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Thursday April 28, 2011
Wikileaks Cable Confirms Public Pressure Forced Delay of Canadian Copyright Bill in 2008
A new Wikileaks cable confirms that the Conservative government delayed introducing copyright legislation in early 2008 due to public opposition.  The delay - which followed the decision in December 2007 to hold off introducing a bill after it was placed on the order paper (and the Fair Copyright for Canada Facebook group took off) - lasted until June 2008.  The U.S. cable notes confirmation came directly from then-Industry Minister Jim Prentice, who told U.S. Ambassador David Wilkins that cabinet colleagues and Conservative MPs were worried about the electoral implications of copyright reform: From December 2007 to mid-February, senior GOC officials and well-informed private sector contacts assured the Embassy that legislative calendar concerns were delaying the copyright bill's introduction into Parliament.  Our contacts downplayed the small - but increasingly vocal - public opposition to copyright reform led by University of Ottawa law professor Dr. Michael Geist.  On February 25, however, Industry Minister Prentice (please protect) admitted to the Ambassador that some Cabinet members and Conservative Members of Parliament - including MPs who won their ridings by slim margins - opposed tabling the copyright bill now because it might be used against them in the next federal election.  Prentice said the copyright bill had become a "political" issue.  He also indicated that elevating Canada to the Special 301 Priority Watch List would make the issue more difficult and would not be received well.

The cable also notes that an unnamed Liberal MP (who sounds an awful lot like Dan McTeague) assured the U.S. embassy that the copyright bill would receive wide support (though Conservative MP James Rajotte did not believe it would receive "smooth sailing").  The cable states:

An influential Liberal MP on intellectual property issues separately told EMIN on February 26 that the copyright bill would receive widespread support from the Conservative, Liberal, and Bloc Quebecois parties if and when the GOC sends it to Parliament.  The Liberal MP stated that he has pressed Industry Minister Prentice to release the legislation now, adding that Canada is out of step with the rest of the (developed) world on intellectual property rights and risks losing future foreign investment.  The MP dismissed the political significance of the public efforts of Professor Geist and hinted that Canada's possible elevation to the Priority Watch list would not be seen as a hostile U.S. action, but show that its IPR regime is weak vis-a-vis its G-7 partners.

The cable concludes by noting that Canadian officials warned against placing Canada on Special 301 Priority Watch list (which would "give ammunition to Dr. Geist and his acolytes") but that strongly recommends doing so anyway.

wikileaks 2008 copyright delay
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Blog

A new Wikileaks cable confirms that the Conservative government delayed introducing copyright legislation in early 2008 due to public opposition.  The delay - which followed the decision in December 2007 to hold off introducing a bill after it was placed on the order paper (and the Fair Copyright for Canada Facebook group took off) - lasted until June 2008.  The U.S. cable notes confirmation came directly from then-Industry Minister Jim Prentice, who told U.S. Ambassador David Wilkins that cabinet colleagues and Conservative MPs were worried about the electoral implications of copyright reform:

From December 2007 to mid-February, senior GOC officials and well-informed private sector contacts assured the Embassy that legislative calendar concerns were delaying the copyright bill's introduction into Parliament.  Our contacts downplayed the small - but increasingly vocal - public opposition to copyright reform led by University of Ottawa law professor Dr. Michael Geist.  On February 25, however, Industry Minister Prentice (please protect) admitted to the Ambassador that some Cabinet members and Conservative Members of Parliament - including MPs who won their ridings by slim margins - opposed tabling the copyright bill now because it might be used against them in the next federal election.  Prentice said the copyright bill had become a "political" issue.  He also indicated that elevating Canada to the Special 301 Priority Watch List would make the issue more difficult and would not be received well.

