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Will copyright reform chill use of Web?

Copyright proposal upsets the balance

In hindsight, the fall of 1998 may be remembered as the shining hour of Canadian Internet policy development. Led by then-Industry Minister John Manley, Canada played host to an OECD ministerial meeting on e-commerce, tabled new privacy legislation, unveiled several e-commerce policy initiatives, and committed to providing every Canadian school with Internet access.


Unfortunately, our low point may have occurred earlier this month when a Canadian Heritage parliamentary committee chaired by Toronto-area MP Sarmite Bulte presented a vision of copyright that would transform the Internet from the incredible open source of information that it is into a predominantly commercial medium available primarily to those willing to open up their cheque books.


It foresees, among other things, schools being required to pay for using, as course materials, Web-based information that is made publicly available — often with the poster's intention of reaching as wide an audience as possible and with no expectation of payment.


Few technology law issues have proven as divisive in recent years as copyright reform. Proponents of stronger protections fear that the Internet and digital technologies will eviscerate traditional copyright protections.


They have therefore actively lobbied for new powers to block unauthorized access to copyrighted material as well as for new compensation schemes to pay for new technological uses of old work.


Opponents of stronger protection, pointing to the recent Supreme Court of Canada decision involving legal publications, argue that Canadian copyright law must adopt a balanced approach in which the interests of creators are considered in parallel with the needs of users and the larger public interest.


The unexpected consequences of copyright reform in other jurisdictions — such things as jailed software developers and copyright litigation over technologies such as garage door openers — have led opponents to argue that Canada must navigate a balanced approach that avoids the mistakes made elsewhere.


While the notion of balance in copyright law has proven contentious in some quarters, it is in fact a well-established principle under Canadian intellectual property law.


For example, under Canadian patent law, inventors receive a limited monopoly over their invention that grants them exclusive authority over how that invention is used.


In return, the patent expires after a prescribed period at which time anyone may use the invention without prior authorization.


Moreover, obtaining patent protection also requires inventors to fully disclose and describe their invention so that the public obtains the immediate benefit of that knowledge.


The Canadian Supreme Court has affirmed a similar balance in copyright. Creators enjoy a basket of exclusive rights such as the sole right to reproduce or perform the work. In return, the term of copyright protection is limited so that expired work becomes part of the public domain and may be used by anyone without permission or payment.


Furthermore, the Copyright Act establishes a series of "user rights," known as exceptions, that allow users to freely use portions of copyrighted work for such things as research, private study, news reporting, and criticism.


While Bulte recently expressed concern that these exceptions lead to "freebies," in fact it is these exceptions that ensure that the Copyright Act retains the balance needed to give creators their exclusive rights.


Bulte's committee held hearings for several weeks in March and April, quickly generating nine key copyright reform recommendations, made in a pre-election interim report. The plan, whose status may be affected by the election, largely neglects the user side of the balance equation by focusing chiefly on the compensation and protection afforded to creators.


The committee's recommendation for swift ratification of the controversial World Intellectual Property Organization's Internet treaties and increased liability for Internet service providers will rightly garner much attention. It is its approach to educational uses of the Internet, however, that are a particular cause for concern given the current financial strain on our schools.


Canada's Copyright Act already provides educators and students with a user right in copyrighted work for research and study purposes.


The Supreme Court has ruled that this right is to be interpreted in a liberal fashion such that copying full articles may be lawful in certain circumstances. The use of those works in the classroom is not covered, however, forcing teachers to sort through the rights attached to materials before using them in courses.


The Canadian educational community has proposed what would appear to be a balanced solution in the form of establishing a limited educational user right to publicly available work on the Internet.


In keeping with longstanding and widely accepted practices on the Internet, publicly available work would include materials that are not technologically or password protected — that is, information the author would appear to want to make widely available.


Bulte's committee surprisingly rejected the education community's proposal, opting instead for a new license to cover Internet based works. This new license would require schools to pay yet another fee (the education community already hands over millions in license fees each year for content) for works found on the Internet.


How the payments are calculated, collected and forwarded to those entitled to receive them presents another set of problems that would have to be resolved in a manner that assures all stakeholders that payments are not made for work that the Supreme Court has already declared subject to a user right and therefore available without compensation.


Although it acknowledges that some work on the Internet is intended to be freely available, the committee recommends the adoption of the narrowest possible definition of publicly available. Its vision of publicly-available includes only those works that are not technologically or password protected and contain an explicit notice that the material can be used without prior payment or permission.


Rather than adopting an approach that facilitates the use of the Internet, Bulte's committee has called for the creation of a restrictive regime in which nothing is allowed unless expressly permitted. The result will be an Internet in which schools will be required to pay to use Internet materials contrary to the expectations of many creators.


A far more balanced approach, and one that would be more in line with Canadian values, would be to permit all uses unless specifically prohibited. This could be easily achieved in a manner that respects copyright by establishing a publicly available definition that includes works not technologically or password protected and for which the copyright holder has not expressly asserted limitations on the use of the work.


Canada displayed foresight in the late 1990s in identifying the potential for the Internet and new digital technologies to benefit all Canadians. In order to fulfill that vision, we need to reconsider the Bulte committee's recent recommendation so that the balance that is so critical to creators, users, and the broader public interest is preserved.

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