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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 Canadian Library Association (CLA) received on September 14, 2001 via e-mail
Subject: CLA ResponsePDF Version
Canadian Library Association Response to the Consultation Paper on Digital Copyright Issues
September 15, 2001
328 Frank Street
The Canadian Library Association is the national English-language association that represents those who work in and support the estimated 21,000 libraries located in every community in Canada. Its role is to assist libraries as they support Canadian citizens to access and use information for education, lifelong learning and economic development.
This response represents the views of the Canadian Library Association (CLA) on A Framework for Copyright Reform as well as on the Consultation Paper on Digital Copyright Issues released by Industry Canada and the Department of Canadian Heritage in June 2001.
In substance, a number of the observations made in this response reflect recommendations put forward in the Discussion Paper on Digital Copyright Issues that was submitted to the Government by The Copyright Forum earlier in June. As a member of The Copyright Forum, the Canadian Library Association has taken the opportunity to underscore recommendations made in the Discussion Paper that are relevant to the issues raised in the Consultation Paper, and to elaborate on observations made earlier in the context of specific proposals put forward in the Consultation Paper.
Both A Framework for Copyright Reform and the Consultation Paper on Digital Copyright Issues emphasise the importance of ensuring an appropriate balance between protection for original content and access to that content in the new technological environment. As an instrument of public policy, the Copyright Act has two primary objectives: to encourage the creation and dissemination of original works, and to promote access to those works for the benefit of Canadian society as a whole. The public policy objectives reflected in the Act focus in part on economic growth and in part on cultural and social development.
It is essential that the copyright reform process being launched by the Government respect the underlying principle of balance between the protection provided to the creators of original content and the guarantee of reasonable access by the public that is embodied the Copyright Act. Every effort must be made to ensure that the process itself is designed to maintain the level of balance currently reflected in the Act as adjustments are made in response to the challenges posed by the introduction of new technologies.
From the perspective of libraries and the users they serve, it would be unacceptable if the copyright reform process were to disrupt the balance by moving ahead on introducing new and enhanced levels of protection for copyright owners without addressing at the same time the impacts on user access. In order to ensure balance in the process, every proposal under consideration that would provide copyright owners with a new right or redress mechanism must consider at the same time the appropriateness of limitations and exceptions that may be necessary to ensure reasonable access.
The process set out in A Framework for Copyright Reform involves a staged approach to the review of issues and the development of proposals for legislative amendments. In the interests of timeliness and efficiency, the departments plan to group issues into manageable packages and to draft bills that are relatively narrow in focus. The Ministerial report mandated by section 92 of the Act that is to be tabled by September 2002 will outline a proposed agenda for copyright reform. That agenda, it is be presumed, will be shaped in large part by the course of consultations conducted over the next twelve months.
Although more than a dozen issues have been identified as candidates for inclusion on the Governments agenda for copyright reform, two have been singled out for immediate attention: a package of so-called digital issues, and Internet retransmission of broadcast programs. Assuming the release of consultation papers on those two issues indicates that they are viewed by the departments as having relatively high priority, a question remains as to the perceived priority assigned to the other issues listed in the Framework document, and to the ultimate timing of consultations and proposals for amendments relating to those other issues.
From the perspective of the Canadian Library Association, there are a number of outstanding issues related to access that ought to be given high priority and to be placed on the near-term rather than the long-term agenda. Included among those issues are the applicability of current exceptions for libraries, archives, museums, and educational institutions in a digital environment, and access for persons with perceptual disabilities. Indeed, if the Consultation Paper on Digital Copyright Issues had been less biased in its scope, and a broader range of current provisions in the Act impacted by the introduction of digital technologies had been dealt with, those access-related issues would have been logical candidates for inclusion.
