Canada, Copyright & the Common Good Mark Haslett University Librarian University of Waterloo Chair, CARL Copyright Committee ARL, Working Group on Fair Use AUCC Negotiating Committee IFLA Conference, Quebec City (August 14, 2008)

Some caveats I am here perhaps:  for my sins or  for not ducking fast enough or  for believing that public policy matters A balanced principled & pragmatic approach

Outline Copyright in Canada – the state of play Fair dealing & the Supreme Court of Canada 2004 “CCH” case The Supreme Court of Canada & the common good (& “Sex in the snow”) Bill C-61: An Act to Amend the Copyright Act The future

Copyright in Canada – late 2007 Copyright was everywhere in the news last December Buzz about new legislation Blogs & Facebook raised copyright’s profile Canada’s Globe & Mail declared copyright is sexy On a CARL tour to the UK, I even heard copyright discussed from the pulpit in St. Martin-in-the-Field in London, England

Canada now C-61: An Act to amend the Copyright Act (tabled June 2008) CMEC & Access Copyright Bd.  Tarif for K-12 education sector  Decision from Board pending Access Copyright & Staples litigation

CARL – January 2008 Statement on… A Canadian Approach to Digital Copyright To compete nationally and internationally, researchers in Canada require a fair and balanced copyright regime that recognizes the importance of users’ rights. Users’ rights must not be limited or narrowed in the digital environment.

CARL - four key copyright reform issues Fair dealing is critical to a balanced and fair copyright regime. Copyright law reform must not limit or narrow fair dealing. A change in the law should ensure that a user of a copyrighted work is not subject to damages, where he or she had reasonable grounds to believe that an activity is fair dealing. Circumventing technological measures that prevent access or copying should be permitted if the purpose of the circumvention is not an infringement of copyright. The Copyright Act should be amended to provide that students, teachers and educational institutions do not infringe copyright when they use publicly available material on the Internet for educational purposes.

Fair dealing & Supreme Court CCH case

Fair dealing in Canada (section 29) Fair dealing is format neutral Four enumerated purposes 1. Research 2. Private study 3. Criticism 4. Review “Teaching” is not enumerated

Library exceptions A library can “do anything on behalf of any person that the person may do … under [fair dealing]” ILL provision  for printed matter (not “born digital”)  “copy given to the patron must not be in digital form”

CCH case Decision characterized as :  Ground-breaking  a “seismic shift”  A “gift” to users A 9 – 0 decision

CCH case - highlights The case in brief:  Some publishers alleged  copyright infringement  by the Law Society of Upper Canada “Great Library”  for copying and faxing articles from legal publications Some important aspects of the case:  Faxes to lawyers outside of Toronto  Request-based  Research purpose of copying  Commercial vs. non-commercial use  Single copy to a single requestor

The Supreme Court said in CCH …the fair dealing exception is perhaps more properly understood as an integral part of the Copyright Act… The fair dealing exception, like other exceptions in the Copyright Act is a user's right. In order to maintain the proper balance between the rights of a copyright owner and users' interests, [fair dealing] must not be interpreted restrictively. research must be given a large and liberal interpretation" … “to ensure that users' rights are not unduly constrained”

SCC and Vaver SCC agreed with and quoted noted Canadian scholar, Professor David Vaver: User rights are not just loopholes. Both owner rights and user rights should … be given the fair and balanced reading that befits remedial legislation.

The Supreme Court & the common good “Sex in the snow”

The Canadian context – the common good Part of the Canadian reality, a thread running through our history, is that sense of the importance of the community, of the common good, of the public interest. “Peace, order & good government” is in our constitution The importance of the common good is an integral part of the Canadian tradition.

Sex in the snow Sex In The Snow - Canadian Social Values at the End of the Millennium (Michael Adams) “The snow represents what is most enduring in Canadian values; the sex represents the hedonism and demand for immediate gratification that distinguishes the recent evolution of social values in the country. The stereotype of Canadians as respectful and reserved, and not that imaginative, is fast losing its validity.”

