correction to the Honourable Member

During the current debate concerning C-11 (the Copyright Modernization Act), the Honourable Member Scott Armstrong (CPC) sought to bolster the merits of C-11 by invoking the presumed support of Canadian students:

That is why the Canadian Alliance of Student Associations is in support of this bill. It states that “the government has demonstrated a commitment to…Canada’s education community”. It goes on to state that students across Canada are greatly encouraged. It goes on to state that “the federal government has a clear understanding of how this bill will impact Canada’s students, educators and researchers”.

The Honourable Member omitted some details. Following the announcement of Bill C-32 (the predecessor of C-11), the Canadian Alliance of Student Associations (CASA) expressed favour at the expansion of fair dealing, but also expressed concern. From the CASA statement dated to 3 June 2010:

By expanding fair dealing as proposed in Bill C-32, the government has demonstrated a commitment to creating new, supportive measures in our copyright law for Canada’s education community … CASA members are concerned that this excellent education right may be lost in the debate around digital rights management, but we will continue to review the legislation and provide feedback to Minister Clement and Minister Moore to ensure that the federal government has a clear understanding of how this bill will impact Canada’s students, educators and researchers (emphasis mine).

CASA members are not the only Canadians concerned about the capacity of C-11 to give with one hand, and to take with the other. As Michael Geist has repeatedly documented (ex. here and here), thousands have expressed their wishes, to the Government of Canada, that the legality or illegality of circumvention of digital locks be determined by the purpose of the circumvention. Said another way, circumventing a lock for a legitimate purpose should not be infringement. Such an approach is consistent with the World Intellectual Property Organization (WIPO) Treaties of 1996.  (These treaties appear to be among the principal reasons for amending Canadian copyright law, despite the fact that the treaties were highly contested.*)

Even more curious about the Honourable Member’s remarks is his keen awareness of the industries that have come of age and repute, under our existing copyright law:

The Copyright Act was changed in 1988 and then again in 1997. Many of the technologies we enjoy today were not invented by then and many of the students who I used to teach, who enjoy these devices today, were not even born the last time the Copyright Act was changed. The current act does not respond to the opportunities and challenges provided by Web 2.0 and social media. It does not answer the needs of the multi-billion dollar industries of today that were in their infancy the last time Parliament amended the Copyright Act. For these reasons, we need to modernize Canada’s copyright laws and bring them in line with the demands of the digital age. (emphasis mine).

There is an absence of logic with the Honourable Member’s conclusion. If multi-billion dollar industries grow in the shadows of copyright, Canada would do best to keep those shadows as broad as possible.

* See Michael Geist, The Case for Flexibility in Implementing the WIPO Internet Treaties: An Examination of the Anti-Circumvention Requirements in Michael Geist, ed., From ‘Radical Extremism’ to ‘Balanced Copyright’: Canadian Copyright and the Digital Agenda 204 (Irwin Law, 2010).

what happened to January?

January seems all but a blur  – two new courses to teach are keeping me busy. But I had a glimpse of the outside world, long enough to notice the SOPA/ACTA protests, the growing list of digital lock dissenters, and the implications for Bill C-11. (Thank you, Michael Geist.)

Two other interesting developments occurred in the last few days. On 30 January 2012, Access Copyright issued a statement, describing an agreement reached with the Universities of Toronto and Western Ontario in relation to copying of materials in paper or digital form. The statement does not give too much by way of detail, other than to say a fee was agreed upon ($27.50 per full-time student), the agreement is backdated (how far back we do not know) and that an “indemnity provision increases the university’s legal protection against copyright infringement.”

The last clause is a curious one. It is unclear how precarious either university’s position was in terms of a viable charge of copyright infringement. But it invites the question — how stringent are the terms of the agreement as to have each university feel further protected?

Moreover, applying a set fee to all students, regardless of whether they use course packs or not, suggests a marked increase in funds flowing to Access Copyright. According to the statement, neither the universities nor Access Copyright knows how much copying is happening: “Over the course of the next year, a method will be jointly developed to assess the actual volume of copying of copyright protected materials which will assist in determining the appropriateness of the royalty structure in subsequent years.”

Could not the copying have been assessed first, and then the contract drawn up? In the meantime, as other universities have opted to do, permission and payment for copying could be handled directly with the publishers.  A task that is part of a publisher’s duty.

Howard Knopf has a good post about this matter.

A far more agreeable announcement came from the Association of Research Libraries (ARL). The Code of Best Practices in Fair Use for Academic and Research Libraries is now available. Developed in partnership with the Center for Social Media and the Washington College of Law at American University, the code describes reasonable copying that can be taken under fair use, in the pursuit of academic inquiry and higher education:

This code of best practices identifies eight sets of common current practices in the use of copyrighted materials in and around academic and research libraries, to which the doctrine of fair use can be applied. It articulates principles describing generally how and why fair use applies to each such practice or situation.  Each principle is accompanied by a list of considerations that the library community believes should inform or qualify it, limitations that should be observed to assure that the case for fair use is strong, and enhancements that could further strengthen that case.

Of course, fair use is not fair dealing and the American context differs somewhat from Canadian circumstances. But reading this code is instructive towards recognizing how Canadian practices may already support a healthy practice of fair dealing.

This is not the first such effort by the Center for Social Media, similar codes organized by genre or media practice are available here. And, the Center’s founder, Patricia Aufderheide (American University, Professor of Communication) with Peter Jaszi  (American University, Professor of Law) are the co-authors of Reclaiming Fair Use (2011).  Details are available here.

