Copyright in Canada and the U.S.


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Dr. Margaret Ann Wilkinson, University of Western Ontario, Keynote Address.

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Copyright in Canada and the U.S.

  1. 1. Dr. Margaret Ann Wilkinson 2010 Copyright in Canada and the U.S. Dr. Margaret Ann Wilkinson Professor Faculty of Law (with doctoral supervisory status in Library & Information Science) The University of Western Ontario, London, Ontario, Canada (with thanks for conversations with Dr. John Tooth and research assistance by law students Justin Vessair, Dan Hynes and Dave Morrison) Western New York & Ontario - Association of College & Research Libraries East Aurora, New York, November 5, 2010
  2. 2. Dr. Margaret Ann Wilkinson 2010 Canada’s academic institutions face tough decisions this year… • These decisions must be taken by each academic institution in Canada individually… • Once taken, these decisions may alter the shape of access to information in the Canadian academy… • These decisions stem from copyright law but will, paradoxically, be little affected by the current Bill C- 32 before the Canadian House of Commons, whether or not it passes in its current form or in a modified form… • These decisions do not seem to be decisions that will face American colleges and universities…
  3. 3. Dr. Margaret Ann Wilkinson 2010 How do Canadian and American academic institutions come to this fork in the road? First, let us look at some features of the Canadian copyright environment that distinguish it from the American … And how these impact the current Canadian situation… Then, let’s look at the effect of the differences on: - the probable impact of Canada’s Bill C-32; and - the importance of the open source movement on academic libraries in the two countries…
  4. 4. Dr. Margaret Ann Wilkinson 2010 As in the United States, in Canada there is one statute for all materials dealt with in Canada: Copyright Act, Revised Statutes of Canada 1985, c.C-42, as amended Since the inception of the Berne Convention, Canada has been compliant with it (first through its status as a British colony – and then in its own right)… The United States is a very recent adherent to Berne and, even now, has not implemented the provisions of Berne which relate to the protection of moral rights… Because of the international principle of “national treatment” in international copyright agreements, all materials in Canada, for all practical purposes, are governed by Canadian law and vice versa in the United States…
  5. 5. Dr. Margaret Ann Wilkinson 2010 The policy makers creating Canada’s copyright environment: Government Legislature In Canada, the federal government -- recent Bills C-60 and C-61 (both now dead) – legislation again promised to be introduced this spring… NO provincial interest – Judiciary- since 2002 steadily confirming a large “public domain” In Canada, Parliament has tried to limit the role of the courts: s. 89 Copyright Act The Canadian Charter of Rights and Freedoms has never yet been applied directly to an intellectual property law situation (but the Supreme Court in the Harvard Mouse case in patent, for example, has indicated a willingness to apply it) How will “users’ rights” be expressed and preserved in the future? International Treaties Are Perceived, once entered into, as limiting Domestic National Policy Options 19th Century Co-ordination (e.g. Berne, Paris) 1990’s World Trade Agenda Coercion (e.g. NAFTA, TRIPS) Are irrelevant to Charter concerns, are not binding on Canadian legislatures; non-compliance runs the risk of sanctions in the trade context Intellectual Property Owners, Themselves Canadian Governments -- As Crown Copyright Holders Copyright holders working together through Canadian Collectives – AccessCopyright taking all the universities to the Copyright Board for a Tariff instead of negotiating … begun April 1, 2010… Other individual copyright holders – both domestic and foreign Not users – except indirectly as lobbyists and electors influencing the legislative process…
  6. 6. Dr. Margaret Ann Wilkinson 2010 TRIPS: Article 13: [Member states] shall confine limitations or exceptions to exclusive rights to certain special cases which do not conflict with a normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the right holder.
