ARCHIVED — Canadian Association of University Teachers (CAUT)

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 University Teachers received in both offical languages on September 14, 2001 via e-mail

Subject: Copyright Reform Process CAUT Submission

PDF Version

Submission by the
Canadian Association of University Teachers

to
Government of Canada Copyright Reform
c/o Intellectual Property Policy Directorate
Industry Canada

on
A Framework for Copyright Reform and the Consultation Paper on Digital Copyright Issues


Part One - Background


The Canadian Association of University Teachers

The Canadian Association of University Teachers (CAUT) is the national voice for academic staff. Representing 30,000 teachers, researchers, librarians and other academic professionals, CAUT is an outspoken defender of academic freedom and works actively in the public interest to improve the quality and accessibility of post-secondary education in Canada.


Our Interest in Copyright

From fine art to lecture notes to software programs, academic staff create an enormous amount of artistic and literary material. CAUT understands the importance of protecting creators' copyright in these works and through the collective bargaining process has ensured that its members receive credit for, and control over, their creative endeavours.

In addition to being creators, CAUT members are also great users of copyright material. Academic staff understand that ideas are not immaculately conceived, but rather are built on the past and present work of others. For this reason, CAUT has also sought to ensure that strong guarantees of access to works are a central part of Canadian copyright law. Our belief is that a robust information commons - a place where ideas and information exist not as property, but as the shared heritage of humanity - is fundamental to Canada's social and economic development.

In addition, CAUT believes that access to works is of critical importance in the learning process. The success of CAUT members as teachers depends on copyright law fostering student access to information through libraries, archives, museums, the public domain, fair dealing and the educational exceptions (limited though they are)The Copyright Act provides that a single copy of a work can be reproduced in a classroom only on a dry erase chalkboard, flip chart or overhead projector. In contrast, in the United States multiple mechanical copies of works may be made for classroom use. The United States also has legislation facilitating the use of digital works in education. The departments of Industry and Canadian Heritage are not advancing on this pressing issue. in the Copyright Act.
The Current Context

The process of copyright reform is a reflection of a broader struggle over the control of information. On one side of this dispute are those whose desire is to build ever higher protective walls around works. On the other side are those who wish to ensure that the law continues to provide for accessibility. The intensity of this struggle has been sharpened by the development of digital information storage systems - systems that create both opportunities for complete copyright control and, conversely, instantaneous unauthorized, illegal duplication.

This dichotomy presents Canada with two challenges. The first is to ensure that digital technology is not used to undermine legitimate copyright. The second, and perhaps greater challenge, is to prevent copyright owners from utilizing this technology, and the fear of its power, as a springboard to impose total restriction on access to works.


Our Position

As the representative of both creators and users of copyright works, CAUT brings a unique perspective to this discussionAs the representative of individuals whose labour actually produces copyright work, CAUT draws a sharp distinction between the creators of copyright material and those who merely own it. While the interests of creators and owners can sometimes coincide, in other instances they do not. At a time of media “convergence”, when a few large multinational media/publishing companies own and control greater and greater amounts of the world’s supply of creative works, the disparity between creators and owners is growing. . As creators, we reject the notion that copyright law is an anachronism and that works deserve no protection. As users, we understand the importance of access. Our desire is therefore to see the Copyright Act achieve a genuine balance between these differing objectives.

CAUT, through its long history with the copyright reform process, has consistently articulated a plea for balance. Unfortunately, with the federal government taking at best a neutral role in this struggle, the voices for balance have too often been drowned out by those arguing for greater and greater owner rights. The mostly non-government and non-profit groups defending the public interest in access have not been a match for the private, commercial voices arguing their own economic cause.

If this trend of strengthening owner interests continues, the pipeline of new ideas will run dry, as the free flow of information on which it depends is slowly shut down. Moreover, if knowledge moves from being a common heritage to a regime of private property, public education will suffer. Already crumbling after years of government neglect, this system will decline further as ever greater amounts of education tax dollars are diverted to pay (the usually foreign) private copyright owners for access to their ever more restricted holdings.
Part Two - A Framework for Copyright Reform

"A Framework for Copyright Reform", released jointly by Industry Canada and the Department of Canadian Heritage ("the departments") on June 26, 2001, provides an overview of the federal government's current efforts on the copyright front.

With respect to the actual legislative process, the paper proposes a "staged approach" in which, in the interests of efficiency, copyright issues are bundled into "manageable packages" to be dealt with on a piecemeal basis. For those concerned with access, this proposal raises immediate problems. While the departments claim concern about access in "A Framework for Copyright Reform”, the recent history of copyright reform in Canada, as neatly set out in section three of the documentThe section sets out the achievements of Phases I (1988) and II (1997) of the reform process. Nine of the listed achievements respect greater owner/creator rights. Only one deals with access issues., demonstrates that when the Copyright Act is amended in this manner, rights holders’ interests are dealt with expeditiously, but the concerns of access come late or never. For this reason, we urge the departments to broaden the scope of review and to address the digital issues related to copyright reform in a comprehensive, not fragmented, manner.