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Monday July 20, 2009
Copyright Consultation Launches: Time For Canadians To Speak Out
The Canadian copyright consultation has launched with a site that offers Canadians several ways to ensure that their voices are heard.  As expected, there is a direct submission process, an online discussion forum, and a calendar that includes information on roundtables (by invitation only) and public town halls (the public can register for the town halls to be held in Montreal and Toronto).  The site features an RSS feed, there will be audio/video transcripts of the roundtables, and there is even an official twitter feed. The consultation features five key questions: How do Canada’s copyright laws affect you? How should existing laws be modernized? Based on Canadian values and interests, how should copyright changes be made in order to withstand the test of time? What sorts of copyright changes do you believe would best foster innovation and creativity in Canada? What sorts of copyright changes do you believe would best foster competition and investment in Canada? What kinds of changes would best position Canada as a leader in the global, digital economy? In a nutshell, the government is asking Canadians to describe why copyright matters, how to ensure that reforms remain relevant, and what reforms would best foster innovation, creativity, and competition. There has been some criticism over the past week about perceived "A" lists for those invited to roundtables and those excluded.  My view is that the only list that really matters is the list of people who take the time to make a public submission.  That process is open to everyone and this is the ideal opportunity to ensure that Canadians voices are heard.  The government has not consulted on copyright since 2001 and this consultation represents both a crucial opportunity and a potential threat.  While Canadians can ensure that the government understands that copyright matters and that a balance is needed, some groups will undoubtedly use the consultation to push for a return of Bill C-61.  Indeed, the recording industry has already said that that bill did not go far enough. That means we could see pressure for a Canadian DMCA, a three-strikes and you're out process, and the extension of the term of copyright to eat into the public domain. Countering those calls will require broad participation. To help foster that participation, tomorrow I will be launching a new website geared specifically to the copyright consultation along with my short form response to these questions.  I plan to blog a long form response throughout the summer.
copyright consultation launch

The Canadian copyright consultation has launched with a site that offers Canadians several ways to ensure that their voices are heard.  As expected, there is a direct submission process, an online discussion forum, and a calendar that includes information on roundtables (by invitation only) and public town halls (the public can register for the town halls to be held in Montreal and Toronto).  The site features an RSS feed, there will be audio/video transcripts of the roundtables, and there is even an official twitter feed.

The consultation features five key questions:

  1. How do Canada’s copyright laws affect you? How should existing laws be modernized?
  2. Based on Canadian values and interests, how should copyright changes be made in order to withstand the test of time?
  3. What sorts of copyright changes do you believe would best foster innovation and creativity in Canada?
  4. What sorts of copyright changes do you believe would best foster competition and investment in Canada?
  5. What kinds of changes would best position Canada as a leader in the global, digital economy?

In a nutshell, the government is asking Canadians to describe why copyright matters, how to ensure that reforms remain relevant, and what reforms would best foster innovation, creativity, and competition.

There has been some criticism over the past week about perceived "A" lists for those invited to roundtables and those excluded.  My view is that the only list that really matters is the list of people who take the time to make a public submission.  That process is open to everyone and this is the ideal opportunity to ensure that Canadians voices are heard.  The government has not consulted on copyright since 2001 and this consultation represents both a crucial opportunity and a potential threat.  While Canadians can ensure that the government understands that copyright matters and that a balance is needed, some groups will undoubtedly use the consultation to push for a return of Bill C-61.  Indeed, the recording industry has already said that that bill did not go far enough. That means we could see pressure for a Canadian DMCA, a three-strikes and you're out process, and the extension of the term of copyright to eat into the public domain.

Countering those calls will require broad participation. To help foster that participation, tomorrow I will be launching a new website geared specifically to the copyright consultation along with my short form response to these questions.  I plan to blog a long form response throughout the summer.

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Monday September 15, 2008
61 Reforms to C-61, Day 61: The Mysterious Section 3
The 61 reforms to Bill C-61 project concludes with one of the most puzzling provisions in the bill.  Bill C-61 adds the following to copyright owners' basic set of exclusive rights: in the case of a work that can be put into circulation as a tangible object, to sell or otherwise transfer ownership of the tangible object, as long as the ownership of that tangible object has never previously been transferred with the authorization of the author in or outside Canada, There is considerable debate among the copyright community about why this provision has been added and what it achieves.  At first blush, it appears to be a codification of the first sale doctrine - the notion that the copyright owner holds the right of first sale and after that the work may be resold without permission.  Another possibility is that the provision is designed to reverse the holding in Theberge, an important 2002 Supreme Court of Canada case in which the court rejected Quebec painter Claude Theberge's attempt to stop the transfer of his works from a poster to canvas on the grounds that there was no reproduction.  The most disconcerting interpretation, however, is that it provides broad new rights over any tangible object of a work.  This could come into effect in any number of cases.  For example, consider the controversy over the sale of a handful of Harry Potter books before the release date.  This new provision could be used not only to stop the sales - the books are a tangible object never previously transferred with the authorization of the author - but could leave the sellers open to statutory damages for having infringed copyright by selling the book.  The same provision could similarly interfere with the grey market, where legally obtained copies of books, CDs, or other works in one country are stopped from sale in another country.  While some of these concerns may be legitimate, they can also typically be addressed by commercial agreement.  It is not entirely clear why we need such a significant reform to the Copyright Act to address the issue.
61 reforms, day 61

