Canadian Alliance of Student Associations

The Student Vision for Amending the Copyright Act
Canadian Alliance of Student Associations
www.casa.ca

The Canadian Alliance of Student Associations (CASA) is an alliance of 24 student associations across Canada, representing almost 400,000 post-secondary students at the national level. CASA's members believe that Canada's post-secondary education system should be affordable, accessible, and of the highest quality. We believe that the federal government has an important role to play in higher learning and research. CASA is committed to working with decision makers at the federal and inter-provincial levels to promote the innovative policy solutions developed by our members.

CASA Member Associations:
Acadia Students' Union
Bishop's University Students' Representative Council
Brock University Students' Union
Dalhousie Student Union
Fédération des étudiants et des étudiantes du Centre universitaire de Moncton
Graduate Student Association – University of Waterloo
McMaster Students' Union
Red River College Students' Association
Saint Mary's University Students' Association
St. Francis Xavier Students' Union
St. Thomas University Students' Union
Students' Association of Mount Royal College
Southern Alberta Institute of Technology Student's Association
University of Alberta Students' Union
University of British Columbia Alma Mater Society
University of Calgary Students' Union
University of Fraser Valley Student Union Society
University of Lethbridge Students' Union
University of New Brunswick Students' Union (Fredericton)
University of New Brunswick Students' Union (Saint John)
University of Prince Edward Island Student Union
University Students' Council of Western Ontario
University of Waterloo Federation of Students
Wilfrid Laurier University Students' Union

Head Office Staff
National Director: Arati Sharma
Government Relations Officer: Rick Theis
Policy and Research Officer: Spencer Keys
Public Relations and Communications Officer: Jillian Flake
Digital Technology Officer: Sharif Virani
Administrative Assistant: Ellen Wightman

Canadian Alliance of Student Associations
Ottawa ON

Introduction

As an instrument of public policy, Canadian copyright legislation serves two main functions: to further the creation and dissemination of intellectual materials, and to facilitate access to knowledge and information for the benefit of Canadian society as a whole. To accomplish those purposes copyright legislation must maintain a balance between necessary protections provided to content producers, as well as a guarantee of reasonable access for the public to that content.

This concept of balancing has been affirmed by Canada's highest court. In both the CCH Canadian Ltd. v. Law Society of Upper Canada and SOCAN v. CAIP decisions of 2004, the Supreme Court articulated that the rights of creators must be respected, but that user rights – including categories of research and private study – must be given a liberal interpretation. Students are championing this standard for several reasons. They manufacture creative content like any other producer and desire the capacity to profit from their works. Further, the ability of students of all ages to secure full and competitive participation in the global economy depends heavily on access to a high quality post-secondary education system; robust access to copyrighted materials for education and research is a vital component of such a system.

Universities, colleges, and technical institutes are places where students learn through collaboration with each other and with their instructors. Encouraging innovative new means for sharing ideas, insights, and information allows these forms of collaboration to evolve, thereby continually redefining the boundaries of discovery in Canada's post-secondary education sector.

By placing unnecessary limitations upon new learning tools, research and course material delivery, we impede the inventive evolution of knowledge delivery methods, and by proxy, inhibit our society's intellectual advancement.

What follows are suggestions about how to align Canada's copyright law with the realities of the 21st century while still maintaining a fair balance between the rights of content producers and the rights of the public, and further still providing for the unique needs of students, educators, and educational institutions in our country.

Expanding Fair Dealing

Fair dealing as outlined by the Supreme Court provides a liberal set of rights to individuals pursuing research, study and learning. However these rights are not fully defined in current legislation nor do they extend as far perhaps as they should post CCH.

For example, aside from a few minor exemptions (teaching aids, tests, and exams) education institutions in Canada are not provided enumerated rights under fair dealing to cover essential education activities (teaching for example).

Previous amendments offered for the Copyright Act endeavored to fix this, and similar efforts should be pursued in future copyright revisions as well. That said, past attempts have focused on the use of overly complex special exemptions and conditions as the ideal vehicle for affecting these changes.

Depending on their construction, educational exemptions and conditions can muddle the clarity and primacy of broadly interpreted users' rights, outlined by the Supreme Court in the CCH decision. The use of exemptions also pre-supposes that legislators today can articulate with sufficient accuracy the right exemptions to include in copyright law in order to deal with future contingencies.