Our concern over the “piecemeal” approach is heightened by the content of the first "manageable packages". The departments are again advancing quickly with the rights holders’ agenda (specific digital issues and internet retransmission of broadcast programs) and leaving the public interest in access behind.

The absence in the report of any discussion of the political context of copyright reform is also troubling. The departments do not acknowledge the existence of the fiercely competing visions of those who wish to impose greater control over works and those interested in preserving balance and access. This detachment is reflected in the document's passing reference to the issue of term of protection.

In Canada the standard period of copyright protection is life of the author, plus fifty years. As a result of corporate lobbying, this term has been extended in the European Union and the United States to "life plus seventy years". Even the staunchest defender of creators' rights cannot argue that this extension will encourage creativity. Rather, the "life plus seventy" agenda is simply about increasing the current profits of large commercial rights holders. Moreover, it demonstrates a fundamental hypocrisy - backers of the scheme will remain free to delve into the past to enhance their own content, but writers and artists in future generations will have this same opportunity sharply curtailed. That the departments can float the possibility of "life plus seventy" without commenting on the symbolic and practical implications of such a move is disheartening and raises serious questions about their concern for the larger public interest.





Part Three - Consultation Paper on Digital Copyright Issues

Released on June 22, 2001, the departments' "Consultation Paper on Digital Copyright Issues" sets a framework for discussing the interaction between digital technology and copyright and the changes to the Copyright Act that this interaction may necessitate.

While the paper correctly identifies the duplication power of digital technology as a genuine threat to the interests of rights holders, it fails to acknowledge that this same technology, and the business plans associated with it, present an equal danger to those concerned with accessing works. Through encryption and restrictive, non-negotiable standard form contractsCorporate rights holders are increasingly utilizing licensing agreements to circumvent the rights of access set out in the Copyright Act. The copyright monopoly granted to owners by the Act allows them to present unilateral “take it or leave it” contracts to those requiring access to their works. CAUT and the Copyright Forum have urged that the departments confront this issue, specifically by adopting legislative amendments similar to those in the United Kingdom that limit contracts from over-riding statutorily guaranteed access rights such as lending. The failure of the departments to address the standard form contract issue is indicative of a larger failure to address access concerns., the purveyors of works in digital format can, and are, sealing their material from fair dealing, copyright exceptions and the public domain.

The failure of the paper to acknowledge this duality is compounded by the departments' arbitrary selection of the four digital issues "which must be addressed in a timely manner". This first "manageable package" is:

1) abwhether or not the Copyright Act should be amended to allow a specific right for on-demand communication;

2) abwhether or not legislative measures are needed to deter the circumvention of technological measures that are used by rights holders to protect their rights;

3) abwhether or not legislative measures are needed to deter tampering with rights management information; and

4) abwhether or not legislative measures are needed to address the liability of network intermediaries in relation to copyright protected materials over digital networks.

CAUT believes that the absence from this package of issues of central concern to groups interested in access (such as non-negotiable standard form contract problem and the educational use of the internet) limits the potential for a full discussion of the impact of digital technology on copyright. While our submission will address the four issues selected by the departments, it will do so in a broad enough manner to facilitate a complete discussion of the digital dilemma.



Part Four - The Four Issues

Issue One - "Making Available" - Should the Copyright Act be amended to allow a specific right for on-demand communication?

Expressed as succinctly as possible, this technical issue concerns an exclusive right of performers and sound recording makers to authorize that their copyrighted works be accessible for "on-demand communication", that is, that such works are available to the public at the time and place of the public's choosing. "On-demand communication" is an internet specific concept and contrasts with the right of performers to control the communication of their works through more traditional media such as radio and television. The departments are of the opinion that authors are already covered for on-demand communication through the telecommunication right and presumed purpose of such an amendment, therefore, is to extend this protection to performers and sound recording makers.

That a relatively obscure rights holders issue such as "making available" should jump to the head of the line at the expense of a host of pressing access concerns is troubling to CAUT.

Nonetheless, if the departments believe that this issue is one "which must be addressed in a timely manner", CAUT urges that in the interest of balance this occasion also be used to clarify the status of works presented over the internet. Amendments to the Copyright Act are needed that establish that "electronic publication" (the making available to the public of a work on the internet in such a way that members of the public may access the work from a place and at a time individually chosen by them) is the equivalent of "publication" for the purposes of the Act.

As matters now stand, the Act specifically excludes "telecommunication to the public" as a means of publishing. As a consequence, works "published" via the internet technically remain "unpublished”. With the internet becoming an ever greater source of works, it is imperative that this anachronism be corrected. If this does not happen, many rights of access which are dependent on actual publication, such as fair dealing, certain exceptions and the public domain, will become increasingly meaningless.


Issue Two - Legal Protection of Technological Measures

One of the great benefits of digital technology is its ability to instantaneously copy and distribute information. To prevent this same benefit from facilitating unauthorized duplication, the owners of works are protecting their property with technological measures such as encryption. However, these measures are themselves vulnerable to circumvention. As a result, 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.