  7. 7. Dr. Margaret Ann Wilkinson 2010 Canadian Copyright Act - Three sets of rights enshrined: US system really only recognizes 1 set: Economic Rights… ECONOMIC RIGHTS (from the beginning) MORAL RIGHTS (Canada 1st common law country to introduce; fully articulated in 1988) USERS’ RIGHTS (expressed by the SCC in 2004) Life of the author + 50 years on works; ALWAYS remain with the author – but can be waived Fully assignable (owned from the outset by employers in an employment situation) Life of the author + 50 years on works; 50 years generally for “other subject matter”
  8. 8. Dr. Margaret Ann Wilkinson 2010 What is copyrighted? Expressions and not data or facts per se Works: • Literary - Includes computer programs, tables • Artistic - includes photographs, diagrams, maps, charts, etc. • Musical • Dramatic -Includes cinematographic works, with or without soundtrack Compilations of works and Collective works - Works resulting from the selection or arrangement of data or of other works or parts of other works and any work incorporating the work Other subject matter: • Sound recordings • Performers’ performances • Broadcasts
  9. 9. Dr. Margaret Ann Wilkinson 2010 Converting Work to a Digital Format is a Copyright Holder’s Right – and Transmitting it anywhere is also a Copyright Holder’s Right… (a) Converting a Work to a Digital Format is a Copyright Holder’s Right: Robertson v. Thomson 2006 Supreme Court • “Converting” a work to digital is an act of reproduction that only a Copyright Holder has the right to do • A copyright holder holds the same rights in a digital work as would be held in a work in traditional form. Robertson et al v. Proquest et al • Class Action Lawsuit in Ontario spring 2009 • 3rd party claims3rd party claims being made by Proquest et al against journals, since the journals originally published the articles that Proquest et al later digitized • Similar lawsuit in Quebec: ElectronicElectronic--RightsRights Defence Committee v.Defence Committee v. SouthamSoutham et alet al, certified class action Que SC April 15 2009 (b) Uploading or Downloading a Digital Work involves a Copyright Holder’s Right: SOCAN “Tariff 22” decision 2004 Supreme Court • Posting a work on the net is authorizing its communication (ONE RIGHT) – and communication occurs when the item is retrieved by an end user (A SECOND RIGHT) • When a content provider intends the public to have access, that is a communication by telecommunication to the public (THAT SECOND RIGHT)… Canadian Wireless Telecommunications Association v. SOCAN (Federal Court of Appeal) • Transmission of ring tones to cellphone customers, even when each transmission is separately triggered by the customer, is a right of the copyright holder (AGAIN, that SECOND RIGHT)
  10. 10. Dr. Margaret Ann Wilkinson 2010 Converting Work to a Digital Format is a Copyright Holder’s Right – and Transmitting it anywhere is also a Copyright Holder’s Right… Crookes v. Newton (2009 BCCA 392) Leave to Appeal granted by the Supreme Court on April 1, 2010… a defamation (libel) case… copyright is not mentioned… Appeal to be heard this December… • A website owner putting a hyperlink to another site will not automatically be considered “publication” of the material to which the link is made (and the majority in this particular case said there was no publication)…BUT • Both the majority (Saunders, JA, for herself and Bauman, JA) and the dissenting judge (Prowse, JA) held that it is possible for the inclusion of a hyperlink to  “If it is apparent from the context in which the hyperlink is used that it is being used merely as a biographical or similarly limited reference to an original source, without in any way activity encouraging or recommending to the readers that they access that source then… this would not amount to publication.” [Majority at para.59]  Factors tending toward a finding of publication, however, “would include the prominence of the hyperlink, any words of invitation or recommendation to the reader associated with the hyperlink, the nature of the materials which it is suggested may be found at the hyperlink…, the apparent significance of the hyperlink in relation to the article as a whole, and a host of other factors dependant on the facts of a particular case.” [Majority atpara.61]constitute publication by the linking party of the material to which the link is made…
  11. 11. Dr. Margaret Ann Wilkinson 2010 So, who owns the copyright interests … The individual authors, who were not employees at the time of creation of the works, if they have not assigned those rights, own the rights in works – and, even if they were employees or assigned their economic rights, unless they have waived them, they continue to hold moral rights. Employers who employed authors who created works will own the copyrights, but not the moral rights, in those works, unless they have assigned them. Sound recording rights and rights in performances by performers will be owned by the makers and performers, respectively (unless assigned to others), even though the sound recordings or recorded performance may also carry other copyright interests, for example in musical works or film, that are owned, at least originally, by others. Photographs are owned in Canada by the person commissioning them (if paid for) rather than the photographer. Otherwise the photographer owns them. (If photographs are owned by corporations now in Canada, the term of copyright is only 50 years, whereas if they are owned by individuals (or corporations an individual controls) the term is the life of the photographer + 50 years.)
