copyright in canada and the u.s

Dr. Margaret Ann Wilkinson 2010

Copyright in Canada and the U.S.

Dr. Margaret Ann WilkinsonProfessor

Faculty of Law(with doctoral supervisory status in Library & Information Science)

The University of Western Ontario,

London, Ontario, Canada

(with thanks for conversations with Dr. John Tooth

and research assistance by law students Justin Vessair,Dan Hynes and Dave Morrison)

Western New York & Ontario -Association of College & Research LibrariesEast Aurora, New York, November 5, 2010


Canada’s academic institutionsface tough decisions this year…

• These decisions must be taken by each academic

institution in Canada individually…

• Once taken, these decisions may alter the shape of

access to information in the Canadian academy…

• These decisions stem from copyright law but will,

paradoxically, be little affected by the current Bill C-

32 before the Canadian House of Commons,

whether or not it passes in its current form or in a

modified form…

• These decisions do not seem to be decisions that will

face American colleges and universities…


How do Canadian and American academicinstitutions come to this fork in the road?

First, let us look at some features of the

Canadian copyright environment that distinguish

it from the American …

And how these impact the current Canadian situation…

Then, let’s look at the effect of the differences on:

- the probable impact of Canada’s Bill C-32; and

- the importance of the open source movement onacademic libraries in the two countries…


As in the United States, in Canada there is one statute for allmaterials dealt with in Canada:

Copyright Act,

Revised Statutes of Canada 1985, c.C-42, as amended

Since the inception of the Berne Convention, Canadahas been compliant with it (first through its status asa British colony – and then in its own right)…

The United States is a very recent adherent to Berneand, even now, has not implemented the provisions ofBerne which relate to the protection of moral rights…

Because of the international principle of “national treatment” ininternational copyright agreements, all materials in Canada, for allpractical purposes, are governed by Canadian law and vice versa in theUnited States…


The policy makers creating Canada’s copyrightenvironment:

GovernmentLegislature

In Canada, the federal government -- recent Bills C-60 and C-61 (both now dead) –legislation again promised to be introduced this spring…

NO provincial interest –Judiciary- since 2002 steadily confirming a large “public domain”

In Canada, Parliament has tried to limit the role of the courts: s. 89 Copyright ActThe Canadian Charter of Rights and Freedoms has never yet been applied directly to an

intellectual property law situation (but the Supreme Court in the Harvard Mouse casein patent, for example, has indicated a willingness to apply it)

How will “users’ rights” be expressed and preserved in the future?International Treaties

Are Perceived, once entered into, as limiting Domestic National Policy Options19th Century Co-ordination (e.g. Berne, Paris)1990’s World Trade Agenda Coercion (e.g. NAFTA, TRIPS)

Are irrelevant to Charter concerns, are not binding on Canadian legislatures; non-complianceruns the risk of sanctions in the trade context

Intellectual Property Owners, ThemselvesCanadian Governments -- As Crown Copyright HoldersCopyright holders working together through Canadian Collectives – AccessCopyright taking all

the universities to the Copyright Board for a Tariff instead of negotiating … begunApril 1, 2010…

Other individual copyright holders – both domestic and foreign

Not users – except indirectly as lobbyists and electors influencing the legislative process…


TRIPS:

Article 13:

[Member states] shall confine limitations or exceptions to exclusive

rights

to certain special cases

which do not conflict with a normal exploitation of the work

and do not unreasonably prejudice the legitimate interests of

the right holder.


Canadian Copyright Act -

Three sets of rights enshrined:

US system really only recognizes 1 set: Economic Rights…

ECONOMIC RIGHTS (from thebeginning)

MORAL RIGHTS (Canada 1stcommon law country to

introduce; fully articulated in1988)

USERS’ RIGHTS (expressedby the SCC in 2004)

Life of the author + 50 years on works;ALWAYS remain with the author – but canbe waived

Fully assignable (owned from the outsetby employers in an employment situation)

Life of the author + 50 years on works; 50years generally for “other subject matter”


What is copyrighted?Expressions and not data or facts per se

Works:• Literary - Includes computer programs, tables• Artistic - includes photographs, diagrams, maps, charts, etc.• Musical• Dramatic -Includes cinematographic works, with or without

soundtrack

Compilations of works and Collective works- Works resulting from the selection or arrangement of data

or of other works or parts of other works and any workincorporating the work

Other subject matter:• Sound recordings• Performers’ performances• Broadcasts


Converting Work to a Digital Format is a Copyright Holder’s Right –and Transmitting it anywhere is also a Copyright Holder’s Right…

(a) Converting a Work to a Digital

Format is a Copyright Holder’s Right:

Robertson v. Thomson 2006 Supreme Court

• “Converting” a work to digital is an act of

reproduction that only a Copyright Holder

has the right to do

• A copyright holder holds the same rights in a

digital work as would be held in a work in

traditional form.

