[important note: If you'd like to give me feedback on this--and I'd really appreciate it--could you please email me directly at Kevin.Schut[AT]twu.ca? I don't use this blog or gmail address much, so I might not see your comments or responses here]
There are a series of implications for educational institutions in the new Copyright Bill (C-32, available at http://www2.parl.gc.ca/HousePublications/Publication.aspx?Docid=4580265&file=4). Because it is an amendment, there may be times when it would be smart to have the current Act handy (http://laws.justice.gc.ca/PDF/Statute/C/C-42.pdf). I may be missing some important stuff, of course, so that’s a disclaimer. I’m also a little unclear about certain provisions, and so I may be overblowing certain things. It’d be nice if a real lawyer looked at the passages I have questions about and gave a more informed opinion.
document explanation:
- first, I’ve given references to where you can find the things I’m talking about. The first number (in bold) is the number listing in C-32. The number behind that is where the provision in question would go in the actual Copyright Act. Once you start looking through the document(s) in question, I think you’ll figure it out
- second, in case it's not clear: TPM = Technological Protection Measure, or DRM
1. C-32 on Teaching
A. Adding education to fair dealing [21|29]
- the current Act only gives fair dealing status (like “fair use” in the U.S.) to research and private study. The new line includes “education,” “parody,” and “satire.” I think it should include “criticism” as well, but this is an apparent step forward.
- the problem I see is that fair dealing is tightly defined, so it’s not here that education makes its steps forward in this bill. In other words, we get to find out in all the stuff below what “fair dealing” actually means, and it’s not quite as broad as I’d like it to be. Is that a fair read?
B. Simplification of projection/display [23|29.4]
- currently, the wording for projecting materials is clunky. The new bill simplifies: you’re allowed to display a work in class, however that needs to happen. Good.
- my big question is what they mean by “work.” The Act sometimes seems to mean any kind of fixed work, which would include sound recording, images, moving images, printed text, etc. But other times, it seems to me that they’re just talking about printed work. I need other expert opinion on this.
- one important limitation: if what you want to show is commercially available (for sale) in a presentable format, then you have to buy that [23(2)]
C. Clarification on recorded sound [24(1)|29.5(b)]—no use of illegal copies
- this is minor, but worth noting: as before, you can play a sound recording in class, but you can’t use them if they’re an illegal copy (in other words, you have to buy a copy)
D. Addition of public display of “cinematographic work” [24(2)|29.5(d)]
- you’re now allowed to show cinematographic work in class just like sound recordings! Again, you have to have a legal copy. But it seems to me that this does away with the need for a public viewing license. I’d like to get expert opinion on that.
- My other question: does the DVD set of a recorded TV program count as cinematographic work? My reading of the definition of that kind of work in section 2 of the existing Act suggests yes, but I’d like expert opinion on that too.
E. Recording news [25|29.6(1)(b)]
- you are now legally allowed to record news broadcasts and play them in your classes (currently, you can only use them for a year, and then you have to pay royalties—plus, there are limitations on what kinds of news you can use). Good.
F. No changes in the recording of other broadcasts [Not in C-32|29.7]
- Not so good: nothing in 29.7 of the current Copyright Act has been changed. You still may not record broadcasts for educational use without negotiating royalties.
- For the record, I want to push for an exception like with the projection stuff: if something isn’t made commercially available, you can record and show it
D. Use (and limitations of use) of the Internet in classroom [27|30.04]
- the good news: the Bill makes it legal to use any material available on the Internet—showing it in class, using it for distance learning, and reproducing it (printing, for example)… subject to limitations.
- Limitation 1: if you use the internet, you must give credit to the source and then to the author/performer/maker/broadcaster. I don’t have a problem with this. If we’re serious about a counter-plagiarism culture, this is good practice.
- Limitation 2: you can’t use any internet material that requires you to break a TPM to access
- Limitation 3: you may not use any material on a site with a clear notification that prohibits your use of it. This is the big one. The Bill says that the Governor in Council (legal illiterate here: who is this?) gets to define what counts as a clear notification. But the point is that if a site says you can’t use its material for educational purposes, you can’t use it. To me, this could easily turn into a situation that chills freedom of speech. Is that fair critique?
- Limitation 4: you can’t use the internet material if you know or “should have known” that it is illegal. E.g. You want to show a clip from The March of the Penguins that “th4tdumguy42” has posted on YouTube—you should know better. The user almost certainly didn’t have permission to post that movie clip. The problem I see here is: who gets to determine whether the teacher should have known that this or that was legal/illegal? It’s not common sense all the time!
