Archived - Face to Face Media, the Jesuit Communications project, Canadian Association of Media Eduation Organizations

Submission to the Canadian Copyright Consultations

8 September 2009

By
Gary Marcuse
Face to Face Media
Vancouver BC
Face to Face Media

and
John Pungente, SJ
Director, Jesuit Communication Project
President, Canadian Association of Media Education Associations (CAMEO)
Toronto, Ontario,
The Jesuit Communication Project: A Word from John Pungente

This presentation is endorsed by the Canadian Association of Media Education Associations (CAMEO) and its provincial members

British Columbia Association of Media Education (BCAME)
Dan Blake

Alberta Association for Media Awareness (AAMA)
Wayne Blair

Manitoba Association for Media Literacy (MAML)
Brian Murphy

Association for Media Literacy (AML) (Ontario)
AML — The Association for Media Literacy
Dede Sincalir

Association for Media Education Quebec (AMEQ)
Maureen Baron

Media Literacy Nova Scotia (MLNS)
Peter Smith

Association for Media Literacy New Brunswick (A-4-ML NB)
Mike Gange

Association for Media Literacy Newfoundland and Labrador (AMLNL)
Leslie Kennedy

Creating copyright legislation that supports media literacy

Introduction

Gary Marcuse is a writer and producer of documentaries for broadcast television, and classroom resources for educational use in K–12 and post secondary classrooms, since 1988. He is also a member of the Writer's Guild of Canada and the Documentary Organization of Canada. For more than 20 years his company, Face to Face Media, has been collaborating with educators, producers, publishers, broadcasters and the National Film Board in the creation of classroom video resources in the areas of global education, First Nations studies, media literacy, sociology and psychology. He is a former programming executive for CBC television and the recipient of the Gemini Canada award sponsored by the Department of Canadian Heritage for his documentary The Mind of a Child.

John J. Pungente, SJ, has worked in media education for over 35 years. He has co-authored Media Literacy: A Resource Guide (1989), Meet the Media (1990), More than Meets the Eye: Watching TV Watching Us (1999) and Finding God in the Dark: Taking the Spiritual Exercises of St. Ignatius to The Movies (2004). He has contributed to international journals and books on media education. He has degrees in English, Film, and Theology as well as two honorary doctorates for his work in media education.

Mr Marcuse and Fr. Pungente have been collaborating on the creation of media literacy resources since 1997, including the award-winning collection Scanning Television, a collection of videos and a teaching guide widely used in media education across Canada. They are also in the final stages of developing an on-line university level credit course Understanding Media Literacy: Inside Plato's Cave for in-service and pre-service teachers in Canada. This course will be offered by a Canadian university in 2010. It will include a wide array of media resources provided on-line as a key element in the curriculum.

What is media literacy, and why is it important?

Media literacy was first introduced in Ontario schools in the 1980s. The Ontario Media Literacy Resource Guide defines the practice succinctly:

Media education is now mandated by all provincial ministries of education at the K–12 level. Currently there is little, if any systematic training of teachers in media literacy, and where training is available, the training is hampered by limited access to media materials that are be needed to develop the critical skills of teachers, and when those teachers return to the classroom, they are faced with a shortage of relevant materials for the students. Copyright legislation has a key role to play in the training of teachers and the education of students as informed, critically aware citizens and as sophisticated users and consumers of media.

1(a). How do Canada's copyright laws affect you?

The protection offered by Fair Dealing provisions in copyright laws is essential in the development and distribution of curriculum materials

The classroom resources we have developed for media literacy education have included a substantial amount of material made possible by relying on the Fair Dealing provisions of the existing Copyright legislation which allows that "Fair dealing for the purpose of research or private study does not infringe copyright," and, in Sub-sections 29.1 and 29.2, adds the additional categories of "criticism," "review," and "news reporting" to the list of exceptions.

