ARCHIVED — Canadian Association of Law Libraries (CALL)

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 Canadian Association of Law Libraries/Association canadienne des bibliothèques de droit (CALL/ACBD) received on September 17, 2001 via e-mail

Subject: Brief from CALL/ACBD

PDF Version

COMMENTS ON "A FRAMEWORK FOR COPYRIGHT REFORM" AND "CONSULTATION PAPER ON DIGITAL COPYRIGHT ISSUES"

1. INTRODUCTION

   The Canadian Association of Law Libraries/Association canadienne des bibliothèques de droit (CALL/ACBD) considers the current copyright reform being undertaken by the Government of Canada as being of crucial importance to all its members since it has now become an absolute necessity to adapt the Canadian copyright legislation to the new technological environment. The Association represents the wide variety of law library interests across Canada. With professional representatives from various fields of legal activities, such as law firms, law schools, government departments and organizations, courthouses and private corporations, it provides a forum for the exchange of information and ideas among members and fosters cooperation among Canadian law libraries.

   As its members use electronic media more and more to access and disseminate legal information and documentation, CALL/ACBD welcomes the opportunity to express its views on digital copyright issues and copyright reform in general. The issues which most concern the Association are (1) clarification of the fair dealing provision along with its recognition in the digitized environment and (2) Crown copyright in the new digitally networked environment. The prime concern of CALL/ACBD members is that there should be quick and easy access to legal information, especially legislation and case law. This should not be considered as a users' need, but as a citizens' right. As a matter of general principle, CALL/ACBD strongly believes that any copyright reform should rest on the necessity of maintaining a balance between the rights of creators and the legitimate needs of users, including the need for the education, learning and research community to be able to access and use protected works on reasonable terms.

   The Association issued an official position statement on Canadian Copyright law in February 1996 which has been published in (1996) 21 Canadian Law Libraries/ Bibliothèques de droit canadiennes, 20-21. It has also issued a position paper in 1997 on the Internet Content-related Liability Study which has also been published in (1998) 23 Canadian Law Libraries/Bibliothèques de droit canadiennes, 203-204. CALL/ACBD has also been an active member of the Copyright Forum which has presented to the Government of Canada in June 2001 a Discussion Paper on Digital Copyright Issues. The following comments on the two consultation papers on copyright reform recently issued by Industry Canada and Canadian Heritage rely on a large extent on these documents.

2. A FRAMEWORK FOR COPYRIGHT REFORM

   CALL/ACBD is surprised that the Government has opted again for what seems to be another "phase or step" approach for this new copyright reform process. The "phase" approach of the previous reform process has been disastrous to the user community. It took nine years (1988-1997) to put in place a carefully crafted balance between adequate protection for copyright holders and reasonable access to the protected works for purposes of education, research and private study. The Association is worried that the proposed plan, i.e. "Review of the Copyright Act through more frequent revisions involving more manageable packages of issues and more narrowly focussed bills" could disrupt this balance. The Association is questionning why the Government has decided to move rapidly with two sets of issues, namely digital issues and Internet retransmission of broadcast programs, leaving behind issues which the Government admits "stakeholders and parliamentarians had wanted to see included in the last round of amendments and which had to be put aside to be dealt with later". While CALL/ACBD understands that they are indeed important issues, it considers that some among the others listed in A Framework for Copyright Reform are also of prime importance to its members, namely access issues, database protection, Government as owner and user of copyrighted works and technology-enhanced learning.

   On the "access issues", CALL/ACBD is particularly pleased to note that the Government is seeking an "adequate protection and administration of copyright balanced with appropriate access to works in both the digital and non-digital environments". The Association considers that there are still unresolved issues in the non-digital environment, such as the clarification of the fair dealing provision. CALL/ACBD is also in agreement with the statement on the needs for new exceptions and considers that "the making of copies or other necessary uses of works for purposes of proceedings before courts and tribunals" should not be an infringement of copyright, but one of the foundations of access to justice. The Association strongly believes that quick and easy access to legal information is an integral part of the democratic process.