2. C-32 on Distance Education
A. Legitimizing lessons via telecommunication [27|30.01(1)-(4)]
- like C-61 of yesteryear, C-32 provides for distance education. You’re allowed to create lessons that incorporate any material that would normally be allowed (either via licenses or fair dealing provisions) and deliver it to students via telecommunications (the Internet and/or email, I think)
- one little interesting note: the distance student is considered on campus, legally speaking (unless I’m reading 30.01(4) incorrectly)
B. Limitations of distance learning [27|30.01(5)-(6)]
- the student can make a copy of the remotely-delivered lessons for the purpose of study, but 30 days after the course is done, the copy must be destroyed
- likewise, the school and any employees will destroy any copies of the lessons 30 days after the course is finished. This is the same (in my opinion) stupid and unenforceable standard of C-61. I have seen elsewhere the claim that teachers of all sorts would have to destroy lessons containing copyright material, but my read was that it was just for distance learning--am I right?
- in addition, the school has to “take measures that can reasonably be expected to limit communication” of the lessons to students only (no distributing it hither and yon) and to take “measures that can reasonably be expected to prevent the students” from copying the lessons—except as they are allowed to do for the purpose of studying. Aside from the ridiculous contradiction of this last bit, my big question here is: what are reasonable measures?
3. C-32 on Access Copyright
A. Allowing digital copies, even if your Access Copyright (technically: “reprographic reproduction license” with a “collective society”) agreement doesn’t [27|30.02(1)-(2)]
- apparently, the Bill is not going to get rid of collective societies that manage access to copyright works. However, it is lighting a fire under collective societies that don’t currently allow for digital copying. Basically, if your current agreement only covers physical copying, C-32 says you can make digital copies.
- this part also says that you can distribute the digital copies via telecommunications
B. Limitations of digital copies [27|30.02(3)-(8)]
- however, you must pay the fees you’d pay for a physical copy
- also, people who receive the digital copy may only physically print one copy of the work.
- the kicker is that the educational institutions must, again, “take measures” to prevent distribution of the documents, and printing more than one physical copy. How they expect to enforce that, I have no idea. My gut feeling is that this may effectively kill the unlicensed use of digital copies. If anyone else has some useful perspective here, let me know.
- on top of all this, if you switch to an agreement with your reprographic collective society that does cover digital copying, then that agreement trumps whatever rights are offered in this section. However, the Bill does say that your agreement must provide the right to telecommunicate your digital copies and print one physical copy, so maybe the difference is a wash.
- finally, authors in collective societies can opt out of allowing their materials to be turned into digital copies. The default (if the author says nothing) is that he or she opts in, but if they request it, you’re not allowed to make digital copies of their work.
- if you get sued for something to with all this, the maximum that the collective society can make back is the missing royalties
- now my final question with all of this is whether all of this talk of collective societies applies only to print media or all recorded media. I rather think the former—it’s certainly written like it only is talking about written text. But it would be interesting to hear from an expert that in fact all of the above applies to any kind of media product (if you can find a collective society).
C. If your license switches, there are back-payments or refunds [27|30.03(1)-(2)]
- I found this section of the Bill the hardest to understand. It seems to be a provision for if you switch from a non-digital copy agreement to digital-copy agreement. When the royalties change, if they’re higher, you have to pay the difference, and if they’re lower (I’m sure that will happen!) you get refunded. The problem is: how far back do these adjustment payments stretch? I couldn’t figure that out from the wording.
4. C-32 on libraries and other research-related stuff
A. Allowing copies of obsolete material [28|30.1(1)(c)]
- librarians now have the explicit right to copy obsolescent material into current format. There is no mention of TPMs here, although most obsolescent material don’t have them. However, some older computer games do, which raises some interesting questions. I rather suspect that TPMs aren’t allowed to be broken for this purpose.
B. Librarians no longer need to satisfy suspicions of copy abuse, they simply need to notify users of limitations [29|30.2(4)-(5)]
- in a couple of spots, the wording of librarians’ obligations as to informing people about copyright has changed, and for the better I think. Currently, the user has to satisfy the librarian that he or she won’t do anything illegal with the material. Now, the librarian simply has to inform the user that he or she isn’t supposed to make any copies. There are two places where this change occurs.