Robertson et al v. Proquest et al

• Class Action Lawsuit in Ontario spring 2009

• 3rd party claims3rd party claims being made by Proquest et

al against journals, since the journals

originally published the articles that

Proquest et al later digitized

• Similar lawsuit in Quebec: ElectronicElectronic--RightsRights

Defence Committee v.Defence Committee v. SouthamSoutham et alet al,

certified class action Que SC April 15 2009

(b) Uploading or Downloading a Digital Work

involves a Copyright Holder’s Right:

SOCAN “Tariff 22” decision 2004 SupremeCourt

• Posting a work on the net is authorizing itscommunication (ONE RIGHT) – andcommunication occurs when the item isretrieved by an end user (A SECOND RIGHT)

• When a content provider intends the public tohave access, that is a communication bytelecommunication to the public (THATSECOND RIGHT)…

Canadian Wireless TelecommunicationsAssociation v. SOCAN (Federal Court ofAppeal)

• Transmission of ring tones to cellphonecustomers, even when each transmission isseparately triggered by the customer, is aright of the copyright holder

(AGAIN, that SECOND RIGHT)


Converting Work to a Digital Format is a Copyright Holder’s Right –and Transmitting it anywhere is also a Copyright Holder’s Right…

Crookes v. Newton (2009 BCCA 392) Leave to Appeal granted by the SupremeCourt

on April 1, 2010… a defamation (libel) case… copyright is not mentioned…Appeal to be heard this December…

• A website owner putting a hyperlink to another site will not automatically be

considered “publication” of the material to which the link is made (and the majority

in this particular case said there was no publication)…BUT

• Both the majority (Saunders, JA, for herself and Bauman, JA) and the dissenting

judge (Prowse, JA) held that it is possible for the inclusion of a hyperlink to

“If it is apparent from the context in which the hyperlink is used that it is being used

merely as a biographical or similarly limited reference to an original source, without in any

way activity encouraging or recommending to the readers that they access that source

then… this would not amount to publication.” [Majority at para.59]

Factors tending toward a finding of publication, however, “would include the

prominence of the hyperlink, any words of invitation or recommendation to the reader

associated with the hyperlink, the nature of the materials which it is suggested may be

found at the hyperlink…, the apparent significance of the hyperlink in relation to the

article as a whole, and a host of other factors dependant on the facts of a particular

case.” [Majority atpara.61]constitute publication by the linking party of the material to

which the link is made…


So, who owns the copyright interests …

The individual authors, who were not employees at the time of creation of the

works, if they have not assigned those rights, own the rights in works – and,

even if they were employees or assigned their economic rights, unless they

have waived them, they continue to hold moral rights.

Employers who employed authors who created works will own the copyrights,

but not the moral rights, in those works, unless they have assigned them.

Sound recording rights and rights in performances by performers will be

owned by the makers and performers, respectively (unless assigned to others),

even though the sound recordings or recorded performance may also carry

other copyright interests, for example in musical works or film, that are

owned, at least originally, by others.

Photographs are owned in Canada by the person commissioning them (if paid

for) rather than the photographer. Otherwise the photographer owns them. (If

photographs are owned by corporations now in Canada, the term of copyright

is only 50 years, whereas if they are owned by individuals (or corporations an

individual controls) the term is the life of the photographer + 50 years.)


If passed, Bill C-32 will give the same protections

to photographs as are now given to every other

work under the Copyright Act – for the same

period of life of the photographer + 50 years…

And, in general, ownership will lie with the

photographer – but for certain private uses, a

commissioning person will still have rights…


Economic rights in worksEconomic rights

in “other subject matter”

Recall the basic rights given copyright holders under the Copyright Act:

to communicate a performer’sperformance bytelecommunication

to “fix” a performer’sperformance

to reproduce a fixed performance

to rent out a sound recording of theperformance

to publish, reproduce or rent asound recording

to fix a broadcast signal

to retransmit a signal

to authorize any of the above

to produce, reproduce

to perform in public

to translate

to convert from one type ofwork to another

to make sound recordings orcinematographs

to communicate the work bytelecommunication

to present art created after1988 in public

to rent computer programs

to authorize any of the above

AccessCopyrightfocused here for

English printworks


…what are “Moral Rights”?

