Canada’s “Copyfight” Continues -- March 2011 (With Updates to September 2011)
2011 brings major developments in two key areas of the complex and hotly-contested terrain of Canadian copyright (keep watching library.upei.ca/copyright for further updates -- more information is also available in the Further Reading section of this guide, including the April 2011 Guidelines for the use of copyrighted materials from CAUT, the Canadian Association of University Teachers):
1. Access Copyright
For reasons outlined below, the fairness and effectiveness of the Access Copyright collective licensing regime in Canadian higher education looks increasingly doubtful, and many universities, including UPEI, are now electing to operate outside it. The University will continue to respect the Copyright Act, and is undertaking other due diligence measures to minimize institutional exposure to liability. All members of the campus community are reminded of their individual responsibility to respect the provisions of the Copyright Act: click here for more guidance on making fair and appropriate use of your rights under the Act. As a general rule, instructors are encouraged to use Moodle to link to licensed online content (e-journals and full-text databases) and use Library Reserve/e-Reserve rather than make paper copies for classroom use; those doing self-service scanning or photocopying should reproduce only a modest amount of any published work (e.g. a single article from a periodical; a single chapter from a book) and retain these scans/copies only for personal research and private study. Any questions or concerns should be referred to the Library or the Comptroller’s Office.
Background
Since the early 1990s, UPEI has, like most Canadian universities, worked within the collective licensing regime of Access Copyright (formerly CanCopy), under terms negotiated by the Association of Universities and Colleges of Canada (AUCC) on behalf of its 95 member institutions. AUCC members paid royalties to Access Copyright (generally, a per-page levy for course-packs, and a per-student fee for other copying), which distributed these monies to its individual and corporate members.
As the dependence on large-scale paper copying -- the main activity countenanced under the CanCopy/Access Copyright license -- decreased in recent years, with the rise of digital content (subscription e-journals and full-text databases, as well as “open Web” material), many AUCC members expected Access Copyright to negotiate newer, less expensive licenses. Instead, Access Copyright last year applied to the Copyright Board for a tariff on all Canadian post-secondary institutions that would massively increase the copying royalties payable by universities (from ~$3.50 to $45 per FTE student enrolled; Access Copyright claims that the new tariff is still a good deal, since it would cover coursepack costs, but even when these costs -- avg. just over $15/FTE student, according to AUCC -- this still amounts to an effective increase of nearly 250%). The tariff application also demands an onerous and impractical surveillance and reporting regime that would likely violate academic freedom and greatly increase the cost of operating within the Access Copyright regime. Furthermore, the tariff attempts to assert, without bases in law, Access Copyright’s jurisdiction in activities (including Internet linking) never countenanced by the previous licensing regime.
AUCC filed a strong objection to the proposed tariff, along with (jointly) the Canadian Association of University Teachers and the Canadian Federation of Students, and a host of other representative individuals and agencies throughout Canadian academe. In the Fall of 2010, as it became apparent that it could take years to establish any new tariff, and facing the expiry of its existing licenses at year’s end, Access Copyright applied to the Copyright Board for an interim tariff. This was granted by the Copyright Board on December 23rd, over objections from AUCC and other parties. Although the interim tariff maintains the “status quo” on royalties, there are concerns that signing it will expose an institution to future retroactive payments as and when a new tariff is finally approved, to say nothing of the strong objections in principle made by AUCC and other parties. Further difficulties were introduced on March 21st, 2011, when Access Copyright served AUCC and its member institutions participating in the interim tariff with a massive series of more than 130 interrogatories (questions) regarding every conceivable type of copying activity which may have occured on-campus for the past 3 years.
2. Bill C-11 (formerly C-32): The Copyright Modernization Act *
[On September 29, 2011, the Conservative government announced its plans to re-introduce Bill C-32 as Bill C-11, promising expedited hearings, with a view to having the bill pass by the end of the year. Heritage Minister Hon. James Moore has indicated that the bill remains unchanged from the version tabled in June 2010]
Bill C-11 (formerly Bill C-32) is the latest in a series of bills intended to provide badly-needed clarifications and updates to the Copyright Act, which has not seen any substantive amendment since 1997. The federal government undertook a years-long process of consultation on copyright reform in the early 2000s, only to see the ensuing copyright bill die on the order paper with the fall of the Liberal government in 2006. After its controversial Bill C-61 -- condemned by many as a Canadian version of the much-criticized US Digital Millennium Copyright Act (DMCA) -- died on the order paper with Parliament's prorogation in late 2008, the Conservative government undertook a new round of copyright consultations in 2009, followed by the introduction of Bill C-32 last summer.
A Commons’ legislative committee then began hearings on C-32, running from November, 2010 through the early months of 2011; these hearings may resume in Fall 2011, but it is unclear if the government is open to any changes to Bill C-32. Although the testimony at the previous hearings, and corresponding public debate, were somewhat less heated than in years’ past, areas of significant contention and concern emerged, including:
1. Addition of “education” as a category for fair dealing (the right to copy without explicit permission or payment): this has been welcomed by CAUT and other key players in academia, but has drawn harsh criticism from some “creators rights” groups, as well as Access Copyright. In response to claims that “education” is too broadly-defined, and would thus unreasonably deprive rights-holders of fair compensation, AUCC suggested a couple of amendments to C-32, including a clearer definition of fair dealing, and an explicit reference linking “education” (not defined to in Act) to the work of “educational institutions” (which are very clearly identified). The Canadian Association of Research Libraries (CARL) also argued for inclusion of “education” as a fair dealing use.
2. Technological protection measures (TPMs or “digital locks”) are made legally unbreakable in C-32, which has attracted criticism from AUCC and many others. The recommendation from most concerned parties is that circumvention of digital locks for purposes which do not infringe copyright should be permitted (see, for example, the submission of the Canadian Library Association on C-32).
There are other issues of discussion and debate, but these two have attracted the most attention thus far.
* Additional Background
Shortly after C-32 was tabled last June, the Library of Parliament released an excellent summary of the Bill and its place in recent efforts at Canadian copyright reform/modernization. More recently, the Canadian Bar Association presented a thorough and strenuosly even-handed analyses of C-32 in February 2011.
Created by: Simon Lloyd, B.A., M.L.I.S.
University Archives and Special Collections Librarian
Phone: 902-566-0536
Date Created: 10-March-2011
Date Updated: 30-September-2011