Copyright bill introduced but does it go far enough?

Canada’s universities are urging swift passage of bill C-11, the copyright modernization act, which was sent to committee this week for review, but critics say there is still work to be done in the area of fair dealing.
“This bill is an important step forward in providing a balance between the interests of creators and users of copyright works,” said Paul Davidson, president of the Association of Universities and Colleges of Canada in a statement released by the AUCC Feb. 16. “It’s a good approach for Canada’s universities, which are both creators and users of copyright works. The bill clarifies important questions and will help ensure students and learners have access to the content they need, including digital material.”

Bill C-11 will allow universities to use new technologies, including the Internet, to deliver research and learning materials to faculty members and students. It contains many of the changes the university community suggested during the government’s public consultations in 2009, including exceptions permitting the educational use of Internet materials and the recording and Internet transmission of lessons. These changes will facilitate online learning, including distance education, and make university education more accessible for aboriginals and mature students.

“Canadian universities recognize the importance of balance between the desire of creators to receive fair remuneration for the use of their works and the public interest in being able to use information for purposes such as research and education,” says Davidson. “This copyright law will result in a fairer treatment for both parties.”

Universities and university students pay large sums to purchase and license educational materials and this will continue under this new legislation. Canada’s university libraries spend more than $300 million annually to buy and license new content for research and learning. In addition, more than $400 million is spent every year in university bookstores to buy new textbooks, course packs, and works in digital format.

But the general counsel for Access Copyright, the non-profit creators’ collective, says there is still work and clarification that needs to be achieved with the bill as it stands.

“We hope that the universities do support it but the bill is far from clear that that is how things will play themselves out,” says Roanie Levy. “While we also agree that a modernization of our Copyright Act is long overdue and we do urge the government to move ahead with the modernization of the act and pass bill C-11, there is some clarification that needs to be brought to the bill in order to ensure that creators and publishers will continue to be paid for uses of the works in the same way they are paid today.”

The areas Levy says need clarification include fair dealing for education, which she says right now are “very open-ended.”

Steve Wills, manager of government relations and legal affairs for the Association of Universities and Colleges of Canada, says some question has arisen as to what fair dealing means in terms of what qualifies as an educational institution or what kind of organizations can engage in educational copying.

“We are wondering what would be the scope of educational fair dealing? Is it going to be any different than any other kinds of fair dealing? We know from a copyright board decision of June 2009 that is currently under appeal and which had a hearing at the Supreme Court in December, that the copyright board took a very narrow view of fair dealing within the context of educational institutions,” he says.

Access Copyright recently signed new copyright agreements with the University of Toronto and Western University despite the fact many post-secondary institutions said this past summer that they were walking away from the tariff currently in place with the collective, claiming they already license the works or could rely on fair dealing for research private study and eventually education.

“We strongly believe the systematic use of content in the post-secondary sector is not in fact fair and does require payment,” says Levy. “We were able to sit down with the University of Toronto and [Western] and there are some uses that constitute fair dealing but there remains a significant amount of copying that wouldn’t pass the fairness test. After discussions about what kind of contents we were talking about and possible volumes we agreed to a rate of $27.50,” per full-time student.

That is less than what schools thought they might face. Under the previous agreement with Access Copyright, institutions paid $3.38 per full-time equivalent student as well as 10 cents per page for course-pack copying. Access Copyright’s proposed tariff (which will ultimately be determined by the copyright board at a future hearing), was an all-in-one fee of $45 per full-time student. Part of the new tariff’s structure would include licensing of the use of digital material, not just printed works.

“We also agreed to create a working group to come up with a methodology to assess how works are used in the post-secondary environment, that future rates remain relevant, on the one hand, and on the other hand that Access Copyright has enough information on the works in use so it can distribute the royalties to the rightful owners.”

So far Wills says U of T and Western are the only schools to have struck a deal with Access Copyright. “As far as I know they are the only two institutions that have signed agreements with Access Copyright,” says Wills. “We are continuing to challenge the Access Copyright tariff at the Copyright Board and that is a long process that will likely continue for quite a while.”

Wills says each institution can determine which way it wants to go even with respect to the tariff.  “They can chose to use it or opt out, similarly individual institutions can negotiate on their own with Access Copyright or operate through AUCC.”

It is expected the Copyright Board hearing to determine a new tariff won’t happen until at least 2014.

However, on Feb. 16, U of T professor Ariel Katz posted on his blog that the University of Toronto Students’ Union, the University of Toronto Graduate Students’ Union, and the University of Toronto Faculty Association sent a letter to the university’s governing council protesting the U of T-Access Copyright agreement. They urge the governors to “suspend any further step towards ratification of the Agreement until the Agreement has been thoroughly reviewed, and, if appropriate, re-negotiated or discarded.”

“The deal may be pragmatic from the administration standpoint because it passes costs along to the students and appears to lessen risk, although the latter is questionable,” says Howard Knopf, counsel with Macera & Jarzyna LLP in Ottawa. “But the deal is far more generous to Access Copyright than many believe is warranted. The result may well become the ‘new normal’ and prejudice the cause of fair dealing in the long run. In the short term, it will likely have serious consequences for the other universities and colleges in the Copyright Board case, which is apparently not going well for them in any event. It also raises serous questions about academic freedom and the privacy of teachers and students.”

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