In Canada, the author of a work has a right :

• to the integrity of the work (i.e. to prevent the work from beingdistorted, mutilated or otherwise modified to the prejudice of thehonour or reputation of the author)

• where reasonable in the circumstances, to be associated with the workas its author by name or under a pseudonym (as well as the right toremain anonymous) [often referred to as the right to paternity]

• to prevent the work from being used in association with a product,service, cause or institution to the prejudice of the honour or reputationof the author [commonly referred to as the right of association].

Not transferable… licensing not an option. Can be waived by the author.

Bill C-32 would extend moral rights to performers’ performance…


The Canadian statute providesfor fair dealing in fivecategories:

Research

Private study

Criticism *

Review *

News reporting *

* if source andattribution mentioned

The Supreme Court specificallysaid:

“a library can always attempt toprove that its dealings with acopyrighted work are fair undersection 29 of the Copyright Act.It is only if a library were unableto make out the fair dealingexception under section 29 thatit would need to turn to theCopyright Act to prove that itqualified for the libraryexception.” (para.49)

2004 Supreme Court decision inCCH et al v. The Law Society of UpperCanada, the “Law Society” case:

The largest Users’ Right is FAIR DEALING. These rights override thecopyright holders’ rights if you are using the works for certain purposes.

Bill C-32 would add education, parody and satire to this list


The Supreme Court listed a non-statutory set of factors, first proposed

in the Federal Court of Appeal, that judges should consider as a

“useful analytic framework” in interpreting “fair dealing”:

• purpose of the dealing:

• must be an allowable purpose, one mentioned in the act

• character of the dealing:

• how was the infringing work dealt with?

• amount of the dealing:

• what was the amount and substantiality of portion used in

relation to the whole work?

• alternatives to the dealing:

• defense more likely allowed where no alternative available

• nature of the work:

• i.e., strong public interest in access to legal resources

• economic impact on owner:

• how is market for work impacted by fair-dealing in question?


But, given those factors, the Supreme Court decided libraries candeal fairly with works in a number of important ways – and, therefore,that others can use works in similar ways:

It may be possible to deal fairly with the whole work… for the purposeof research or private study, it may be essential to copy an entire academic

article or an entire judicial decision. (from para.56)

Faxing works to patrons is not “communications to the public” – the Supreme

Court agreed with the trial judge that such communications “emanated from

a single point and were each intended to be received at a single point”

(para.77, quoting from the trial judgment) (although a series to the same

patron might be a problem)

“…patrons … cannot reasonably be expected to always conduct their research

on-site at the Great Library… it would be burdensome to expect them to

travel … each time they wanted to track down a specific source” (para.60)

Many of the “special” provisions for LAMs (only non-profits) are made

redundant by the Supreme Court’s view of the permissible actions by the

Great Library under fair dealing – eg. To the extent ILL practices can be

analogized to the Great Library’s practices, it is unnecessary to rely on the

special exceptions for LAMs.


Approved by the Supreme Court:

The copyright law of Canada

governs the making of photocopies

or other reproductions of copyright

material. Certain copying may be an

infringement of the copyright law.

This library is not responsible for

infringing copies made by the users

of these machines.

Unnecessarily verbose

Under the Regulations since 1997:

WARNING!

Works protected by copyright may be photocopied only if

authorized by:

the Copyright Act for the purposes of specific exemptions

set out in that Act;

the copyright owner; or

a license agreement between this institution and a

collective society or a tariff, if any.

For details of authorized copying, please consult the

license agreement or applicable tariff, if any, and

other relevant information available from a staff

member.

The Copyright Act provides for civil and criminal

remedies for infringement of copyright.


… a map of the Canadian “Public Domain” Adapted by M.A. Wilkinson

from P.Samuelson’s American map, described in M.A. Wilkinson, “National Treatment,…” (2003-4)1 & 2 University ofOttawa Law and Technology Journal 23-48.

Scientific &MathematicalPrinciples

Facts, Data,Information

RightsExpired

Laws, Regulations,Judicial Opinions

Words, Names,Numbers,Symbols

Ideas, Concepts,Theories

OpenSource

WidelyUsablew/oRestriction

ClassifiedInformation

Other IPRPlant Breeders Rights Act

Integrated Circuit Topography Act

TradeSecret

Patent

Trademark Copyright

Fair Dealing

RIGHTS PURCHASED

And other specific user exceptions


Will Canada’s Constitution mean that the Supreme Court’s “Users’Rights” can triumph, if Parliament tries to narrow, per TRIPS?