C. Librarians can distribute digital copies… with restrictions [29|30.2(5.02)]
- you can make digital copies as loans but…
- you have to take measures to prevent the user from making any copies
- you have to take measures to prevent the user from communicating the copy to anyone else
- you have to take measures to prevent the user from using the copy for more than 5 business days
- in other words, welcome to the technical nightmares of C-61—you gotta get some kind of software that does this stuff for you, and it’s a real pain for everyone involved
D. Archive stuff (not sure this is important to us) [30|30.21(1),(3)-(4)]
- there are some things about how many copies you can make from archived materials, and how people submitting archive material can specify it’s not to be copied—I’ll leave that to archivists
5. C-32 other
A. Backing up programs is now legal for licenses as well as physical products [31|30.6]
- you can make a backup of programs you have licenses for—not just physical copies. I imagine this matters for programs for which we license seats
- there’s no mention of TPMs here, but I’m guessing you can’t break them to back up the programs in question
6. C-32 Non-education stuff you might want to be aware of
A. Re-mix provision [22|29.21]
- you’re allowed to make YouTube mash-ups. You can take bits and pieces of other copyright works and re-mix them for non-commercial purposes, as long as you give credit, and the derivative work doesn’t hurt the commercial potential of the original(s) (how do you determine this last, however?)
B. Personal copies (Format shifting) (29.22)
- you can copy your own legally purchased material for personal purposes. This is probably directed at format shifting—ripping my CD to mp3 form, for example
- but you expressly cannot break TPMs to do this
C. Personal recording (time shifting) (29.23)
- likewise, you can record broadcast media for “private purposes,” although you can only keep for as long as “reasonably necessary” to use it at a “more convenient time” at which point, you’re supposed to delete it (like that is going to happen)
- again, no breaking TPMs to do this
D. Back-up copies (29.24)
- it’s legal now to make back-up copies of your media material
- again, assuming you didn’t break TPMs to back the stuff up
E. Limitations of damages [46]
- the penalties for commercial violation of copyright is severe, including huge fines and jail time
- but for non-commercial purposes, you’re limited to a maximum of $5000 of fines (minimum of $100). Believe it or not, this is a step forward
7. C-32’s elephant in the closet: TPMs [47]
- if you’ve been following this bill at all, you know that the big point of contention is going to be over TPMs. Right now, there are very, very few exceptions in the bill for circumventing TPMs. Obscure activities, like encryption research and computer security things.
- interestingly, in all the consumer provisions listed above (format-shifting, etc.) specifically include lines highlight that you are not to break TPMs in order to exercise this right. The education & library provisions do not have these lines. But the section on TPMs seems to make it very clear that education is not a legitimate exception
- there are a few other bits of puzzling possible contradictions scattered throughout the TPM section (it’d be section 41 if this Bill actually became law). The one that I’m most surprised is an apparent “notwithstanding clause” near the end that seems to allow that Governor of the Council to allow the TPMs on some things to be circumvented according to a series of clearly spelled out criteria including educational value of allowing the circumvention. Is this a fair read?
Current assessment
- there are some really positive moves here, but I feel like many of the limitations are not balanced—even though that’s what they’re shooting for
- the TPM issue, though, is the absolute crucial one. If it is not changed, it will undercut every other right the Bill grants. Simply put, it is very easy to add TPMs to digital objects. This will allow any copyright holder to essentially abolish all copyright exceptions. That’s not balance, and that will potentially financially hurt us significantly
- Michael Geist has proposed a simple solution that I think we need to get behind: the Bill should say that TPMs are not illegal to break if the copying activity is otherwise legal. If it’s legal to copy, it’s legal to copy, whether or not the object has a TPM. This would keep us in compliance with the international WIPO treaty, and respect fair dealing.
Issues to address:
1. TPMs: see above
2. Clarification of what material can be shown in the classroom (are video games included, for example?)
3. Fixing the limitations of the internet use
4. Allowing recording of all broadcast material
5. Reducing unenforceable and/or expensive-to-enforce provisions, such as the stuff about preventing students or library patrons from making illegal copies
6. Address orphan works: the bill does not talk about orphan works (whose copyright status is impossible to ascertain) at all. This is a big hole.
7. Removing Crown Copyright: another issue raised in the consultations was that material produced by the government should be released the public (barring security or confidentiality issues) free of copyright, as all of their material is produced with taxpayer money. This is what happens in the U.S., and it’s a good move. The gov’t hear this in consultation, but didn’t address it in this Bill.
