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Association of Universities and Colleges of Canada (AUCC)

COPYRIGHT REFORM PROCESS

SUBMISSIONS RECEIVED REGARDING THE CONSULTATION PAPERS


Documents received have been posted in the official language in which they were submitted. All are posted as received by the departments, however all address information has been removed.

Submission from the Association of Universities and Colleges of Canada (AUCC) received on September 14, 2001 via e-mail

Subject: Comments - Government of Canada Copyright Reform

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COMMENTS OF THE ASSOCIATION OF UNIVERSITIES AND COLLEGES OF CANADA CONCERNING A FRAMEWORK FOR COPYRIGHT REFORM AND THE CONSULTATION PAPER ON DIGITAL COPYRIGHT ISSUES

 

 

 

 

 

 

September 15, 2001

 

Introduction

Introduction

In June the Government released A Framework for Copyright Reform, a document outlining the reform process that Industry Canada and the Department of Canadian Heritage are undertaking over the Government=s current mandate to address a number of key copyright issues. As a first step in the copyright reform process, the Government also released two consultation papers on Internet issues: Consultation Paper on Digital Copyright Issues and Consultation Paper on the Application of the Copyright Act's Compulsory Retransmission Licence to the Internet. The public was invited to submit comments by September 15, 2001.

For more than a decade, the Association of Universities and Colleges of Canada (AUCC) has been an active participant in the public debate and consultation processes regarding copyright law reform. We welcome the opportunity to comment on A Framework for Copyright Reform and the Consultation Paper on Digital Copyright Issues. We have no comments on the Consultation Paper on the Application of the Copyright Act's Compulsory Retransmission Licence to the Internet.

Comments on A Framework for Copyright Reform

The consultation document A Framework for Copyright Reform (hereinafter, Athe Framework paper@) states that its purpose is to inform Canadians about the objectives of copyright reform, the process to be followed by the Government, and the principles that will underpin copyright reforms. Among the many principles that should guide the digital copyright reform process, we wish to highlight three:

1) there should be a balance in Canadian copyright law between the desire of creators and other rights holders to receive fair remuneration for the use of copyright works and the public interest in maintaining reasonable access to copyright works for purposes such as education, research, teaching and the dissemination of knowledge;

2) copyright law should reflect the fact that most academic creators, who create a significant proportion of the works utilized in educational institutions and libraries, have different motivations for creation and different views on exceptions than those who create for artistic or purely commercial purposes; and

3) collective licensing should be seen as a supplement to, and not as a replacement for, limitations and exceptions in our copyright laws.

There should be a balance in Canadian copyright law between the desire of creators and other rights holders to receive fair remuneration for the use of copyright works and the public interest in maintaining reasonable access to copyright works for purposes such as education, research, teaching and the dissemination of knowledge

As both substantial creators and users of copyright works, AUCC=s member institutions recognize the importance of the balance in our copyright laws between the desire of creators and other rights holders to receive fair remuneration for the use of copyright works and the public interest in maintaining reasonable access to copyright works for purposes such as education, research, teaching and the dissemination of knowledge. The Copyright Act seeks to establish this balance by limiting the rights of creators through exceptions that permit reasonable access to those works for these purposes.

In a digital environment, where many creators are concerned about the ease with which works can be reproduced and transmitted electronically, the task of the Government will be to ensure balance by amending the Copyright Act in a manner that maintains appropriate incentives for creators while allowing exceptions that permit reasonable uses of digitally formatted works. In this regard, we are pleased that A Framework for Copyright Reform states that Ait is imperative that we ensure an appropriate balance between copyright protection and access to works in the new technological environment@, and suggests further that access can be assured by various means including allowing Aspecific exemptions to aid users such as libraries, schools and archives to fulfil their vital institutional roles in Canadian society.@

It cannot be considered to be a balanced approach, however, if new rights and sanctions are introduced into the law without addressing related exceptions and limitations. This unbalanced approach was epitomized by Phase I and Phase II copyright law reforms, an approach which proved to be unsatisfactory to most if not all participating stakeholder organizations. Given that the Framework paper suggests that future copyright reform will proceed in a gradually staged manner, the appropriate balance described above between copyright protection and access to works in the new technological environment will only be achieved if exceptions and limitations are addressed at each stage of the copyright reform process at the same time as new protections and new sanctions are under consideration.

 

Copyright law must reflect the fact that most academic creators, who create a significant proportion of the works utilized in educational institutions and libraries, have different motivations for creation and different views on exceptions than those who create for artistic or purely commercial purposes

The Speech from the Throne on January 30, 2001 noted that to secure our continued success in the 21st century, Canadians must be among the first to generate new knowledge and put it to use, and stressed the importance of university-based research as a key element of the Government=s innovation strategy. The Speech also emphasized the importance of enhancing the skills and learning of Canadians, and university education is clearly of central importance here. Copyright law, if carefully balanced, can play a vital role in the processes of knowledge creation and dissemination through education. If not carefully balanced, it can become a major obstacle.

Academic creators, who create a significant proportion of the works utilized in educational institutions and libraries, have different motivations for creation and different views on issues such as exceptions and limitations than those who create for artistic or purely commercial purposes.

While remuneration for use of their works is a consideration for academic creators, most university researchers and scholars are motivated as much or more by the need to disseminate their works to contribute to the advancement of knowledge and scholarship in their respective disciplines, and to further scholarly debate. In return, they require reasonable access to the scholarship and research works of their colleagues. To this end, both AUCC and the Canadian Association of University Teachers have long supported exceptions and limitations in our copyright laws to ensure reasonable access to copyright works for purposes such as research and teaching.