United States Constitution

“The Congress shall have power…To

promote the Progress of Science and

useful Arts, by securing for limited

Times to Authors and Inventors the

exclusive Rights to their respective

Writings and Discoveries”

Eldred v. Ashcroft (2003, USSC)

Canadian Constitution Act,1867, s.91

“…the exclusive Legislative Authority of the

Parliament of Canada extends to …

(23) Copyrights

In a Canadian case, constitutional

support for the Supreme Court’s concept

of “users’ rights”?

s. 2(b) Canadian Charter of Rights and

Freedoms (1982): freedom of

expression

ALTHOUGH

s.1 “subject to such reasonable limits

prescribed by law as can be

demonstrably justified in a free and

democratic society”

TRIPS and other agreements:

Members [states] shall confine limitationor exceptions to exclusive rights

To certain special cases

which do not conflict with anormal exploitation of the work

And do not unreasonablyprejudice the legitimate interestsof the right holder

(the “3 step” test)


Technological Protection Measures (TPMs) are given legalsanction by Bill C-32

BUT NOT IF THEY INTERFERE WITH

• Interoperability

• personal data protection or privacy rights

• Access needs because of perceptual disability

AND

• Libraries which are LAMs have special defence provisions withrespect to the TPM sections

Note: the definition of “Libraries, Archives and Museums” (LAMs)is not changed by Bill C-32 and therefore, to the extent that Bill C-32provides privileges to LAMs it further divides libraries amongstthemselves -- those who are owned by for profit entities (mostspecial libraries and some educational institution’s libraries, forexample) will not have access to the increased exemptions of theirLAMs colleagues…


Intellectual Property Owners as Key Intellectual PropertyPolicy Makers

Decisions-

Assert intellectual property rights?

Assign to traditional publishers ?

Control with publishers, whether foreign or domestic.

Assign to alternative publishers (those who do not insist on fulltransfer of rights) ?

Some control with publishers, whether foreign or domestic,some rights remaining with copyright holder.

Grant certain permissions

Exercise rights collectively ?

Individually little power of enforcement and therefore of control– but possible remuneration according to collective’s policiesand possible control through governance of collective

Renounce intellectual property rights?

No control and no further potential for economic value to thatcopyright holder

Works and “other subject matter” available to be exploited by others


FEDERAL GOVERNMENT LICENSE

SI/97-5, 8 January, 1997, Canada Gazette Part II, Vol 131, No. 1

Anyone may, without charge or request for permission, reproduce

Enactments

Consolidations of enactments

Decisions

Reasons for decisions

Provided

Reasonable diligence used in ensuring accuracy

No representation as official

NOTE: PERMISSION IS TO REPRODUCE

Does not go so far as the American statutory prohibition on federal government copyright – where the federal

government cannot claim copyright

These Canadian provisions are not statutory , not permanent…

Many governments in Canada provide permissions – but each is individually tailored and they are located in different

government instruments, depending upon each government’s predelictions

Crowns, as copyright holders, exercising their control to provide access

to their copyrighted material:


Traditional Academic Publishing Cycle –Typical Economic Allocation of Literary Output

Publication,Distribution,

& Dissemination

Writing ,Peer Review,& Publication

Learning,Research,& Writing

$

time

Ownership within theuniversity community

Ownership by privatesector publishers


Universities payAccessCopyright

(formerlyCANCOPY)

(3)

Traditionally,professors write

and submit articlesto prestigious peerreviewed journals

Journalsassume thecopyright in

return forpublication

When Academic Publishers, assigned rights by authors, join Collectives toAssert their assigned rights: Universities, e.g, (both producers and users) Pay3 Times for Written Product !?!?

Publication

Revenue

Cycle

$

$

$Universities (and

others) support andencourage

professors to write

(1)Journals arepurchased by

universitylibraries for useby students and

professors

(2)


Philanthropy vs. Entitlement

The philanthropy of copyright holders giving permissions or giving up the exercise oftheir copyrights (“open access, creative commons”) is more palatable from the pointof view of the trade regimes…but it is contributing to the public interest, as is theexercise by government of Crown Copyright, rather than enlarging the publicdomain…

Fair Dealing

And other specific userexceptions-including those for“Educational Institutions”

OpenSource

WidelyUsablew/oRestriction

RIGHTS PURCHASED

Users’ Rights:In the public domain, inter alia,


Users, in a copyright world, potentially have access tomaterials in a number of different ways:

Users can use materials that are not works covered by copyright;

Users can make use of materials in ways not forming part of the

copyright holders’ rights bundle;

Users can use materials in ways that do form part of the copyright

holders’ rights bundle but are excepted by governments from

the purview of the copyright holders’ exercise of their rights;

Users can use materials in ways that do form part of the copyright

holders’ rights bundle but for which they have been given

permission by the copyright holders –

Through the copyright holders’ collectives or

Through permissions of the copyright holders given in advance

(“open content licensing” or “creative commons”)

Through permissions negotiated directly, from time to time, with

copyright holders.


