….)

• Content that cannot be copyrighted, eg facts, ideas, names, phrases

• Works that include a notice indicating the terms under which they can be copied;

• Insubstantial parts of a work;• Federal and Ontario statutes & regulations• Uses under a ‘fair dealing’ policy.• Works licensed under Creative Commons• Works for which you own the copyright;

A few implications

• If the Library has already obtained a license to use materials directly with from the publisher, then there is

already consent and the further protection of the Access Copyright tariff is not necessary.

• It is important to recognize that the Library already pays lots of $$ for licensing digital content that allow inclusion in course packs

• Hence the importance of ensuring that we aren`t paying twice, eg to the publisher and to Access Copyright, for course packs.

Core library values

• Equity of access• Intellectual freedom• Privacy• Stewardship• Trustworthiness• Democracy• Information literacy

• Key question: How does copyright reform promote – or not – these values that we hold dear?

Conclusion

• Copyright law has profound effects on how we acquire, manage and deliver information resources & services to our patrons – it affects us on a daily basis

• In the context of the Access Copyright Interim Tariff, we need to promote best practices in copyright management – there are huge financial & legal liability issues at stake

• The new government will resurrect a copyright reform bill – it’s essential that as a community we assert the need for a balanced regime that respects educational and library interests, while recognizing the rights of copyright holders.

A few resources

• Canadian Intellectual Property Office - http://www.cipo.ic.gc.ca/epic/site/cipointernet-internetopic.nsf/en/Home

• Canadian Copyright Act - http://laws.justice.gc.ca/en/C-42?index.html

• Canadian Library Association - http://www.cla.ca/AM/Template.cfm?Section=Copyright_Information&Template=/CM/HTMLDisplay.cfm&ContentID=6044

• Michael Geist blog - www.michaelgeist.ca• Canadian Association of Research Libraries –

http://www.carl-abrc.ca

Thanks! Any questions?

Tony Horavathorava@uottawa.ca (613) 562-5800 ext3645