One fundamental issue that is key to public access in a digital environment: the matter of standard form contracts and the validity of their terms and conditions with respect to the statutory provisions set out in the Copyright Act. Shrink wrap, click wrap, and web wrap licences all have the potential of significantly altering the balance between copyright owners and users that is reflected in the Copyright Act, effectively overriding statutory provisions designed to ensure reasonable access. If balance is to be ensured not just in name but in reality, that issue has to be dealt with as a matter of priority.
3. Making Available
The departments hold the view that the Act provides for an on-demand communication right and therefore do not propose amending the Act with respect to the rights of authors and their successors at this time.
The departments propose pursuing a dialogue on introducing an on-demand communication right to benefit performers and the makers of sound recordings that would meet the requirements of the WIPO Performances and Phonograms Treaty (WPPT).
While the Copyright Act may be construed as embodying an on-demand communication right within the scope of the right of communication to the public by telecommunication, as currently defined, it would serve the interests of clarity and transparency to amend the Act so as to make an on-demand communication right explicit.
It is also essential to be clear and precise about the relationship between on-demand communication and communication to the public by telecommunication. If on-demand communication is to be defined or interpreted in such a way as to fall wholly and exclusively within the scope of communication to the public by telecommunication, then by virtue of the definitions in section 2.2 of the Act, making a work available to the public through on-demand communication would not in itself entail publication of the work. If, for the purposes of the Act, making a work available through on-demand communication does not in fact constitute publication of the work, there are significant implications both as to the protections provided for that work as well as to the exceptions that apply to certain uses of the work.
For all intents and purposes, a work made available to the public through on-demand communication is a published workat least in the ordinary sense of the word published. Works made available to the public through the Internet or similar communication networks in an on-demand mode are generally considered to have been published electronically. To treat such works as unpublished for purposes of copyright would be inconsistent with the current realities of digital information and communications technologies.
If an on-demand communication right is to be incorporated into the Copyright Act, amendments will be required in order to make it clear that on-demand communication is, for the purposes of the Act, the equivalent of publication. Such amendments will be required regardless of whether an on-demand communication right is made explicit through amendment or is made implicit by confirming an interpretation of the right of communication to the public by telecommunication that is consistent with the newly defined communication right in the WIPO Copyright Treaty (WCT).
4. Legal Protection of Technological Measures
The departments have put forward no specific proposal on legal protection of technological measures. They have expressed an interest in pursuing a broader dialogue with all copyright stakeholders on the appropriate contours of copyright in this environment, and in developing approaches that will tangibly advance the governments public policy objectives and broader reflections on copyright.
As an instrument of public policy, the Copyright Act is designed to establish and maintain an appropriate balance between providing adequate and effective legal protection to the creators of original works and ensuring accessibility for the benefit of society as a whole. Copyright provides creators with a range of rights and redress mechanisms sufficient to protect their interests in their works, but limited so as to enable reasonable public access to those works. Limitations on owners rights are reflected in the formulation and defined scope of the specific statutory provisions associated with copyright, in the term of protection afforded to various categories of works, in the definition of non-infringing uses of protected works, in provisions made for compulsory licensing, and in limitations of liability that are attached to certain uses.
The introduction to the Copyright Act of sanctions against the circumvention of technological measures used by copyright owners to protect their works has the potential of providing copyright owners an unchallenged means of overriding all limitations on their statutory rights and of denying users their legitimate rights of access to protected works.
The provisions set out in article 11 of the WIPO Copyright Treaty (WCT) and article 18 of the WIPO Performances and Phonograms Treaty (WPPT) oblige contracting parties to provide legal protection and remedies against circumvention only to the extent that technological measures are used by copyright owners to restrict uses that are not authorized by the owner or permitted by law. It can be inferred, therefore, that the obligations of contracting parties under the WIPO treaties do not extend to the provision of sanctions that legitimize the use of technological measures by copyright owners to restrict uses permitted by law.