Can philanthropy be rendered unnecessary?

COPYRIGHT HOLDERS’ PHILANTHROPY

Only necessary where “users’ rights” or the limitations of copyright itself(limited term, limited rights to copyright holders, the doctrine ofmerger, etc.) do not give educational institutions and researchersthe access they desire

If Canada is operating under an extended repertoire or extended licenseregime, the existence of the collective license with an appropriatecollective will protect the educational institution from liability forinfringement even from a non-member and will thus renderredundant the efforts of copyright holders to individually licenseuses administered by the recognized collectives.

If Canada is not operating under an extended repertoire regime, theneducational institutions with collective licenses can breathe moreeasily about those rightsholders not represented by the collective ifthose rightsholder have publicly “donated” their rights.

In either case, if enough rightsholders decide to be philanthropic, it couldaffect the Canadian collective licensing environment in either orboth of two ways:

(1) there could be a new collective formed of like-minded rightsholderswhich could be recognized under the Act (since more than oneorganization can, and is now, able to be recognized in a particularmarket – although the Copyright Board actively discourages this);and/or

(2) the existence of rights available at no cost to educational institutionusers should have an effect upon the Copyright Board’sdeterminations of the “fair price” for a tariff in a particular sector.

USERS’ ENTITLEMENT

“Users’ rights” through the

enacted “exceptions to

copyright holders’

rights” in the Copyright

Act…

Licensed rights – from the

appropriate rights

collectives, by

educational

institutions, for tariffs

approved by the

Copyright Board of

Canada


Collectives have long existed in the Canadian musicindustry --

Canadian PerformingRights Society1926

BMI Canada1940

PROCAN1978

SOCAN1990

1988 - Copyright Act amendments

Composers Authors & PublishersAssociation of CanadaCAPAC 1946

1935 – Copyright Appeal Board created for these rights


A Collective is, generally, a voluntary organization thatrepresents the holders of a particular economic copyright

in terms of the administration and enforcementof selected rights associated with that copyright

Music performing collectives

SOCAN

Retransmission collecting bodies

SOCAN (also)

Other reproduction collectives

CMRRA (mechanical reproductions of music)

CANCOPY and COPIBEC (successor to UNEQ) -

reproduction rights only


The Copyright Board website lists more than 30 collectives --

1. Access Copyright2. ACF – Audio Cine Films3. AVLA – Audio-Video Licensing Agency4. CARCC – Canadian Artists’ Representation Copyright Collective5. CBRA – Canadian Broadcasters Rights Agency6. CMRRA – Canadian Musical Reproduction Rights Agency7. Criterion Pictures8. COPIBEC – Societe quebeciose de gestion collective des droits de

reproduction9. CRC – Canadian Retransmission Collective10. CRRA – Canadian Retransmission Right Association11. ERCC – Education Rights Collective of Canada12. FWS – FWS Join Sports Claimants13. MLB – Major League Baseball Collective of Canada14. PGC – Playwrights Guild of Canada15. SOCAN – Society of Composers, Authors and Music Publishers of Canada16. SACD – Societe des auteurs et compositeurs dramatiques17. SODRAC – Society for Reproduction Rights of Authors, Composers and

Publishers in Canada18. SOPROQ – Societe de gestion collective des droits des producteurs de

phonogrammes et videogrammes du Quebec19. SoQAD – Societe quebecoise des auteurs dramatiques

The following are involved in rights management associated with “works”under s.3:


(c) Convert a non-dramatic work byperformance

(b) Convert a dramatic work

(a) Translate the Work

Publish the Work

ACF (films)Criterion Pictures (films)ERCC (tv and radio, education only)SOCAN (music)SoQAD (theatre, education only)

Perform the Work in Public

Access Copyright (writing)AVLA (music: videos and audio)CARCC (visual arts)CMRAA (audio & music)COPIBEC (writing)SODRAC (music)

Produce or Reproduce the Work

Associated Collective Societys.3(1) Right


(i) Rent out a Sound Recording

(h) Rent out a Computer Program

(g) Present an Artistic work at a PublicExhibition

CBRA (tv)CRC (tv and film)CRRA (tv)FWS (sports)MLB (sports, baserball)SACD (theatre, film, radio, audio)SOCAN (music)SOPROQ (audio and video)

(f) Communicate the work byTelecommunication

(e) Adapt a work as a cinematographic work

(d) sound/cinematography film tomechanically reproduce a literary, dramaticor music work

Associated Collective Societys.3(1) Right


STATUTORY COPYRIGHTOWNERS

(authors & their employers)

