10.0639 copyright in Canada

WILLARD MCCARTY (willard.mccarty@kcl.ac.uk)
Thu, 30 Jan 1997 21:33:37 +0000 (GMT)

Humanist Discussion Group, Vol. 10, No. 639.
Center for Electronic Texts in the Humanities (Princeton/Rutgers)
Centre for Computing in the Humanities, King's College London
Information at http://www.princeton.edu/~mccarty/humanist/

[1] From: Peter Liddell <pgl@uvic.ca> (331)
Subject: Copyright in Canada update (long)

Here, with the permission of the original poster - the CARL-list* moderator
- is the latest salvo in our ongoing effort to achieve an equitable
copyright law in Canada. PL [CARL - Can. Assn. of Research Libraries]

>>January 23, 1997
>>The Honorable John Manley, P.C., M.P.
>>Minister of Industry
>>Industry Canada
>>235 Queen Street, 11th floor East
>>Ottawa, ON K1A 0H5
>>The Hon. Sheila Copps, P.C., M.P.
>>Minister of Canadian Heritage
>>15 Eddy Street, 12th Floor
>>Hull, Quebec K1A 0M5
>>Dear Ministers:
>>The undersigned national educational and library organizations are writing
>>to express our grave concern with a number of amendments made by the House
>>of Commons Standing Committee on Canadian Heritage ("Heritage Committee") to
>>Bill C-32, An Act to amend the Copyright Act.
>>When Bill C-32 was tabled on April 25, 1996, we were strong supporters of
>>the bill as a fair and reasonable compromise which would balance the
>>interests of creators and rights holders with the needs of non-profit users
>>of copyright works, provided that a limited number of improvements and
>>clarifications were implemented. While the bill was far from perfect from
>>the perspective of many of our members, especially for its failure to
>>provide guidelines as to the minimum scope of the fair dealing exception and
>>the introduction of restrictions on the importation of books (parallel
>>importation), it nonetheless helped to redress the imbalance created by
>>Phase I reforms, and fulfilled long-standing commitments of the current and
>>former governments to introduce limited and reasonable educational and
>>library exceptions. This view was reinforced by the government's
>>"Backgrounder" to the bill, which stated that "to ensure that a fair balance
>>between creators and users is maintained, new exceptions are being put in
>>place for certain groups".
>>In our appearances before the Heritage Committee, all of our organizations
>>expressed general support for the bill while proposing specific amendments
>>to provide improvements to it. The Committee completed its clause-by-clause
>>study on December 11, 1996, making some changes in several areas of concern
>>to us, particularly those relating to perceptual disabilities, archival
>>copying, and interlibrary loan. However, none of the amendments to the bill
>>addressed the following issues, which were the subject of proposed
>>amendments by some or all of our groups:
>>- an end to the linkage between the institutional exemption from
>>statutory damages and collective licensing;
>>- the explicit inclusion of audiovisual and cinematographic works as
>>categories of works which could be performed for educational purposes under
>>section 29.5;
>>- the addition of language in section 29.7 to permit a one-time
>>preview of a copy of a work before a class of students;
>>- the enactment of a threshold of $5,000, and a requirement of clear
>>fraudulent intent, before criminal sanctions could be applicable; and
>>- explicit clarification that, for the purposes of the educational
>>exceptions in Bill C-32, teachers who are employees of an educational
>>institution and acting within the scope of their duties are persons acting
>>under the authority of the institution.
>>Nor was there any reason given for ignoring these important matters. We ask
>>that the government address these issues at Report Stage.
>>Furthermore, we believe that a number of the last minute changes made by the
>>Committee shift the careful balance in the tabled bill by undermining the
>>intent of a number of the library and educational exceptions and narrowing
>>the availability of the institutional exemption from liability for
>>infringements on self-serve photocopiers.
>>We strongly urge the government to restore the balance in Bill C-32 by
>>reversing some of the amendments passed by the Heritage Committee. In
>>particular, we are looking to the government to redress the following
>>committee amendments:
>>1. The definition of the term "commercially available"
>> Some of the educational and library exceptions in Bill C-32, along
>>with the
>>perceptual disabilities exception, are constrained by clauses which indicate
>>that these exceptions do not apply where an appropriate copy of a work is
>>commercially available in a medium and of a quality that is appropriate for
>>the purpose in question. The term "commercially available" was defined in
>>section 1(5) of the original text of Bill C-32 to mean "available on the
>>Canadian market within a reasonable time and for a reasonable price and that
>>may be located with reasonable effort."
>>In light of this definition, we took the view that the restriction
>>on certain exceptions, based on commercial availability, was
>>acceptable on the understanding that its intent was to protect the
>>market for new copies of works which had been separately published
>>and were available for sale through bookstores or other retail
>>outlets on reasonable terms. Similar restrictions on certain
>>exceptions exist in the copyright laws of other jurisdictions.
