61 Reforms to C-61, Day 52: Education Internet Exception Is Harmful

The Internet exception is more than just unnecessary – it is harmful.  First, rather than improving access, the exception will actually encourage people to take content offline or to erect barriers that limit access (including DRM).  Section 30.04(3) provides that:

Subsection (1) does not apply if the work or other subject-matter – or the Internet site where it is posted – is protected by a technological measure that restricts access to the work or other subject-matter or to the Internet site.

In other words, in return for the exception, CMEC and AUCC has effectively pushed the government to include a provision that encourages creators to use DRM or restrict access to their work. 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.  This is obviously a lose-lose scenario that arises directly out of the exception.
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.  Indeed, many of the concerns expressed by the education community apply equally to other groups who do not qualify for the exception.

Third, the exception may violate international law.  There are doubts that the provision complies with Canada’s existing obligations under the Berne Convention, the world's foremost international copyright treaty (ironic given that Bill C-61 is ostensibly about addressing international copyright issues).  Given that the exception raises these real harms, it should scrapped by moving toward a flexible fair dealing provision.


  1. Interesting thoughts Michael – but I wonder whether putting such an exception in really does imply that using publicly-available Internet materials is not permitted unless one has prior authorization, or that others outside the education system who use Internet-based materials are somehow violating the law?

    I can imagine an argument that went something more like this:
    – A person who puts material up and freely available online gives some implied license that people can, for example, print copies of that material and maybe distribute it around. The basis for the implied license is the copyright owner’s conduct in apparently giving permission or allowing certain exercises of their rights to reproduce the work. It is ‘necessary for business efficacy’ in that it is virtually impossible to do anything with the online material unless copies can be made (and if you don’t want copies printed, you can always use minor technological hurdles – like enlivening the ‘no copy’ switch in Adobe – to prevent it)
    – Whether the implied license extends to multiple copies for classroom teaching is an open question: particularly when people put a copyright notice on the website. Maybe it does, maybe it doesn’t;
    – So the government put in a particular exception for that particular use. That takes those acts outside the exclusive rights of the copyright owner;
    – for the other millions of Canadians and others – you still have to ask the question – have the copyright owners effectively given permission for some limited use of the reproduction right. I would say yes, regardless of the new exception – because it is still impossible to make any use of the material without the ability to make copies – and the owner still knows that when they put it up.

    Arguably, Creative Commons licensing is just as destructive of people’s ability to make uses online – because it undermines the implied license argument by providing an easy mechanism for people to indicate that they allow free use.

    The three step test point is interesting, and raises all of those difficult questions about whether you can require copyright owners to protect themselves by taking active steps to limit what people can do with their works (Google Booksearch case, anyone?) – and is certainly an argument for flexible fair dealing over this kind of specific exception, because it allows for that a balancing to occur. But I suspect that if you relied only on flexible fair dealing in this kind of case, you end up with plenty of inevitable fighting between collecting societies and the education sector – or at least you would in Australia.

    Following with interest!

  2. Isn’t Copyright a whole lot simpler if you just have the general statement that copying a copyrighted work without permission from the copyright holder or agent(s) that have been authorized to grant such permission on his or her behalf is copyright infringement, and only offer a couple of exemptions, instead of of all the headaches that this most recent attempt at copyright reform seems to create? The two exemptions to copyright infringement can quite simply be: 1) copying for personal and private use by the person making the copy, with the caveat that the person making the copy must already have another copy of the work from which the private-use copy is made or else the exemption does not apply, and I would further maintain that it can be reasonable for a nominal blank media tariff to exist to compensate for this, and 2) limited copying for purposes of criticism, review, parody, research or educational purposes. Of course, any copying that is authorized by the copyright holder is not infringement at all. Thus, there is no need of any sort to bring any mention of digital locks or copy controls of any sort, because any attempt to do so will invariably create a list of exceptions that are so limited in scope as to be worthless or else complicate the bill to the point of obfuscation.

  3. Written by on 2008-09-03 00:00:15
    This is the best suggestion in a long, long time!

    As for the educational internet exception, how does this fall foul of the Berne Convention???

  4. I don’t read or interpret the exception that way. What it says is that regardless of fair dealing, there is a presumption that much of the material on the net can indeed be used freely. If copyright owners want to opt out, they can. This won’t push them in that direction because if anythign they have more reason now to restrict use or access.

  5. vv.richard says:
    This is great information – its encouraging to see online education is becoming
    more widely accepted and the benefits are backed up by a range of studies.