At least one collective has suggested that creators are vehemently opposed to exceptions and limitations in our copyright laws. This is an inaccurate generalization that is certainly inapplicable to the majority of academic creators. As the process of copyright law reform unfolds, we urge the Government to bear in mind that overly strong copyright protections are not supported by academic creators who, for the most part, support the inclusion of reasonable limitations and exceptions in our copyright laws.

In this light, it is extremely important for the education sector in Canada that the Government amend our copyright laws to clarify that fair dealing and current statutory exceptions will carry forward into the digital environment. Such a step would be consistent with recommendation 4.13 in the recent report of the Advisory Committee for Online Learning which urged the Government to act on the public policy priority of the Association of Universities and Colleges of Canada to the effect that Afederal copyright laws must clarify that fair dealing and other statutory exceptions for educational and library uses apply in the digital environment@. It is also extremely important for the education community that the Government introduce new exceptions in our laws to facilitate research and teaching in the digital environment.

 

Collective licensing should be seen as a supplement to, but not a replacement for, limitations and exceptions in our copyright laws

Another key principle that should guide the copyright reform process is that collective licensing can only be a supplement to exceptions and limitations in the law, it cannot replace them. Certain rights holder organizations have suggested that, especially in the digital environment, collective licensing can replace the need for limitations and exceptions. This is not the case at present, and will not be the case in future. Aside from problems such as incomplete repertoires and coverage, and the very substantial cost of digital licensing, it will always remain open to individual rights holders to refuse to permit a collective to represent them, and to withhold permission for certain uses or all uses of their works. Exceptions and limitations, on the other hand, guarantee access to works without the need to obtain permission of the creator or rights holder.

 

Priority issues on the agenda

Before dealing with the digital copyright agenda, the Framework paper notes that, in accordance with the requirements of the Phase II copyright law reform legislation, the Minister of Industry will table a full report on the provisions of the former Bill C-32 (An Act to Amend the Copyright Act) by September 2002. A Parliamentary committee will then examine the Minister=s report and report back to Parliament within one year after receiving the report. AUCC looks forward to providing our views on the operation of Bill C-32 to Industry Canada and the Department of Canadian Heritage and to the Parliamentary committee.

The Framework paper then sets out a non-exhaustive list of substantive issues which will need to be considered through the reform process and notes that further emerging issues will also need to be considered over the next few years to ensure that Canada further adapts its copyright framework to meet the challenges and seize the opportunities of a fast-changing world. Among these issues is Atechnology-enhanced learning@. The Framework paper also notes that the Government is moving rapidly ahead with two sets of Athreshold Internet copyright issues@ which need to be addressed in the near term and on which the Government is prepared to consult now. These threshold issues are: 1) digital issues; and 2) Internet retransmission of broadcast programs.

AUCC agrees that the issues identified as Athreshold Internet copyright issues@ in the consultation paper are pressing and must be addressed in the near term. These issues, however, involve for the great part the rights and interests of rights holders, although they also touch upon the important issue of the liability of Internet Service Providers as intermediaries.

There are two other issues that we believe are every bit as Aimportant@ and pressing as the digital issues identified in the paper (rights management information, technological protection measures, the creation of a making available right, and the liability of Internet Service Providers) and must be addressed in the near term as Athreshold Internet copyright issues@: the educational use of the Internet, and the growing conflict between copyright law and standard form contracts. Each of these issues is addressed below.

Educational Use of the Internet

To position Canada as a world leader in the knowledge economy, it is essential that students and teachers be able to harness the full potential of digital technology to learn and to teach. The current educational exceptions in our copyright law are very limited in scope and do little to address educational needs in the Internet environment. In effect, our laws are lagging far behind current educational needs and practices regarding Internet use. There is an urgent need to amend our copyright laws to deal not only with the rights of those whose material is available and communicated over the Internet, but also to deal with access by students and teachers who use the Internet to research, to teach and to learn. The educational use of the Internet is a Athreshold Internet copyright issue@ that is pressing and must be addressed in the near term.

The purpose of an exception for educational use of the Internet is to permit students and teachers to make effective use of the Internet as part of a program of learning. This includes copying certain material from the Internet, performing music or a play online for students, incorporating text or images in assignments, and exchanging materials with teachers or other students electronically.

Recommendation:

The Copyright Act should be amended to permit an educational institution, or a person acting under its authority, including a student, to do the following acts in relation to all or part of a work or other subject-matter that has been made publicly available on a communication network, provided the act takes place where a student is participating in a program of learning under the authority of an educational institution, the act is done for educational or training purposes, and the act is not for profit, and provided that the source of the work is mentioned, and, if given in the source, the name of the author, performer, maker or broadcaster is also mentioned:

(a) use a computer for reproduction, including making multiple reproductions for use in the course of instruction;

(b) perform in public before an audience consisting primarily of students of the educational institution, instructors acting under the authority of the educational institution, or any person who is directly responsible for setting curriculum for the educational institution; and

(c) communicate to the public by telecommunication to or from a place where a person is participating in a program of learning under the authority of an educational institution.

The term Apublicly available@ should be defined to mean, for the purposes of this exception, a work or other subject-matter that is communicated to the public by telecommunication, with the consent of the copyright owner, without expectation of payment, and without any technological protection measures, such as a password, encryption, or similar techniques intended to limit access or distribution.

The exception should not apply if the educational institution or a person acting under its authority has knowledge that the work or other subject-matter has been made available to the public on a communication network without the consent of the copyright owner.

The recommended exception is not open-ended. To be entitled to use the exception, a student or teacher would need to be participating in a program of learning under the authority of an educational institution. The scope of the exception is also limited by the condition that the material must have been made Apublicly available@ on a communications network, by or with the authority of the copyright owner, without restrictions on access to it.

These conditions of entitlement to the exception are very important. The challenge is to devise an exception that permits students and teachers to use digital technologies to their fullest potential as an educational tool, while at the same time ensuring that the rights of the copyright owner to exploit his or her works in the marketplace are not impeded.