A far better approach to clarifying fair dealing would be to simply expand the definition of users' rights in the Copyright Act with the inclusion of the words "such as" before the current list of exceptions in sec. 29 of the Copyright Act. As several Canadian legal scholars and commentators have noted, such an approach would create a more open-ended, illustrative and flexible definition of fair dealing rights, in line with the CCH decision.

Technological Protection Measures

In the last several years, content producers and distributors have turned to 'digital locks' (often referred to as Technological Protection Measures or Digital Rights Management) as a means of locking up copyrighted works to prevent potential illegal infringement of protected materials. Regardless of the questionable effectiveness of this approach, 'digital locks' – especially when allowed without safeguards built in for users – can generate damaging consequences for established user rights, including:

• Restricting legitimate activities, notably for non-infringing uses in research and study
• Denying equal access to copyrighted material for persons with perceptual disabilities
• Inhibiting the cycle of innovation, which depends on different researchers adding new perspectives to work that has already been done
• Reducing the ability of libraries to preserve certain creative works

Rights holders benefitting from copyright have an obligation to provide reasonable fair dealing access to users. If anti-circumvention language is permitted, the government must include measures to ensure that access to materials for non-infringing purposes is allowed in spite of a rights holder's use of locks, notices, or rights management.

Specifically, our system of copyright must ensure that any new permissive uses of 'digital locks' added to the Copyright Act do not impose barriers to access to information for people with perceptual disabilities. People with a perceptual disabilities often require adaptive technologies to conduct format to format conversion (screen reading software for example) in order to access knowledge and information; 'digital locks' could divest them of equal access to these materials.

It is important to note that these suggestions are consistent with our WIPO obligations; many other signatories have variably designed legislation around fair dealing/fair use that provide further balance between user and creator rights within the scope of international treaties.

Digital and Distance Learning

The government should be commended for its recognition in the last round of copyright amendment discussions that there is a pressing need to allow education institutions greater flexibility under copyright law to deliver courses and classes digitally.

This is an extremely beneficial objective. The popular 'bricks and mortar' concept of education is undergoing large-scale changes, where new models of teaching are being blended with emerging technologies to help deliver advanced learning methods to a greater swath of the population (via distance online learning, and e-education).

Flexibility for digital delivery of distance education has special significance considering 1) the value of continuous life-long learning in building and maintaining a competitive labour force, and 2) the need to deliver learning to students (often underrepresented students) located in geographically remote areas of our country.

However, this flexibility was drafted with many excessive conditions attached. For example, Bill C-61 required that any digitally delivered courses or classes that included copyrighted works had to be destroyed 30 days after the completion of that the course or class. What this clause did not take into consideration is the use and utility of those materials beyond the scope of a specific class. More and more students and teachers are identifying formats such as course-specific podcasts and videocasts as key study tools that enhance and reinforce learning throughout a person's entire academic career.

The flexibility to provide digital delivery of knowledge and learning should be included in any future amendments to copyright, but these changes should incorporate the full needs of students by allowing access to course materials containing copyrighted works for the duration of a student's study period, rather than a term fixed around a specific class. 6

Lesson Plans

In a similar vein, amendments offered in Bill C-61 burdened institutions and their staff with the task of tracking down and destroying any lesson plans created by teachers at the end of a course in which the lesson plan was used, if the lesson plan contained copyright materials. As such, teachers would have to recreate their lesson plans from scratch each year regardless of the number of times they had taught the same course previously.

This stipulation would have created a significant disincentive for teachers to use copyrighted materials in their lesson plans, reducing the pool of information resources used for teaching as a result. Similar provision should not be considered as a part of future copyright legislation.

Inter-Library Loans

The Copyright Act does not allow libraries to convey materials to students, researchers and other learners digitally through inter-library transfers. This does not measure up to the operational standard of 21st century libraries, and must be remedied in future legislation. Bill C-61 began addressing this issue, and this was a welcomed, positive step. However in allowing digital transfers of materials by libraries, C-61 focused on limiting this information to a print-copy terminus point. This requirement does not conform to the contours of information management and use in an era in which learners and researchers maintain a non-print based repository of data, and use digital means for processing said data via notebooks, netbooks, smartphones, and portable media players/digital assistants.

Moving forward, our copyright law should be modified so as to enhance the ability of students and researchers to receive materials through the internet, allow them the flexibility to determine what medium they wish to process the data on, and allow them the ability to retain the transferred material for future reference, subject to appropriate restrictions against redistribution.