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.