Since this exception applies only to material made publicly available without expectation of payment for use, the exception does not violate the provisions of the Berne Convention prohibiting the introduction of an exception that conflicts with the normal exploitation of the work or unreasonably prejudices the legitimate interests of the author. When an author makes a work publicly available online, without seeking compensation or restricting access, there is no economic exploitation envisaged. The recommended exception cannot conflict with an exploitation that does not exist or prejudice the interests of a copyright owner who has already implicitly authorized use on the Internet without restriction.

An issue arising in connection with the definition of Apublicly available@ is how to address the situation where a work has been communicated without the consent of the copyright owner. A requirement that the work be communicated with the copyright owner=s consent is a reasonable safeguard in the exception from the copyright owner=s point of view. Yet a teacher or student using the exception will not know whether a work has been communicated with or without Athe consent of the copyright owner.@ It is therefore recommended that the teacher or student be required to have knowledge that the work or other subject-matter was communicated without the copyright owner=s consent before she or he loses the benefit of the exception for educational use of the Internet.

Standard Form Contracts

The increasing conflict between copyright law and contract law, especially with regard to unilaterally drafted standard form contracts, is also as pressing and important as the issues addressed in the Consultation Paper on Digital Copyright Issues and must be addressed in the near term as a Athreshold Internet copyright issue@.

The Copyright Act should be a carefully crafted balance established by Parliament. The balance should permit creators to enjoy the benefits of their work and permits users to access those works. The use of standard form contracts has the ability to upset this balance. Current use of click-wrap and web-wrap agreements are voiding exceptions and imposing restrictions on uses permitted under the copyright law.

When a person or institution buys a digital product, the purchaser is usually obliged to enter into a contract with the digital product vendor. This type of contract, called a "standard form agreement@, is drafted entirely by the vendor without consultation or negotiation with the purchaser. Examples are a Ashrink-wrap licence@ in retail transactions and a "click-wrap licence" or Aweb-wrap licence@ in on-line transactions. By breaking open the cellophane packaging or clicking the mouse after loading the program, the purchaser may be required to agree to a contract prohibiting copying or lending. The increasing use of standard form agreements to govern the use of digital products is creating a growing number of conflicts between the prohibitions embedded in contracts and uses permitted by copyright law.

The lending of CD-ROMs by Canadian libraries is illustrative of this problem. The Canadian Copyright Act provides copyright owners with a bundle of exclusive legal rights allowing them to control specified uses of their works. One of these rights is the right to Arent" a computer program. Since many CD-ROMs contain computer programs, for the purposes of the Act many CD-ROMs are protected as computer programs. However, the rental right was drafted so that the copyright owner's right to rent was balanced by a library=s right to lend. The rental right in the Copyright Act does not apply if the activity does not involve a financial "gain@, which makes it inapplicable to library lending activities. The public policy balance was established so that lending would be free of the copyright owner's control. Vendors are using standard form contracts to establish a lending right when the legislature has denied them this right in the copyright law.

This raises the question of what can be done to ensure that the normal activities of educational institutions, libraries, archives, and museums, which are permitted by the Copyright Act, will not be undermined by the imposition of contractual obligations over which an institution has no effective control. A legislated solution is recommended, using the United Kingdom=s Copyright Act for guidance.

The United Kingdom=s Copyright Act addresses a similar, but not identical, issue to the one flagged above. Section 36(4) of the U.K. Copyright Act provides:

36(4) The terms of a licence granted to an educational establishment authorizing the reprographic copying for the purpose of instruction of passages from published literary, dramatic or musical works are of no effect so far as they purport to restrict the proportion of a work which may be copied (whether on payment or free of charge) to less than that which would be permitted under this section.

This section has the legal effect of rendering licence terms ineffective insofar as they purport to override statutory provisions in the copyright law, thus preserving the balance in the U.K. copyright law. Section 36(4) is therefore proposed as a model for legislation providing that standard form contracts are of no effect as far as they purport to restrict activities permitted under the copyright law.

Recommendation:

The Copyright Act should be amended to provide that the terms of a standard form contract (a contract in which the terms have been unilaterally imposed by one party on the other) prohibiting the doing of an act in relation to a work or other subject-matter protected by copyright are of no effect in so far as they purport to prohibit what is permitted under the provisions of the Copyright Act.

 

Issues missing from the agenda

There are two issues that are not as pressing as the educational use of the Internet or standard form contracts but which should be added to the list in Section 5 of the Framework paper as issues that should be part of the agenda for future phases of copyright revisions: the meaning of Apublication@ in relation to online works and an amendment to Section 30.1 of the Copyright Act.

Publication

The term Apublication@ has significant import in the Copyright Act. For example, whether or not a work or other subject-matter is protected by copyright in Canada is, in certain cases, dependent on where the work was first published; the term of protection is, in certain cases, dependent on the date of first publication; and certain exceptions apply only to published works.

With the advent of the Internet and the World Wide Web, Aelectronic publishing@ has emerged as an alternative to conventional means of making copies of a work available to the public. For all intents and purposes, works made available to the public via the Internet, the World Wide Web, or similar means of communication are Apublished@ works.

The status of such works under the Copyright Act, however, is problematic because the term Apublication@ is defined so as to specifically exclude Acommunication to the public by telecommunication@ as a mode of Apublication.@ As a consequence, works Apublished@ via the Internet technically remain Aunpublished@ works, unless they are also Apublished@ through conventional means of printing and distributing copies.

The notion of electronic publishing is also relevant to fair dealing. If, as it is sometimes argued, fair dealing applies only to published works, it is important to establish whether Aelectronic publications@ are, for the purposes of fair dealing, Apublished@ works. If they are not, and as a result are deemed to fall outside the scope of fair dealing, fair dealing will in practice become an increasingly meaningless concept as more and more works are made available exclusively in an electronic format.

