Meera Nair


In Posts on June 6, 2010 at 9:43 pm

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?

  1. Bizarre indeed. But simple economics will dictate that those who wish to share will receive the most visitors. I confess to being somewhat puzzled. Does this mean that if a book is printed in hardcopy and then posted on the internet with a notice requiring compensation that a teacher cannot use short excerpts from the printed material for teaching purposes?

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