The 61 reforms to Bill C-61 project concludes with one of the most puzzling provisions in the bill.  Bill C-61 adds the following to copyright owners' basic set of exclusive rights:

in the case of a work that can be put into circulation as a tangible object, to sell or otherwise transfer ownership of the tangible object, as long as the ownership of that tangible object has never previously been transferred with the authorization of the author in or outside Canada,

There is considerable debate among the copyright community about why this provision has been added and what it achieves.  At first blush, it appears to be a codification of the first sale doctrine - the notion that the copyright owner holds the right of first sale and after that the work may be resold without permission.  Another possibility is that the provision is designed to reverse the holding in Theberge, an important 2002 Supreme Court of Canada case in which the court rejected Quebec painter Claude Theberge's attempt to stop the transfer of his works from a poster to canvas on the grounds that there was no reproduction. 

The most disconcerting interpretation, however, is that it provides broad new rights over any tangible object of a work.  This could come into effect in any number of cases.  For example, consider the controversy over the sale of a handful of Harry Potter books before the release date.  This new provision could be used not only to stop the sales - the books are a tangible object never previously transferred with the authorization of the author - but could leave the sellers open to statutory damages for having infringed copyright by selling the book.  The same provision could similarly interfere with the grey market, where legally obtained copies of books, CDs, or other works in one country are stopped from sale in another country.  While some of these concerns may be legitimate, they can also typically be addressed by commercial agreement.  It is not entirely clear why we need such a significant reform to the Copyright Act to address the issue.

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Friday September 12, 2008
61 Reforms to C-61, Day 60: Photography Provisions
While they have received little attention, Bill C-61 contains several provisions long demanded by professional photographers.  Under current copyright law, where a photograph is commissioned (ie. school photos, weddings, etc.), the copyright in the photo rests with the person who commissioned it (ie. the consumer).  Photographers have long thought this unfair and sought to obtain exclusive copyright in the photos.  Absent a legislative change, most photographers use contract to obtain the rights they require.  Bill C-61 would change the current default by deleting the provision that grants copyright to the commissioner of the photograph.  In an attempt to alleviate consumer concerns, the bill also includes a provision that states that it is not an act of copyright infringement: for an individual to use for private or non-commercial purposes a photograph or portrait that was commissioned by the individual for personal purposes and made for valuable consideration, unless the individual and the owner of the copyright in the photograph or portrait have agreed otherwise. This consumer-focused provision address some, though not all, of the consumer-related concerns with the photography reforms since an exception is a far cry from being the actual copyright owner.

Alex Cameron wrote a detailed analysis of similar provisions in Bill C-60 that highlight potential concerns related to privacy (ie. photographer using a commissioned photo without permission) and striking the right balance.  Cameron recommended the adoption of the Australian approach, which vests copyright for photographs commissioned for private or domestic purposes with the commissioner but grants the photographer the right to restrain uses not contemplated at the time of commissioning:

the [commissioner] is the owner of any copyright subsisting in the work by virtue of this Part, but, if at the time the agreement was made that person made known, expressly or by implication, to the author of the work the purpose for which the work was required, the author is entitled to restrain the doing, otherwise than for that purpose, of any act comprised in the copyright in the work

Addressing photographer concerns is important and some modest reforms to C-61 would ensure that photographers enjoy the rights they need to commercially benefit from their work, while simultaneously providing consumers with appropriate rights and protections.

61 reforms, photography

While they have received little attention, Bill C-61 contains several provisions long demanded by professional photographers.  Under current copyright law, where a photograph is commissioned (ie. school photos, weddings, etc.), the copyright in the photo rests with the person who commissioned it (ie. the consumer).  Photographers have long thought this unfair and sought to obtain exclusive copyright in the photos.  Absent a legislative change, most photographers use contract to obtain the rights they require. 