We frequently seek and obtain copyright clearances to allow us to duplicate and distribute videos and excerpts of videos and other media for classroom use. At times, however, we choose to rely on Fair Dealing in lieu of copyright clearance because

• It is a protected activity, provided for under the law
• The materials my not be otherwise available because the copyright holders
  • May not wish their materials to be subject to critical review and scrutiny outside of their control, as might be the case, for example, for a company promoting the consumption of cigarettes
  • May not have obtained, themselves, the necessary clearance rights in order to extend permissions for this kind of excerpting and use, as is typical of many commercial, dramatic, current affairs and news productions.
  • May not be willing to investigate, negotiate and administer ( or even consider ) a copyright release because the financial return is too small to interest them.

The current provisions of the Copyright Act are confusing and poorly utilized.

In our experience media producers, teachers and educational institutions in Canada are wary of exercising their right to utilize media materials for critical study and review for fear of transgressing copyright laws. They also frequently face cumbersome and restrictive institutional guidelines that have been framed out of caution and concern about potential lawsuits or injunctions.

The situation in the United States is noticeably different. There, by utilizing the broader, more clearly stated and more expansive provisions of the US copyright legislation governing Fair Use, educators and producers have created Codes of Best Practices for use by documentary film producers and by educators. This allows both teachers and producers a high degree of confidence that they are exercising their rights on behalf of their students and institutions and stimulates the use of media materials in the classroom. This more robust approach creates a more dynamic environment for media education and reflects a better balance between the competing needs of copyright holders (and creators generally) and educators. ² It also brings more relevant and timely material into the classroom.

The prevailing atmosphere of confusion and uncertainty in Canada, by contrast, creates a chilling effect on use of media materials in the classroom. Both teachers and producers of classroom resources are reluctant to use the provisions of the current copyright act for fear of sharp letters from lawyers threatening litigation or stern memos from their school administration.

Before the Code of Best Practices was created in the United States, a similar fog of worry and confusion surrounded the question of copyright. As summarized by the Center for Social Media, this confusion is costly.

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While the situation has improved dramatically in the USA, the situation in Canada remains compromised.

The creation of documentary programming utilizing Fair Dealing is also hindered

Educators make frequent use of documentaries in the classroom, but many documentary producers and writers are themselves confused, anxious and aversive when it comes to utilizing the Fair Dealing provisions of the Act. This situation is worsened by the cautious position taken by insurance companies that provide Errors and Omissions (E&O) insurance, as is normally required by broadcasters. Insurers may decline to cover materials where the inclusion is based on Fair Dealing. This forces producers to remove the material or remain exposed to objections and claims from copyright holders.

Here again, in the US, the situation has been greatly clarified and the confidence of writers, producers, and insurance companies has been greatly increased by the development of the Best Practices codes for filmmakers. According to the Center for Social Media, all four major insurers in the US now routinely provide insurance coverage for projects incorporating material that adheres to Best Practices for Fair Use guidelines ⁴ This ensures a freer flow of independent documentaries and other media into the classroom.

Copyright legislation should be updated and clarified and the provisions for educational used greatly clarified in order to empower teachers to provide the courses that the provincial ministries are calling for, and to meet the needs of their students. Media literacy should be a fundamental part of Canadian education in the 21st century.

1(b). How should existing laws be modernized

The study of dynamic and transient culture requires liberal access to short excerpts of cultural works, on short notice, in educational settings as well as in the media. Where original works are used for entertainment purposes, they must be paid for. Where they are used for critical study and review, a generous atmosphere supporting these activities should be actively engendered. Measures to that end would include:

• Providing a more secure foundation for educational use. This is essential. The simpler criteria and more transparent and comprehensible tests for "Fair Use" as they have evolved under US copyright law should be adopted.
• The laws should make it clear that educational use is a fundamental issue, not merely an exception that allows violators of a stringent law to escape prosecution.
• Proposed restrictions on the retention of examples of media used for critical study which would require them to be deleted at the end of an academic year should be changed or deleted. As the excellent submission to the Copyright Consultation from the Canadian Network for Innovative Education (CNIE) explains, this provision fails to take into account normal teaching methods and schedules.
• The peculiar and contradictory rules that punish the breaking of TM's should be adjusted to exempt legitimate uses. Allowing copyright holders to shield their work from public scrutiny and critical commentary by merely adding some form of TM is akin to allowing private enterprise to put a lock on a school room door, and then punishing teachers and students who break the lock in order to get into the classroom.

