[IP] Getting more bang for the research & copyright buck
Begin forwarded message:
From: Michael Geist <mgeist@xxxxxxxxx>
Date: September 27, 2004 6:50:37 AM EDT
To: dave@xxxxxxxxxx
Subject: Getting more bang for the research & copyright buck
Dave,
Canadian focused but of possible interest -- My regular Toronto Star
Law Bytes column addresses several much-needed reforms for the Canadian
education and research communities to get more bang for their research
and copyright buck. In particular, it argues that Canadian universities
must stop throwing away millions of dollars each year by paying
unnecessary copy licenses to copyright collectives such as Access
Copyright. The research community would also benefit from establishing
a requirement for the public dissemination of research results for
publicly funded research as well as a clear signal from the federal
government that it will not ratify the WIPO Internet treaties, which
have created a chill among researchers in several critical areas.
Column at
<http://geistinnovationdeficit.notlong.com>
Best,
MG
Tackling innovation deficit a balancing act
MICHAEL GEIST
Toronto Star
Next week, Prime Minister Paul Martin will ask the Governor General to
deliver the Speech from the Throne to open the fall session of the
House of the Commons. The much-anticipated speech will specify the
government's upcoming priorities, undoubtedly touching on issues such
as health care, national security, and financial concerns, including
details on whether government spending could send the country into a
deficit.
While the government will likely propose a plan to avoid a fiscal
deficit, there are two other Canadian deficits that merit its attention
as well. This week's column addresses one of these - Canada's
innovation deficit. The federal and provincial governments urgently
need to adopt policies that foster innovation by increasing access to,
and dissemination of, cutting-edge Canadian knowledge and research in
order to correct the imbalance between dollars spent on research and
educational materials and the corresponding outputs to the Canadian
research and education communities. Next week's column will discuss the
other deficit - Canada's cultural deficit, which Statistics Canada
recently reported stands at nearly one billion dollars annually.
In recent years, the federal government has made an admirable
commitment to innovation through research and education. It quickly
identified the need to bring the Internet into Canadian schools,
launching a program in the mid-1990s that made Canada the first country
in the world to connect every school from coast to coast to coast to
the Internet. It has also demonstrated a consistent willingness to
invest in research, committing more than a billion dollars annually on
university-based research granting programs.
Research and appropriate funding remain a top priority. This morning
in Ottawa, Canada's technology leaders, including Industry Minister
David Emerson, the leaders of several international organizations and
numerous prominent CEOs, are gathering to discuss the state of Canada's
digital economy with the federal government's planned policies a
prominent item on the agenda.
Notwithstanding these impressive accomplishments, there remains cause
for concern. Canada's investment in research has yet to pay the
dividends in new innovation that its proponents anticipated. Canadian
researchers, particularly those engaged in security research, have
reason to fear that legislative reform may limit their ability to
disseminate their research results. Canada's education community,
struggling with 20th century budgets to provide a 21st century
education that will serve as the bedrock for future innovation, face
the prospect of unnecessarily spending millions of dollars on copy
licenses, rather than allocating that money to much-needed new books
and equipment.
The upcoming throne speech presents the federal government with an
exciting opportunity to chart a new course when addressing each of
these issues.
First, Canada must begin to think about new ways to disseminate its
publicly funded research. While the Martin government has stressed the
importance of focusing on commercializing Canadian research, that
approach provides only a partial solution.
Under our current model, Canadians spend billions of dollars on
university research through granting programs in the sciences, social
sciences, and health fields. Those results are typically made available
to the public in one of two ways. If the results have commercial value,
they are often brought to market, generating new revenues for the
researchers and their institutions. Alternatively (or in addition),
researchers publish the results in expensive scientific journals, which
often fetch thousands of dollars in annual subscription fees.
In other words, Canada spends billions of tax dollars on research only
to "buy back" that funded research through the marketplace or by
subsidizing universities, which are effectively forced to repurchase
their own research through journal subscriptions.