  12. 12. Dr. Margaret Ann Wilkinson 2010 If passed, Bill C-32 will give the same protections to photographs as are now given to every other work under the Copyright Act – for the same period of life of the photographer + 50 years… And, in general, ownership will lie with the photographer – but for certain private uses, a commissioning person will still have rights…
  13. 13. Dr. Margaret Ann Wilkinson 2010 Economic rights in works Economic rights in “other subject matter” Recall the basic rights given copyright holders under the Copyright Act: to communicate a performer’s performance by telecommunication to “fix” a performer’s performance to reproduce a fixed performance to rent out a sound recording of the performance to publish, reproduce or rent a sound recording to fix a broadcast signal to retransmit a signal to authorize any of the above to produce, reproduce to perform in public to translate to convert from one type of work to another to make sound recordings or cinematographs to communicate the work by telecommunication to present art created after 1988 in public to rent computer programs to authorize any of the above AccessCopyright focused here for English print works
  14. 14. Dr. Margaret Ann Wilkinson 2010 …what are “Moral Rights”? In Canada, the author of a work has a right : • to the integrity of the work (i.e. to prevent the work from being distorted, mutilated or otherwise modified to the prejudice of the honour or reputation of the author) • where reasonable in the circumstances, to be associated with the work as its author by name or under a pseudonym (as well as the right to remain anonymous) [often referred to as the right to paternity] • to prevent the work from being used in association with a product, service, cause or institution to the prejudice of the honour or reputation of the author [commonly referred to as the right of association]. Not transferable… licensing not an option. Can be waived by the author. Bill C-32 would extend moral rights to performers’ performance…
  15. 15. Dr. Margaret Ann Wilkinson 2010 The Canadian statute provides for fair dealing in five categories: Research Private study Criticism * Review * News reporting * * if source and attribution mentioned The Supreme Court specifically said: “a library can always attempt to prove that its dealings with a copyrighted work are fair under section 29 of the Copyright Act. It is only if a library were unable to make out the fair dealing exception under section 29 that it would need to turn to the Copyright Act to prove that it qualified for the library exception.” (para.49) 2004 Supreme Court decision in CCH et al v. The Law Society of Upper Canada, the “Law Society” case: The largest Users’ Right is FAIR DEALING. These rights override the copyright holders’ rights if you are using the works for certain purposes. Bill C-32 would add education, parody and satire to this list
  16. 16. Dr. Margaret Ann Wilkinson 2010 The Supreme Court listed a non-statutory set of factors, first proposed in the Federal Court of Appeal, that judges should consider as a “useful analytic framework” in interpreting “fair dealing”: • purpose of the dealing: • must be an allowable purpose, one mentioned in the act • character of the dealing: • how was the infringing work dealt with? • amount of the dealing: • what was the amount and substantiality of portion used in relation to the whole work? • alternatives to the dealing: • defense more likely allowed where no alternative available • nature of the work: • i.e., strong public interest in access to legal resources • economic impact on owner: • how is market for work impacted by fair-dealing in question?
  17. 17. Dr. Margaret Ann Wilkinson 2010 But, given those factors, the Supreme Court decided libraries can deal fairly with works in a number of important ways – and, therefore, that others can use works in similar ways: It may be possible to deal fairly with the whole work… for the purpose of research or private study, it may be essential to copy an entire academic article or an entire judicial decision. (from para.56) Faxing works to patrons is not “communications to the public” – the Supreme Court agreed with the trial judge that such communications “emanated from a single point and were each intended to be received at a single point” (para.77, quoting from the trial judgment) (although a series to the same patron might be a problem) “…patrons … cannot reasonably be expected to always conduct their research on-site at the Great Library… it would be burdensome to expect them to travel … each time they wanted to track down a specific source” (para.60) Many of the “special” provisions for LAMs (only non-profits) are made redundant by the Supreme Court’s view of the permissible actions by the Great Library under fair dealing – eg. To the extent ILL practices can be analogized to the Great Library’s practices, it is unnecessary to rely on the special exceptions for LAMs.
  18. 18. Dr. Margaret Ann Wilkinson 2010 Approved by the Supreme Court: The copyright law of Canada governs the making of photocopies or other reproductions of copyright material. Certain copying may be an infringement of the copyright law. This library is not responsible for infringing copies made by the users of these machines. Unnecessarily verbose Under the Regulations since 1997: WARNING! Works protected by copyright may be photocopied only if authorized by: the Copyright Act for the purposes of specific exemptions set out in that Act; the copyright owner; or a license agreement between this institution and a collective society or a tariff, if any. For details of authorized copying, please consult the license agreement or applicable tariff, if any, and other relevant information available from a staff member. The Copyright Act provides for civil and criminal remedies for infringement of copyright.