COPYRIGHTCOLLECTIVES

(e.g. AccessCopyright)

COPYRIGHTUSERS

(Librarians & Patrons)

COPYRIGHTBOARD

OFCANADA

$

$

LICENSE

LICENSE

ASSIGNEES OFORIGINAL

COPYRIGHT HOLDERS(e.g. Publishers)

$LICENSE

ASSIGNMENT$

$LICENSE

$LICENSE

COPYRIGHTOFFICE

optionalregistration

of copyrights and assignments

Tariff


Parliament, the Copyright Board and the Courts:

Parliament –

Bill C-32 The Copyright Modernization Act

Introduced Tuesday, June 2, 2010… 2nd Reading Tuesday November 2 –expected to go to committee shortly…

The Copyright Board –

4 tariff proceedings are in play, at various stages, that affect variousCanadian library communities…

The Federal Court of Appeal –

1 of the 4 tariff proceedings was decided by the Copyright Board and hasbeen judicially reviewed by this court…and on appeal to SCC

These three copyright policy - developing areas are interrelated…


The risk in CANADA -

Section 27 (1) It is an infringement of copyright for any

person to do, without the consent of the owner of the

copyright, anything that by this Act only the owner of the

copyright has the right to do.

Section 28.1 Any act or omission that is contrary to any of

the moral rights of the author of a work is, in the absence

of consent by the author, an infringement of the moral

rights.

BUT there are also USERS (and intermediaries’)

RIGHTS in the Copyright Act…


Identify aCopyright issue

Perform a RiskPerform a RiskAssessmentAssessment

Produce PolicyDocument(s)

to Govern YourInstitution’sActivities

Best PracticesBest Practicesinformationinformation

ProfessionalProfessionalArticlesArticles

ScholarlyScholarlyWritingWriting

CopyrightCopyrightWorkshopsWorkshops

Inputs:


“Best Practices” as a Defence

Negligence is a branch of tort law,

developed at common law by the

courts…

In a lawsuit based on allegations that

you have been negligent, showing that

you are practicing to a level equal to or

greater than your professional peers

can establish that you have NOT been

negligent…

Even in this branch of law, where a

statute states a rule, evidence of

customary practice will NOT

exonerate someone who breaks that

rule…

(Drewry v. Towns (1951), 2 WWR

(NS) 217)

Copyright law is completely statute-based.

Although recent courts have relied on

evidence of custom to establish who

owns a particular copyright interest…

(Robertson v. Thomson)… AND good

management practices can provide

evidence to satisfy elements of theFAIR DEALING test (the Law Societycase, as above)

… courts have NOT permittedevidence of custom to establish adefence to allegations of copyrightinfringement…

(Gribble v. Manitoba Free Press Ltd.

[1932] 1 DLR 169)


Potential Strategies…. …the Use of Best Practices

1. Rely on the library’sconnection with its users’FAIR DEALING rights, oron the philanthropy ofrightsholders (Open Access)to provide COST FREEservices.

2. Buy often COSTLY,TEMPORARY permissionsfor uses of works.

1. Best Practices can help establishFAIR DEALING and should, at aminimum, comply with the GreatLibrary’s practices described andapproved in the Law Society decision.

Being offered a license by avendor should not stop the Libraryfrom using FAIR DEALING inappropriate cases (para.70 of theLaw Society case)

2. Best Practices can help the Libraryto develop negotiating strategies tobargain with vendors about (a) therights being purchased; (b) the term(length) of the rights; and (c) price.

EACH library has four choices with respect to material that is in copyright:


Potential Strategies…. …the Use of Best Practices

3. Where user rights are not

extensive enough and where

permissions are not available (at

all, or, affordably), CURTAIL USE

of copyright material and provide

LESS SERVICE; OR

4. USE MATERIAL WITHOUT

PERMISSION AND RISK

ENFORCEMENT action

enforcement by rightsholder(s).

4. The risk here CANNOT beminimized by adopting “BestPractices” in or acrosslibraries.

EACH library has four choices with respect to material that is in copyright:


How do we get permissions from copyright holders?

Through permissions of the copyright holders given inadvance (“open content licensing” or “creative commons”)(FREE) or

Through permissions negotiated with copyright collectivesin blanket licenses (where the right(s) you seek and thecopyright holder of the work you are interested in arerepresented) ($$) or

Through permissions negotiated directly, from time to time,with copyright holders ($$ or FREE –choice of copyrightholder).

Depending upon whether and how the copyright holder make thepermissions available… MUTUALLY EXCLUSIVE…


What are the processes before the CopyrightBoard in which libraries have become engaged?