Recommendation:

The Copyright Act should be amended to make it clear that communicating a work on the Internet is effectively the same as publishing the work and that, for the purposes of the Act, such works have the same status as Apublished@ works.

 

Section 30.1 Amendment

The exception in the Copyright Act that permits a library, archives or museum to make a copy of a work under certain circumstances, for the purpose of maintaining or managing its permanent collection, includes a provision relating to technological obsolescence.

The provision, however, is problematic in that, as it is written, it would appear to apply only after the format of the original has become obsolete or the technology required to use the original has become unavailable. In order to effectively manage and maintain works in their collections that are in digital formats, libraries, archives and museums will have to migrate those works to new formats and to new technological environments while the technology that enables them to Aaccess@ and Aread@ the original digital format is still available. Once the technology becomes unavailable, migrating the work may in fact be impossible.

Recommendation:

Section 30.1 of the Copyright Act should be amended to permit the making of a copy in an alternative format when the format of the original is at risk of becoming obsolete or the technology required to use the original is at risk of becoming unavailable.

Temporary Copy Exception: Browsing

Making temporary reproductions in the course of browsing a work in a digital format is necessary in order to view it on a computer screen or to listen to the audio portion of the work. In its report to the Information Highway Advisory Council, the Copyright Subcommittee of the Council concluded that the act of browsing a work in a digital environment should be considered an act of reproduction and as such should require authorization by the copyright owner. In its final report, the Information Highway Advisory Council supported the notion that copyright owners should be able to determine whether and when browsing should be permitted, and recommended that the Copyright Act should be amended to provide clarification of what constitutes Abrowsing@and what works are Apublicly available@.

An exception is required in the Copyright Act that would permit the making of temporary copies for the purpose of browsing and thereby permit the operation of the technical processes that are integral to viewing works on the Internet. Such an exception should permit browsing or simple viewing or playing of a protected work or other subject-matter, or any portion thereof, that is made publicly available without the requirement to obtain the explicit authorization of the copyright owner to reproduce the work.

Recommendation:

The Copyright Act should be amended to permit the making of temporary copies in the course of browsing a work or other subject-matter in a digital format.

The term Abrowsing@ should be defined to mean the making of a temporary copy of a work on a video screen, television monitor or similar device, or the performance of the audio portion of a work on a speaker or similar device by a user. The definition should exclude the making of a permanent reproduction of the work in any material form.

The proposed amendment is based on the assumption that, in making a work or portion of a work or other subject-matter publicly available (in the sense defined in the proposed exception for educational use of the Internet), the copyright owner is giving implicit authorization for browsing. The proposed exception for temporary copying for the purpose of browsing simply clarifies the right of the user to browse what the copyright owner has made publicly available without obtaining explicit authorization to reproduce it.

 

Comments on Consultation Paper on Digital Copyright Issues

Rationale and Context

The Consultation Paper on Digital Copyright Issues (hereinafter, Athe Digital Issues paper@) sets out the rationale and context for the consideration of digital copyright law issues in Canada. In the section entitled Government Rationale, the paper states Asome rights holders have pointed to the 1996 World Intellectual Property Organization (WIPO) treaties, with their network-related provisions, as providing the basis for effectively responding to the digital challenges.@ It is clear from the choice of issues flagged as Athreshold Internet copyright issues@ which need to be addressed in the near term and on which the Government is prepared to consult now that the WIPO treaties are, indeed, the basis for the Government=s digital initiatives in the near future.

The inherent problem with choosing the WIPO treaties as the basis for responding to digital challenges is that the treaties, like other international agreements dealing with intellectual property issues, are prescriptive with regard to strengthening copyright protections but optional with regard to limitations and exceptions to these new rights. Limitations and exceptions must be considered at the same time as the introduction of new rights and sanctions if we are to avoid an imbalanced approach to our copyright laws.

The Digital Issues paper, in the section entitled WIPO Treaties - Revisited in the Domestic Context, takes note of this issue and states that Asome stakeholders were concerned that bare treaty implementation involved no consideration of the needs of institutions that use copyright materials consistent with other important public policy objectives (e.g., educational institutions, libraries, archives, museums, etc.).@ With regard to Athreshold Internet copyright issues@ such as the proposed prohibition against the circumvention of technological protection measures, it is critical that limitations and exceptions to such a prohibition be considered at the same time as any new rights and sanctions, and we encourage the Government to proceed on this basis.

 

Core principles

The Digital Issues paper sets out some core principles relating to promoting the dissemination of new digital content for Canadians. We agree that the framework rules for Canada=s copyright regime should be clear and allow easy, transparent access and use. As the paper notes, Arules that are unclear may have a chilling effect on legitimate uses of works that are nonetheless permitted under copyright law.@

We also agree that the framework should be technologically neutral, to the extent possible. Amendments to our copyright laws must detract neither from the interests of creators and other rights holders nor from the legitimate interests of educational institutions, libraries, archives and museums in maintaining reasonable access to copyright works in the digital environment.

The consultation paper=s proposals

Making Available

This section of the Digital Issues paper explores issues related to the introduction of a Amaking available right@ in the Copyright Act. The paper indicates that Industry Canada and the Department of Canadian Heritage are of the view that an Aon-demand communication right@ is already contained in the right to authorize the communication of a work to the public by telecommunication. As a result, in the absence of a judicial interpretation narrowing the latter concept, the departments do not propose to amend the Act at this time.

We agree with the approach proposed by the Digital Issues paper. However, if the Government changes tack in future and considers the introduction of a Amaking available@ right in the Copyright Act, such a change would require consideration of the issue raised earlier in this paper concerning Apublication@ of online works. In short, it would be necessary to clarify whether a work that is Amade available@ on the Internet is considered to have been Apublished@ for the purposes of the Copyright Act.

