One of the most controversial aspects of Bill C-61 is the inclusion of special educational exception. The provision has split the education community, generating support from some education groups and opposition from others. The product of years of lobbying by provincial education ministers and the AUCC, the exemption at Section 30.04 (1) provides that:
Subject to subsections (2) to (5), it is not an infringement of copyright for an educational institution, or a person acting under the authority of one, to do any of the following acts for educational or training purposes in respect of a work or other subject-matter that is available through the Internet:
(a) reproduce it;
(b) communicate it to the public by telecommunication, if that public primarily consists of students of the educational institution or other persons acting under its authority;
(c) perform it in public, if that public primarily consists of students of the educational institution or other persons acting under its authority; or
(d) do any other act that is necessary for the purpose of the acts referred to in paragraphs (a) to (c).
I will discuss why the conditions render this exception virtually useless in a later post. For the moment, I want to reiterate that I do not believe that the exception is either necessary or equitable.
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.
So why lobby for the exception?
The obvious answer is that supporters have sunk so much political capital into it that they seemingly feel unable to change course and address the real concerns for education including anti-circumvention, onerous education provisions and more flexible fair dealing. From a substantive perspective, supporters point to several uses that arguably are not covered by fair dealing. These include the use of entire work posted online, multiple copies of Internet materials, and public performances of Internet-based materials. Yet fair dealing and implied license may already cover some of these uses. In other instances, where the use extends beyond what is fair, there should be permission to use the work by education (it is fair dealing, not free dealing). As will be discussed tomorrow, this provision has significant negative effects, but provides very little upside. The educational Internet exception should be dropped in favour of a more flexible fair dealing provision that treats educators, creators, and all Canadians in an equitable manner.