[Politech] Michael Geist critiques Canadian copyright law proposal [ip]

From: Declan McCullagh (declan@private)
Date: Mon May 31 2004 - 20:33:20 PDT

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    -------- Original Message --------
    Subject: Canadian copyright reform proposal threatens educational Internet
    Date: Mon, 31 May 2004 07:32:12 -0400
    From: Michael Geist <mgeist@private>
    To: Declan McCullagh <declan@private>
    References: <40B74A9B.7010305@private>
    
    Declan,
    
    Of possible interest to you and your subscribers -- my latest Toronto
    Star Law Bytes column assesses the consequences of a recent Canadian
    parliamentary committee report on copyright reform.  The report
    recommends swift ratification of the WIPO treaties, increased
    potential liability for ISPs, and the prospect for a new extended
    license to cover Internet-based materials in education.
    
    The column argues that the report largely neglects the user side of
    the copyright balance equation by focusing chiefly on the
    compensation and protection afforded to creators. Further, it laments
    the recommendation of a highly restrictive definition of publicly
    available work on the Internet, which if adopted will prove costly
    for Canada's education system.  The latter development is
    particularly unfortunate given the Supreme Court of Canada's recent
    decision on the need for a broad and liberal interpretation to
    exceptions that lie at the heart of education such as research and
    private study.
    
    Column at <http://shorl.com/jekemuholepre> [Toronto Star]
    
    Report at
    <http://www.parl.gc.ca/InfocomDoc/Documents/37/3/parlbus/commbus/house/reports/herirp01/herirp01-e.pdf>
    
    Best,
    
    MG
    
    Will copyright reform chill use of Web?
    Copyright proposal upsets the balance
    
    MICHAEL GEIST
    LAW BYTES
    
    In hindsight, the fall of 1998 may be remembered as the shining hour
    of Canadian Internet policy development. Led by then-Industry
    Minister John Manley, Canada played host to an OECD ministerial
    meeting on e-commerce, tabled new privacy legislation, unveiled
    several e-commerce policy initiatives, and committed to providing
    every Canadian school with Internet access.
    
    Unfortunately, our low point may have occurred earlier this month
    when a Canadian Heritage parliamentary committee chaired by
    Toronto-area MP Sarmite Bulte presented a vision of copyright that
    would transform the Internet from the incredible open source of
    information that it is into a predominantly commercial medium
    available primarily to those willing to open up their cheque books.
    
    It foresees, among other things, schools being required to pay for
    using, as course materials, Web-based information that is made
    publicly available - often with the poster's intention of reaching as
    wide an audience as possible and with no expectation of payment.
    
    Few technology law issues have proven as divisive in recent years as
    copyright reform. Proponents of stronger protections fear that the
    Internet and digital technologies will eviscerate traditional
    copyright protections.  They have therefore actively lobbied for new
    powers to block unauthorized access to copyrighted material as well
    as for new compensation schemes to pay for new technological uses of
    old work.
    
    Opponents of stronger protection, pointing to the recent Supreme
    Court of Canada decision involving legal publications, argue that
    Canadian copyright law must adopt a balanced approach in which the
    interests of creators are considered in parallel with the needs of
    users and the larger public interest.
    
    The unexpected consequences of copyright reform in other
    jurisdictions - such things as jailed software developers and
    copyright litigation over technologies such as garage door openers -
    have led opponents to argue that Canada must navigate a balanced
    approach that avoids the mistakes made elsewhere.
    
    While the notion of balance in copyright law has proven contentious
    in some quarters, it is in fact a well-established principle under
    Canadian intellectual property law. For example, under Canadian
    patent law, inventors receive a limited monopoly over their invention
    that grants them exclusive authority over how that invention is used.
    
    In return, the patent expires after a prescribed period at which time
    anyone may use the invention without prior authorization. Moreover,
    obtaining patent protection also requires inventors to fully disclose
    and describe their invention so that the public obtains the immediate
    benefit of that knowledge.
    
