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The case for balanced copyright

The case for balanced copyright

iStock.com / DNY59

For Seven Generations: An Information Legacy of the Royal Commission on Aboriginal Peoples was released in CD-ROM format to federal depository libraries in 1997. It contains unique content that is not part of the published — print or microform — record. Bearing the title “An Information Legacy,” the resource is one that should be as openly accessible to the public as possible. But it’s not, because of copyright rules.

“Due to the proprietary nature of the CD, libraries were unable to transfer the content even as the CDs degraded and became increasingly inaccessible,” says Carla Graebner, librarian for data services and government information at Simon Fraser University, and chair of CAUT’s librarians and archivists committee.

“Here we have an exceedingly important government document — a Royal Commission, no less — but which was produced for government by a private sector company that developed the software providing access to the content, and they still have intellectual property rights over it,” she explains.

And while the University of Saskatchewan ultimately digitized their print copy and made it available for access online, Graebner remains frustrated with the complex system of rules that continue to govern how and at what price information is allowed to flow in Canada, and around the world.

She is not alone, as copyright law plays a significant role in academic life, regulating the creation, use and ownership of literary and artistic works.

The collective licensing agency, Access Copyright, which styles itself as the representative of “tens of thousands of Canadian writers, visual artists and publishers, and their works,” has charged a tariff to post-secondary institutions for many years, allowing teachers and students to reproduce copyrighted works.

Until recently, copyright law favoured the interests of publishers and other rights-holders. Tellingly, throughout the latter part of the 20th century and into the 21st, product and licensing pricing by private textbook companies, journal operators, and publisher cartels began outstripping the public’s ability to pay. Against this backdrop, academic staff and students took action toward creating free, internet-based open access journals and open educational resources. Universities and colleges also established more efficient forms of direct licensing with publishers, sidelining Access Copyright and ensuring the wise expenditure of scarce public education funding.

In 2004, the Supreme Court of Canada held that the doctrine of fair dealing meant it was lawful to copy — without payment or permission, and for the purposes of research or private study — a portion of a work like a journal article or a book chapter. This right was reaffirmed by Parliament in 2012 with passage of the Copyright Modernization Act and in a series of Supreme Court decisions from the same year. And while fair dealing now plays a critical role in education, allowing teachers, students and researchers to share and build on knowledge, copyright law remains a complicated maze through which the education community must carefully tread.

This year, a mandated five-year review of the Copyright Act is being undertaken by the federal government, and already lobby efforts on the part of publishers and Access Copyright are seeking to roll back the gains made in 2012.

“The Copyright Act of 2012 created a reasonable balance between the rights of creators and the rights of users,” says David Robinson, executive director of CAUT. “During the review of the Act, it will be essential for us to protect the gains made as well as looking at new issues.”

CAUT’s 2017 Fair Copyright Campaign focuses on five issues: fair dealing, Aboriginal Peoples and copyright, digital locks, copyright term and crown copyright.

Fair dealing

Fair dealing provides a limited right to copy literary and artistic works without permission from, or payment to, the owner of the work. However, Access Copyright has led a vocal campaign against it, falsely blaming fair dealing for declining publisher revenue streams and incorrectly claiming that the post-secondary education sector refuses to pay for content.

In truth, Canadian post-secondary institutions continue to pay hundreds of millions of dollars every year to publishers and authors for access to works. Students spend additional millions each year on books and other material. CAUT’s recommendation is to maintain the current fair dealing regime.

Aboriginal Peoples and copyright

“Across Canada there have been many instances where intellectual property legislation has either been unable to serve the interests of Aboriginal Peoples, or has actively worked against such interests,” says CAUT education officer Paul Jones. He cites the case of elders from the Maliseet First Nation who in the 1970s recounted their stories to a university researcher. The Copyright Act gave the researcher copyright since he recorded the stories. “Tragically, this ownership rule meant the desire of the elders to see their work published became mired in a decades-long legal struggle over use of the tapes. None of the storytellers lived to see their work in a book, nor did most of their children,” recounts Jones.

There is a fundamental conflict between Western concepts of intellectual property, and Aboriginal understandings of the origin, use and control of creative works. CAUT advocates for recognition of the unique relationship between Aboriginal communities and the creative works they produce. In consultation with First Nations, Inuit and Métis organizations, Canada should devote resources to explore and develop specific legal frameworks to protect those works.

Digital locks

Digital technology allows instantaneous copying and distribution of information, a positive advancement for research, scholarly communication and teaching. But it also facilitates the commercial piracy of digital works, resulting in some owners shielding content with Technological Protection Measures (TPMs). As TPMs are susceptible to circumvention, owners have also insisted on “anti-circumvention” laws prohibiting the breaking of digital locks.

Unfortunately, digital locks impede fair dealing, archival preservation and library lending. The Copyright Act’s near absolute ban on circumvention also hinders the legitimate disabling of TPMs that infringe the privacy rights of users and prevent the correction of erroneous digital identification “tags” attached to a work. CAUT calls for an amendment of the law to allow the use, manufacture or importation of devices capable of circumventing technological protection measures in cases where the circumvention is carried out for non-infringing purposes.

Copyright term

In Canada, copyright generally endures through the lifetime of the creator of the work, plus 50 years. In the US and Europe, the general copyright term has been extended to life of the author plus 70 years and there is increasing pressure on Canada to follow suit.

However, term extension serves no public interest and inflates the profits of large commercial rights holders. CAUT’s recommendation is to maintain the general term of copyright protection in Canada to life plus 50 years.

Crown copyright

Section 12 of the Copyright Act provides that any work prepared or published by or under the direction or control of the federal government remains under Crown copyright for 50 years following the end of the calendar year in which it was published.

This diminishes Canadians’ ability to use government works, and interpretations of existing crown copyright terms-of-use are inconsistent, inhibiting public access and leading to the delay or cancellation of library projects meant to preserve and disseminate archival material. As government information, and the ability to distribute and encourage its re-use, is of fundamental importance to a democratic society — and that the public has already paid for works produced by the government — CAUT advocates that crown copyright be abolished.

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