Late last month, a group of Nobel prize winners in the United States
(which faces the same dilemma) issued a public letter calling on their
government to link public research funding with public dissemination of
the results. Canada should jump at the chance to adopt a similar model
that would tie free, public dissemination to all publicly funded
research. Such an approach would still leave room to commercialize the
research results, while providing Canadians with an unprecedented
innovation opportunity and a more immediate return on its research
granting investment.
Second, Canada must ensure that it does not erect any barriers to
innovation by impeding the dissemination of research results. An
emerging risk in that regard has arisen from potential copyright reform
that would chill the dissemination of security-based research.
In the United States, the enactment of the Digital Millennium Copyright
Act has led directly to such a chill. For example, several years ago a
Princeton researcher sought to release an important study on
encryption. When he publicly disclosed his plans, he was served with a
warning that he faced potential legal liability under the DMCA if he
publicly disclosed his findings. Similarly, in 2001, a Russian software
programmer was arrested and spent the summer in a California jail after
highlighting encryption weaknesses in an Adobe software product at a
public conference.
These cases sent a wave of fear through the security research
community, leading foreign researchers to avoid traveling to the U.S.
and Cyber-security Czar Richard Clarke to acknowledge that "a lot of
people didn't realize that [the DMCA] would have this potential
chilling effect on vulnerability research."
Canada can ill-afford to follow the United States down this path. In
fact, by refusing to ratify the World Intellectual Property
Organization's Internet treaties that serve as the basis for the DMCA,
the federal government will maintain an environment that encourages the
dissemination of research results and creates a competitive advantage
that will attract security researchers to Canada.
Third, Canadian universities, colleges, and schools, which serve as a
critical source of new innovation, must stop throwing away millions of
dollars each year by paying unnecessary copy licenses to copyright
collectives such as Access Copyright.
While copyright collectives claim that education institutions need
licenses to compensate for faculty and student copying, many copying
activities are permitted under Canadian copyright law without the need
for payment. The Copyright Act contains an explicit user right for
copying for research or private study purposes (surely the most common
uses of works on university campuses). The Canadian Supreme Court has
ruled that this user right must be interpreted in a liberal fashion
such that copying full articles may be lawful in certain circumstances.
The copyright collectives have recently turned their attention to
copying for teaching purposes, even though the Act contains several
relevant exceptions there as well. For example, the Act contains an
exception for copying work for classroom instruction provided that no
commercial alternative exists. Millions of web sites likely fall under
this exception since many are freely provided without expectation of
compensation.
It is important to note that the use of these user rights and
exceptions would enhance both Canada's education system as well as its
authors and publishers. The saved money could be directed toward
purchasing new books, generating handsome royalties and revenues for
authors and publishers, while increasing the size of university library
collections.
Since the cost savings would only come at the expense of the copyright
collectives, it comes as little surprise to find that they support the
establishment of an extended licensing system that would require
schools to pay millions of dollars for works found on the Internet.
Although these groups point to a government-commissioned study on the
merits of extended licensing for support, that report was written
before the recent Canadian Supreme Court rulings removed much of the
need for such a system in the education context.
The potential damage from such a system led six national education
groups, including the Canadian Council of Ministers of Education which
counts Ontario Education Minister Gerard Kennedy as a member, to call
on the federal government to reject the extended licensing approach and
to adopt a balanced copyright approach that encourages the use of the
Internet in Canadian schools instead.
While those groups could presumably argue that no payment is required,
they have instead opted for greater certainty by proposing a balanced
solution that would establish 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 - i.e. information that the
author would appear to want to make widely available.
Canada's innovation deficit, which has led to missed research
dissemination opportunities and the loss of millions of dollars from
critical education programs, stands as one challenge that the federal
government must confront head on. Next week, this column will address a
similarly thorny problem - the billion dollar drain on Canadian
culture.
--
**********************************************************************
Professor Michael A. Geist
Canada Research Chair in Internet and E-commerce Law
University of Ottawa Law School, Common Law Section
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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