Bill C-61 would change the current default by deleting the provision that grants copyright to the commissioner of the photograph.  In an attempt to alleviate consumer concerns, the bill also includes a provision that states that it is not an act of copyright infringement:

for an individual to use for private or non-commercial purposes a photograph or portrait that was commissioned by the individual for personal purposes and made for valuable consideration, unless the individual and the owner of the copyright in the photograph or portrait have agreed otherwise.

This consumer-focused provision address some, though not all, of the consumer-related concerns with the photography reforms since an exception is a far cry from being the actual copyright owner.

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Thursday September 11, 2008
61 Reforms to C-61, Day 59: Statutory Damages Reform - Removes Court Discretion For Reduced Damages
While the new statutory damages provision may create a ceiling of $500 in damages for certain infringements, it also creates a minimum that is higher than the current statute.  The drafting is complex, but the change is as follows:

1.   Under the current Copyright Act, the statutory damages provisions sets a minimum of $500 per infringement and a maximum of $20,000.  However, there are two exceptions that can reduce the minimum.  First, Section 38.1(2) provides that

Where a copyright owner has made an election under subsection (1) and the defendant satisfies the court that the defendant was not aware and had no reasonable grounds to believe that the defendant had infringed copyright, the court may reduce the amount of the award to less than $500, but not less than $200.

Moreover, Section 38.1(3) provides that the court can go below $200:

Where
(a) there is more than one work or other subject-matter in a single medium, and
(b) the awarding of even the minimum amount referred to in subsection (1) or (2) would result in a
total award that, in the court's opinion, is grossly out of proportion to the infringement, the court may award, with respect to each work or other subject-matter, such lower amount than $500 or $200, as the case may be, as the court considers just.

Section 38.1(5) sets the criteria for the judge to consider in such a case.  In other words, the courts ultimately have discretion with statutory damages to award what they believe is just.

2.   Once the new $500 statutory damages provision kicks in, the court's discretion is removed.  The new Section 38(1.1)(2) provides that:

If subsection (1.1) does not apply and the defendant satisfies the court that the defendant was not aware and had no reasonable grounds to believe that the defendant had infringed copyright, the court may reduce the amount of an award under subsection (1) to less than $500, but not less than $200.

The later discretionary provision that permits damages below $200 specifically excludes this new statutory damages provision.  The net effect is a removal of discretion under the $500 provision to go below $200.  The creation of judicial discretion to go below statutory minimums was a necessary safeguard against unfair damage awards.  The new $500 maximum may address the issue in another way, however, there remains uncertainty about how the provision will be applied.  I believe the court discretion should apply to all current and proposed forms of statutory damages.

61 reforms, day 59

While the new statutory damages provision may create a ceiling of $500 in damages for certain infringements, it also creates a minimum that is higher than the current statute.  The drafting is complex, but the change is as follows:

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Wednesday September 10, 2008
61 Reforms to C-61, Day 58: Statutory Damages Reform - What It Doesn't Cover
The problems associated with the statutory damages reform extend beyond the questions it raises.  The provision is presumably a response to the over 30,000 file sharing lawsuits in the United States which each bring the prospect of millions in liability.  Politically, the image of that kind of liability for Canadians would not sell well on the campaign trail.  Yet notwithstanding the intent, the current provision does very little to address the prospect of enormous liability for all sorts of activities. The new provision would likely reduce liability for downloading (though downloading of sound recordings is already arguably permitted due to the private copying levy), however, it certainly does not address uploading or the making available of content on file sharing networks without authorization.  This means that BitTorrent users - who simultaneously upload and download - will still face the possible liability of $20,000 per infringement.  Similarly, uploading a copyrighted work to YouTube raises the same potential liability.

The provision also does nothing to address personal infringement that may occur when a user transfers a DVD to their computer or a copy-protected CD to their iPod.  The bill states that:

Subsections (1.1) to (1.3) do not apply with respect to infringements that were made possible because the defendant circumvented or caused to be circumvented a technological measure that protected the work or other
subject-matter, within the meanings of the definitions “circumvent” and “technological measure” in section 41.