Introducing sanctions that would make it illegal to manufacture or import devices that could be used to circumvent technological measures used by copyright owners to control access to their works would effectively give the copyright owner unrestricted authority to determine the extent of protection provided to a work, irrespective of any limitations that might otherwise be provided for by statute. In effect, the power of the technology available to the copyright owner would supersede the authority of the Copyright Act. From a public policy perspective, an outcome of that kind has to be considered unacceptable.
Formulating sanctions in such a way as to make any act of circumvention an offence would have the same effect. If users are barred from circumventing technological measures used by copyright owners to protect their works, irrespective of the purpose for such circumvention, the copyright owner again would be in the privileged position of being able to deny the user the possibility of making use of the work in a manner that by statute would be deemed a non-infringing use.
As a matter of principle, and in the interests of maintaining appropriate balance within the Copyright Act, the Canadian Library Association takes the position that any sanctions against the circumvention of technological measures used by copyright owners to protect their works or other subject matter should apply only in cases where the circumvention is carried out for purposes of infringement. The corollary to that is that the Act should include no 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.
For libraries in particular, it is essential that statutory exceptions pertaining to the management and maintenance of collections and acts performed on behalf of users engaged in fair dealing continue to be valid even if it is necessary to circumvent technological protection measures used by copyright owners.
In addition, exceptions need to be considered to cover cases where technological measures are used by copyright owners as a mechanism for infringing the privacy rights of the user.
5. Legal Protection of Rights Management Information
The departments put forward two options:
To define rights management information consistently with article 12(2) of the WCT and article 19(2) of the WPPT, noting that protecting information relating to terms and conditions of use should not be construed as confirming the legal validity in Canada of such terms and conditions.
To define rights management information to include information identifying the work, the author, the first owner of copyright in the work, and any numbers or codes that represent such information. In relation to a sound recording, rights management information would be defined to include information identifying the performer, the performance of the performer, the maker of the sound recording, the first owner of any right in the performance or sound recording, and any numbers or codes that represent such information.
For purposes of sanctions provided by the Copyright Act, rights management information cannot be defined simply through reference to the type of information that it encompasses. Information identifying the work, the author, the performer, the performance, the maker of the sound recording, and numbers and codes used to represent such information may be attached to a copy of a work or appear in connection with the communication of a work to the public for any number of purposes and may originate from a wide range of sources. Libraries and other information service providers and intermediaries provide a number of value-added services that result in information of the type identified in the proposed definitions of rights management information being attached to or appearing in connection with the communication of a work. Examples include cataloguing-in-publication data and metadata headers used to support resource discovery.
Defining rights management information without reference to the purpose and source of the information could have the unintended effect of inhibiting organizations such as libraries and information service providers from correcting or updating information provided by themselves or their counterparts for purposes quite distinct from rights management. It could also leave users of the services of such organizations uncertain as to whether they could alter or remove any such information attached to copies of works they may be downloading into their own information management systems.
In the interests of clarity, the proposed definition should stipulate that the types of information enumerated are protected as rights management information only when clearly identified as originating with the rights owner or the owners appointed agent, and specifically identified as having been recorded for purposes of rights management.
CLA endorses the idea that the Act should also specify that the protection of rights management information does not imply its legal validity in Canada. Furthermore, the Act should make it clear that protections applying to rights management information cease to have effect on expiry of the statutory term of protection provided to the work, performance, or sound recording.
In addition, exceptions need to be considered to cover cases where rights management information interferes unreasonably with the authorized display or reproduction of the work, performance, or sound recording, or where rights management information is used as a mechanism for infringing the privacy rights of the user.