Legal Protections Against Circumvention of Technological Protection Measures

The 1996 WIPO treaties require that parties to the treaties enact in their domestic laws legal protections and sanctions against circumvention of technological protection measures only to the extent that these measures are used by copyright owners to restrict uses that are not authorized by the copyright owner or permitted by law. The conclusion that can be drawn from the language of the treaties is that they do not require the enactment of legal sanctions against the circumvention of technological protection measures whose purpose is to restrict uses of a work that are authorized by the law. We can support the introduction of legal protections against the circumvention of technological protection measures for infringing purposes, but we do not support a prohibition against circumvention of technological protection measures for non-infringing purposes.

Recommendation:

We recommend that the Government of Canada ensure that, if legal protections and sanctions against the circumvention of technological protection measures are introduced into our laws, such protections and sanctions do not prohibit circumvention for non-infringing purposes.

Our recommendation is consistent with recommendation 6.11 of the Final Report of the Information Highway Advisory Council (September 1995) which recommended that legislative action be taken to amend the Copyright Act to make it a criminal offense under the Act to tamper or bypass copyguards or encryption technologies for the purposes of infringing copyright.

A blanket prohibition against circumvention would upset the public policy balance between the interests of creators and other rights holders and those requiring reasonable access to copyright works. A blanket prohibition against circumvention could have many undesirable consequences, including the following:

(a) it could make illegal certain activities that are currently legal. For example, it would be illegal to circumvent technological protection measures to make a single reproduction of a copy of a computer program by adapting, modifying or converting the computer program or translating it into another computer language, or for the purpose of making a backup copy, even though those activities are currently permitted under section 30.6 of the Copyright Act;

(b) it would greatly hinder work in the field of reverse engineering. In the digital world, reverse engineering involves taking apart or Adecompiling@ software programs to identify the digital codes. Engineers, scientists, and academics engage in reverse engineering of software to ensure that digital products are Ainteroperable@ and to further the field of software development;

(c) it would greatly hinder encryption research. Closely related to reverse engineering is the testing of lawfully acquired encryption programs for weaknesses or to create stronger encryption systems. Researchers should be able to circumvent an encryption device to test its effectiveness and then publish their results. This is necessary to encourage the development of better encryption systems, that are in themselves essential to the growth of electronic commerce.

In short, a number of factors weigh against introducing a blanket prohibition against the circumvention of technological protection measures.

The Digital Issues paper acknowledges the concerns of copyright stakeholders about circumvention of technological protection measures but cautions that these concerns must be considered within the framework of Canadian copyright law, where certain uses of works and limitations on copyright protection are recognized as serving legitimate and important public policy objectives. These elements of our copyright law, the paper notes, have been the outcome of extensive debate, consultation, jurisprudence and legal obligation, both domestically and internationally. The paper then states:

AUnder these circumstances, the departments question whether it is possible to establish a legal framework which, on the one hand covers virtually all activities that undermine the use of technological measures, but at the same time continues to reflect the policy balance currently set out in the Act. Such a change in the Copyright Act could potentially result in a new right of access, the scope of which goes well beyond any existing right, and would represent a fundamental shift in Canadian copyright policy. It could serve to transform a measure designed for protection into a means of impeding legitimate uses. In essence, a change of this nature would be tantamount to bringing within the realm of copyright law, matters (e.g., restrictions on use) which may be more properly within the purview of contract law.@

We concur with these views.

On the other hand, the Amiddle ground@ solution of permitting circumvention for specified or permitted purposes would involve the establishment of a list of permitted purposes that have an elevated status in relation to the circumvention of protection measures in comparison with other acts that are otherwise legal under the Copyright Act. Not only would the two-tiered treatment of various acts that are otherwise permitted by the Copyright Act be contrary to good public policy, it would exceed the requirements of the WIPO treaties.

The departments suggest that the most basic form of prohibition would be to prohibit circumvention for infringing purposes, of technological protection measures, where such measures have been adopted, inter alia, to restrict acts not permitted by the Act. We support this approach.

The Digital Issues paper notes that the other end of the spectrum would be to entail a prohibition on circumvention devices in addition to a prohibition on circumvention for infringing purposes. We do not support such an approach. Making circumvention devices illegal would undercut and render moot any legal right to circumvent technological protection measures for non-infringing purposes.

We urge the Government to adopt the approach recommended above not only in relation to future reform of Canada=s copyright laws, but also in its representations on these issues during negotiation of international treaties dealing with intellectual property issues. For example, the Draft Agreement for the Free Trade Area of the Americas released on July 3, 2001 contains a large section on intellectual property which includes a provision on circumvention of technological protection measures that appears to be a blanket prohibition without the option of limitations on the prohibition. Canada should not support this approach.

 

Legal Protection of Rights Management Information

The WIPO Copyright Treaty and the WIPO Performance and Phonograms Treaty both contain provisions requiring that member states enact remedies against the removal or alteration of Arights management information@ attached to works or other subject-matter, and against the distribution of works or other subject-matter in the knowledge that such information has been removed or altered. ARights management information@ is broadly defined in the WIPO treaties to mean information attached to a work or other subject-matter that identifies the work or other subject-matter, author, performer, performance, producer of a sound recording, copyright owner, or any information regarding the terms and conditions for use of the work or other subject-matter.

The Digital Issues paper recommends that rights owners should have effective remedies against removal or alteration of rights management information. We agree. The key issues, however, are how Arights management information@ should be defined and what form the protection of rights management information should take.