This limitations means that users face liability of up to $20,000 per infringement where they circumvent a DVD or copy-protected CD and make an unauthorized copy.  The circumvention itself does not raise statutory damages, but the copy that follows does.  If the goal is to limit liability for private infringement, surely it should also address situations where a user copies their store-bought CD or DVD.  Even better, the government should take the opportunity to more clearly delineate between commercial piracy (which should carry significant damages) and non-commercial infringement (where actual damages should be proven).

61 reforms, day 58

The problems associated with the statutory damages reform extend beyond the questions it raises.  The provision is presumably a response to the over 30,000 file sharing lawsuits in the United States which each bring the prospect of millions in liability.  Politically, the image of that kind of liability for Canadians would not sell well on the campaign trail.  Yet notwithstanding the intent, the current provision does very little to address the prospect of enormous liability for all sorts of activities.

The new provision would likely reduce liability for downloading (though downloading of sound recordings is already arguably permitted due to the private copying levy), however, it certainly does not address uploading or the making available of content on file sharing networks without authorization.  This means that BitTorrent users - who simultaneously upload and download - will still face the possible liability of $20,000 per infringement.  Similarly, uploading a copyrighted work to YouTube raises the same potential liability.

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Tuesday September 9, 2008
61 Reforms to C-61, Day 57: Statutory Damages Reform - Uncertainty
Reforms to the statutory damages provisions formed a big part of the government's communication strategy for Bill C-61.  Although scooped by the National Post, Industry Minister Jim Prentice emphasized the introduction of amendments to the statutory damages provisions that purportedly create limits for damages that arise from "private purposes" infringement.  The provision has proven unpopular for both sides of the copyright debate with rights holders concerned that it will not create a disincentive to infringing activities, while user groups fear that it won't apply to liability for everyday activities. The provision states: If a copyright owner has made an election under subsection (1), a defendant who is an individual is liable for statutory damages of $500 in respect of all the defendant’s infringements that were done for the defendant’s private purposes and that are involved in the proceedings. Moreover, a follow-up provision states: If a copyright owner has made an election under subsection (1) in respect of a defendant referred to in subsection (1.1), no other copyright owner may elect statutory damages in respect of that defendant for the defendant’s infringements that were done for the defendant’s private purposes before the institution of the proceedings in which the election was made. Tomorrow I will discuss why these provisions are not good enough.  For now, it is worth noting how much uncertainty they generate.  What is the meaning of "private purpose" (it surprisingly is not defined in the bill)?   Does the bill really mean that the first copyright owner to sue has the shot at $500, while all other copyright owners are blocked from filing suit?  Alternatively, do "all the defendant's infringements" refer only to the infringements for a particular work (ie. there are frequently multiple copyright holders for a single song) and file sharers can be still be sued for each individual download?  The uncertainty associated with the statutory damages reforms leave the sense of a hastily included provision at Prentice's request.  All sides in the copyright debate require greater clarification to judge the changes.
61 reforms, day 57

Reforms to the statutory damages provisions formed a big part of the government's communication strategy for Bill C-61.  Although scooped by the National Post, Industry Minister Jim Prentice emphasized the introduction of amendments to the statutory damages provisions that purportedly create limits for damages that arise from "private purposes" infringement.  The provision has proven unpopular for both sides of the copyright debate with rights holders concerned that it will not create a disincentive to infringing activities, while user groups fear that it won't apply to liability for everyday activities. The provision states:

If a copyright owner has made an election under subsection (1), a defendant who is an individual is liable for statutory damages of $500 in respect of all the defendant’s infringements that were done for the defendant’s
private purposes and that are involved in the proceedings.

Moreover, a follow-up provision states:

If a copyright owner has made an election under subsection (1) in respect of a defendant referred to in subsection (1.1), no other copyright owner may elect statutory damages in respect of that defendant for the defendant’s infringements that were done for the defendant’s private purposes before the institution of the proceedings in which the election was made.

Tomorrow I will discuss why these provisions are not good enough.  For now, it is worth noting how much uncertainty they generate.  What is the meaning of "private purpose" (it surprisingly is not defined in the bill)?   Does the bill really mean that the first copyright owner to sue has the shot at $500, while all other copyright owners are blocked from filing suit?  Alternatively, do "all the defendant's infringements" refer only to the infringements for a particular work (ie. there are frequently multiple copyright holders for a single song) and file sharers can be still be sued for each individual download?  The uncertainty associated with the statutory damages reforms leave the sense of a hastily included provision at Prentice's request.  All sides in the copyright debate require greater clarification to judge the changes.