6. Liability of Network Intermediaries
The departments propose establishing a complaints-driven, notice and take-down process that would be subject to any contractual arrangements entered into by ISPs with rights holders. The proposal would include provisions for:
a limitation on liability for copyright infringement when the ISPs facilities are used by a third party (including clients of the ISP) for disseminating copyright-protected material;
a limitation on liability for reproductions of copyrighted materials in the form of caches that facilitate the communications process where the original or initial communication is authorized;
a provision for notice and takedown that would exempt the ISP from liability for hosting infringing material unless the ISP had received proper notice from a rights holder or other interested party that such material was potentially infringing and had failed to block access to the material within a specified time of having received that notice;
a limitation on the liability of an ISP for any economic harm resulting from compliance with the notice and take-down regime
a requirement that, in order to benefit from any statutory limitation of liability, the ISP publicly represent itself as providing intermediary services in an accountable, responsible manner, and establish identifiers on its site that would enable interested parties to communicate directly with the ISP.
The first question to be addressed with respect to liability of network intermediaries is one of definition. For the purposes of the Act, the term network intermediary needs to be defined with sufficient breadth of scope to encompass all entities providing services that facilitate user access to networked resources. The definition must include libraries, archives, museums, and educational institutions providing such services (both for profit and not-for-profit), as well as the commercially-oriented enterprises commonly referred to as Internet service providers (ISPs).
Second, a network intermediary should be under no obligation to monitor content provided by and stored at the request of a user of its services. Likewise, a network intermediary should be under no obligation to determine whether user transactions conducted using its services involve infringing activity.
With respect to the departmental proposals on limitation of liability for network intermediaries, the Canadian Library Association takes the following position:
A network intermediary should not be liable for infringing content supplied by and stored on or communicated through the intermediarys facilities at the request of a user, provided that the intermediary has no knowledge of an infringement, is not aware of facts or circumstances from which infringing activity is apparent, and acts expeditiously to remove or disable access to allegedly infringing content on receiving notice of alleged infringement from a rights owner or other party with interests in the content.
A network intermediary should not be liable for infringement with respect to any communication, performance in public, or transient reproduction of content that is performed in the process of providing connections, transmitting, routing, or providing access to content that has been made available on the network by another party (including its clients), provided that the connection, transmission, routing, or access is initiated by a user, and the intermediary acts solely as a facilitator.
A network intermediary should not be liable for infringement with respect to any temporary reproduction of content that is made automatically in the process of receiving a communication, or as part of an automatic process performed for the purpose of making more efficient the onward transmission of content in response to a request from the recipient, provided that the intermediary acts solely as a facilitator.
A network intermediary should not be liable for any economic harm resulting from compliance with a notice and take-down regime, as set out in the Copyright Act.
To qualify for the exemptions from liability set out above, an intermediary should be required to publicly represent itself as providing intermediary services in an accountable, responsible manner, and openly display an address, phone number, etc. that can be used by interested parties for the purpose of communicating with the intermediary.
Consideration should also be given to limiting the liability of network intermediaries in connection with any linking mechanisms they might provide in the form of indexes or other resource discovery tools. Provided that the such tools contain links only to content that has been made publicly accessible on the network (or to front pages or gateways that have been made publicly accessible), the network intermediary should not be liable for any infringement that may be construed to have taken place through the simple act of making the link.
The consultation paper also raises a question as to whether issues surrounding the scope and application of the reproduction right in a digital environment should be restricted to the question of network intermediary liability. The Canadian Library Association takes the position that the scope and application of the reproduction right is fundamental to the broader issue of adapting Canadas copyright laws to a digital environment. Reproduction (in a technical sense) is an integral part of digital information and communication technologies. Not only network intermediaries, but individual users and organizations providing services other than those involving network communications invoke reproduction processes routinely as part and parcel of using digital technologies, in many cases without even being aware or having any means of knowing that they are doing so. It is essential, therefore, that the Copyright Act be amended to differentiate the kind of transient or temporary reproduction that occurs as an inherent part of using digital technologies from the more permanent forms of reproduction that have conventionally been subject to the reproduction right. In particular, the Act must address the browsing issue, making it permissible for any user to make a temporary copy or copies in the course viewing a work or performance on a computer screen, video screen, television monitor, etc., or listening to a sound recording on a speaker, etc., provided that the work, performance, or sound recording has been legitimately acquired and/or accessed.
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