Supreme Court of Canada The Supreme Court has been bold, imaginative, and a major defender of the common good and the public interest in Canada 2002 Théberge case 2004 CCH (Great Library) case

Théberge case The Supreme Court noted:  The Copyright Act is usually presented as a balance..  …The proper balance … lies not only in recognizing … creator’s rights but in giving due weight to their limited nature.  … Excessive control by holders of copyrights … may unduly limit the ability of the public domain to incorporate and embellish creative innovation in the long-term interests of society as a whole…

Théberge and CCH Establish a new legal doctrine in Canadian copyright law known as “users’ rights”. The rights of users of copyright material are no longer considered as “limitations” or “exceptions” that narrow the scope of copyright owners’ rights. The SCC has articulated that exceptions and limitations in the Copyright Act are “users’ rights.” To maintain the proper balance between the rights of copyright owners and users, users’ rights must not, according to the Supreme Court, be interpreted restrictively.

Some implications & issues for libraries User rights are not just loopholes. Libraries can rely on fair dealing  Library “ exceptions ” in Act need only be called upon if fair dealing does not apply CCH does not = carte blanche Gray areas…  multiple copies to multiple persons

There is a catch however… The catch is that the Canadian Copyright Act contains provisions for the awarding of significant and potentially punishing damages. To address this catch:  Damages should be limited so that all Canadians can exercise and explore their fair dealing rights.  Canadians should be able to take advantage of their fair dealing rights to the benefit of the whole Canadian community.

Bill C-61 It’s stated purposes Does it stand up to scrutiny? Multiple lens through which it can be viewed:  Canadians as a whole – the public interest  Canadian researchers and research libraries  Théberge & CCH  etc.

C-61 – stated intent …permit certain uses for educational and research purposes of Internet and other digital technologies to facilitate technology-enhanced learning, interlibrary loans, the delivery of educational material and access to publicly available material on the Internet …encouraging the use of digital technologies for research and education …enhancing the protection of copyright works or other subject-matter, including through the recognition of technological measures, in a manner that promotes culture and innovation, competition and investment in the Canadian economy

How does C-61 look under the lens of CARL’s four key issues? Fair dealing is critical to a balanced and fair copyright regime. Copyright law reform must not limit or narrow fair dealing. A change in the law should ensure that a user of a copyrighted work is not subject to damages, where he or she had reasonable grounds to believe that an activity is fair dealing. Circumventing technological measures that prevent access or copying should be permitted if the purpose of the circumvention is not an infringement of copyright. The Copyright Act should be amended to provide that students, teachers and educational institutions do not infringe copyright when they use publicly available material on the Internet for educational purposes.

C-61  The educational use of the internet exception advocated for is there  Good  There has been some movement on the damages/liability issue  There may possibly be an opening to move this key issue forward.  The introduction of technological measures into the Act is a major concern  There is a significant risk of users’ rights being undermined; of the Canadian copyright regime being unbalanced.

Where we go from here… Look to the future – don’t solve yesterday’s problems We live very much in a digital world now… Advocate for users’ rights, a robust public domain, and the common good. Users’ rights must not be limited or narrowed in the digital environment. Damages should be limited so that Canadians can take advantage of their fair dealing rights to the common benefit of all Canadians. Advocate vigorously that circumvention of technological measures for non-infringing purposes should be permitted.

Listen to what the SCC said And protect the balance in the Canadian copyright regime…  …The proper balance … lies not only in recognizing … creator’s rights but in giving due weight to their limited nature.  … Excessive control by holders of copyrights … may unduly limit the ability of the public domain to incorporate and embellish creative innovation in the long-term interests of society as a whole…  The fair dealing exception, like other exceptions in the Copyright Act is a user's right.  In order to maintain the proper balance between the rights of a copyright owner and users' interests, [fair dealing] must not be interpreted restrictively.