ARCHIVED — Technical University of British Columbia

Copyright Reform Process

SUBMISSIONS RECEIVED REGARDING THE CONSULTATION PAPERS

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Documents received have been posted in the official language in which they were submitted. All are posted as received by the departments, however all address information has been removed.

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Submission from Technical University of British Columbia received on September 14, 2001 10:15 PM via e-mail

Subject: Copyright submission by The Technical University of British Colum bia ("TechBC")

Submission of the

TECHNICAL UNIVERSITY of BRITISH COLUMBIA

Government of Canada

Digital Copyright Reform Process

Issues 1 and 2

September 15, 2001

Introduction

The Technical University of British Columbia (TechBC) is Canada's newest public university (www.techbc.ca). TechBC's focus on the creation and delivery of on-line learning establishes it as the most innovative university in Canada.

All TechBC courses have a minimum 50% on-line component and are delivered in a variety of formats. TechBC has developed a proprietary course management system bundled, primarily, with its own content. I addition, courses are created for for-profit corporate education clients providing ongoing revenue streams for the University.

Courses and research are exclusively focused on the technology sector and draw heavily on collaboration with industry, particularly the information technology sector. TechBC is the only research university in Canada to exclusively conduct applied research and development. "Basic" or "curiosity-driven" research is not performed at the University. TechBC affiliates itself with industry sponsors for applied research, corporate education and technology commercialization.

Digital Copyright Reform and TechBC

TechBC is unique in that it has, unlike other post-secondary institutions, a legislated economic mandate. The expectation of the university's primary funder, the Province of British Columbia, is that TechBC will recover the majority of its operating costs through commercial activities involving technology commercialization, corporate education and full cost-recovery teaching programs.

On the one hand, TechBC creates an abundance of works (and other subject-matter) requiring the protection of not only copyright, but also patent, design and trade-mark law. On the other hand, TechBC is a user of works in the creation and delivery of its academic programs. TechBC has created an elaborate digital licensing and clearance program for its academic and for-profit offerings. Thus the University's reliance on collectives and fair dealings exceptions is reduced accordingly.

The University itself is the creator, and owner, of valuable works; it is not merely a user. This apparent dichotomy has moved TechBC beyond the traditional position of most, if not all, Canadian post-secondary institutions on matters of copyright.

Copyright Principles

TechBC's position on the initial issues presented in the Federal Government's document, "A Framework for Copyright Reform" (http://strategis.ic.gc.ca/SSG/rp01101e.html), is not focused on the nuances of implementing provisions from the WIPO treaties or the intricacies of section 31 of the Copyright Act. Rather TechBC seeks to ensure that fundamental principles of copyright law/droit d'auteur continue in an updated Copyright Act. These principles include:

1. Equal Application of Copyright Law to Traditional and Digital Formats

Notwithstanding the perceived advances in the 1996 WIPO treaties on works and performances the need to have copyright law apply seamlessly and with equal application to both traditional and digital formats is paramount.

The eroding application of copyright law exceptions to digital materials must be addressed. The academic and research community no longer has ready access to works via libraries and the application of the fair dealing exceptions in the Copyright Act. Conversely the advance of digital technologies have imbued copyright owners with an additional right never intended to be granted in any copyright system, that is the right to read, or more precisely the right to exclude persons from reading. As works migrate from hard copy to digital formats access will be governed exclusively by contract and, as such, copyright law will have no application. Legislation must be crafted to ensure the society's right to read.

The language of the European Union's directive on database protection which, if adopted in Canada, will impact all facets of society that are dependant on the Internet and digital works generally. The Federal Government must ensure materials not protected by copyright because of the lack of originality (e.g., databases), are accessible in a manner similar to exceptions in the Copyright Act.

2. Reasonable Enforcement Measures

While appreciative of the fact that enforcement measures are vital to the integrity of a functional copyright system, TechBC urges that any duplication in Canada of enforcement mechanisms in the USA Digital Millennium Copyright Act (DMCA) be carefully considered.

Unlike patent or trade-mark law, copyright law provides owners of works an advantage in that penalties for copyright infringement include not only monetary sanctions but also incarceration. TechBC views with some concern that bona fide research activities involving digital works may be classified as criminal. The recent criminal indictment of a Russian programmer in the USA under the anti-circumvention provisions of the DMCA exemplifies the concerns of the digital research and academic community.

Summary

The path to creating a fair, workable and evenhanded Copyright Act is a long one. Any missteps in articulating the philosophical underpinnings of copyright in legislation will be exacerbated by the digital environment. It appears that the USA has run amok with its enforcement legislation for protecting technological measures; equally so the European Union with its protection of databases. As described by the Federal Government in its Framework paper, the "government can benefit from the lessons learned in other countries ...".