More input invited for Bill C-32

The Legislative Committee on Bill C-32 is soliciting further input from Canadians. In a news release dated to December 6, 2010, Canadians are invited to submit up to 10 pages of thought (if your thinking runs in the 5-10 page range, please include a one page executive summary.) The committee requested that if change is proposed, draft language would be helpful.

I suspect many will offer up suitable language; instead, I take this opportunity to draw attention to the highly toxic atmosphere that emerged in the wake of Bill C-32. Far beyond the text of copyright law itself, what will cripple Canada’s creative prospects is the enmity that sits between copyright representative associations and educational institutions.

In my brief I emphasize some of the points I’ve raised in this blog: the securing of writers’ income from educational uses by the Federal Court of Appeal in July 2010, the campaign of misinformation concerning the inclusion of “education” to fair dealing, the direction taken by Israel in terms of fair use and best practices, and the wisdom of Northrop Frye.

If you wish to contribute to the proceedings, submissions must be made by January 31, 2011 and sent to: CC32@parl.gc.ca

An ill-fitting solution

The furor over the inclusion of education to permissible categories of fair dealing continues. Several writers’ groups in Canada have issued a call to the Federal Government for legislative guidance in terms of fair dealing and its application in educational settings. Clarity is the desired outcome.

On the surface, clarity seems like a good idea. But this must be placed in terms of the situation at hand – fair dealing. If one considers the role that fair dealing plays in the system of copyright, it should become evident that clarity will only be achieved by reducing the viability of fair dealing.

Fair dealing operates in aid of creative effort and thus fair dealing is necessarily as indeterminate as creativity itself. Guidance is important, which was provided by the Supreme Court in 2004 through CCH Canadian. That guidance indicates that decisions of fair dealing must include consideration of commercial impact. This is not a theoretical exercise – our courts have already engaged in this kind of deliberation.

It may be helpful to remember that the United States grappled with similar concerns – Canada is not trying anything novel. William Patry’s work is invaluable; as I wrote before, the U.S. considered what degree of detail for fair use should be coded into the law. At that time, in response to criticism of fair use’s imprecision, came these remarks:

… the doctrine of fair use is reasonably definite. It is equally as definite as many legal criteria we employ … from day to day. There is no mathematical formula, for example, by which to determine what constitutes negligence, or by which to determine what a reasonably prudent man would do in a given circumstance, but courts and lawyers apply the principle of these legal doctrines all the time. … I think that our difficulties in this area do not stem from the absence of a statutory rule, but from an ignorance of the jurisprudence. A greater knowledge about the doctrine of fair use would allay many misconceptions… (John Schulmann quoted in Patry, p.262).

Unfortunately, greater knowledge is hampered by misinformation. An inaccurate editorial surfaced this week at the Toronto Star. It decries the inclusion of education as a permissible category of fair dealing and offers up the foreboding (and baseless) scenario that a Canadian schoolboard could make use of a single book for all its students. The intentions of the editorial seem noble, i.e. concern over the well-being of Canadian writers. However, that is a greater problem and not one well-served through the blanket regime of copyright.

Whatever proceeds are obtained through copyright licensing, they must be directed to all copyright holders – Canadian or otherwise. This is known as national treatment and is an international requirement. In terms of our current law, Section 5(1) of the Copyright Act describes the conditions for subsistence of copyright:

5(1) Subject to this Act, copyright shall subsist in Canada, for the term hereinafter mentioned, in every original literary, dramatic, musical and artistic work if any one of the following conditions is met:
(a) in the case of any work, whether published or unpublished, including a cinematographic work, the author was, at the date of the making of the work, a citizen or subject of, or a person ordinarily resident in, a treaty country;
…

Treaty countries include those who are party to the Berne Convention, a UCC country, or are a WTO member. While those countries will reciprocate and afford copyright protection to Canadians, it will only be to the level that is provided to their own nationals. And this invites comparison: do other programs offer comparable returns to what is collected in Canada? Which leads to further speculation: what does the trade imbalance look like? How much Canadian material is used outside of Canada, compared to the amount of foreign material used inside Canada?

However, for the sake of argument, let’s assume that all copyright proceeds are dedicated entirely to Canadian copyright holders. This still does not ensure that the funds will end up in the hands of the originating author. The contractual terms between authors and publishers will control the division of royalties. From the anecdotal evidence I have heard, contracts are not uniformly good contracts. (Although, I would appreciate hearing from writers themselves …)

If the objective is to serve Canadian writers, with a policy measure underwritten by Canadians en masse, copyright is not the appropriate instrument to use. Canadian writers would do far better with a program initiative that can be targeted to their needs.

Twice the fun

Two events to report on this week … one domestic and one international (sort of).