  19. 19. Dr. Margaret Ann Wilkinson 2010 … a map of the Canadian “Public Domain” Adapted by M.A. Wilkinson from P.Samuelson’s American map, described in M.A. Wilkinson, “National Treatment,…” (2003-4)1 & 2 University of Ottawa Law and Technology Journal 23-48. Scientific & Mathematical Principles Facts, Data, Information Rights Expired Laws, Regulations, Judicial Opinions Words, Names, Numbers, Symbols Ideas, Concepts, Theories Open Source Widely Usable w/o Restriction Classified Information Other IPR Plant Breeders Rights Act Integrated Circuit Topography Act Trade Secret Patent Trademark Copyright Fair Dealing RIGHTS PURCHASED And other specific user exceptions
  20. 20. Dr. Margaret Ann Wilkinson 2010 Will Canada’s Constitution mean that the Supreme Court’s “Users’ Rights” can triumph, if Parliament tries to narrow, per TRIPS? United States Constitution “The Congress shall have power…To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Rights to their respective Writings and Discoveries” Eldred v. Ashcroft (2003, USSC) Canadian Constitution Act,1867, s.91 “…the exclusive Legislative Authority of the Parliament of Canada extends to … (23) Copyrights In a Canadian case, constitutional support for the Supreme Court’s concept of “users’ rights”? s. 2(b) Canadian Charter of Rights and Freedoms (1982): freedom of expression ALTHOUGH s.1 “subject to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society” TRIPS and other agreements: Members [states] shall confine limitation or exceptions to exclusive rights To certain special cases which do not conflict with a normal exploitation of the work And do not unreasonably prejudice the legitimate interests of the right holder (the “3 step” test)
  21. 21. Dr. Margaret Ann Wilkinson 2010 Technological Protection Measures (TPMs) are given legal sanction by Bill C-32 BUT NOT IF THEY INTERFERE WITH • Interoperability • personal data protection or privacy rights • Access needs because of perceptual disability AND • Libraries which are LAMs have special defence provisions with respect to the TPM sections Note: the definition of “Libraries, Archives and Museums” (LAMs) is not changed by Bill C-32 and therefore, to the extent that Bill C-32 provides privileges to LAMs it further divides libraries amongst themselves -- those who are owned by for profit entities (most special libraries and some educational institution’s libraries, for example) will not have access to the increased exemptions of their LAMs colleagues…
  22. 22. Dr. Margaret Ann Wilkinson 2010 Intellectual Property Owners as Key Intellectual Property Policy Makers Decisions- Assert intellectual property rights? Assign to traditional publishers ? Control with publishers, whether foreign or domestic. Assign to alternative publishers (those who do not insist on full transfer of rights) ? Some control with publishers, whether foreign or domestic, some rights remaining with copyright holder. Grant certain permissions Exercise rights collectively ? Individually little power of enforcement and therefore of control – but possible remuneration according to collective’s policies and possible control through governance of collective Renounce intellectual property rights? No control and no further potential for economic value to that copyright holder Works and “other subject matter” available to be exploited by others
  23. 23. Dr. Margaret Ann Wilkinson 2010 FEDERAL GOVERNMENT LICENSE SI/97-5, 8 January, 1997, Canada Gazette Part II, Vol 131, No. 1 Anyone may, without charge or request for permission, reproduce Enactments Consolidations of enactments Decisions Reasons for decisions Provided Reasonable diligence used in ensuring accuracy No representation as official NOTE: PERMISSION IS TO REPRODUCE Does not go so far as the American statutory prohibition on federal government copyright – where the federal government cannot claim copyright These Canadian provisions are not statutory , not permanent… Many governments in Canada provide permissions – but each is individually tailored and they are located in different government instruments, depending upon each government’s predelictions Crowns, as copyright holders, exercising their control to provide access to their copyrighted material:
  24. 24. Dr. Margaret Ann Wilkinson 2010 Traditional Academic Publishing Cycle – Typical Economic Allocation of Literary Output Publication, Distribution, & Dissemination Writing , Peer Review, & Publication Learning, Research, & Writing $ time Ownership within the university community Ownership by private sector publishers
  25. 25. Dr. Margaret Ann Wilkinson 2010 Universities pay AccessCopyright (formerlyCANCOPY) (3) Traditionally, professors write and submit articles to prestigious peer reviewed journals Journals assume the copyright in return for publication When Academic Publishers, assigned rights by authors, join Collectives to Assert their assigned rights: Universities, e.g, (both producers and users) Pay 3 Times for Written Product !?!? Publication Revenue Cycle $ $ $ Universities (and others) support and encourage professors to write (1) Journals are purchased by university libraries for use by students and professors (2)
  26. 26. Dr. Margaret Ann Wilkinson 2010 Philanthropy vs. Entitlement The philanthropy of copyright holders giving permissions or giving up the exercise of their copyrights (“open access, creative commons”) is more palatable from the point of view of the trade regimes…but it is contributing to the public interest, as is the exercise by government of Crown Copyright, rather than enlarging the public domain… Fair Dealing And other specific user exceptions- including those for “Educational Institutions” Open Source Widely Usable w/o Restriction RIGHTS PURCHASED Users’ Rights: In the public domain, inter alia,
  27. 27. Dr. Margaret Ann Wilkinson 2010 Users, in a copyright world, potentially have access to materials in a number of different ways: Users can use materials that are not works covered by copyright; Users can make use of materials in ways not forming part of the copyright holders’ rights bundle; Users can use materials in ways that do form part of the copyright holders’ rights bundle but are excepted by governments from the purview of the copyright holders’ exercise of their rights; Users can use materials in ways that do form part of the copyright holders’ rights bundle but for which they have been given permission by the copyright holders – Through the copyright holders’ collectives or Through permissions of the copyright holders given in advance (“open content licensing” or “creative commons”) Through permissions negotiated directly, from time to time, with copyright holders.