   On the "Crown copyright" issue, CALL/ACBD considers that Crown copyright should aim at ensuring universal and easy access to public information. The Association thinks that all Canadian governments should adopt a more liberal approach to making works of the Crown available on the Internet without requiring payment or prior authorization. While CALL/ACBD believes that Crown copyright should be maintained, as a rule, federal government information and data should be in the public domain. But federal and provincial Crowns have an obligation to enforce the Crown's moral rights to protect the accuracy and integrity of statutes, regulations, judicial decisions and administrative decisions and the Crown should not waive its moral rights over this material.

   The agenda of the reform as proposed leaves out other questions of importance. The recognition within a digital environment of the same legislative exceptions granted in the printed environment for libraries, archives, museums and educational institutions as well as the more and more frequent conflict between copyright law and contract law require consideration by the Government. One example of new problems encountered is the licensing issue where licenses for accessing electronic media often prove to be more restrictive than for parallel print products. CALL/ACBD recommends that standard form contracts should have no effect when they prohibit uses permitted under the Copyright Act

3. THE NEED TO MAINTAIN THE BALANCE BETWEEN THE RIGHTS OF CREATORS AND THE LEGITIMATE NEEDS OF USERS

   This principle should represent the cornerstone of any Canadian copyright legislative agenda and CALL/ACBD strongly believes that there should be no compromise

   on this issue. Any copyright law reform should reflect such a balance and be carefully drafted by the legislator to encourage creation on the one hand and dissemination of new material on the other. The Association is pressing the Government to make sure that any "package" of reform does not leave users aside for future considerations while owners of copyright get immediate benefit. The best example of such a danger is the issue of legal protection of technological measures. The revised Canadian Copyright Act must include exceptions which would permit the circumvention of such measures in order to ensure the same easy and quick access to electronic material as is the case with printed material.

4. CONSULTATION PAPER ON DIGITAL COPYRIGHT ISSUES

   4.1. The Core Principles

   The Government introduced its proposals for copyright reform as being based on five principles which the Association agrees are important. In particular, CALL/ACBD is pleased to support the second principle, i.e. that "The framework rules should be clear and allow easy, transparent access and use" and is pleased to read that the Government objective is "to dispel confusion for all Canadians about the boundaries of legitimate uses

   of works on-line". In 1996 when CALL/ACBD presented its postion statement on Canadian copyright, it requested a clarification of the fair dealing provision stating that "The existing provision, as an equitable guideline, is unworkable in practice" and "needs specific criteria along the lines of the U.S. fair use provision, such as the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; the nature of the copyrighted work; the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and the effect of the use upon the potential market for or value of the copyrighted work". The position statement also requested "that fair dealing applies to the making of an electronic copy of a work".

   CALL/ACBD wants to comment on the fourth principle, i.e. that "The framework needs to be cast in a global context". The Association notes the commitment the Government makes on page 14 of the consultation paper, that "The challenge for the departments is to develop copyright policies that are consistent with and promote international standards of protection, but that continue to validate Canadian priorities, choices and values". Again at this point, CALL/ACBD wishes to bring up the issue of circumvention of technological protection measures. Both the WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty set out obligations on states that join the treaties to provide adequate legal protection and effective legal remedies against the circumvention of technological protection measures used by copyright holders to protect their rights. The Association strongly believes that circumvention should be legally permitted in Canada whenever it is to allow an activity which is not considered as an infringement of the Canadian Copyright Act

   Finally, CALL/ACBD supports the fifth principle, i.e, that "The framework should be technologically neutral, to the extent possible". In its brief on the "Internet Content-related Liability Study" in 1998, the Association stated that "viewing the Copyright Act as technologically neutral is an important principle. The fundamental copyright principles are sufficiently flexible to enable our courts to deal with situations involving the use of new technology".

   
   

   4.2. The Proposals

   4.2.1. A making available right

   CALL/ACBD agrees with the proposal that there is no need at this present time to introduce a "making available right". The Association thinks that the existing copyright principles, including the exclusive rights of reproduction and communication by telecommunication to the public, along with the indirect infringement provisions, are adequate to handle the dissemination of and access to information on the Internet.

   But CALL/ACBD thinks that there is an urgent need to clarify the notion of "publication" via the Internet. Expanding the definition as it stands in the current Canadian Copyright Act to specifically include "electronic publications" would help "to dispel confusion for all Canadians about the boundaries of legitimate uses of works on-line". The Association considers that communicating a work on the Internet is in fact "publishing" it and that all exceptions granted to the "publications" in printed format should apply to "publications" on-line.