The Digital Issues paper proposes two possible approaches to defining Arights management information@. Option A is to adopt the definitions used in the 1996 WIPO treaties. Option B is to define Arights management information@ to include information identifying the work, the author, the first owner of copyright in the work, and any codes or information that represent such information.

Option B is preferable because it proposes a definition of Arights management information@ that excludes terms and conditions of use. A term and condition of use that is valid in one country may be invalid in another. The departments note that protecting rights management information would not imply that any stated terms and conditions of use would be legally valid in Canada. Nevertheless, if such terms and conditions are part of rights management information, many users will be unaware of the legal validity of these terms and conditions and comply out of caution. There is strong parallel between this issue and the standard form contracts issue in that it is good public policy to ensure that an individual or corporation cannot unilaterally impose terms and conditions on use of a work that purport to override the provisions of the Copyright Act.

The departments also note that in the future it may become difficult to distinguish between rights management information and technological protection measures. This makes the issue of circumvention of technological protection measures even more crucial. For example, when the term of copyright protection for a work has expired, would it become illegal to circumvent technological protection measures to remove the outdated rights management information attached to the work? Similarly, the owner of the rights in a work may change many times over the term of the copyright in it. Would an individual who wished to correct rights management information in light of a change in ownership of rights in a work be in violation of prohibitions against the circumvention of technological protection measures? Such an outcome would not serve the interests of rights holders or users of digital copyright works.

The Digital Issues paper notes that industry practices are evolving and there are some indications that one simple identification code may be all that is needed to serve the same purpose as a number of pieces of rights information. We still have concerns, however, about the nature of a Asimple identifying code@ and what information it might contain. Could such a code, like the definition of Arights management information@ in the WIPO treaties, be allowed to contain terms and conditions of use that conflict with acts permitted under Canadian copyright laws? In this light, our preference is to ensure that we have a Canadian standard and we urge the Government to proceed on the basis of Option B described above.

Recommendation:

We recommend that the Government adopt Option B in the Consultation Paper on Digital Copyright Issues and define Arights management information@ in the Copyright Act to include information identifying the work, the author, the first owner of copyright in the work, and any codes or information that represent such information.

We note that the Draft Agreement for the Free Trade Area of the Americas described above contains a provision on rights management information that defines this term to include information about the terms and conditions of use of a work. Canada should oppose this provision as currently drafted.

Liability of Network Intermediaries, Such as Internet Service Providers, in Relation to Copyright

The Digital Issues paper notes that the Copyright Act has not, to date, taken into account the role of the Internet Service Provider (hereinafter, Aservice provider@) in online communications. Service providers, including educational institutions and libraries, engage in activities such as providing their subscribers with access to the Internet, providing space on their servers for their clients to use as web sites, and caching information to achieve network efficiency. The paper notes that service providers, given the volume of activity on their systems, do not have the capacity to continually assess the legitimacy of the activities of their patrons, the copyright status of various works, or the legal relationship between a rights holder and user.

The Copyright Board decision in the SOCAN Tariff 22 proceeding suggested that it is the content provider, not the service provider, that would have liability for communicating or authorizing the communication of a work or other subject matter to the public by telecommunication. Aside from the fact that this decision is under appeal, the Board=s decision still leaves open the question of whether service providers have liability in relation to the reproduction right. As the paper notes, infringement of the reproduction right can give rise to strict liability so that persons whose facilities are used to effect a reproduction may be liable whether or not there was an intent to infringe copyright.

The Digital Issues paper states that some service providers and rights holders have entered into agreements for dealing with infringing material and asks whether this approach is sufficient. In our view, this approach is insufficient. The universe of rights holders is too broad for this to be a complete solution. What is required is legal certainty that can only be achieved through a legislated solution.

The Digital Issues paper correctly notes that a service provider would be unable to carry out one of its primary functions if it could not effect the reproductions required to complete normal Internet communications. The paper also states that one of the key issues yet to be addressed is to determine which transmissions, however transient, result in a reproduction and the creation of a copy for the purposes of the Copyright Act. In light of the state of uncertainty in the law in relation to this issue, our comments are based on an assumption that all of these temporary copies will be considered to be reproductions for the purposes of the Copyright Act.

Defining Aservice provider@

Before proceeding with a discussion of the liability issues facing Internet Service Providers, it is necessary to determine what is meant by the term AInternet Service Provider@. To that end, we are recommending that the term Aservice provider@ be defined in the Copyright Act. Many educational institutions, libraries, archives, and museums now provide Internet services to their respective teachers, students, staff and patrons. A clear definition of the term Aservice provider@ in the Copyright Act would ensure that these institutions qualify for the purposes of any exemption aimed at insulating service providers from the activities of the users of their Internet services and from any unintentional infringements by service providers themselves that may occur as a result of the normal operation of Internet networks.

Recommendation:

The Copyright Act should be amended to define the term Aservice provider@ in a manner similar to the definition used in the U. S. Digital Millennium Copyright Act:

Aservice provider@ means

(a) an entity offering the transmission, routing, or providing of connections for digital on-line communications, between or among points specified by a user, of material of the user= choosing, without modification to the content of the material sent or received;

(b) a provider of on-line services or network access, or the operator of facilities therefor, and includes an entity described in (a).

 

Institutional Exception from Liability

As one aspect of their roles as service providers, educational institutions and libraries provide students, staff, teachers, and patrons with access to self-serve computers linked to the Internet. Section 30.3 of the Copyright Act provides educational institutions, libraries, archives, and museums with an exemption from liability, under certain conditions, for any infringements committed by persons using self-serve photocopiers in their institutions. Because this exemption applies only to reprographic reproduction, and because some of the conditions attached to the exemption could not apply to reproduction of on-line works and other subject-matter - such as the requirement for licensing, since no collective represents all the rights holders in the digital world - a new technology-neutral exemption is required to cover the use of computers and similar devices furnished by institutions for students, staff, teachers, and patrons.