>> During consideration of the Bill C-32, the Heritage Committee amended the
>>definition of "commercially available" in a manner which fundamentally
>>changes the nature of the constraint on certain exceptions. The amended
>>definition states that the term "commercially available" also includes cases
>>where a licence to reproduce, perform in public, or communicate a work to
>>the public by telecommunication is available from a collective society
>>within a reasonable time and for a reasonable price and may be located with
>>reasonable effort. Clearly, the expanded scope of the term "commercially
>>available" effectively undermines the exceptions to which it applies. This
>>expanded definition is totally out of line with the intent of the original
>>provision, and may have very damaging effects on the availability of
>>exceptions under Phase III copyright law reforms.
>> We strongly urge the government to strike down the committee's
>>amendment to
>>the definition of the term "commercially available".
>>2. The exemption from liability for self-serve photocopiers
>> Section 30.3 of Bill C-32, as originally drafted, provided an educational
>>institution, library, archive or museum with an exemption from liability for
>>the use of self-serve photocopying machines located on their premises, as
>>long as there was affixed in the prescribed manner and location a notice
>>warning of infringement of copyright. This provision was amended in
>>committee to restrict application of the exemption, in effect, to cases
>>where an institution has a licensing agreement with a collective society.
>>This restriction greatly lessens the availability of the exemption from
>> There is no compelling rationale for tying the exemption to
>>collective licensing, other than a possible motivation to further
>>strengthen the position of copyright collectives. It should be noted
>>that collectives do not represent all copyright owners. In fact, a
>>collective such as CANCOPY is unable to provide us with its
>>repertoire and, accordingly, the size of its repertoire remains
>>unknown. Nor is collective licensing a prerequisite for compliance
>>with copyright law. It is entirely possible for an institution to
>>comply with the law through the use of transactional permissions
>>from copyright owners. Indeed, this was the common practice prior to
>>the advent of collective licensing, and some institutions have chosen
>>to continue to operate in this manner instead of signing collective
>>licences. We note that similar exemptions in other jurisdictions are
>>based on the posting of an appropriate warning notice and do not tie
>>the exemption, in any way, to collective licensing.
>> We urge the government to reverse this amendment.
>>3. Reproduction for assignments
>> Section 29.4(2) of Bill C-32, as tabled, contained an exception which
>>permitted an educational institution, or a person acting under its
>>authority, to reproduce, perform in public, or communicate to the public by
>>telecommunication, a work or other subject matter for any purpose related to
>>the giving of an assignment, test or examination. The Heritage Committee
>>made a substantial amendment to this provision by deleting any reference to
>>the giving of an assignment.
>> Assignments are an integral part of the instructional and assessment
>>procedures of our educational institutions. They are often as important,
>>and in some courses more important, than examinations or tests for the
>>purpose of grading the progress of students. The removal of assignments
>>from this provision significantly damages this exception.
>> We understand that the removal of assignments from section 29.4(2)
>>may have
>>been based on a concern that this term would be interpreted in an overly
>>broad fashion. If so, the committee has thrown out the baby with the bath
>> We urge the government to introduce some circumscribed language which will
>>incorporate the principle in question and reflect the intent of the drafters
>>of the bill. One suggestion is use of the phrase "as required for a formal
>>assignment used for the purpose of grading students".
>>4. Off-air taping of news and commentary - documentaries
>> Section 29.6 of Bill C-32, as tabled, permitted an educational
>>institution to make, at its time of communication to the public by
>>telecommunication, a single copy of a news program or news commentary
>>program for the purpose of performing the copy for students of the
>>educational institution for training purposes. The scope of this
>>provision was strictly limited by the requirement that only a single
>>copy could be made by the institution, and by the requirement that,
>>after one year, the institution must pay royalties and comply with
>>other terms related to the making of the copy, or destroy it.
>> The Heritage Committee introduced a very substantial amendment to section
>>29.6 which explicitly excludes documentaries from the ambit of the
>>exception. This is a substantial change which diminishes the exception and
>>constitutes a blow to educators, and specifically to the study of media and
>>communications. It is critical for Canadian students and researchers to
>>study the media in order to develop an understanding of its power and
>>potential. Documentaries are an important aspect of such study. As a great
>>number of documentaries produced in Canada are produced with public funding,
>>it would seem reasonable that publicly-funded educational institutions be
>>permitted to use these works in a constrained way for the purpose of
