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.
The Council of Ministers of Education, Canada (CMEC), which bills itself as the national voice for education in Canada, brings together the Ministers of Education from across Canada (with the exception of Quebec) to work on issues of mutual concern. At the moment, one such issue is the use of the Internet in the classroom, with CMEC lobbying for a special exception that would allow the education community to freely use any works that are publicly available on the Internet.
At first glance, such a proposal would appear to be a winner. Canada was the first country in the world to bring Internet connectivity to every school from coast to coast to coast and the logical next step is to leverage that connectivity to improve the educational experience.
Moreover, it is far better than a counter-proposal from Access Copyright that seeks to develop a new licensing system for the use of Internet-based content. According to documents obtained under the Access to Information Act, the copyright collective has asked the Ministry of Canadian Heritage for funding to become the Canadian collective for a new international standard that can be used to register any "textual work” from books to blogs. Armed with a collection of "registered" online text, Access Copyright will be positioned to create a new license for the use of Internet content.
In the run-up to the last federal election, the Conservatives appeared to side with CMEC on this issue. Over the past few months, there has been widespread speculation that the government plans to proceed with reforms that would largely grant the educators their cherished exception.
While the Ministers appear convinced that this benefits the education community, there are potentially several negative long-term effects. First, there is a strong argument that the exception is simply not needed for most educational uses. The Supreme Court of Canada has ruled that fair dealing – including the use of copyrighted works for research and private study purposes – is an integral part of the Copyright Act to be interpreted in a broad and liberal manner. The law therefore already permits many educational uses of Internet materials without compensation.
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 suggests that millions of Canadians outside the education system who use Internet-based materials are somehow violating the law. 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. Several legal scholars have reviewed the CMEC proposal and concluded that it is not compliant with Canada’s existing obligations under the Berne Convention, the world's foremost international copyright treaty.
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 tough new rules that support technological protection measures. These digital locks 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.
Not surprisingly, the issue is certain to leave everyone unhappy. It has caused a division within the education and library communities, with several groups, including the Canadian Federation of Students and the Canadian Library Association, de-emphasizing the issue. Moreover, creator groups are angry that their work may go uncompensated and the provinces may ultimately blame the Conservatives for brokering a bad deal.
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.
The grade that Minister Pupatello, Industry Minister Maxime Bernier, and Canadian Heritage Minister Bev Oda receive on this issue will depend on their recognition that everyone is entitled to fair use of content on the Internet.
Michael Geist holds the Canada Research Chair in Internet and E-commerce Law at the University of Ottawa, Faculty of Law. He can reached at firstname.lastname@example.org or online at www.michaelgeist.ca.