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).

Breaking Ranks

August is flying by, and the deadline for submission of opinions to the consultation process is fast approaching – September 13, 2009. (I’m still working on mine…) Both the Canadian Alliance of Student Associations and the Canadian Federation of Students have submit thoughtful and well articulated proposals.

Unfortunately, I must break ranks with my host community – the Association of Universities and Colleges of Canada. With all due respect to the AUCC staff, I have concerns with some of their remarks, particularly this one:

Students and professors need to know that they are not breaking copyright law when they engage in teaching and learning activities that involve the use of publicly available works on the Internet. Copyright law should be amended to clarify that publicly available works on the Internet can be used for education and training purposes without infringing copyright.

Judging by the positions of the two student associations, students in Canada are already aware that accessing publicly available material from the Internet is a legitimate activity. There are a variety of ways that such behaviour could be considered legitimate, but, as always, fair dealing is the most viable. The access generally sought after in the name of learning, teaching and research is already on firm ground through fair dealing.

To request amendment to the law to engage in legitimate activity concedes infringement where none has happened. This is not merely peculiar, it is dangerous. If this amendment is tailored as a special exception solely for educational institutions, other Canadians who perform the same activity, but are not sheltered by an educational institution, will be at risk for a charge of infringement.

And to hide behind such an amendment means universities and colleges are choosing to exempt themselves from understanding and upholding their individual obligations under the terms of copyright law. The latitude that is permitted by fair dealing, precisely for the kind of work carried out by the students, teachers, researchers and librarians of these institutions, comes with the obligation to use fair dealing responsibly.

Fortunately, our two student bodies seem up to the task, as are Canadian librarians. (The CLA position paper, available from the August 10, 2009 submissions on the consultation website, makes for good reading.) It would be nice if universities and colleges would follow.