>> We urge the government to reverse this amendment.
>>5. Explicit coverage of students under certain educational exceptions
>> Section 29.3 of Bill C-32, as originally drafted, provided that, for the
>>purpose of certain educational exceptions, students would be deemed to be
>>persons acting under the authority of an educational institution. This
>>provision was deleted by the Committee and replaced by an entirely new
>>provision relating to motive of gain. We understand that section 29.3 was
>>deleted from the bill on the basis that its wording was overly broad and
>>extended the scope of the provision beyond its intent. Nonetheless, we are
>>of the view that the principle which this section had intended to address is
>>an important one.
>> In that light, more circumscribed language could be found which would
>>provide assurance to students that when they act in accordance with explicit
>>instruction from teachers or administrators of an educational institution,
>>or in accordance with the requirements of an approved course or program of
>>study at an educational institution, they would be acting under the under
>>the authority of the institution for the purposes of the educational
>>exceptions set out in sections 29.4, 29.6 and 29.7 of the bill.
>> We urge the government to include this clarification in the bill.
>>6. Excessive powers of regulation
>> Bill C-32 provided, in a number of places within the educational and
>>library exceptions, the right for the Governor in Council to make
>>regulations. The Heritage Committee has amended the bill to introduce a
>>number of new powers to make regulations relating to the exceptions
>>provisions. For example, there are now powers in section 27.1 to make
>>regulations regarding the terms and conditions for the importation of
>>certain categories of books, including remaindered books, books intended
>>solely for re-export, and books imported by special order. There has also
>>been a revision to section 30.2(6) setting out powers to make regulations
>>relating to interlibrary loan on behalf of a patron of another library,
>>archive or museum. In both cases, we find this expanded regulation-making
>>power to be unnecessary, onerous, and burdensome.
>> Educational institutions and libraries must retain control over their
>>internal administration. Additional powers of regulation will simply
>>encourage interested parties to make never-ending submissions to the
>>government on these issues.
>> We urge that these new regulatory powers be deleted from the bill.
>> The increased regulation of those availing themselves of statutory
>>exceptions contrasts sharply with the treatment given to creators under the
>>amended bill. For example, section 67(1) in the original text of Bill C-32
>>required that a collective make available to the public for consultation the
>>repertoire of all its works, along with information prescribed by regulation
>>under section 67(2). Following amendments by the Heritage Committee, the
>>requirement that a collective furnish a copy of its repertoire has been
>>deleted, along with the accompanying powers of regulation, and replaced by
>>the simple requirement that a collective must answer within a reasonable
>>time all reasonable requests from the public regarding its repertoire.
>> In the interests of fairness, we urge the government to delete the new
>>regulatory powers set out in sections 27.1(6) and 30.2(6) of the bill.
>>In conclusion, the education and library communities have been strong
>>supporters of Bill C-32 as tabled despite the absence of a number of
>>provisions we consider important. From the beginning, we recognized that
>>successful Phase II legislation would require a careful balancing of user
>>and rights holder interests. We felt that Bill C-32, for the most part, had
>>gone a long way to achieving that balance, as had been promised over the
>>past eight years by the current and former governments, setting the stage
>>for successful completion of the long-promised Phase II reforms.
>>It would also allow the government to get on with the vitally
>>important process of Phase III reforms.
>>The amendments made at Committee Stage in the passage of Bill C-32 have
>>seriously weakened the balance in the bill.
>>We respectfully and strongly urge the Government of Canada to present
>>amendments at Report Stage to restore balance to Bill C-32.
>>Yours truly,
>>____________________ ____________________
>>Robert Giroux William Bruneau
>>President President
>>Association of Universities Canadian Association of
>>and Colleges of Canada University Teachers
>>____________________ ____________________
>>Karen Harrison Carolynne Presser
>>President President
>>Canadian Library Association Canadian Association of
>> Research Libraries
>>____________________ ____________________
>>Donna Cansfield Maureen Morris
>>President President
>>Canadian School Boards Association Canadian Teachers' Federation
>>Steve Wills
>>Senior Policy Analyst/Analyste des politiques principal
>>Association of Universities and Colleges of Canada/Association des
>>universites et colleges du Canada
>>600-350 Albert
>>Ottawa, Ontario
>>K1R 1B1
>>Tel: 613-563-1236, x234
>>Fax: 613-563-9745
>>Internet: swills@aucc.ca
>> Tim Mark
>> Interim Executive Director / Directeur General Interimaire
>> Canadian Association of Research Libraries /
>> Association des bibliotheques de recherche du Canada
>> Tel: (613) 562-5800 x3652
>> Fax: (613) 562-5195
>> Internet: carl@uottawa.ca