My weekly Law Bytes column (freely available hyperlinked version, Toronto Star version) focuses on the coming battle over copyright and education in Canada in light of the recent premiers' commitment to higher education and the likely summit with the Prime Minister on the issue this fall. I argue that the federal government could presumably win provincial support by simply cutting a bigger education cheque, however, this would be shortsighted.  Increased funding is necessary to be sure, but it is by no means sufficient.

From a provincial perspective, the premiers would do well to focus on three issues: distance education, access to knowledge, and an innovative research environment. Distance education is particularly important.  Canadian universities boast one of the world's fastest computer networks, yet government policy has severely hindered those capabilities.  For example, Bill C-60, the copyright reform bill currently before the House of Commons, represents a step backward when it comes to the use of the Internet in Canadian education.  

The provinces should also demand that the federal government do more to facilitate access to knowledge.  One possibility in that regard is the creation of a national digital library.  Digitizing millions of Canadian books would provide students with greater access to Canadians works, while also serving as an important export of Canadian culture to the rest of the world.  Given the importance of cutting edge research to Canada' s innovation agenda, Ottawa should also commit to a pro-innovation research environment.

While there is much that the federal government can do for Canadian education, it should also use the education summit to demand more from both the provinces and Canadian universities. Increased dollars for research are always welcome, but that money should be distributed with new strings attached that link the results to open access policies. The federal government should also encourage the type of curriculum reform that increases accessibility to education.

Most importantly, Ottawa should prod Canada's universities to adopt a more aggressive approach in the use of copyrighted works.  Today Canadian universities spend millions in copyright licenses that are arguably unnecessary.  This expenditure effectively represents a subsidy to Canadian publishers from taxpayers as well as from students who are facing escalating tuition fees at a time that they can scarcely cover their monthly rent.

A survey of the advice emanating from Canadian universities' copyright offices illustrates that universities have been reticent to exercise rights that the Supreme Court of Canada made clear they have in last year's Law Society of Upper Canada v. CCH decision.  Of the copyright web pages of 65 universities, only one, the Universite du Quebec, references the landmark Supreme Court decision. Meanwhile, only two universities discuss open access policies and just 15 universities, less than a quarter of them, refer to the special education exemption provisions found in the Copyright Act.  In fact, barely more than half (39 of 65 universities) highlight fair dealing, the staple provision that provides students and educators with broad rights to use copyrighted works.

Rather than focusing on their rights, Canadian universities rely heavily on guidelines from Access Copyright and Copibec, the copyright collectives that are the direct beneficiaries of the questionable university copyright licenses.  Eighty-two percent (53 of 65 Canadian universities) rely on the collectives as a source of copyright guidelines.

The federal government can rightly argue that Canadian universities must do better. Canadian higher education must practice what it preaches by exercising its user rights and by educating students on the need for copyright policies that balance the interests of creators and users.