  28. 28. Dr. Margaret Ann Wilkinson 2010 Can philanthropy be rendered unnecessary? COPYRIGHT HOLDERS’ PHILANTHROPY Only necessary where “users’ rights” or the limitations of copyright itself (limited term, limited rights to copyright holders, the doctrine of merger, etc.) do not give educational institutions and researchers the access they desire If Canada is operating under an extended repertoire or extended license regime, the existence of the collective license with an appropriate collective will protect the educational institution from liability for infringement even from a non-member and will thus render redundant the efforts of copyright holders to individually license uses administered by the recognized collectives. If Canada is not operating under an extended repertoire regime, then educational institutions with collective licenses can breathe more easily about those rightsholders not represented by the collective if those rightsholder have publicly “donated” their rights. In either case, if enough rightsholders decide to be philanthropic, it could affect the Canadian collective licensing environment in either or both of two ways: (1) there could be a new collective formed of like-minded rightsholders which could be recognized under the Act (since more than one organization can, and is now, able to be recognized in a particular market – although the Copyright Board actively discourages this); and/or (2) the existence of rights available at no cost to educational institution users should have an effect upon the Copyright Board’s determinations of the “fair price” for a tariff in a particular sector. USERS’ ENTITLEMENT “Users’ rights” through the enacted “exceptions to copyright holders’ rights” in the Copyright Act… Licensed rights – from the appropriate rights collectives, by educational institutions, for tariffs approved by the Copyright Board of Canada
  29. 29. Dr. Margaret Ann Wilkinson 2010 Collectives have long existed in the Canadian music industry -- Canadian Performing Rights Society 1926 BMI Canada 1940 PROCAN 1978 SOCAN 1990 1988 - Copyright Act amendments Composers Authors & Publishers Association of Canada CAPAC 1946 1935 – Copyright Appeal Board created for these rights
  30. 30. Dr. Margaret Ann Wilkinson 2010 A Collective is, generally, a voluntary organization that represents the holders of a particular economic copyright in terms of the administration and enforcement of selected rights associated with that copyright Music performing collectives SOCAN Retransmission collecting bodies SOCAN (also) Other reproduction collectives CMRRA (mechanical reproductions of music) CANCOPY and COPIBEC (successor to UNEQ) - reproduction rights only
  31. 31. Dr. Margaret Ann Wilkinson 2010 The Copyright Board website lists more than 30 collectives -- 1. Access Copyright 2. ACF – Audio Cine Films 3. AVLA – Audio-Video Licensing Agency 4. CARCC – Canadian Artists’ Representation Copyright Collective 5. CBRA – Canadian Broadcasters Rights Agency 6. CMRRA – Canadian Musical Reproduction Rights Agency 7. Criterion Pictures 8. COPIBEC – Societe quebeciose de gestion collective des droits de reproduction 9. CRC – Canadian Retransmission Collective 10. CRRA – Canadian Retransmission Right Association 11. ERCC – Education Rights Collective of Canada 12. FWS – FWS Join Sports Claimants 13. MLB – Major League Baseball Collective of Canada 14. PGC – Playwrights Guild of Canada 15. SOCAN – Society of Composers, Authors and Music Publishers of Canada 16. SACD – Societe des auteurs et compositeurs dramatiques 17. SODRAC – Society for Reproduction Rights of Authors, Composers and Publishers in Canada 18. SOPROQ – Societe de gestion collective des droits des producteurs de phonogrammes et videogrammes du Quebec 19. SoQAD – Societe quebecoise des auteurs dramatiques The following are involved in rights management associated with “works” under s.3:
  32. 32. Dr. Margaret Ann Wilkinson 2010 (c) Convert a non-dramatic work by performance (b) Convert a dramatic work (a) Translate the Work Publish the Work ACF (films) Criterion Pictures (films) ERCC (tv and radio, education only) SOCAN (music) SoQAD (theatre, education only) Perform the Work in Public Access Copyright (writing) AVLA (music: videos and audio) CARCC (visual arts) CMRAA (audio & music) COPIBEC (writing) SODRAC (music) Produce or Reproduce the Work Associated Collective Societys.3(1) Right
  33. 33. Dr. Margaret Ann Wilkinson 2010 (i) Rent out a Sound Recording (h) Rent out a Computer Program (g) Present an Artistic work at a Public Exhibition CBRA (tv) CRC (tv and film) CRRA (tv) FWS (sports) MLB (sports, baserball) SACD (theatre, film, radio, audio) SOCAN (music) SOPROQ (audio and video) (f) Communicate the work by Telecommunication (e) Adapt a work as a cinematographic work (d) sound/cinematography film to mechanically reproduce a literary, dramatic or music work Associated Collective Societys.3(1) Right
