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    61 Reforms to C-61, Day 46: Education Harms - Lesson Provisions Only Extend To Limited Exceptions

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    Monday August 25, 2008

    With the school year set to resume in just over a week, the 61 reforms series turns to the education concerns associated with Bill C-61. Statistics Canada confirmed last fall that the Internet is changing the face of Canadian education by altering the ways students conduct their research or participate in distance learning.  This is particularly true for students from rural or small-town communities, who increasingly depend on the Internet for electronic distance learning.  Many in the education community have reacted with alarm at C-61 including the Canadian Association of University Teachers, the Canadian Federation for the Humanities and Social Sciences, and the Canadian Federation of Students.  Moreover, University executives are beginning to speak out as well - Athabasca University Vice-President of Research Rory McGreal recently published an op-ed that warned that "the proposed new Bill C-61 will have profound negative effects on researchers and educators as well as the general public."

    A particular sore point is the bill's treatment of "lessons."  While the provisions purport to provide the education community with new rights to faciliate distance learning, these provisions are stunningly arcane and practically worthless. 


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    Canadian Heritage Publishes Fair Dealing Report

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    Thursday August 07, 2008
    Canadian Heritage has posted Osgoode Hall law professor Pina D'Agostino's report on fair dealing and CCH decision.
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    CNA Expresses Concern With Press Freedoms Under C-61

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    Thursday July 03, 2008
    The Canadian Newspaper Association has issued a position paper with its views on C-61.  While the paper addresses several issues, its concerns with the anti-circumvention provisions are the most striking.  The CNA notes that:

    Bill C-61 makes it an offence to bypass any technological protection used on Internet sites. This is not normally an issue for newspaper public sites, but might apply to sites requiring registration, and to paid archive services. While this is positive for rightsholders seeking to protect content from unauthorized access, it could have implications on newsgathering, news reporting, and press freedom broadly, as is shown in the discussion below.

    Under section 29.2 of the current legislation, there is a fair dealing defence to copyright infringement for news reporting. As drafted, Bill C-61 throws up roadblocks. For instance, if documents are encrypted, it will be illegal to break the encryption. This means that journalists who come across or are sent electronic documents (for example from a whistleblower) may be unable to use them without incurring very significant liability, even though there are no barriers on using the same materials in print format. It might also mean that citing video or other content from a digitally protected work (say, a DVD movie in which a newsmaker once appeared) could incur liability.

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    61 Reforms to C-61, Day 5: Time Shifting Provision Subject to the Broadcast Flag

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    Friday June 27, 2008
    Having discussed the format shifting exception, this series now turns its attention to the time shifting provision (Section 29.23).  It should be noted that the legalization of recording television shows is long overdue - I argued for it last year and Canada is more than 25 years behind the United States in this regard.  While the inclusion of the time shifting provision is a good thing, this particular implementation suffers from several notable shortcomings that could have been addressed through a more flexible fair dealing provision. 

    The first is that the provision is really geared toward analog or VHS recording where there are few technical limitations on television recording.  As Canadians increasingly use PVRs to record programs in digital format, their ability to record shows becomes more limited.  Bill C-61 expressly includes an anti-circumvention provision (Section 29.23(1)(b)).  In other words, if there is a digital lock (often referred to as a broadcast flag) included with the broadcast, you can't legally circumvent it in order to record the program.  Note that the U.S. has established limits on the use of the broadcast flag, but no such limits exist in Canada.  As Canada transitions to digital, it is possible that broadcasters will increasingly institute anti-copying notices to stop the very recording rights that C-61 purports to provide.  Industry Minister Jim Prentice has focused on the time shifting provision as one of the foundational consumer rights in Bill C-61 but the bill should be amended to ensure that the right will still stand in a digital world.
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