Addressing Technical Measures (TMs ), and allowing educators to "escape prosecution"

The proposed law currently allows the Governor in Council to make regulations that address the needs of educators and others who may be faced with TMs that shield media materials from scrutiny. As provided in the proposed legislation

(2) The Governor in Council may make regulations

1. prescribing additional circumstances in which paragraph 41.1(1)(a) does not apply, after taking into consideration the following factors:
   1. whether not being permitted to circumvent a technological measure that is subject to that paragraph could adversely affect the use a person may make of a work, a performer's performance fixed in a sound recording or a sound recording when that use is authorized,
   2. whether the work, the performer's performance fixed in a sound recording or the sound recording is commercially available,
   3. whether not being permitted to circumvent a technological measure that is subject to that paragraph could adversely affect criticism, review, news reporting, commentary, teaching, scholarship or research that could be made or done in respect of the work, the performer's performance fixed in a sound recording or the sound recording,

We submit that the need to be able to "effect criticism, review, news reporting, commentary, teaching, scholarship or research" is so clearly evident that either the right to do so should be written into the law, or a parallel set of regulations clarifying this matter should be advanced by the government along with this bill.

The emphasis placed on TMs in the legislation leaves the impression that the new copyright legislation has been written in this stringent fashion in order to conform to the US Digital Millenium Copyright Act. If this is true, then the provisions for regulation by the Governor in Council appear to be a kind of escape clause that would allow Canada to create some safeguards for our cultural and educational needs.

But if this is true, it would appear that the Canadian legislation is suffering from an excess of caution. While American media producers and educators enjoy a broad range of rights and freedoms under the Fair Use principles, Canadian producers and educators apparently have to wait for the Governor in Council to issue regulations that may mitigate the threat of prosecution. If this is the principal way that we are going to be informed about our rights as educators, the regulations should be broadly inclusive, and they should be issued promptly. A draft set of regulations would greatly increase educator's confidence in the bill.

2. Based on Canadian values and interests, how should copyright changes be made in order to withstand the test of time?

A proper balance between the needs of copyright holders and the rights of educators and students is essential in order to educate critically aware, media literate citizens. Ready access to critical study of Canadian cultural products is also essential in order for students to respect, study, comprehend and create Canadian culture. If Canada's laws remain confusing, and access to media productions is more restricted than equivalent US laws, teachers and producers will be forced to use American media productions instead of Canadian examples.

Specifically this requires

• Enhanced access to media productions for critical study and review
• Greater transparency and certainty for teachers
• Transparency and clarity in guidelines for use, leading to the evolution of best practices for fair dealing in media education, film studies, cultural studies etc.

3. What sorts of copyright changes do you believe would best foster innovation and creativity in Canada?

Students educated in critical thinking and media literacy, who have been exposed to the widest range of Canadian examples, in a timely way, will be best prepared to create innovative new work.

As suggested in response to questions 1 and 2, above, the legislation has an instrumental role to play in creating the context for media studies and media literacy generally.

The absence of clear Fair Dealing guidelines and exemptions, as compared to the US Fair Use provisions, also put Canadian producers at a competitive disadvantage relative to US producers when it comes to the creation of any kind of media or classroom resources where Fair Dealing or Fair Use may be invoked.

4. What sorts of copyright changes do you believe would best foster competition and investment in Canada

A media savvy workforce will be a competitive workforce. Steps outlined above can contribute to this.

5. What kinds of changes would best position Canada as a leader in the global, digital economy?

A media savvy workforce, with critical thinking skills, accustomed to the critical study of the best (and worst) Canadian and international examples will be able to compete, and to project Canadian values and examples to the world.

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¹For an overview of media education in Canada see the Media Awareness Network site (Return to text.)

²See, for example, the publications of the Center for Social Media including Code of Best Practices in Fair Use for Media Literacy Education and Fair Use in Media Education FAQ Center for Social Media (Return to text.)

³Center for Social Media The Cost of Copyright Confusion for Media Literacy (Return to text.)

⁴Center for Social Media Documentary Filmmakers' Statement of Best Practices in Fair Use (Return to text.)