  34. 34. Dr. Margaret Ann Wilkinson 2010 STATUTORY COPYRIGHT OWNERS (authors & their employers) COPYRIGHT COLLECTIVES (e.g. AccessCopyright) COPYRIGHT USERS (Librarians & Patrons) COPYRIGHT BOARD OF CANADA $ $ LICENSE LICENSE ASSIGNEES OF ORIGINAL COPYRIGHT HOLDERS (e.g. Publishers) $LICENSE ASSIGNMENT $ $LICENSE $ LICENSE COPYRIGHT OFFICE optional registration of copyrights and assignments Tariff
  35. 35. Dr. Margaret Ann Wilkinson 2010 Parliament, the Copyright Board and the Courts: Parliament – Bill C-32 The Copyright Modernization Act Introduced Tuesday, June 2, 2010… 2nd Reading Tuesday November 2 – expected to go to committee shortly… The Copyright Board – 4 tariff proceedings are in play, at various stages, that affect various Canadian library communities… The Federal Court of Appeal – 1 of the 4 tariff proceedings was decided by the Copyright Board and has been judicially reviewed by this court…and on appeal to SCC These three copyright policy - developing areas are interrelated…
  36. 36. Dr. Margaret Ann Wilkinson 2010 The risk in CANADA - Section 27 (1) It is an infringement of copyright for any person to do, without the consent of the owner of the copyright, anything that by this Act only the owner of the copyright has the right to do. Section 28.1 Any act or omission that is contrary to any of the moral rights of the author of a work is, in the absence of consent by the author, an infringement of the moral rights. BUT there are also USERS (and intermediaries’) RIGHTS in the Copyright Act…
  37. 37. Dr. Margaret Ann Wilkinson 2010 Identify a Copyright issue Perform a RiskPerform a Risk AssessmentAssessment Produce Policy Document(s) to Govern Your Institution’s Activities Best PracticesBest Practices informationinformation ProfessionalProfessional ArticlesArticles ScholarlyScholarly WritingWriting CopyrightCopyright WorkshopsWorkshops Inputs:
  38. 38. Dr. Margaret Ann Wilkinson 2010 “Best Practices” as a Defence Negligence is a branch of tort law, developed at common law by the courts… In a lawsuit based on allegations that you have been negligent, showing that you are practicing to a level equal to or greater than your professional peers can establish that you have NOT been negligent… Even in this branch of law, where a statute states a rule, evidence of customary practice will NOT exonerate someone who breaks that rule… (Drewry v. Towns (1951), 2 WWR (NS) 217) Copyright law is completely statute- based. Although recent courts have relied on evidence of custom to establish who owns a particular copyright interest… (Robertson v. Thomson)… AND good management practices can provide evidence to satisfy elements of the FAIR DEALING test (the Law Society case, as above) … courts have NOT permitted evidence of custom to establish a defence to allegations of copyright infringement… (Gribble v. Manitoba Free Press Ltd. [1932] 1 DLR 169)
  39. 39. Dr. Margaret Ann Wilkinson 2010 Potential Strategies…. …the Use of Best Practices 1. Rely on the library’s connection with its users’ FAIR DEALING rights, or on the philanthropy of rightsholders (Open Access) to provide COST FREE services. 2. Buy often COSTLY, TEMPORARY permissions for uses of works. 1. Best Practices can help establish FAIR DEALING and should, at a minimum, comply with the Great Library’s practices described and approved in the Law Society decision. Being offered a license by a vendor should not stop the Library from using FAIR DEALING in appropriate cases (para.70 of the Law Society case) 2. Best Practices can help the Library to develop negotiating strategies to bargain with vendors about (a) the rights being purchased; (b) the term (length) of the rights; and (c) price. EACH library has four choices with respect to material that is in copyright:
  40. 40. Dr. Margaret Ann Wilkinson 2010 Potential Strategies…. …the Use of Best Practices 3. Where user rights are not extensive enough and where permissions are not available (at all, or, affordably), CURTAIL USE of copyright material and provide LESS SERVICE; OR 4. USE MATERIAL WITHOUT PERMISSION AND RISK ENFORCEMENT action enforcement by rightsholder(s). 4. The risk here CANNOT be minimized by adopting “Best Practices” in or across libraries. EACH library has four choices with respect to material that is in copyright:
  41. 41. Dr. Margaret Ann Wilkinson 2010 How do we get permissions from copyright holders?  Through permissions of the copyright holders given in advance (“open content licensing” or “creative commons”) (FREE) or  Through permissions negotiated with copyright collectives in blanket licenses (where the right(s) you seek and the copyright holder of the work you are interested in are represented) ($$) or  Through permissions negotiated directly, from time to time, with copyright holders ($$ or FREE –choice of copyright holder). Depending upon whether and how the copyright holder make the permissions available… MUTUALLY EXCLUSIVE…