1. In the educational sector, there is increasing “action” related to theCopyright Board that affects libraries in the K-12 and post-secondaryenvironment right across the country:

School boards everywhere except in Quebec have been affected by the decision ofAccessCopyright to take the Ministers of Education to the Board for a Tariff for 2005-2009…

School boards everywhere except in Quebec are now being affected by the decisionof AccessCopyright to take the Ministers of Education to the Board for a Tariff for 2010-2012

Universities are affected by the recent decision by AccessCopyright to abandonindividual negotiations with universities (or with an organization representing them) andto apply instead for a Tariff before the Board.

2. In the government sector, AccessCopyright has applied to impose a Tarifffor 2005-2009 and another for 2010-2012 to the Provincial and Territorialgovernments… and the Board has set a hearing for Sept. 13, 2011

3. AccessCopyright has the option under the Act to apply to the Board forTariffs in respect of other sectors of libraries, including publiclibraries…


The Copyright Board’s formula for setting tariffs:

• Take all copying done within the institution

(determined by actual surveying, using statistically robust sampling)

• Subtract all copies for which the rightsholders should not be compensated

(a) because the materials in question were not “works” or works in which therightsholders in the collective have rights (eg materials created by schools forthemselves, in which they hold copyright)

AND

(b) because although the materials in question are prima facie materials inwhich the collectives’ members have rights, there are users’ rights(exceptions) which mean the rightsholders are not exercise their rights forthese uses (fair dealing, rights for educational institutions or LAMs)

SUB- TOTAL: NUMBER OF COMPENSABLE COPIES

x the value of each copy as determined on economic evidence by theCopyright Board

EQUALS THE AMOUNT OF THE TARIFF EACH INSTITUTION IS TO PAY TO THECOLLECTIVE


The situation of the K-12 Tariff for 2005-2009

The Copyright Board rendered its decision in the tariff proceeding

between

The Ministers of Education (the users)

and

Access Copyright (the copyright holders)

June 26, 2009

Setting the amount schools needed to pay the owners of copyright inprint materials for photocopying during the years 2005-2009

everywhere in Canada except in Quebec

This replaced the Pan Canadian Schools/Cancopy License Agreementagreed between the Ministers of Education and Cancopy (without

going to the Board) that lasted from 1999 until 2009…

See: http://www.cb-cda.gc.ca/decisions/2009/Access-Copyright-2005-2009-Schools.pdf


COPIES NOTINVOLVING

RIGHTSHOLDER

RIGHTS

K-12 2005-2009 findings ofthe Copyright Board -

ALL COPIES MADE –10.3 billion

COPIES INVOLVINGRIGHTSHOLDERS’ RIGHTS BUT

WHERE USERS’ RIGHTSEXEMPT THESE USES

COMPENSABLE COPIES ( 2% )—250 million

X value per copy

= total tariff of $5.16/student

(previous agreement negotiated withoutthe Board – $2.56/student)

98%


At the Federal Court of Appeal – File No.A-302-09

The Province of Alberta as Represented by the Minister of Education(and Others) – Applicants

And

The Canadian Copyright Licensing Agency Operating as “ACCESSCOPYRIGHT” – Respondent

AndCanadian Publishers’ Council, The Association of Canadian Publishers, and the

Canadian Educational Resources Council – Interveners (#2)(Leave to intervene sought January 7, 2010 and given February 18, 2010)

AndCanadian Association of University Teachers – Intervener (#1)

(Leave to intervene sought November 27, 2009 and given December 23, 2009)

The appeal was heard Tuesday June 8 and the decision released July 23,2010 – Justice Trudel writing for Chief Justice Blais & Justice Noël


K-12 new 2010-2012 tariff before the Copyright Board

2005-9 2010-12

Digital copies of paper works added

Sheet music added

Users’ Rights exemptfor these uses

CompensableCopies

No RightsALL COPIES MADE


What is Access Copyright proposing for the2010-2012 tariff?