   4.2.2. Legal Protection of Technological Measures

   CALL/ACBD is pleased with the recognition by the Government that an overly strong protection against circumvention of technological protection measures by copyright owners could prevent uses that would otherwise be permitted by the current Copyright Act. As an example, fair dealing and access to works that have passed in the public domain , either through the term of protection exhaustion clause or through a general public license like the one providing access to the federal statutes, regulations and tribunal decisions, would be jeopardized by the implementation of an unrestricted clause that would make it illegal to circumvent technological protection measures used by creators to protect their copyright. While agreeing in principle with the necessity for copyright owners to be able to prevent systematic infringement of copyright materials on-line, CALL/ACBD wants to stress the necessity to ensure that any legal protection measures and legal remedies against the circumvention of technological measures which would be made part of a revision of the Canadian copyright act, should be counterbalanced by appropriate exceptions allowing circumvention for an activity that qualifies as legitimate, such as the enjoyment of an exception or access to material in the public domain.

   4.2.3. Legal Protection of Rights Management Information

   The two WIPO treaties require that measures be in place to prevent interference with digital rights management systems. "Rights management information" is broadly defined in the WIPO treaties to mean information attached to a work or other subject-matter that identifies the work or other subject-matter, author, performer, performance, producer of a sound recording, copyright owner, or any information regarding the terms and conditions for use of the work or other subject-matter.

   CALL/ACBD agrees with the principle that copyright owners be legally protected against removal or alteration of rights management information, but wants to specify that the law needs to be very clear on what constitutes rights management information. Any new provision in the Canadian Copyright Act on rights management information must be drafted carefully so as to avoid hindering legitimate activities. For example, when the term of copyright protection for a work has expired, it should be permissible to remove rights management information attached to the work. CALL/ACBD also believes that terms and conditions of use should not be part of a rights management information package.

   4.2.4. Liability of Network intermediaries, such as Internet Service Providers, in relation to Copyright

   CALL/ACBD supports the view that no Internet Service Provider should be liable for copyright infringement if they did not have actual or constructive knowledge that the material infringed copyright and that they acted reasonably to limit potential abuses. A service provider should be under no legal obligation to monitor content provided by, and stored at the request of, a recipient of its service, nor be required to seek facts or circumstances indicating infringing activity. The situation is similar to that of photocopiers in the printed environment, a library does not authorize copyright infringement by furnishing equipment capable of producing infringing copies provided that the library posts adequate notices warning against using equipment for copyright infringement. The Association also agrees with the proposal by the Government that there could be a provision for notice and takedown. Should an ISP fail to block access within a specified time of receiving "proper notice" from a rights holder that such material is potentially infringing, it could then be liable.

   Since the Consultation Paper raises the issue of reproduction rights as part of the liability of network intermediaries and that "legal commentators have stated that in Canada, infringement of the reproduction right can give rise to strict liability, i.e that persons whose facilities are used to effect a reproduction may be liable regardless of whether or not there was an intent to infringe copyright", CALL/ACBD wishes to reinforce its position that the Copyright Act should be amended to permit the making of temporary copies in the course of browsing a work or other subject-matter in a digital format. The Association considers such reproduction as just being an integral part of digital communication, and that requiring the user to obtain the explicit authorization of the copyright owner for reproducing a work for such technical reasons, would be an abuse of rights since the vast majority of the users do not even know that they are "reproducing" while browsing.

5. CONCLUSION

   As mentioned in the introduction, there are other important issues with regard to copyright on which CALL/ACBD would like to comment in more details and it is our hope to do so in the future. At this time, considering the rather tight deadline, the Association will limit its comments to the issues as tabled by the Government in the two consultation papers. But there is one final issue which the Association wishes to raise. The legal deposit of electronic material is a matter of concern for the members of CALL/ACBD. Legal deposit legislation serves a clear national public policy interest by ensuring the acquisition, the recording, the preservation and the availability of the nation's published heritage. The role of a legal deposit system is to ensure the development of a national collection of "published" material in various formats. As more and more material is being made available only in electronic format, it is important to ensure that the legal deposit legislation be amended in order to avoid losing track of valuable material forever. Within a digital environment, legal deposit will necessarily require that the National Library makes copies of on-line publications for preservation and/or access purposes. The reform of the Copyright Act should make provisions to include a specific exception for such a purpose.

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