Education Ministers’ Copyright Proposal Needs a Rewrite

As thousands of children across the province return to school tomorrow, nearly everyone will be asking "what did you do this summer?"  If the question were posed to Education Minister Sandra Pupatello, her candid reply might be that she was working with her fellow Provincial Ministers of Education on reforms that will have damaging consequences on Internet use in Canada.

So begins this week's Law Bytes column (Toronto Star version, homepage version) which focuses on the disasterous push from the CMEC to establish a specific educational exception for the use of publicly-available Internet materials.  While the CMEC proposal is at least better than Access Copyright's proposed extended license for Internet content (the column reveals that AC has approached Canadian Heritage for funding to support becoming the Canadian collective for the International Standard Text Code – a new standard for "textual works" that can be applied to everything from books to blogs and thus form the basis for a future license), there are potentially several negative long-term effects.

I point to five issues in particular. First, there is a strong argument that the exception is simply not needed for most educational uses given the Supreme Court of Canada's CCH decision which at least covers research and private study. 

Second, the implication of the exception is that using publicly-available Internet materials is not permitted unless one has prior authorization or qualifies for the exception.  This is simply wrong – an enormous amount of online content is intended for public use or qualifies as fair dealing – and to imply otherwise sends the wrong message.

Third, the exception may violate international law.

Fourth, rather than improving access, the exception will actually encourage people to take content offline or to erect barriers that limit access.  Many website owners who may be entirely comfortable with non-commercial or limited educational use of their materials, may object to a new law that grants the education community unfettered (and uncompensated) usage rights.  Accordingly, many sites may opt out of the exception by making their work unavailable to everyone.

Fifth, the educational exception comes at huge political cost.  As a counterpoint to the exception, the government is likely to introduce DMCA-like anti-circumvention provisions.  These provisions will cause particular harm to the education community, who may find that the price of virtually unlimited access to publicly-available Internet-based content is the loss of fair access to all other digitized content.

I believe the issue could be diffused, however, by striking a compromise. The Copyright Act’s fair dealing provision is currently limited to research, private study, criticism, review, and news reporting.  An expanded provision that treated those categories as illustrative rather than exhaustive would grant education much of the remaining classroom access it needs, while giving creators the fair compensation they crave. 

Everyone is entitled to fair use of content on the Internet.  Canadians should let Minister Pupatello and her fellow education ministers know that their proposal will result in great harm to Canadian education from kindergarten to universities and colleges.


  1. This is the first time that I have contacted members from our government! Good column.

  2. rtrifts
    Oldest trick in the book: Ask for the sun, stars, and the moon and you might just get the moon.

  3. Implications of illustrative categories?
    Does the education system currently suffer from problems related to fair use in the classroom? Do you know of any specific instances that demonstrate the need for such a reform?

  4. Hal Lightwood says:

    How ironic that it was the educational institutions in Canada that first adopted the use of the Internet and provided public access to content.

  5. Fascinating stuff. The sad truth seems to be that AC smells money – institutial, government money. I agree that CMEC’s proposal is better, but at its core it’s trying to address the wrong problem. I like the idea of amending the Copyright Act, but I’d be concerned about the focus on ‘illustrative’. Does this not open up the fair dealing provision to further interpretations and, ultimately, time in court?

  6. Again the bonehead government is trying to patch a problem that doesn’t really exist today. I agree with Mr. Geist. I think the CCH decision covers what is needed. Extra provisions only mean that there is more consolidated control over information than there ever was before. Private interests can really put a clamp on sharing their content content. Declaring all content as educational use only does nothing to improve access for ALL people. More controls, less information… I agree with Hal Lightwood above… educators benefit from the Internet now… ironic that they are putting a bill together to take away rights from everyone else.

  7. Concerned Canadian says:

    Everything free for all!
    An issue I think will come from the CMEC’s proposal is students will think that all web content is freely available to them forever, and any sites that aren’t are breaking the law. “If I used everything in school for free, what’s the difference after school?” To combat that CMEC would have to educate the students about the difference between the school setting and real life, and why those differences exist. However, since this is not likely to happen.

  8. You were slashdotted
    Hey Michael, you were slashdotted

    [ link ]

    As always, the collective has many serious ideas, but it sounds like you’ve really covered a lot of bases.

    From what I can see, Access Copyright is really just going fishing. Can’t I already apply a copyright of my choice when producing material?

    As to the educational material, it sounds like a classic “good intentions gone awry”. Educators already have priveleged access. I’m sure they would like to have *more* privileged access, but this seems like the wrong way to go about it.

  9. Fuck Canada
    Fuck Canada!
    Why do Canadians have to be so damn stupid?

    License all your content under the GNU Free Documentation License, Creative Commons or simply put them in the public domain.

  10. random slashdotter says:

    Nice one Fred. Since you’re obviously not a Canadian, these laws don’t matter to you. If you want to criticize, at least offer something positive. Furthermore, there’re even worse entities called the MPAA and RIAA (and does this mean that Americans are even more stupid to have these people on their side of the border? hint: no) that’re worse than the people in this article. So stop it with the profanities and either post something constructive or shut up.

  11. While in Australia
    Whereas in Australia the new copyright laws will give schools and educational institutions just about free reign to use copyrighted material however they want. Or so we’re told.