Those who argue for balanced copyright policies are often characterized as anti-copyright. Yet in the past week I've seen at least two examples that suggest that the characterization (which I would prefer not be used at all) might be appropriately applied to the collectives, at least with respect to how the Supreme Court of Canada interprets copyright.

First, last week Quill and Quire, a Canadian publication on the book industry, featured a revealing article on pressure from Quebec creator groups against the Grand Bibliothèque, Montreal's new library.  The library reportedly boasts an impressive collection of works from Quebec creators, including 13,000 films and 90,000 CDs and DVDs.  The library permits personal copying by providing computers with CD burners in the library.  It says that it is vigilant about ensuring that patrons do not make multiple copies.

Nevertheless, the copying has angered ADISQ, the Quebec association of performing artists and producers.  The article notes that several ADISQ members are calling on the library to stop the copying of CDs from its collection.  Eduardo Da Costa, the agent for a popular Quebec singer Marie-Chantal Toupin, says, "there's no difference between copies sold at flea markets and those made in the library."
Arguments that equate piracy in flea markets to private copying, which generated more than $39 million last year, are so far removed from what Canada's courts say are the policy goals of copyright that advocates of that line of thinking could be characterized as anti-copyright.

Similarly, today Access Copyright issued a press release responding to a CMEC press conference on education and copyright.  Maureen Cavan, Access Copyright' s Executive Director, is quoted as saying that "the government cannot legislate that Canada's creators and publishers be made to work for free when their works are copied from the Internet instead of purchased, but that is precisely what would happen if they allow the exemption the education sector is seeking."

Once again, arguments that suggest that the exercise of user rights forces creators to work for free distorts what the Canada's courts say copyright is all about.  The copyright protection that creators enjoy is based on a policy decision that providing such protection is in the public interest.  The protection is not absolute: there are user rights that balance such protection and enable Canadians to copy works under appropriate circumstances without further compensation.  This is particularly true in the education context, where there are broad exceptions for research and private study.

What is most troubling about the anti-copyright rights holder view is its impact on those who sit in the middle.  The Supreme Court of Canada has ruled that the Grand Bibliothèque is entitled to assume that their patrons will use their equivalent lawfully (much like the Great Library in Toronto).  Similarly, the library is not only entitled to provide a paper copy to patrons, but following CCH is presumably entitled to provide patrons with faxed (and likely electronic) copies of those same works under the fair dealing user right. 

That is the law as it is.  Yet under pressure from anti-copyright rights holders, the library practices a law as rights holders would like it to be, finding it necessary to be vigilant about stopping multiple copies and declaring that it "is ready to work out more stringent anti-pirating policies with interested parties." As I noted in a column recently, the same is true of Canada's universities, who appear to have bought the Access Copyright vision of copyright hook, line, and sinker, paying millions in annual license fees for copying that is likely covered by their user rights.

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