  42. 42. Dr. Margaret Ann Wilkinson 2010 What are the processes before the Copyright Board in which libraries have become engaged? 1. In the educational sector, there is increasing “action” related to the Copyright Board that affects libraries in the K-12 and post-secondary environment right across the country:  School boards everywhere except in Quebec have been affected by the decision of AccessCopyright to take the Ministers of Education to the Board for a Tariff for 2005- 2009…  School boards everywhere except in Quebec are now being affected by the decision of AccessCopyright to take the Ministers of Education to the Board for a Tariff for 2010- 2012  Universities are affected by the recent decision by AccessCopyright to abandon individual negotiations with universities (or with an organization representing them) and to apply instead for a Tariff before the Board. 2. In the government sector, AccessCopyright has applied to impose a Tariff for 2005-2009 and another for 2010-2012 to the Provincial and Territorial governments… and the Board has set a hearing for Sept. 13, 2011 3. AccessCopyright has the option under the Act to apply to the Board for Tariffs in respect of other sectors of libraries, including public libraries…
  43. 43. Dr. Margaret Ann Wilkinson 2010 The Copyright Board’s formula for setting tariffs: • Take all copying done within the institution  (determined by actual surveying, using statistically robust sampling) • Subtract all copies for which the rightsholders should not be compensated  (a) because the materials in question were not “works” or works in which the rightsholders in the collective have rights (eg materials created by schools for themselves, in which they hold copyright) AND  (b) because although the materials in question are prima facie materials in which the collectives’ members have rights, there are users’ rights (exceptions) which mean the rightsholders are not exercise their rights for these uses (fair dealing, rights for educational institutions or LAMs) SUB- TOTAL: NUMBER OF COMPENSABLE COPIES x the value of each copy as determined on economic evidence by the Copyright Board EQUALS THE AMOUNT OF THE TARIFF EACH INSTITUTION IS TO PAY TO THE COLLECTIVE
  44. 44. Dr. Margaret Ann Wilkinson 2010 The situation of the K-12 Tariff for 2005-2009 The Copyright Board rendered its decision in the tariff proceeding between The Ministers of Education (the users) and Access Copyright (the copyright holders) June 26, 2009 Setting the amount schools needed to pay the owners of copyright in print materials for photocopying during the years 2005-2009 everywhere in Canada except in Quebec This replaced the Pan Canadian Schools/Cancopy License Agreement agreed between the Ministers of Education and Cancopy (without going to the Board) that lasted from 1999 until 2009… See:
  45. 45. Dr. Margaret Ann Wilkinson 2010 COPIES NOT INVOLVING RIGHTSHOLDER RIGHTS K-12 2005-2009 findings of the Copyright Board - ALL COPIES MADE –10.3 billion COPIES INVOLVING RIGHTSHOLDERS’ RIGHTS BUT WHERE USERS’ RIGHTS EXEMPT THESE USES COMPENSABLE COPIES ( 2% )— 250 million X value per copy = total tariff of $5.16/student (previous agreement negotiated without the Board – $2.56/student) 98%
  46. 46. Dr. Margaret Ann Wilkinson 2010 At the Federal Court of Appeal – File No.A-302-09 The Province of Alberta as Represented by the Minister of Education (and Others) – Applicants And The Canadian Copyright Licensing Agency Operating as “ACCESS COPYRIGHT” – Respondent And Canadian Publishers’ Council, The Association of Canadian Publishers, and the Canadian Educational Resources Council – Interveners (#2) (Leave to intervene sought January 7, 2010 and given February 18, 2010) And Canadian Association of University Teachers – Intervener (#1) (Leave to intervene sought November 27, 2009 and given December 23, 2009) The appeal was heard Tuesday June 8 and the decision released July 23, 2010 – Justice Trudel writing for Chief Justice Blais & Justice Noël
  47. 47. Dr. Margaret Ann Wilkinson 2010 K-12 new 2010-2012 tariff before the Copyright Board 2005-9 2010-12 Digital copies of paper works added Sheet music added Users’ Rights exempt for these uses Compensable Copies No RightsALL COPIES MADE
  48. 48. Dr. Margaret Ann Wilkinson 2010 What is Access Copyright proposing for the 2010-2012 tariff? Tariff fee proposed is $15.00/FTE student– up from the $5.16/FTE student appealed to the Federal Court of Canada and to be adjusted slightly by remission back to the Board on the question of whether exam copying was actually not available in a medium that is appropriate for the purpose and thus not compensable (which would reduce the tariff now payable of $5.16 a bit (but note enlarged scope of “product” AccessCopyright is offering in the 2010-2012 tariff for schools) Canadian Ministers of Education (CMEC) has indicated its intention to oppose… Access Copyright has not sought a hearing date with the Copyright Board to pursue this new tariff
  49. 49. Dr. Margaret Ann Wilkinson 2010 Access Copyright’s proposed 2005-2009 and 2010-2014 Provincial and Territorial Government Tariffs • Proposed fee is $24.00/FTE civil servant • Coverage of the proposed Tariff is similar to Schools Tariff Presumably AccessCopyright expects less government copying to be identified as non-compensable because of the users’ rights in the Act (the difference between seeking $15/student and $24/civil servant)