Recommendation:

Section 30.3 of the Copyright Act should be amended to exempt an educational institution, library, archive, or museum from liability for infringement of copyright where:

(a) a copy of a work or other subject-matter is made using a computer or similar device;

(b) the computer or similar device is installed by or with the approval of the educational institution, library, archive, or museum, on its premises, for use by students, instructors, or staff at the educational institution, or by persons using the library, archive, or museum; and

(c) the educational institution, library, archive, or museum makes reasonable efforts to inform students, instructors, staff, and patrons about copyright law and warns them against copyright infringement.

Hosting

One of the key functions of service providers is to host content, such as the web pages of subscribers, over which the service provider exercises no control. It is impossible, in practice, to monitor or screen the activities of users of network services. On this basis, service providers need legal protection against liability for the content of web sites hosted on their servers.

In addition, in light of the impossibility in practice of monitoring or screening the activities of users of network services, educational institutions, libraries, archives, and museums acting as service providers should have no obligation to monitor what they transmit or to seek facts or circumstances indicating illegal activity. Our recommendation in this regard is based on Article 15(1) of the European Union's Directive on Electronic Commerce. The European Union's approach is preferred over that of the United States. However, there should not be a provision relating to temporary surveillance activities, as is proposed in Article 15(2) of the European Union's Directive on Electronic Commerce.

We recognize, however, that the exemption from liability for service providers cannot be open-ended. The Digital Issues paper notes that the U.S. has implemented detailed notice and take-down provisions in its Digital Millennium Copyright Act, while the European Union has instead required service providers to Aact expeditiously@ to remove infringing material from their subscriber sites once they have become Aaware@ of the existence of such materials. We support the introduction of hybrid system that is less administratively complex than the regime set out in the Digital Millennium Copyright Act. Such a system would have to ensure that service providers are not held liable for taking reasonable time to assess the validity of a claim by a rights holder that hosted materials are infringing. Similarly, a service provider should be insulated from claims for damages by those who have been forced to remove hosted materials because of a good faith belief by the service provider that the hosted materials may have infringed copyright.

Recommendation:

The Copyright Act should be amended to permit a service provider to store a work or other subject-matter whose content is provided by, and stored at the request of, a recipient of the service as long as:

(a) the service provider does not have knowledge that the activity is infringing;

(b) the service provider is not aware of facts or circumstances from which infringing activity is apparent; and

(c) the service provider, upon obtaining knowledge or awareness that the activity is alleged to be infringing, investigates the activity, and if it determines that the activity may be an infringement, acts expeditiously to remove or disable access to the information.

A service provider should be under no obligation to monitor content provided by, and stored at the request of, a recipient of its service, nor be required to seek facts or circumstances indicating infringing activity.

Temporary Copying

As discussed earlier in these comments, a service provider would be unable to carry out one of its primary functions if it could not effect the reproductions required to complete normal Internet communications. The Digital Issues paper suggests that one of the key issues yet to be addressed is which transmissions, however transient, result in a reproduction and the creation of a copy for the purposes of the Copyright Act. AUCC believes that even if temporary copies made by service providers are deemed to be reproductions for the purpose of the Copyright Act, there should be no liability for a service provider when its makes temporary copies in the course of the technical process of communicating a work or other subject-matter on a communications network, including the Internet.

Set out below are recommended exceptions permitting the making of a temporary copy by a service provider for the following purposes:

1. for the purpose of transmitting, routing, or providing connections or access to the Internet; and

2. for the purpose of caching.

 

Temporary Copy Exception: To Transmit, Route, and Provide Connections or Access

Recommendation:

The Copyright Act should be amended to permit a service provider to make a transient copy of material provided by the recipient of the service in order to transmit, route, or provide network connections, or to provide access to a communications network, without infringing copyright, on condition that the service provider does not:

(a) initiate the service;

(b) select the receiver of the transmission; or

(c) select or modify the information contained in the transmission.

The proposed exception would permit the automatic, intermediate, and transient storage of the works or other subject-matter transmitted. The works or other subject-matter could not be stored for a time longer than is reasonably necessary in order to effect the transmission.

This proposal is similar in nature to the Amere conduit@ exception found in Article 12 of the European Union=s Directive on Electronic Commerce. The purpose of the mere conduit exception is to permit the making of transient copies as part of the technical process of operating an online communications system, without infringing copyright.

Temporary Copy Exception: Automatic Caching

Recommendation:

The Copyright Act should be amended to permit a service provider to make a temporary copy of a work or other subject-matter through an automatic and technical process for the purpose of making more efficient its onward transmission to a recipient of a service, at the request of the recipient. The service provider:

(a) must not modify the material;

(b) must comply with the conditions on access as specified in the material;

(c) must comply with common practices regarding the updating of the material, or the updating requirements specified in the material itself;

(d) must not interfere with the technology commonly used to obtain data on the use of the material; and

(e) must act expeditiously to remove or to bar access to the material upon obtaining knowledge of one of the following:

(i) the material has been removed from the communications network at the initial source of the transmission;

(ii) access to the material or to the communications network has been denied; or

(iii) a competent authority has ordered removal or barring of the material.

A cache is a mechanism for temporarily storing a copy of online materials so that, for example, when a person wishes to return to a web page that has been viewed recently, the person=s Internet browser can retrieve a copy of the document from the cache of the person=s computer or similar device rather than from the server where the document originated. Common types of caches on a computer are Acache memory@, a type of Random Access Memory (RAM) that can be read more quickly than normal RAM, and a Adisk cache@, which is usually a part of the hard disk of a computer. In addition, the design of networks can create temporary cached copies of works or other subject-matter on their networks, using an automatic and technical process, for the purpose of making such materials available in an efficient manner to the users of their networks. All of these types of caches are of a limited size, so that they are emptied out automatically as new copies enter the cache and replace older cached copies. In addition, caches are usually programmed to delete temporary copies after a fixed period of time (e.g., once a week).