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Monday September 8, 2008
61 Reforms to C-61, Day 56: Interlibrary Digital Loans Must Self-Destruct In Five Days
Bill C-61's library provisions are not confined to e-reserves.  The bill adds a new Section 30.2(5.01) to the Copyright Act that is designed to facilitate digital distribution of materials for interlibrary loans.  The section states: A library, archive or museum, or a person acting under the authority of one, may, under subsection (5), make a copy of printed matter in digital form and provide it to a person who has requested it through another library, archive or museum if the providing library, archive or museum or person takes measures to prevent the person who has requested it from (a) making any reproduction of the digital copy, including any paper copies, other than printing one copy of it; (b) communicating the digital copy to any other person; and (c) using the digital copy for more than five business days While moving toward digital interlibrary loans has obvious advantages (speed and cost being at the top of the list), this provision once again forces libraries to implement DRM-based solutions.  The requirements that limit further copying and distribution go far beyond what is necessary (they are presumably a response to the unlikely scenario that only a single Canadian library will purchase the copy of a work and use digital distribution to cover the rest of the country).  Even worse is the requirement to destroy the digital copy within five days (this is actually a reduction from seven days in the Liberal's C-60).  There are no similar requirements for paper-based copies of works and it makes no sense to force libraries to install DRM protections on digital copies to create time-limited uses.
61 reforms, day 56

Bill C-61's library provisions are not confined to e-reserves.  The bill adds a new Section 30.2(5.01) to the Copyright Act that is designed to facilitate digital distribution of materials for interlibrary loans.  The section states:

A library, archive or museum, or a person acting under the authority of one, may, under subsection (5), make a copy of printed matter in digital form and provide it to a person who has requested it through another library,
archive or museum if the providing library, archive or museum or person takes measures to prevent the person who has requested it from

(a) making any reproduction of the digital copy, including any paper copies, other than printing one copy of it;
(b) communicating the digital copy to any other person; and
(c) using the digital copy for more than five business days

While moving toward digital interlibrary loans has obvious advantages (speed and cost being at the top of the list), this provision once again forces libraries to implement DRM-based solutions.  The requirements that limit further copying and distribution go far beyond what is necessary (they are presumably a response to the unlikely scenario that only a single Canadian library will purchase the copy of a work and use digital distribution to cover the rest of the country).  Even worse is the requirement to destroy the digital copy within five days (this is actually a reduction from seven days in the Liberal's C-60).  There are no similar requirements for paper-based copies of works and it makes no sense to force libraries to install DRM protections on digital copies to create time-limited uses.

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Friday September 5, 2008
61 Reforms to C-61, Day 55: E-Reserve Provisions Require DRM
The problems with the e-reserve provisions in C-61 extend beyond just the fair dealing concerns.  In order to qualify for the exception, librarians are required to implement DRM-based solutions on the distribution of electronic materials.  Yesterday I pointed to the provision that expressly permits digital reproduction.  Section 30.02(3) adds two crucial requirements that must be met in order to qualify.  First, sub (b) requires libraries to: take measures to prevent the digital reproduction from being communicated by telecommunication to any persons who are not acting under the authority of the institution; Second, sub (c) requires libraries to: take measures to prevent a person to whom the work has been communicated under paragraph (1)(b) from printing more than one copy, and to prevent any other reproduction or communication of the digital reproduction; In other words, to qualify for the exemption libraries must ensure that the digital copy cannot be further reproduced, communicated or copied.  The obvious way to meet this requirement is for librarians to implement DRM solutions that lock down the digital copies.  For most librarians, this is expensive and objectionable, ensuring that the new rights to distribute digital copies will be largely ignored.
61 reforms, day 55

The problems with the e-reserve provisions in C-61 extend beyond just the fair dealing concerns.  In order to qualify for the exception, librarians are required to implement DRM-based solutions on the distribution of electronic materials.  Yesterday I pointed to the provision that expressly permits digital reproduction.  Section 30.02(3) adds two crucial requirements that must be met in order to qualify.  First, sub (b) requires libraries to:

take measures to prevent the digital reproduction from being communicated by telecommunication to any persons who are not acting under the authority of the institution;

Second, sub (c) requires libraries to:

take measures to prevent a person to whom the work has been communicated under paragraph (1)(b) from printing more than one copy, and to prevent any other reproduction or communication of the digital reproduction;

In other words, to qualify for the exemption libraries must ensure that the digital copy cannot be further reproduced, communicated or copied.  The obvious way to meet this requirement is for librarians to implement DRM solutions that lock down the digital copies.  For most librarians, this is expensive and objectionable, ensuring that the new rights to distribute digital copies will be largely ignored.