To their credit, the departments acknowledge that the difficulty with imposing such measures is that while encryption (for example) may prevent illegal unauthorized copying, it can also prevent the exercise of a whole range of legal statutory rights (such as fair dealing, accessing works in the public domain, archival preservation and library lending). If the Copyright Act was amended, therefore, to include an absolute ban on the circumvention of technological measures and the devices that facilitate that purpose, the effect would be to render meaningless many of the rights of access to works enjoyed by Canadians. Such an outright ban would also prevent Canadians from legitimately disabling the technological measures used by copyright owners to infringe the privacy rights of users.

In order to avoid this regime of total owner control, any amendment to the Act must be crafted in such a manner that it does not facilitate the use of technological measures by copyright owners to prevent the exercise of statutory rights of access. In the consultation paper, the departments wisely suggest that before any legislative action is taken, a broader dialogue occur with all copyright stakeholders on this issue. It is the position of CAUT that this discussion must begin from the common understanding that any amendment to the Act should not include sanctions against the manufacture or importation of devices capable of circumventing technological measures, nor against the use of such devices in cases where circumvention is carried out solely for non-infringing purposes.


Issue Three - Legal Protection of Rights Management Information

At the most general level, rights management information is the basic facts about a work, such as its title, first owner and author. This information is used by rights holders to assert their interest in the material. In the digital environment this issue takes on particular importance because the infringement of copyright in digital works often involves the alteration or removal of rights management information.

As a result, legal measures may be necessary to discourage any tampering with information that is done in order to facilitate infringement. However, as the departments have correctly noted, the distinction between rights management information and technological protection measures is often unclear. There is a very real danger of rights holders inserting technological protection measures or privacy infringing devices under the guise of rights management information. Moreover, even absent any ulterior motive, this information may need to be altered because it is simply wrong, out-dated or not applicable in Canada.

As such, any amendment to the Act in this matter must not protect rights management information that interferes with the lawful use of the work or is used to infringe the privacy rights of the user. Any amendment should state that information is protected as rights management information only when it is identified as originating with the rights owner and when it is specifically identified as having been recorded for purposes of rights management. The Act must also specify that the protection of rights management information does not imply its legal validity in Canada and that the protection ceases upon the expiry of the copyright in a work.


Issue Four - Copyright Liability of Network Intermediaries

Network intermediaries are the institutions that facilitate contact between the providers of digital content on the internet and the end users of that content. They include libraries, archives, museums, and educational institutions, as well as commercial enterprises commonly referred to as Internet Service Providers (ISPs).

The issue the departments must deal with is what responsibility network intermediaries have for any copyright infringement that occurs on their systems.

It is impossible for network intermediaries to centrally screen or monitor for infringing material the content they host. Therefore, if network intermediaries were held to a standard of strict liability for copyright infringement that occurred on their systems, they would cease to function and the flow of information on the internet would grind to a halt.

Recognizing this, the departments are proposing a "notice and takedown" regime that would limit the liability of network intermediaries when their systems are used by a third party to disseminate copyright-protected material. No liability would attach unless notice from a rights holder that material was potentially infringing was delivered to, and subsequently ignored by, the network intermediary. Liability would also be limited for any economic harm resulting from compliance with the notice of infringement. All these protections would be dependent upon the network intermediary publicly representing itself as providing its services in an accountable and responsible manner.

The departments in this instance are again to be credited for advancing on this issue, as it is in the interests of all parties that clear rules be established in this area. However, a number of matters will need to be resolved, including questions of definition. For the purposes of the Act, the term "network intermediary" needs to be defined so as to include all entities providing services that facilitate user access to the internet. The definition must include libraries, archives, museums, and educational institutions (both for-profit and not-for-profit), as well as commercial ISPs.

In addition, it must be clear that network intermediaries are under no obligation to monitor content provided by and stored at the request of a user of its services or to determine whether user transactions conducted using its services involve infringing activity.


Part Five - Concluding Remarks

Canada's social and economic development is dependent on Parliament striking a balance between protection and access in the Copyright Act. Digital technology poses new challenges to finding this balance and Canadians need a complete discussion on all aspects of this matter.

Unfortunately, the departments are advancing with a narrow subset of digital issues and only a limited acknowledgment of the larger ideological dispute that is occurring in society over the direction of copyright. CAUT is particularly concerned that while the threats to owner interests posed by digital technology are being addressed, there is no corresponding recognition of the danger this technology presents to access.

Our desire, therefore, is to see the discussion opened up to fully address the concerns of all parties. Our fear is that if it is not, this phase of copyright reform will again be used as an opportunity to further strengthen already strong owners’ rights at the expense of balancing the interests of all Canadians. If the departments proceed with this agenda, all Canadians will suffer and the crisis of legitimacy that copyright is facing will deepen.

We look forward to reviewing and commenting on the submissions of all parties in this matter and participating further in this process.


September 14, 2001

Canadian Association of University Teachers (CAUT)

2675 promenade Queensview Drive
Ottawa, Ontario
K2B 8K2

Telephone: 613 820-2270
Fax: 613 820-7244

www.caut.ca

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