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COPYRIGHT REFORM PROCESS
SUBMISSIONS RECEIVED REGARDING THE CONSULTATION PAPERS
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.
Submission from Council of Administrators of Large Urban Public Libraries (CALUPL) received on September 14, 2001 via e-mail
Subject: CALUPL Copyright Submission
PDF versionI am writing as Chair of the Council of Administrators of Large Urban Public Libraries (CALUPL) to comment on the Government's A Framework for Copyright Reform and Consultation Paper on Digital Copyright Issues.
CALUPL represents the all large urban public library systems in Canada. Our member library systems provide over one-third of the Canadian people with library services. The Internet and digital content are now integral components of public library service. Federal copyright issues have a profound affect on the service we provide to Canadian citizens.
The copyright reform process initiated by the release of the Framework and Consultation Paper will directly influence how public libraries and their millions of users can access and use digital content. Failure to maintain an appropriate balance between the interests of individual Canadians and the libraries, archives, museums and education institutions which serve them and the interests of digital content owners will have a significant negative effect on formal education and life-long learning within this country. The Government must proceed with a broader copyright initiative than that suggested in the Framework and Consultation Paper. We need to ensure that the appropriate balance is achieved in the digital environment.
CALUPL is a member of The Copyright Forum and strongly supports the positions laid out in the Forum's "Discussion Paper on Digital Copyright" released in June 2001. CALUPL is disappointed that the Government has not recognized that key recommendations from the Forum Paper require prompt attention. Issues such as standard form contracts, educational use of the Internet, temporary copies, alternate format production for the print disabled, and institutional exceptions for digital content must be addressed in the short term if there is to be any semblance of the required balance which the Government identifies as an important public policy objective.
Although several issues are identified in the framework document, the Government has chosen to address only two of them at this time. We agree that the questions related to digital publications are pressing but the consultation paper has not addressed all issues that are of concern to public libraries.
One of our key issues is the definition of the term "published". The need to expand this definition to include works made available on the Internet is critical to meeting the Government's principle of "clarifying the law where it will reduce the risk of unnecessary litigation". Expanding the definition will also serve to preserve the "contour" of the "The Copyright Act" ("The Act") by ensuring that the balance between creators and users of digital publications is maintained.
The Copyright Forum identified several issues in its "Discussion Paper on Digital Copyright" (www.cla.ca/resources/copyrightforum.htm) including:
Licensing, in particular standard form contracts>
Technological protection measures
Digital learning
ISP liability
Making of temporary copies during electronic communication
Administration of copyright permissions
The issue of standard form contracts and how they can be utilized to override legal uses specified in "The Act" is of pressing concern to Canada's public libraries. A number of CALUPL members faced a legal challenge over lending a commercial CD-ROM readily available in Canadian bookstores. It is unacceptable that public institutions should have to incur legal expenses to assert the right to lend a CD-ROM without motive of financial gain. This use is permitted in "The Act". The Copyright Forum "Discussion Paper" recommends that standard form contracts should have no effect when they prohibit uses permitted under "The Act". Government failure to act on this issue in the first round of digital copyright reform will undermine any attempts to achieve a reasonable balance between competing interests.
The issue of technological protection measures is in part linked to the standard form contract issue. Should individuals and the institutions serving them not have the right to circumvent technological protection measures for non-infringing purposes, content owners will have the means of overriding user rights identified in "The Act". In order to maintain the necessary balance between interests carefully laid out in "The Act", circumvention for non-infringing purposes should be permitted.
We also feel that exceptions are needed in "The Act" to permit temporary copying for the purposes of electronic transmission, browsing, and caching. This area needs clarifying in order to prevent unnecessary litigation.
The consultation paper does address the issue of ISP liability, but it needs to include a clear definition of the term "service provider" to ensure that public institutions that provide Internet services are included. We endorse the definition included in the "Digital Millennium Copyright Act".
Several issues identified in the Copyright Forum's document have not been adequately addressed in the Government's consultation paper. To leave these issues "in limbo" for an extended period is unacceptable to our members. Based on the lessons of the past, CALUPL has no confidence that these crucial issues will be addressed, at all. Especially troubling in this regard is the Framework's identification of "consensus among stakeholders" as a criterion for the timing of revisions to "The Act". For some if not most of these issues, consensus will not be achieved. There remains an obligation for the Government to act promptly so that Canadian citizens and the libraries, archives, museums and education institutions which serve them are able to reasonably access and use digital content. Undue delay will place Canada's status as an informed and participatory society at risk.
The "Consultation Paper" asks a number of specific questions. Selected questions are noted below with a summary response.
"In light of the foregoing questions, do the approaches suggested in this paper contribute to a copyright framework which promotes Canadian public policy objectives?"
No. As stated in the preceding text, the Government must bring forward legislative amendments in the short term which address the concerns of the users of digital content and the not-for-profit institutions which serve them, not just of the creators of digital content. This is critical if the "contour" of the Copyright Act is to be maintained.
"How would a "making available" right affect the balances among the various copyright interests?"
As noted above, CALUPL is concerned that The Act should be explicit that digital content made available to the public is indeed published and subject to the user exceptions in The Act.
"Given the rapid evolution of technology and the limited information currently available regarding the impact of technological measures on control over and access to copyright protect material, what factors suggest legislative intervention at this time?"
As outlined above, CALUPL believes that failure to permit circumvention of technological protection measures for non-infringing purposes in the short term will disrupt the balance of interests in "The Act". The right to privacy as to choice of reading matter is a fundamental public library value and must be addressed when considering technological protection measures.
"Do the current provisions of the Copyright Act already adequately address ISP concerns?"
No, as discussed above and in the Forum "Discussion Paper". There is need to define "service provider" and to clarify in particular the question of temporary copies made during the electronic communication process.
CALUPL and its members are prepared to work with the Government to ensure that revisions to "The Act" deal with digital issues while maintaining the crucial balance between the legitimate interests of creators, distributors and users of copyrighted content. We must recognize that consensus will be difficult to achieve on many issues. This must not become a rationale for deferring contentious but necessary decisions.
It will be necessary to engage the broader community in the digital copyright reform process. Public libraries can play an important role in this area. As public librarians who respect copyright, we are concerned about the dangers of the increasing lack of understanding by our users as to why technology's potential must be disabled in order to comply with outdated copyright law. Prompt and enlightened action which acknowledges the new technological realities will be necessary in order to ensure continue respect and adherence to the law.
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