    The Canadian Supreme Court has affirmed a similar balance in
    copyright. Creators enjoy a basket of exclusive rights such as the
    sole right to reproduce or perform the work. In return, the term of
    copyright protection is limited so that expired work becomes part of
    the public domain and may be used by anyone without permission or
    payment.  Furthermore, the Copyright Act establishes a series of
    "user rights," known as exceptions, that allow users to freely use
    portions of copyrighted work for such things as research, private
    study, news reporting, and criticism. While Bulte recently expressed
    concern that these exceptions lead to "freebies," in fact it is these
    exceptions that ensure that the Copyright Act retains the balance
    needed to give creators their exclusive rights.
    
    Bulte's committee held hearings for several weeks in March and April,
    quickly generating nine key copyright reform recommendations, made in
    a pre-election interim report. The plan, whose status may be affected
    by the election, largely neglects the user side of the balance
    equation by focusing chiefly on the compensation and protection
    afforded to creators.
    
    The committee's recommendation for swift ratification of the
    controversial World Intellectual Property Organization's Internet
    treaties and increased liability for Internet service providers will
    rightly garner much attention. It is its approach to educational uses
    of the Internet, however, that are a particular cause for concern
    given the current financial strain on our schools.
    
    Canada's Copyright Act already provides educators and students with a
    user right in copyrighted work for research and study purposes. The
    Supreme Court has ruled that this right is to be interpreted in a
    liberal fashion such that copying full articles may be lawful in
    certain circumstances. The use of those works in the classroom is not
    covered, however, forcing teachers to sort through the rights
    attached to materials before using them in courses.
    
    The Canadian educational community has proposed what would appear to
    be a balanced solution in the form of establishing a limited
    educational user right to publicly available work on the Internet. In
    keeping with longstanding and widely accepted practices on the
    Internet, publicly available work would include materials that are
    not technologically or password protected - that is, information the
    author would appear to want to make widely available.
    
    Bulte's committee surprisingly rejected the education community's
    proposal, opting instead for a new license to cover Internet based
    works. This new license would require schools to pay yet another fee
    (the education community already hands over millions in license fees
    each year for content) for works found on the Internet.  How the
    payments are calculated, collected and forwarded to those entitled to
    receive them presents another set of problems that would have to be
    resolved in a manner that assures all stakeholders that payments are
    not made for work that the Supreme Court has already declared subject
    to a user right and therefore available without compensation.
    
    Although it acknowledges that some work on the Internet is intended
    to be freely available, the committee recommends the adoption of the
    narrowest possible definition of publicly available. Its vision of
    publicly-available includes only those works that are not
    technologically or password protected and contain an explicit notice
    that the material can be used without prior payment or permission.
    
    Rather than adopting an approach that facilitates the use of the
    Internet, Bulte's committee has called for the creation of a
    restrictive regime in which nothing is allowed unless expressly
    permitted. The result will be an Internet in which schools will be
    required to pay to use Internet materials contrary to the
    expectations of many creators.
    
    A far more balanced approach, and one that would be more in line with
    Canadian values, would be to permit all uses unless specifically
    prohibited. This could be easily achieved in a manner that respects
    copyright by establishing a publicly available definition that
    includes works not technologically or password protected and for
    which the copyright holder has not expressly asserted limitations on
    the use of the work.
    
    Canada displayed foresight in the late 1990s in identifying the
    potential for the Internet and new digital technologies to benefit
    all Canadians. In order to fulfill that vision, we need to reconsider
    the Bulte committee's recent recommendation so that the balance that
    is so critical to creators, users, and the broader public interest is
    preserved.
    
    -- 
    **********************************************************************
    Professor Michael A. Geist
    Canada Research Chair in Internet and E-commerce Law
    University of Ottawa Law School, Common Law Section
    Technology Counsel, Osler, Hoskin & Harcourt LLP
    57 Louis Pasteur St., Ottawa, Ontario, K1N 6N5
    Tel: 613-562-5800, x3319     Fax: 613-562-5124
    mgeist@private              http://www.michaelgeist.ca
    
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