The Provost and Vice-President Academic

107 Administration Place
Saskatoon, SK S7N 5A2
Telephone: (306) 966–8489
Facsimile: (306) 966–4316

September 4, 2009

Industry Canada
Copyright and International Intellectual
Property Policy Directorate
235 Queen Street
10^th Floor
Ottawa, Ontario K1A 0H5

Canadian Heritage
Copyright Policy Branch
275 Slater Street
7^th Floor
Ottawa, Ontario K1A 0M5

To the Honourable Tony Clement, Minister of Industry, and the Honourable James Moore, Minister of Canadian Heritage and Official Languages:

Canadian universities are both producers and users of materials protected by copyright, and as such are greatly invested in the outcome of future reforms to the Copyright Act. As a centre of research, learning, and innovation, the University of Saskatchewan welcomes this opportunity to respond to the Copyright Consultation process.

We've been following the consultations closely and are pleased to provide our recommendations for future amendments to the federal legislation, our position with regards to new and emerging technology, and our desire for fairness and balance in new legislation.

We ask for your fair and objective review of our recommendations and we thank you for the opportunity to contribute to the national discussion of such an important issue.

Sincerely,

Brett Fairbairn
Provost and Vice-President Academic

cc: Brad Trost, Member of Parliament for Saskatoon-Humboldt

Enclosed: University of Saskatchewan Recommendations for Copyright Reform

Recommendations for Copyright Reform

September 2009

This document outlines the University of Saskatchewan's position on copyright issues affecting Canadian universities and contains our six recommendations for future amendments to federal legislation in response to the Government of Canada's current Copyright Consultations.

Universities are invested in both sides of the copyright issue. As producers of intellectual and creative content we have a strong interest in protecting content creators from copyright infringement, and as researchers and teachers we need to ensure that fair dealing provisions protect educational use. Copyright legislation must balance the legitimate rights of content creators or copyright owners with the needs of educational users to gain access to knowledge in order to advance the innovation agenda.

As a major university with a strong focus on research and innovation, the University of Saskatchewan is both an extensive creator of copyright materials and an extensive user. Our institutional policy on the use of materials protected by copyright, and our departmental procedures and guidelines, encourage respect for the legitimate assertions of content creators' rights and for the rules that are laid out for the use of their materials, all the while recognizing that faculty and students require access to copyright material in a variety of formats, both electronic and non-electronic, for the purposes of teaching, learning, and research. As a centre of learning, innovation, and research operating in a somewhat remote location with a dispersed population base, we have a strong reliance on the Internet and other digital technology for distributing academic material of all sorts. Since technology continues to change rapidly and in unexpected ways, we would like to see adaptability, flexibility, and format neutrality built into amendments to the Copyright Act with respect to educational institutions.

Our position regarding amendments to current legislation aligns closely with positions taken by the Association of Universities and Colleges of Canada (AUCC), the Canadian Association of Research Libraries (CARL), and the Canadian Federation for the Humanities and Social Sciences (CFHSS). The University of Saskatchewan advocates for expanded educational exceptions and fair dealing provisions that reflect the changing nature of technology and contemporary expectations while at the same time protecting the rights of content owners and copyright holders to fair and responsible use of their works.

Fair Dealing

Fair dealing is a user right that does not grant free or unlimited access to copyright materials, but that does ensure fair access to copyright materials. Fair dealing is critical to the ability of a university and its faculty, staff, and students to conduct research, to teach, to learn, and to contribute to our country's cultural, scientific, and academic communities. As the 2004 CCH decision by the Supreme Court of Canada demonstrated, fair dealing "must not be interpreted restrictively." The current exceptions contained in the Copyright Act are drafted in an exhaustive, rather than illustrative, manner. We would like to see the adoption of a model for fair dealing at educational institutions that is illustrative, and able to adapt to technological changes.

We urge government to expand the current educational fair dealing provisions to reflect contemporary media and contemporary technology that have allowed for new and innovative uses of copyright materials. We further urge that the legislation provide better protection to universities and libraries from statutory damages. It would be best if the legislation would expressly confirm that universities and libraries are not liable for statutory damages where the staff member who committed the infringement had reasonable grounds to believe fair dealing applied to the reproduction.

