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

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5. Stakeholders' Counter-Proposals

Both rights holders and educational users eventually developed counter-proposals, which were discussed in the Working Group.

Rights Holders’ Counter-proposal (Annex F)

Rights holders proposed two scenarios that rely on universally recognizable symbols such as a “red light” or “green light,” the “green light” indicating that the material is available for educational purposes. Scenario A illustrates the operation of such a system if collectives are in a position to offer blanket licensing; scenario B illustrates its operation in the event that such a licence is not available. While both proposals cover literary works, photographs and illustrations on the Internet, neither scenario covers sound recordings nor moving pictures, the use of which would require the specific permission of the rights holder.

Scenario A: With Blanket Licensing

In accordance with the terms of a collective licence or tariff approved by the Copyright Board and assuming legislative amendments to the Copyright Act that facilitate the granting of comprehensive licences in the digital environment, an educational institution would be able to consider every Web site as having a “green light” unless the Web site displayed a “red light.” The “red light” would be an indication by a special symbol, a copyright collective notice or by a TPM that prohibits such uses.

In relation to a work that has been made “available for educational purposes” in a digital format on a communication network, an educational institution or person acting under its authority, including a student, could:

1. use a computer for reproduction, including making multiple reproductions for use in the course for instruction;
2. perform in public before an audience consisting primarily of students of the educational institutions, instructors acting under the authority of the educational institution, or any person who is directly responsible for setting curriculum for the educational institution; and
3. communicate by telecommunication to or from a place where a person is participating in a program of learning under the authority of an educational institution to other participants in the same program of learning under the authority of the same educational institution.

The term “available for educational purposes” means a work or other subject matter that is communicated to the public by telecommunication:

1. with the consent of the copyright owner; and
2. without any technological protection measure or without a “red light” or a specific on-site statement that the work is not available.

In calculating the collective licensing fees or tariff, consideration would be given to the amount of material used by educational institutions that does not require prior authorization from or payment to the copyright owner.

Scenario B: Without Blanket Licensing

In the absence of collective blanket licensing, every Web site would not be available for educational purposes unless a “green light” symbol were placed on the Web site. This means that permission would be required to do anything beyond browsing, unless the Web site owner placed a “green light” on the site, a “green light” being an indication in writing or by a special symbol that such activities are specifically authorized for schools.

The specifics as to possible uses and the list of users are similar to that described in Scenario A. The key differences are that the term “available for educational purposes” means, for the purposes of Scenario B, a work or other subject matter that is communicated to the public by telecommunication with the consent of the copyright owner that displays a “green light” symbol or a specific on-site statement that the work is available.

Conditions Common to Both Scenarios

For both scenarios, further conditions apply:

1. the act would not be permissible where the educational institution or a person acting under its authority has knowledge that the work has been made available to the public on a communication network without the consent of the copyright owner;
2. the act must be performed in a place where the student is participating in a program or learning under the authority of an educational institution, and must be for educational purposes and not for profit;
3. the source and the name of the author must be mentioned; and
4. the proposal covers literary works, photographs and illustrations on the Web, but excludes materials relating to sound recordings and moving pictures, where permission for use would be sought on a transactional basis.

Modified Proposal by the Educational Sector (Annex G)

Educational representatives were of the view that the rights holders’ counter-proposal could lead to the development of a compromise solution acceptable to both creators and users. While a symbol may be acceptable to both groups, issues such as whether the symbol should function as a “red” or “green light,” and how the symbol should be used, still require thorough analysis and deliberation among the educators and the rights holders.

The educational representatives expressed the belief that a symbol could meet the objective of providing a clear demarcation between categories of material; therefore, educational representatives stated that they were prepared to revise their proposed educational amendment such that a symbol could be included as an alternative to the use of a TPM. In this context, creators who choose to restrict educational access could do so with a TPM or a symbol. In the latter case, if the symbol is to meet the objective of being easily understood by students and teachers, it would better function as a “red light” if it were continuously visible on the viewer’s screen.

Educational sector representatives also offered a revision to the initial proposal to further address creators’ concerns regarding its application to material posted on the Internet without the consent of the copyright owner. They acknowledged that the requirement that teachers and students have actual knowledge of the infringing character of the materials posted on the Internet may represent too high a threshold. As a result, in the modified proposal, it would be an infringement if teachers and students use materials “publicly available” when they have reasonable grounds to suspect that the materials were posted without consent.

Finally, it must be noted that the revisions to the proposed educational amendment as outlined above require the formal approval of the six national educational organizations represented on the Working Group before they could be considered official.

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