Four months after the Supreme Court of Canada issued its landmark series of copyright decisions, a consensus on the scope of fair dealing has begun to emerge within the education community. While Access Copyright has been sending threatening letters to institutions that seek to rely on fair dealing with claims that the decisions are being misinterpreted, roughly similar policies have now been developed by K-12 school boards, community colleges, and universities that plainly reject the views of the copyright collective.
As discussed in my post on the ACCC fair dealing policy, the breadth of fair dealing raises obvious questions about the necessity of an Access Copyright licence. All educational institutions already spend millions on licensed materials. Indeed, the Access Copyright study on K-12 institutions found that 88% of copying was permitted without the need for either an Access Copyright licence or reliance on fair dealing. Given the scope of fair dealing as articulated by the Supreme Court of Canada, many are concluding that the Access Copyright licence offers little additional value to Canadian educational institutions.
The Canadian Press reports that Canada is ready to cave to European demands for changes to patent rules that could cost Canadians hundreds of millions of dollars in higher health care costs. The ministerial meeting on the remaining CETA issues is set for next week.
The CRTC has launched an online discussion to foster greater debate among Canadians on a new code for wireless services. A public hearing is planned for next February.
The Supreme Court of Canada this morning shocked the pharmaceutical industry by voiding Pfizer’s patent in Canada for Viagra. The unanimous decision provides a strong reaffirmation of the policy behind patent law, namely that patents represent a quid pro quo bargain of public disclosure of inventions in return for a time limited monopoly in the invention. The Supreme Court describes it in this way:
The patent system is based on a “bargain”, or quid pro quo: the inventor is granted exclusive rights in a new and useful invention for a limited period in exchange for disclosure of the invention so that society can benefit from this knowledge. This is the basic policy rationale underlying the Act. The patent bargain encourages innovation and advances science and technology.
Disclosure is therefore a crucial part of the patent bargain.
This morning, the majority of Bill C-11, the copyright reform bill, took effect, marking the most significant changes to Canadian copyright law in decades. While there are still some further changes to come (the Internet provider notice-and-notice rules await a consultation and their own regulations, various provisions related to the WIPO Internet treaties await formal ratification of those treaties), all the consumer oriented provisions are now active. These include:
The addition of education, parody, and satire as fair dealing purposes.
The creation of a non-commercial user generated content provision that creates a legal safe harbour for creators of non-commercial UGC (provided they meet four conditions in the law) and for sites that host such content.
The adoption of several new consumer exceptions including time shifting (recording of television shows), format shifting, and the making of backup copies.
Changes to the statutory damages rules that distinguish between commercial and non-commercial infringement. The law now includes a cap of $5000 for all non-commercial infringement. The change reduces the likelihood of lawsuits against individuals for non-commercial activities and would apply to educational institutions engaged in non-commercial activity and significantly reduce their potential liability for infringement.
The inclusion of an exception for publicly available materials on the Internet for education. This covers the content found on millions of websites that can now be communicated and reproduced by educational institutions without the need for permission or compensation.
The adoption of a technology-neutral approach for the reproduction of materials for display purposes. The current law is limited to manual reproduction or on an overhead projector. The provision may be applicable in the online learning context and open the door to digitization activities.
The implementation of a distance learning provision, though use of the exception features significant restrictions that require the destruction of lessons at the conclusion of the course.
The inclusion of a restrictive digital inter-library loans provision that will allow for digital transmission of materials on an inter-library basis, increasing access to materials that have been acquired by university libraries.
A new exception for public performances in schools, which will reduce licensing costs for educational institutions.