University of Saskatchewan Recommendation No 1

Expand educational fair dealing provisions to reflect the needs of the contemporary university environment.

University of Saskatchewan Recommendation No. 2

Provide protection for educational institutions against claims for statutory damages based on the acts of employees and students.

Digital Locks, Damages, and Fair Dealing

We acknowledge that it may be necessary to introduce some legal protection for digital locks or other forms of digital rights management (DRM) in order to bring Canadian legislation into line with existing international treaties. It is important, however, that a balanced approach is taken. Circumvention of locks or other forms of DRM should be allowed for the purpose of activities that are protected by fair dealing provisions, and damages should apply only when the purpose of circumvention is to infringe copyright. In the context of educational institutions, damages and even the threat of damages for circumventing digital locks for the purpose of exercising fair dealing provisions hamper the ability of students, faculty, and researchers to make fair use of copyright materials, and harm their ability to make innovative and creative contributions to their fields of study. Should users have reasonable grounds to believe that fair dealing provisions protected their use of copyright materials, damages should not be applicable.

University of Saskatchewan Recommendation No. 3

Create an exception allowing the circumvention of digital locks for legitimate academic use.

The Internet, the Classroom, and Online Learning

The Internet is one of the most important teaching and learning resources available to Canadian universities today, but educational exceptions that currently exist in copyright legislation are silent concerning the use of the Internet, or of digital media generally, in the classroom. To bring Canadian copyright legislation into the 21^st century, fair and balanced consideration must be given to the growing use of the Internet and other digital technology in teaching and learning. Exceptions are required for educational institutions to permit the use of materials available on openly accessible, publicly available websites in the classroom and for educational purposes. Existing exceptions must be updated to take into account changing and emerging technologies. For instance, some of the exceptions in the legislation specifically refer to reproduction by means of a "dry-erase board, flip chart" or "overhead projector" but do not expressly identify newer and more prevalent technologies. Amendments to current legislation should allow for instruction to occur via the Internet. A number of the expressly protected actions currently in the legislation relating to "educational institutions" apply only when the action is for the purposes of education or testing that occurs "on the premises of an educational institution." In the context of online learning the traditional notion of "premises" is much too narrow. Further, materials needed for such instruction should be made available to students for the duration of their academic program, not just for the duration of the online course. It should be permissible for copies to be made onto a personal computer or mobile device for study at a student's convenience, subject to restrictions against further distribution. This is what today's students demand of a learning environment, and this is what faculty and instructors would like to provide.

University of Saskatchewan Recommendation No. 4

Allow educational institutions to make fair and responsible use of the Internet and emerging technologies as they become available.

Research

University libraries house great volumes of knowledge and information. This material has been acquired for teaching, learning, and research with the explicit intent that it be shared. Under current legislation, however, we are only able to share our scholarly, scientific, and technical works with researchers, faculty, and students in other educational institutions by sending a paper copy, even for works that exist originally in a digital format. This is very limiting; it unnecessarily slows research and inhibits the use of modern technology in collaborative research. Amendments to legislation should allow librarians to send a work to a scholar via the Internet for scholarly purposes, and that scholar should have the ability to retain a digital copy for future reference, subject to restrictions against further distribution.

University of Saskatchewan Recommendation No. 5

Introduce format neutrality for the transfer of documents between educational institutions in order to accommodate current, new, and emerging technologies, including digital technologies.

Clarity for Internet Service Providers

Most universities provide their faculty, staff, and students with Internet service. The law is currently unsettled regarding the obligations of Internet Service Providers (ISPs), particularly when a user from that ISP allegedly infringes copyright. The legislation should expressly recognize that ISPs, including universities, are obligated only to forward the allegation of infringement to the Internet service user. It is our view that ISPs are not liable when they simply cache or host materials of users who infringe copyright, and it is our hope that this will be expressly confirmed in amendments to the legislation.

University of Saskatchewan Recommendation No. 6

Expressly include educational institutions that provide Internet service to faculty, staff, and students in the definition of Internet Service Providers, and oblige them only to notify service users of allegations of infringement.