The purposes of the proposed exception are:

1. to ensure that temporary copies that are made and stored in the cache of a person=s computer or similar device do not infringe copyright; and

2. to ensure that a service provider can make temporary cached copies on a network, through an automatic and technical process, for use by network patrons without infringing copyright.

 

Temporary Copy Exception: Intentional Caching

Recommendation

The Copyright Act should be amended to permit a service provider to intentionally store a temporary copy of a publicly available work or other subject-matter for the purpose of making more efficient its onward transmission to a recipient of a service, at the request of the recipient. The service provider:

(a) must not modify the material;

(b) must comply with the conditions on access as specified in the material;

(c) must comply with common practices regarding the updating of the material, or the updating requirements specified in the material itself;

(d) must not interfere with the technology commonly used to obtain data on the use of the material; and

(e) must act expeditiously to remove or to bar access to the material upon obtaining knowledge of one of the following:

(i) the material has been removed from the communications network at the initial source of the transmission;

(ii) access to the material or to the communications network has been denied; and

(iii) a competent authority has ordered removal or barring of the material.

Intentional caching can be used by many types of service providers, but it is particularly important for service providers whose networks have limited bandwidth, thereby requiring careful management to avoid the creation of network Abottlenecks.@ For example, some educational institutions deliberately download and store copies of frequently used materials onto their local and wide area networks. When a student or teacher tries to access these materials, the system diverts them to the cached copy rather than to the Internet. The purposes of intentional caching by educational institutions include reducing telecommunications costs and increasing network efficiency and access speeds for students and teachers to the stored materials.

The purpose of the intentional caching exception is to permit a service provider to choose when to make a temporary copy of a work on a communications network in order to store it for use by network users, without infringing copyright. Intentional caching makes use of the Internet, as well as local and wide area networks, more efficient and less expensive.

The use of caching, whether intentional or automatic, confers no benefit to either service providers or to end-users deriving from the content of the cached works themselves. The only benefits derive from technical efficiencies.

Since the proposed intentional caching exception applies only to material that has been made publicly available without expectation of payment for use, the exception does not violate the provision of the Berne Convention prohibiting the introduction of an exception that conflicts with the normal exploitation of the work or unreasonably prejudices the legitimate interests of the author. The recommended exception cannot conflict with an exploitation that does not exist or prejudice the interests of a copyright owner who has already implicitly authorized use on the Internet without restriction.

Both the European Union and the United States have caching exceptions in their laws. In both jurisdictions, a number of obligations must be met by service providers before the caching exception is available. We have incorporated similar obligations into our proposed exception.

 

Summary and Conclusion

A Framework for Copyright Reform outlines some principles that should guide the copyright reform process. In this submission we have highlighted three principles that we believe should also guide copyright reforms:

1) there should be a balance in Canadian copyright law between the desire of creators and other rights holders to receive fair remuneration for the use of copyright works and the public interest in maintaining reasonable access to copyright works for the purposes such as education, research, teaching and the dissemination of knowledge;

2) copyright law should reflect the fact that most academic creators, who create a significant proportion of the works utilized in educational institutions and libraries, have different motivations for creation and different views on exceptions than those who create for artistic or purely commercial purposes; and

3) collective licensing should be seen as a supplement to, but not a replacement for, limitations and exceptions in our copyright laws.

To ensure balance in the upcoming round of copyright reforms, we urge the Government to act on two important issues - the educational use of the Internet, and the increasing conflict between copyright law and standard form contracts - that are missing from the Framework paper=s list of Athreshold Internet copyright issues@ which need to be addressed now and on which the Government is prepared to consult now. We also recommend that two issues - Apublication@ in the digital environment, and a technical matter relating to the management of library collections - be added to the list of issues that are part of the Government=s agenda for future phases of copyright reform.

With regard to the Consultation Paper on Digital Copyright Issues, we agree with the core principles that the rules for access to copyright works should be clear and transparent, and that copyright law should be technologically neutral, to the extent possible.

We agree with the Government=s proposed approach to a Amaking available@ right but caution that if such a right is ever introduced into our laws, it would be necessary to clarify whether a work that is Amade available@ is considered to be Apublished@ for the purposes of the Copyright Act. We also recommend that if protections and sanctions are introduced against the circumvention of technological protection measures, they should not prohibit circumvention for non-infringing purposes. We further recommend that the Government define Arights management information@ to include only information identifying rights owners and not information regarding the terms and conditions of use of works or other subject-matter.

Finally, with regard to the liability of Internet Service Providers (Aservice providers@) for the activities of their subscribers and for their own activities in carrying out the normal operations of a service provider, we recommend that service providers not be liable for the activities of patrons using institutional self-serve computers linked to the Internet. We also recommend that, subject to certain conditions, service providers should not be liable for the hosting of content on subscriber web sites, or for any possible infringements of the reproduction right that might occur in normal Internet operations or during the caching of online works to make networks more efficient.

The AUCC recommendations in this submission are consistent with the recommendations put forward in the Discussion Paper on Digital Copyright Issues, a major position paper that was submitted to the Government in June, 2001 by the Copyright Forum, a working coalition of 13 national education, library, archive and museum organizations, including AUCC. They are essential, in our view, to ensuring balance in digital copyright reforms. They are also essential to ensure that Canadian researchers and scholars, and the universities in which they work and study, can contribute fully to Canada=s innovation agenda.

We look forward to participating in future consultations on digital copyright reforms and to the opportunity to provide our comments during the five-year review process relating the operation of An Act to Amend the Copyright Act.


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