Tariff fee proposed is $15.00/FTE student– up from the$5.16/FTE student appealed to the Federal Court ofCanada and to be adjusted slightly by remission back tothe Board on the question of whether exam copying wasactually not available in a medium that is appropriate forthe purpose and thus not compensable (which wouldreduce the tariff now payable of $5.16 a bit

(but note enlarged scope of “product” AccessCopyright isoffering in the 2010-2012 tariff for schools)

Canadian Ministers of Education (CMEC) has indicated itsintention to oppose…

Access Copyright has not sought a hearing date with theCopyright Board to pursue this new tariff


Access Copyright’s proposed 2005-2009 and 2010-2014Provincial and Territorial Government Tariffs

• Proposed fee is $24.00/FTE civil servant

• Coverage of the proposed Tariff is similar to SchoolsTariff

Presumably AccessCopyright expects less government copying to be

identified as non-compensable because of the users’ rights in the Act

(the difference between seeking $15/student and $24/civil servant)


What is AccessCopyright’s proposed Tariff for

Post-Secondary institutions for 2005-2009?On March 30th, 2010, Access Copyright filed a proposal with theCopyright Board of Canada for a tariff for reproductions for course packsand day-to-day photocopying for Post-Secondary Educational Institutions

Unlike the 2005-2009 School Tariff, the proposed post-secondary tariffwould include both print and digital works in its repertoire

The proposed tariff is $45.00/FTE – presumably the differenceAccessCopyright expects between the value of print and print to digital inthe education and civil service tariffs and print and digital in this one foruniversities and colleges

The proposed tariff is posted to the Copyright Board of Canada website

The Association of Colleges and Universities of Canada, on behalf of theindividual institutions, has written opposing (July 15, 2010) – and otheruniversity-related organizations have written opposing (such as theCanadian Association of University Teachers (CAUT), although it doesnot represent institutions on which the tariff would be levied)


How might these future Tariff proceedings before theBoard be affected by Bill C-32 if it passes?


CompensableCopies


2011-2013 Post- Secondary Tariff as Proposed for $45/FTE

Copies of works available digitallyadded beyond what the K-12 2005-

2009 Tariff covers

Digital copies of paper works addedbeyond what the K-12 2005-2009 Tariff

covers


Research

Private study

Criticism *

Review *

News reporting *

* if source and attribution mentioned

The Supreme Court has said:

“It is only if a library were unable tomake out the fair dealing exceptionunder section 29 that it would needto turn to the Copyright Act to provethat it qualified for the libraryexception.” (LSUC case)

The greatest area of exemption for libraryactivities is FAIR DEALING

Bill C-32 would expand FAIRDEALING to add

EducationParodySatire

And a category of Non-commercial user-generatedcontent (s.29.21)

And reproduction for privatepurposes – withoutcircumventing TechnologicalProtection Measures (s.29.22)

And time-shifting (s.29.23)

And back-up copies (s.29.24)


If Fair Dealing Users’ Rights are enlarged and ifEducational and LAMs Exceptions are expanded?


CompensableCopies


Again, what AccessCopyrightis asking from Post-SecondaryInstitutions…

… and how Bill C-32 might changethe equation.


Bill C-32 is silent on collectives…

To give colleges and universities the protection under tariffsthat they had negotiated under the earlier licenses, theCopyright Act would have to be changed

1. To say that contracts cannot override fair dealing rights

And

2. Where a collective exists, it represents that class ofrightsholders on a worldwide basis unless the rightsholderspecifically opts out (the extended repertoire or extendedlicensing system)

Bill C-32 proposed neither of these changes to the Copyright Act…


In the Canadian environment, open source may not be soimportant in the future…

Direct licensing of material by

users from database vendors (over

70% of collections budgets in

Canadian academic libraries)

bypasses both the “open source”

movement and the rights

otherwise “sold” by collectives…

If Canadian collectives representall those with rights in Canada(and the Copyright Board says theyalready represent both theirmembers and any who cashcheques received from thecollective), they will render the“open source” movementirrelevant … and if Canada doesmove to a European-styleextended repertoire or extendedlicensing system (as many inacademe now want), it will render“open source” totally irrelevantfor those rights represented bycollectives…

User rights confirmed by statuteare permanent, guaranteed to

users, and directly accessible andthus will always be better for

users than “open source”… whichrelies on the philanthropy of

owners…


Thank You

1. Copyright Board of Canada http://www.cb-cda.gc.ca/

2. OLA’s position and a summary of Bill C-32 as it affects libraries(prepared by Western Law students Justin Vessair, Dave Morrison andDan Hynes) is athttp://www.accessola.com/ola/bins/content_page.asp?cid=1-99-3377

3. Margaret Ann Wilkinson,“Copyright, Collectives, and Contracts:New Math for Educational Institutions and Libraries” in a newcollection edited by Michael Geist, From "Radical Extremism" to"Balanced Copyright": Canadian Copyright and the Digital Agenda(Irwin Law, 2010) http://www.irwinlaw.com/store/product/666/from--radical-extremism--to--balanced-copyright-

4. Margaret Ann Wilkinson, “Open Access and Fair Dealing:Philanthropy or Rights?” in Mark Perry and Brian Fitzgerald (eds)Digital Copyright in a User-Generated World.— Irwin Law, forthcoming.