ARCHIVED — Copyright and the Educational Use of Internet Content, Working Group's Report

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4. Proposals

Two distinct proposals – one from the educational community and one from the rights holder group – were initially tabled at the December 2002 meeting. The educational sector's initial proposal was taken from the Discussion Paper on Digital Copyright Issues produced by the Copyright Forum in June 2001. For their part, Access Copyright tabled, on behalf of some representatives from the rights holder sector, a paper entitled Collective Licensing: Liability Limits for Collectives and Users. New proposals evolved in the course of the Working Group meetings.

Initial Proposal by the Educational Sector (Annex C)

The educational sector's proposal consists of an exception for the educational use of “publicly available” material on the Internet. Within this context, an educational institution or a person acting under its authority, including a student, would be allowed to do the following acts in relation to all or part of a “publicly available” work:

1. use a computer for reproduction, including making multiple reproductions for use in the course of instruction;
2. 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 the curriculum for the educational institution; and
3. 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.

All six associations representing the educational sector in the Working Group argue that there are materials on the Internet for which copyright owners do not have an expectation of payment. To distinguish these materials from those for which a fee is expected, they refer to them as “publicly available” materials, defined as a work or subject matter that meets all of the following criteria:

1. communicated to the public by telecommunication;
2. with the consent of the copyright owner;
3. without expectation of payment; and
4. without any technological protection measures (TPMs) such as a password, encryption, or similar techniques intended to limit access or distribution.

The educational sector chose TPMs as a line of demarcation because it is clear and can be easily understood by the average student as being “publicly available.” Notices placed on Web sites by rights holders prohibiting certain activities in an educational setting would not be considered as TPMs; such material would therefore be considered “publicly available.”

In addition to the criteria that limit the definition of “publicly available,” the educational community's proposal is subject to some further restrictions. The proposed exception would not apply where the educational institution or a person acting under its authority (e.g. a teacher) has knowledge that the work or subject matter has been made available to the public on a communication network without the consent of the copyright owner. Also, the proposed exception would only be available to teachers or students participating in a program of learning under the authority of a publicly funded educational institution.

The educational community bases its argument for a new educational exception on several considerations, namely:

1. It is unlikely that rights owners would suffer a negative financial impact since the exception would apply only to materials where there is no expectation of payment.
2. There is little likelihood that items accessible on the Internet would be covered under a blanket licence, in the absence of which, copyright clearance may prove impractical and time-consuming.
3. The exception is restricted in scope as it would not apply to materials where access is restricted by TPMs.
4. The exception would be consistent with the Government's policy to develop Internet skills among Canadian students.
5. The exception is not in violation of Canada's international obligations.

Rights Holders' Response to the Educators' Proposal (Annex D)

Rights holders consider that the educational community's definition of “publicly available” is too broad. In particular, the use of TPMs as a determinant of what is “publicly available” is problematic for several reasons, namely:

1. TPMs are not indicative of the copyright owner's intention to allow the free use of their works. Not putting a TPM is sometimes a business choice for self-promotion or for generating advertising revenues based on “eyeballs” or number of hits. As a result, requiring rights holders to use TPMs could affect the development of online business models.
2. If TPMs were selected as a criterion to determine the copyright owner's intention, the latter would face the onus of implementing such mechanism, which can be costly and time-consuming.
3. In the rights holders' view, this onus represents a formality or condition to the exercise of rights of copyright, contrary to Article 5(2) of the Berne Convention.
4. Basing an exception on TPMs within a dynamic changing technological environment gives rise to legislation that may soon be out-of-date. In their view, amendments to the Copyright Act with respect to materials on the Internet should enable increased access to materials and not add a new exception.

Rights Holders' Initial Proposal (Annex E)

Rights holders' groups recognize the importance of the Internet as part of a program of learning and also agree that there is a significant number of works that are available for free on the Internet for which prior authorization from or payment to the copyright owner is not necessary. However, they are not in favour of new exceptions in general, preferring to look at licensing solutions.

An initial proposal put forth by Access Copyright is reflected in the paper entitled Collective Licensing: Liability Limits for Collectives and Users, which seeks amendment of the Copyright Act to facilitate the granting of blanket licences by reducing the liability for collectives and their licensed users. Given the vast amount of digital material easily accessible, some collectives are particularly vulnerable to infringement suits from rights holders outside their repertoire.

The situation is different in the paper-based world. The blanket licence that some collectives currently provide with respect to reprography includes an indemnity to licensees for works that are outside the collective's repertoire.

Collectives would like to extend this model to the digital world. Once they are deemed to represent all rights holders within their sector, they would be in a position to offer blanket licences to users in general, including the education sector. The paper proposes a number of legal techniques or mechanisms by which their potential liability could be reduced – including compulsory licensing, mandatory collective management, implied licensing, indemnification of licensees, limited damages, restricted statutory damages, restricted liability of equipment provider, extended collective licensing and removal of criminal liability – and invites legislative reforms using some of these techniques or mechanisms.

In addressing the abundance of material available online and the users' need for rapid rights clearance, some collective societies are considering extended collective licensing as an option. According to them, the extended collective licensing of digital material would allow a collective to seek to extend its licensing authority to include all other national and foreign rights holders in the category it represents. Extended licensing would require that collectives represent a substantial number of voluntarily participating rights holders of that category. In the collectives' view, such a scheme has the potential to strengthen a collective's capacity to represent and compensate rights holders, and to simplify the rights clearance process for users, and places the burden of rights holder searches with the collectives. This mechanism is in place in all of the Nordic countries and is being developed for online works.

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