Impact of Supreme Court of Canada Decisions and Adoption of Bill C-11on the Classroom

Summary of C-11 changes updates the rights and protections of copyright owners to better address the challenges and opportunities of the Internet, so as to be in line with international standards permits businesses, educators and libraries to make greater use of copyright material in digital form allows educators and students to make greater use of copyright material for teaching and learning permits certain uses of copyright material by consumers ensures that [the Copyright Act] remains technologically neutral mandates review of the Copyright Act by Parliament every five years. 2

Recent court decisions have been very pro education: Emphasizing the importance of balance between user rights and creator rights From court decision in Théberge v. Galerie d’Art du Petit Champlain inc. “the balance in copyright between promoting the public interest in the encouragement and dissemination of works and obtaining a just reward for the creator requires recognizing the "limited nature" of creators' rights” 3 From Canada’s foremost Expert on Canadian Copyright Dr. Micheal Geist SSC decisions “a slam dunk for education”

Recent court decisions have been very pro education: Emphasizing the importance of balance between user rights and creator rights … and from court decision CCH Canadian v. Bell. “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, it must not be interpreted restrictively.” 4 From Canada’s foremost Expert on Canadian Copyright Dr. Micheal Geist SSC decisions “a slam dunk for education”

Recent court decisions have been very pro education: Emphasizing the technological neutrality of copyright protection From court decision in ESA of Canada v. Galerie d’Art du Petit Champlain inc. “we interpret the Copyright Act in a way that avoids imposing an additional layer of protections and fees based solely on the method of delivery of the work to the end user. To do otherwise would effectively impose a gratuitous cost for the use of more efficient, Internet-based technologies.” 5 From Canada’s foremost Expert on Canadian Copyright Dr. Micheal Geist SSC decisions “a slam dunk for education”

Principle of Technological Neutrality The Act … describes a right to produce or reproduce a work "in any material form whatever". In our view, there is no practical difference between buying a durable copy of the work in a store, receiving a copy in the mail, or downloading an identical copy using the Internet. The Internet is simply a technological taxi that delivers a durable copy of the same work to the end user. 6

Recent court decisions have been very pro education: Providing for manageable options for institutions to demonstrate fair dealing From court decision in CCH Canadian v. Bell “Persons or institutions relying on the… fair dealing exception need only prove that their own dealings with copyrighted works were for the purpose of research or private study and were fair. They may do this either by showing that their own practices and policies were research-based and fair, or by showing that all individual dealings with the materials were in fact research-based and fair.” 7 From Canada’s foremost Expert on Canadian Copyright Dr. Micheal Geist SSC decisions “a slam dunk for education”

Recent court decisions have been very pro education : Providing for manageable options for institutions to demonstrate fair dealing From court decision in CCH Canadian v. Bell “confirmed that classroom copying can be treated as fair dealing…. Canadian educational institutions should reexamine their copyright practices with the view to adopting a far more aggressive, user-oriented approach..” 8 From Canada’s foremost Expert on Canadian Copyright Dr. Micheal Geist

Guidelines to use materials in education 1.Is the work subject to copyright? 2.Do I need permission or license to use it? 3.Do I already have rights or a license? 4.Is the use considered to be “de minimus”? 5.Is there another exception that allows its use? 6.Does the use qualify as fair dealing? For support in going through this process visit the 2Learn site that walks you through each question and how to determine whether you can use it or not and and how 9

10 Backup copies of a digital work can be made if: solely for backup purposes not from an infringing copy no circumvention of digital locks It is not being given away must destroy if don’t own or license source copy C-11 Exceptions – Permission to copy for:

11 Format shifting or conversion of content to a different format for private purposes is permitted assuming: converting from an authorized copy don’t give it away no circumvention of technology used use for private purposes not a copy to CD (private copying levy) (need to clarify from Dr. Geist what this means)

12 Content may be captured for time shifting purposes when: legally acquire program no circumvention one copy made only keep for a “reasonable” period of time not given it away Used for private purposes ** NOTE** does not apply to on-demand, subscription content or pay per view services C-11 Exceptions – Permission to copy for:

13 Non-Commercial User Generated Content - Permits use of an existing work to create a new work and authorize intermediary (i.e. YouTube) to disseminate if : It is for non-commercial purposes attribution if possible (unlike Fair Dealing which requires attribution) the source materials comes from a legitimately owned copy no substantial adverse effect on exploitation of existing work C-11 Exceptions – Permission to copy for:

14 Educational institutions have the right to reproduce, communicate or perform publicly available materials found on the Internet if:  the source is cited  there is no digital lock on content  no opt-out notice was posted (opt out notice must be more than just a copyright notice)  there is no indication content was posted without consent C-11 Education Specific Exceptions:

15 For distance education communication of content in lessons is permitted, regardless of location of students if:  institution and student must destroy materials 30 days after course concludes  the institution makes efforts to limits further communication of the lesson C-11 Education Specific Exceptions:

16 Films and other cinematographic works are valuable tools for instruction. Schools who wish to use existing cinematographic works for instructional purposes no longer face infringement challenges so long as:  Not using an infringing copy **Note** fees that many institutions pay (VEC or Audio-Cine etc.) not needed anymore C-11 Education Specific Exceptions:

17 Schools can now reproduce or display copyrighted materials in class as part of instruction  technology neutral (not referring to specific display technologies)  may include display on a webpage, particularly intranet or PW protected space C-11 Education Specific Exceptions:

18 Digital Inter-Library Loans  libraries able to loan digital copies of resources to their patrons or patrons of other libraries so long as: prevent making more than one copy prevent communicating to another person prevent using for more than five business days C-11 Education Specific Exceptions:

Teachers providing copies to students Teachers have no ulterior motive when providing copies to students. A quote from Justice Abella in the case of Alberta vs Access Copyright: It seems … axiomatic that most students lack the expertise to find or request the materials required for their own research and private study, and rely on the guidance of their teachers. They study what they are told to study, and the teacher's purpose in providing copies is to enable the students to have the material they need for the purpose of studying. The teacher/copier therefore shares a symbiotic purpose with the student/user who is engaging in research or private study. Instruction and research/private study are, in the school context, tautological. 19

Determining Whether use is Fair Dealing Two stage fair dealing test: 1.Do you qualify?  Does your purpose fall within one of the 8 identified purposes for fair dealing? (see next slide) 2.Is the dealing itself fair?  Six factor test Purpose Character Alternatives Amount Nature Effect 20 Image from:

Fair Dealing Factors Test - Purpose 1. Purposes approved for fair dealing: Research Private Study Criticism Review News Reporting EducationEducation Satire Parody **Note** - SCC has emphasized broad interpretations of these purposes 21 Image from:

Fair Dealing Factors Test - Character 2. The character of the work being done will determine whether it is deemed to be fair For example Copying and/or posting an entire novel from a copy that was borrowed from the public library so that students in your class can read it without having to purchase it would not be deemed as fair dealing. Copying a paragraph or section from a the same novel in order to do character or plot analysis would certainly qualify NOTE** This is very similar to the former Access Copyright recommendations for copying. 22 Image from:

Fair Dealing Factors Test - Amount 3. How much of the work can be used?  depends on the purpose  may be up to 100%  for criticism it’s not likely to include the full copy, but it may 23 Image from:

Fair Dealing Factors Test - Alternatives 4. Are there alternatives to using a copyrighted work?  are there non-copyrighted versions?  Are there copyright free equivalents? The availability of a license from publishers is not sufficient reason to claim infringement. 24 Image from:

Fair Dealing Factors Test - Nature 5. What is the nature of the work being used and what is being done with it? For example:  reproduction of all or part of an unpublished work with attribution may lead to broader dissemination of the work 25 Image from:

Fair Dealing Factors Test – Effect 6. What effect will the use have on the work?  if the reproduction is likely to compete with the market of the original work, it may not be fair  although financial impact is an important factor, it is not the only nor the most important factor  decline in sales is not sufficient evidence of impact on the work 26 Image from:

C-11 Digital Locks Remain Protected 27 Digital Locks: technology that restricts access and/or copying of digital content 3 layers of protection:  copyright act for content  protects the technology (TPMs)  attempts to circumvent or support circumvention is an infringement TPMs trump education rights

Statutory and Actual Damages Statutory Damages for infringements reduced in keeping with support for user rights and Educational uses: Penalty for non-commercial infringements reduced to $100 – $5000 for ALL infringements Penalty for commercial infringements reduced to $500 – $ per infringement Actual Damages may still apply if there is sufficient evidence. 28 reduced liability for non-commercial infringements