  50. 50. Dr. Margaret Ann Wilkinson 2010 What is AccessCopyright’s proposed Tariff for Post-Secondary institutions for 2005-2009? On March 30th, 2010, Access Copyright filed a proposal with the Copyright Board of Canada for a tariff for reproductions for course packs and day-to-day photocopying for Post-Secondary Educational Institutions Unlike the 2005-2009 School Tariff, the proposed post-secondary tariff would include both print and digital works in its repertoire The proposed tariff is $45.00/FTE – presumably the difference AccessCopyright expects between the value of print and print to digital in the education and civil service tariffs and print and digital in this one for universities and colleges The proposed tariff is posted to the Copyright Board of Canada website The Association of Colleges and Universities of Canada, on behalf of the individual institutions, has written opposing (July 15, 2010) – and other university-related organizations have written opposing (such as the Canadian Association of University Teachers (CAUT), although it does not represent institutions on which the tariff would be levied)
  51. 51. Dr. Margaret Ann Wilkinson 2010 How might these future Tariff proceedings before the Board be affected by Bill C-32 if it passes? Users’ Rights exempt for these uses Compensable Copies No RightsALL COPIES MADE 2011-2013 Post- Secondary Tariff as Proposed for $45/FTE Copies of works available digitally added beyond what the K-12 2005- 2009 Tariff covers Digital copies of paper works added beyond what the K-12 2005-2009 Tariff covers
  52. 52. Dr. Margaret Ann Wilkinson 2010 Research Private study Criticism * Review * News reporting * * if source and attribution mentioned The Supreme Court has said: “It is only if a library were unable to make out the fair dealing exception under section 29 that it would need to turn to the Copyright Act to prove that it qualified for the library exception.” (LSUC case) The greatest area of exemption for library activities is FAIR DEALING Bill C-32 would expand FAIR DEALING to add Education Parody Satire And a category of Non- commercial user-generated content (s.29.21) And reproduction for private purposes – without circumventing Technological Protection Measures (s.29.22) And time-shifting (s.29.23) And back-up copies (s.29.24)
  53. 53. Dr. Margaret Ann Wilkinson 2010 If Fair Dealing Users’ Rights are enlarged and if Educational and LAMs Exceptions are expanded? Users’ Rights exempt for these uses Compensable Copies No RightsALL COPIES MADE Again, what AccessCopyright is asking from Post-Secondary Institutions… … and how Bill C-32 might change the equation.
  54. 54. Dr. Margaret Ann Wilkinson 2010 Bill C-32 is silent on collectives… To give colleges and universities the protection under tariffs that they had negotiated under the earlier licenses, the Copyright Act would have to be changed 1. To say that contracts cannot override fair dealing rights And 2. Where a collective exists, it represents that class of rightsholders on a worldwide basis unless the rightsholder specifically opts out (the extended repertoire or extended licensing system) Bill C-32 proposed neither of these changes to the Copyright Act…
  55. 55. Dr. Margaret Ann Wilkinson 2010 In the Canadian environment, open source may not be so important in the future… Direct licensing of material by users from database vendors (over 70% of collections budgets in Canadian academic libraries) bypasses both the “open source” movement and the rights otherwise “sold” by collectives… If Canadian collectives represent all those with rights in Canada (and the Copyright Board says they already represent both their members and any who cash cheques received from the collective), they will render the “open source” movement irrelevant … and if Canada does move to a European-style extended repertoire or extended licensing system (as many in academe now want), it will render “open source” totally irrelevant for those rights represented by collectives… User rights confirmed by statute are permanent, guaranteed to users, and directly accessible and thus will always be better for users than “open source”… which relies on the philanthropy of owners…
  56. 56. Dr. Margaret Ann Wilkinson 2010 Thank You 1. Copyright Board of Canada 2. OLA’s position and a summary of Bill C-32 as it affects libraries (prepared by Western Law students Justin Vessair, Dave Morrison and Dan Hynes) is at 3. Margaret Ann Wilkinson,“Copyright, Collectives, and Contracts: New Math for Educational Institutions and Libraries” in a new collection edited by Michael Geist, From "Radical Extremism" to "Balanced Copyright": Canadian Copyright and the Digital Agenda (Irwin Law, 2010) radical-extremism--to--balanced-copyright- 4. Margaret Ann Wilkinson, “Open Access and Fair Dealing: Philanthropy or Rights?” in Mark Perry and Brian Fitzgerald (eds) Digital Copyright in a User-Generated World.— Irwin Law, forthcoming.