A short lived celebration

With the celebration of the New Year, came new vigour into the Canadian public domain. But by Friday Michael Geist was alerting us that our public domain may stagnate soon. Under the auspices of the Trans-Pacific Partnership (a proposed international trading agreement) the term of copyright in Canada would increase from life plus fifty years, to life plus seventy years.

As Geist reminds us, our international obligation stops at life plus fifty years. Other countries have increased their copyright term, without any illustration of public benefit.  Whereas, evidence to the contrary is not hard to find. 1998 was not only the year of the United States’ Digital Millennium Copyright Act (DMCA) with its protection of digital locks, but also the year of their Copyright Term Extension Act (CTEA) which set American copyright term to life plus seventy years.

Before, during, and after the extension of American copyright term, dialogue was vigorous. A memorable comment came from Peter Jaszi; in his testimony to a Senate Judiciary Committee in 1995, he expressed concern that copyright in the United States would become perpetual via “the installment plan.” This lay in contravention to their Constitutional quid-pro-quo bargain: the monopoly of copyright is permitted only for a limited time in order to assure the public of unfettered access to creative works. These concerns were further argued through a constitutional challenge to CTEA, Eldred v. Ashcroft (2003). (Regrettably, the case did not succeed; see my entry here.)

Canadians may wish to read the detailed analysis of seventeen note-worthy economists, prepared for the Eldred case. From their summary:

The longer term for new works provides some increase in anticipated compensation for an author. Because the additional compensation occurs many decades in the future, its present value is small, very likely an improvement of less than 1% compared to the pre-CTEA term.

With respect to the economists’ analysis, dissenting Justice Breyer of the United States Supreme Court offered these choice words:

What potential Shakespeare, Wharton, or Hemingway would be moved by such [a gain]? What monetarily motivated Melville would not realize that he could do better for his grandchildren by putting a few dollars into an interest-bearing bank account?

The economists also observed that the extension of term for existing works does not provoke a further incentive to create — the investment required had already been made. Against these negligible, or non-existent, benefits of term extension, the economists examined the costs of the extension by way of access to existing works and creation of derivative works:

A lengthened copyright term under the CTEA keeps additional materials out of new creators’ hands. Would-be new creators face increased transaction costs: the necessity to engage in costly locating (especially for very old works, the very ones that would be in the public domain but for the CTEA) and bargaining with multiple parties. These higher costs give new creators less incentive to produce. As a result, the CTEA imposes two kinds of burden on society, fewer new works produced and higher  transaction costs in the creation of some works.

Canadians might also be interested in the 2009 copyright consultation submission of Project Gutenberg Canada, written by its founder Mark Akrigg. He explains how our cultural heritage is affected by copyright’s lengthy term:

The commercial value of copyrights is exhausted far more quickly than most people realize. The vast majority of books go out of print shortly after their original appearance, and are never reprinted. Very long copyright periods are dangerous to Canada’s cultural heritage, because many original works are in essence gone forever by the time they enter the Public Domain. They are forgotten, because they have been unavailable so long.

Akrigg asked our Government to refrain from copyright term extension and protect the public domain. In his final recommendation, he made three suggestions:

(a) The Copyright Act be renamed the Copyright and Public Domain Act. The purpose of this to emphasize that private copyright and public copyright (the right to use the Public Domain freely) are both vitally important.

(b) Explicit recognition of the Public Domain. The preamble to the copyright update bill should include specific recognition of the role of the legislation in ensuring “the orderly passage of works to the Public Domain to form part of Canada’s cultural heritage”, and a statement that “full, unimpeded access to the Canadian Public Domain is a critically important cultural right which is vital to preserving Canada’s cultural heritage.”

(c) The creation of a Public Domain Commissioner. The Public Domain is not protected by organizations of any kind, and its critical importance is often overlooked in policy discussions and decisions. For the public good, a high-profile advocate is needed to ensure that the Public Domain is protected and promoted. The history of copyright in Canada must not be a depressing tale of increasingly oppressive legislation removing accepted rights from the Canadian people. It would be extremely helpful to have a Public Domain Commissioner with a specific mandate to act as the advocate of the Public Domain, to facilitate the access of Canadians to their cultural heritage, and to report to Parliament on the status and health of Canada’s Public Domain.

Our Supreme Court has not been shy to emphasize the preeminence of the public domain. In 2002, Justice Binne, writing for the majority in Théberge v. Galerie d’Art du Petit Champlain inc., stated: “Excessive control by holders of copyrights and other forms of intellectual property may unduly limit the ability of the public domain to incorporate and embellish creative innovation in the long-term interests of society as a whole (para.32).” Two years later, in CCH Canadian Ltd. v. Law Society of Upper Canada, Chief Justice McLachlin spoke of the importance that there be “room for the public domain to flourish as others are able to produce new works by building on the ideas and information contained in the works of others (para. 23).”

Our life plus fifty copyright term gives Canadian creators an advantageous position with disfavour to none. In fact, far from extending copyright’s term, a worthy ambition would be the international reduction of the term of copyright. With instant obsolescence an increasing characteristic of the present day world, lengthy protection holds even less meaning.

On 31 December 2011, in Canada Gazette, the Government of Canada filed notice of a public consultation regarding the TPP agreement: “It is essential that the Government of Canada be fully aware of the interests and potential sensitivities of Canadians with respect to this initiative.” Canadians may submit comments before February 14, 2012; see Canada Gazette for details.