[IP] Canadian copyright reform proposal threatens educational Internet
Begin forwarded message:
From: Michael Geist <mgeist@xxxxxxxxx>
Date: May 31, 2004 7:32:09 AM EDT
To: dave@xxxxxxxxxx
Subject: Canadian copyright reform proposal threatens educational
Internet
Dave,
Of possible interest to you and your subscribers -- my latest Toronto
Star Law Bytes column assesses the consequences of a recent Canadian
parliamentary committee report on copyright reform. The report
recommends swift ratification of the WIPO treaties, increased potential
liability for ISPs, and the prospect for a new extended license to
cover Internet-based materials in education.
The column argues that the report largely neglects the user side of the
copyright balance equation by focusing chiefly on the compensation and
protection afforded to creators. Further, it laments the recommendation
of a highly restrictive definition of publicly available work on the
Internet, which if adopted will prove costly for Canada's education
system. The latter development is particularly unfortunate given the
Supreme Court of Canada's recent decision on the need for a broad and
liberal interpretation to exceptions that lie at the heart of education
such as research and private study.
Column at <http://shorl.com/jekemuholepre> [Toronto Star]
Report at
<http://www.parl.gc.ca/InfocomDoc/Documents/37/3/parlbus/commbus/house/
reports/herirp01/herirp01-e.pdf>
Best,
MG
Will copyright reform chill use of Web?
Copyright proposal upsets the balance
MICHAEL GEIST
LAW BYTES
In hindsight, the fall of 1998 may be remembered as the shining hour
of Canadian Internet policy development. Led by then-Industry Minister
John Manley, Canada played host to an OECD ministerial meeting on
e-commerce, tabled new privacy legislation, unveiled several e-commerce
policy initiatives, and committed to providing every Canadian school
with Internet access.
Unfortunately, our low point may have occurred earlier this month when
a Canadian Heritage parliamentary committee chaired by Toronto-area MP
Sarmite Bulte presented a vision of copyright that would transform the
Internet from the incredible open source of information that it is into
a predominantly commercial medium available primarily to those willing
to open up their cheque books.
It foresees, among other things, schools being required to pay for
using, as course materials, Web-based information that is made publicly
available - often with the poster's intention of reaching as wide an
audience as possible and with no expectation of payment.
Few technology law issues have proven as divisive in recent years as
copyright reform. Proponents of stronger protections fear that the
Internet and digital technologies will eviscerate traditional copyright
protections. They have therefore actively lobbied for new powers to
block unauthorized access to copyrighted material as well as for new
compensation schemes to pay for new technological uses of old work.
Opponents of stronger protection, pointing to the recent Supreme Court
of Canada decision involving legal publications, argue that Canadian
copyright law must adopt a balanced approach in which the interests of
creators are considered in parallel with the needs of users and the
larger public interest.
The unexpected consequences of copyright reform in other jurisdictions
- such things as jailed software developers and copyright litigation
over technologies such as garage door openers - have led opponents to
argue that Canada must navigate a balanced approach that avoids the
mistakes made elsewhere.
While the notion of balance in copyright law has proven contentious in
some quarters, it is in fact a well-established principle under
Canadian intellectual property law. For example, under Canadian patent
law, inventors receive a limited monopoly over their invention that
grants them exclusive authority over how that invention is used.
In return, the patent expires after a prescribed period at which time
anyone may use the invention without prior authorization. Moreover,
obtaining patent protection also requires inventors to fully disclose
and describe their invention so that the public obtains the immediate
benefit of that knowledge.
The Canadian Supreme Court has affirmed a similar balance in copyright.
Creators enjoy a basket of exclusive rights such as the sole right to
reproduce or perform the work. In return, the term of copyright
protection is limited so that expired work becomes part of the public
domain and may be used by anyone without permission or payment.
Furthermore, the Copyright Act establishes a series of "user rights,"
known as exceptions, that allow users to freely use portions of
copyrighted work for such things as research, private study, news
reporting, and criticism. While Bulte recently expressed concern that
these exceptions lead to "freebies," in fact it is these exceptions
that ensure that the Copyright Act retains the balance needed to give
creators their exclusive rights.
Bulte's committee held hearings for several weeks in March and April,
quickly generating nine key copyright reform recommendations, made in a
pre-election interim report. The plan, whose status may be affected by
the election, largely neglects the user side of the balance equation by
focusing chiefly on the compensation and protection afforded to
creators.
The committee's recommendation for swift ratification of the
controversial World Intellectual Property Organization's Internet
treaties and increased liability for Internet service providers will
rightly garner much attention. It is its approach to educational uses
of the Internet, however, that are a particular cause for concern given
the current financial strain on our schools.
Canada's Copyright Act already provides educators and students with a
user right in copyrighted work for research and study purposes. The
Supreme Court has ruled that this right is to be interpreted in a
liberal fashion such that copying full articles may be lawful in
certain circumstances. The use of those works in the classroom is not
covered, however, forcing teachers to sort through the rights attached
to materials before using them in courses.
The Canadian educational community has proposed what would appear to be
a balanced solution in the form of establishing a limited educational
user right to publicly available work on the Internet. In keeping with
longstanding and widely accepted practices on the Internet, publicly
available work would include materials that are not technologically or
password protected - that is, information the author would appear to
want to make widely available.
Bulte's committee surprisingly rejected the education community's
proposal, opting instead for a new license to cover Internet based
works. This new license would require schools to pay yet another fee
(the education community already hands over millions in license fees
each year for content) for works found on the Internet. How the
payments are calculated, collected and forwarded to those entitled to
receive them presents another set of problems that would have to be
resolved in a manner that assures all stakeholders that payments are
not made for work that the Supreme Court has already declared subject
to a user right and therefore available without compensation.
Although it acknowledges that some work on the Internet is intended to
be freely available, the committee recommends the adoption of the
narrowest possible definition of publicly available. Its vision of
publicly-available includes only those works that are not
technologically or password protected and contain an explicit notice
that the material can be used without prior payment or permission.
Rather than adopting an approach that facilitates the use of the
Internet, Bulte's committee has called for the creation of a
restrictive regime in which nothing is allowed unless expressly
permitted. The result will be an Internet in which schools will be
required to pay to use Internet materials contrary to the expectations
of many creators.
A far more balanced approach, and one that would be more in line with
Canadian values, would be to permit all uses unless specifically
prohibited. This could be easily achieved in a manner that respects
copyright by establishing a publicly available definition that includes
works not technologically or password protected and for which the
copyright holder has not expressly asserted limitations on the use of
the work.
Canada displayed foresight in the late 1990s in identifying the
potential for the Internet and new digital technologies to benefit all
Canadians. In order to fulfill that vision, we need to reconsider the
Bulte committee's recent recommendation so that the balance that is so
critical to creators, users, and the broader public interest is
preserved.
--
**********************************************************************
Professor Michael A. Geist
Canada Research Chair in Internet and E-commerce Law
University of Ottawa Law School, Common Law Section
Technology Counsel, Osler, Hoskin & Harcourt LLP
57 Louis Pasteur St., Ottawa, Ontario, K1N 6N5
Tel: 613-562-5800, x3319 Fax: 613-562-5124
mgeist@xxxxxxxxx http://www.michaelgeist.ca
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