The U.S. Librarian of Congress relaxed some of the prohibitions upon circumventing technological protection measures (TPMs) as found in the United States Digital Millennium Copyright Act (DMCA). Included was a measure that directly benefits educational uses of copyrighted materials. When done in good faith, for the purposes of criticism and review, college and university professors are permitted to extract clips from movies encrypted on DVDs. This expands a previous allowance which was offered only to film and media studies’ professors. (I presume this measure can be enjoyed by all teaching professionals at post-secondary institutions, including those of sessional ilk.) Also mentioned by name as eligible for the provision are film and media studies students. And the provision applies to creation of documentary films and noncommercial videos, again when conducted in good faith and for the purposes of criticism and review.

Other measures will assist consumers; you can read about them here. What I find interesting is the timing and the process. The United States continues to move away from the position of absolute deference to TPMs while Canada stands ready to embrace it. Bill C-32 does not permit the circumvention of TPMs for legitimate fair dealing uses. As far as the process goes, it was refreshing to discover that the Librarian is required to periodically review the activities constrained by TPMs with a very specific purpose:

As I have noted at the conclusion of past proceedings, it is important to understand the purposes of this rulemaking, as stated in the law, and the role I have in it. This is not a broad evaluation of the successes or failures of the DMCA. The purpose of the proceeding is to determine whether current technologies that control access to copyrighted works are diminishing the ability of individuals to use works in lawful, noninfringing ways.

The review process is open; all interested parties can submit written comments on the topic. This was the fourth such review.

Now to the home front.
The Federal Court of Appeal (FCA) released its decision concerning the charges on photocopied material used in schools from Kindergarten through to Grade 12. (Cited as 2010 FCA 198, and dated to 23 July 2010, the online text is not yet available.) My thanks to FC for providing me with a copy.

The FCA reminds Canadians that in decisions of fair dealing, the category of applicable use is merely the beginning. To make a complete assessment of fair dealing, the multi-facetted inquiry set by the Supreme Court in CCH Canadian must be followed. The FCA did exactly that, via existing fair dealing categories of private study, research, criticism and review, and ruled that the majority of photocopying taking place in schools will remain as subject to compensation. This decision is significant; it recognizes that educational activity is already represented through fair dealing and simultaneously reinforces the fact that a category by itself is insufficient to claim fair dealing. Hopefully this will quell the misconception that Bill C-32′s inclusion of education within fair dealing is “expropriation”.

Update: Here’s the CanLII link for 2010 FCA 198

Bizarre

Industry Canada indicated some good news in terms of education and Bill C-32:

For educational and training purposes, teachers and students will be allowed to use material that they find on the Internet as long as it is has been legitimately posted there by copyright owners without expectation of compensation.

For years, teachers in Canada have worried as to whether they can use publicly available material from the Internet in the day-to-day operations of educating Canadian students. I truly question why this is an issue at all – publicly available material should be self-evident as to its useability. But, Bill C-32 makes it less transparent. It all comes down to “expectation of compensation.”

In a section identified as “Work Available Through Internet,” we find:

30.04 (1) Subject to subsections (2) to (5), 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;

There are, of course, conditions. If one doesn’t give the source, and (if present in the source) omits to name the author, performer, maker or broadcaster, the exception does not apply. And this is good. Citation is a moral right and the backbone of academic practice. Teachers should model that behaviour.

Then comes the obedience to technological protection measures – the exception does not apply if the work, or the site from where it comes, is protected. This is not so good (teachers should still be able to apply fair dealing) but not surprising either.

And then:

(4) Subsection (1) does not permit a person to do any act described in that subsection in
respect of a work or other subject-matter if
… (b) a clearly visible notice — and not merely the copyright symbol — prohibiting that act is posted at the Internet site where the work or other subject-matter is posted or on the work or other subject-matter itself.

This seems to say that those who enjoy the open-ness of the Internet, can still choose to deny Canadian students from benefiting from that same open-ness. All that is needed is a notice indicating expectation of compensation. In which case, either Canadian teachers must leave the material alone or ensure compensation. Said another way, our choice is a hobbled Internet for Canadian students, or, the price of education rises.

A point that could be made is, this is the Internet – it has boundless opportunities. If some people do not wish to share, a multitude of others may fill their place. Those who choose to share should then be congratulated for their ethical stance, while Canadian school boards make payments to lesser individuals.

The more I think about this, the worse it gets. What will happen if the world realizes that there is money to be made from Canadian taxpayers, simply by labeling sites “do not use for educational purposes”? No technological protection measure is even needed. By virtue of national treatment, Canada would be obligated to render fees to foreign copyright holders, if their publicly available, non-locked, work was accessed against their wishes in a Canadian classroom.

As far as I am aware, no other nation has such a program in place, which means Canada will not enjoy any reciprocal fees when Canadian copyright holders’ works are accessed in foreign classrooms. And, even if such programs are in place, given Canada’s comparatively modest presence on the Internet, I foresee yet another deficit in cultural trade.

Was this clause deliberately included so that it could be jettisoned later as a display of compromise?