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Thursday September 4, 2008
61 Reforms to C-61, Day 54: E-Reserve Provisions Less Effective Than Fair Dealing
The Canadian library community has been one of the most outspoken critics of Bill C-61, expressing concern about (among other things) its impact on electronic delivery of materials.  The Canadian Library Association press release on C-61 notes that: Bill C-61 ignores the fact that the 2004 CCH Supreme Court Judgment already allows Canadian libraries to do desktop delivery of interlibrary loan. Bill C-61 requires libraries to lock up interlibrary loans with DRM tools, something that most libraries would not have the resources to accomplish. Bill C-61 alone would force many libraries back to delivering interlibrary loan via paper copies. The CLA raises two important issues - the use of fair dealing for e-reserve policies as well as the effective requirement on librarians to use DRM for electronic delivery of materials.  Today I will focus on fair dealing and e-reserve policies and save the DRM concerns for tomorrow.

E-reserves are the electronic equivalent of the traditional library book reserves - books or materials that a professor places on reserve in the library so that it is accessible to the entire class. In the aftermath of the LSUC v. CCH Supreme Court of Canada decision, which emphasized the need for a broad and liberal interpretation of the fair dealing provision, a growing number of universities began to establish (or consider establishing) e-reserve policies based on fair dealing. Most libraries had traditionally sought licenses for the use of electronic copies of these additional research and reading materials, yet the frustration of lengthy delays and the CCH case spurred many to think about a fair dealing based approach.  For example, the University of Calgary has established an e-reserve policy that links to accessible online content and scans print material that qualifies as fair dealing.

The move toward fair dealing based e-reserve policies have been gaining momentum in Canada, yet Bill C-61 tries to steer libraries in a different direction as the bill includes a specific provision that promotes a license-based approach.  Section 30.02(1) provides that:

Subject to subsections (3) to (5), it is not an infringement of copyright for an educational institution that has a reprographic reproduction licence under which the institution is authorized to make reprographic reproduc-
tions of works in a collective society’s repertoire for an educational or training purpose

(a) to make a digital reproduction - of the same general nature and extent as the reprographic reproduction authorized under the licence - of a paper form of any of those works;

Moreover, Section 30.02(7) and (8) create a statutory safe harbour that limits potential liability for libraries for digital communication of works under this section. 

So far, so good.  However, Section 30.02(3) sets out several requirements to qualify for the exception, including payment to the applicable copyright collective at 30.02(3)(a).  In other words, digital copying is permitted but only if the institution pays for the digital copies.  The institution has already paid for the work in print form and this is designed to extract additional revenue for the digital copy.  While some people may believe that is reasonable, the key point here is that the government is really just imposing a statutory deal on both parties - digital copies and a statutory safe harbour in return for payment and new DRM restrictions.  Some risk averse libraries and institutions may jump at the deal (with all of its restictions), but many other libraries will rightly conclude that they will be better off ignoring this new "right" altogether and opt for a fair dealing model that does not come with so many restrictions.

61 reforms, day 54

The Canadian library community has been one of the most outspoken critics of Bill C-61, expressing concern about (among other things) its impact on electronic delivery of materials.  The Canadian Library Association press release on C-61 notes that:

Bill C-61 ignores the fact that the 2004 CCH Supreme Court Judgment already allows Canadian libraries to do desktop delivery of interlibrary loan. Bill C-61 requires libraries to lock up interlibrary loans with DRM tools, something that most libraries would not have the resources to accomplish. Bill C-61 alone would force many libraries back to delivering interlibrary loan via paper copies.

The CLA raises two important issues - the use of fair dealing for e-reserve policies as well as the effective requirement on librarians to use DRM for electronic delivery of materials.  Today I will focus on fair dealing and e-reserve policies and save the DRM concerns for tomorrow.

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