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

Previous | Table of Contents | Next

---

Annex D

Rights Holders' Response to the Educators' Proposal

Response of Rights Holder Representatives to CMEC Recommendation for an Exception for Educational Use of the Internet

Rights holders wish to acknowledge the effort of members of CMEC to come to terms with the copyright issues surrounding the use within their institutions of Internet materials. To this end, CMEC has proposed a new exception for educational uses of material "freely available" on the Internet. Rights holders, however, are not in favour of a new exception in general, and have concerns about CMEC's proposed exception in particular.

The creator community recognizes that it may be difficult in many cases to determine permitted uses for works found on the Internet. Such difficulties are compounded by the need to set standards for access and use of Internet materials for many people of varying degrees of knowledge within large educational institutions. We acknowledge that some uses of some works posted on the Internet are intended to free within such institutions. Rights holders wish to help to develop a workable solution to permit educational uses of materials available on the Internet where appropriate. To this end, we have developed a proposal, to be presented in a companion document.

In this document we summarize our response to CMEC's proposed Internet educational exception, focusing on the concept of "publicly available" and the requirement of technological protection measures (TPM)

1. Concept of "publicly available"

CMEC defines the concept of "publicly available" material as material posted to the Internet with the consent of the copyright owner, without expectation of payment, and without any technological protection measures…intended to limit access or distribution. (In fact, the language of the proposed exception is broader than this, extending to works "communicated by telecommunication," which would include broadcasts and satellite signals, though these are not the specific targets of the proposal.)

Whether posted material is "publicly available", by this definition, is effectively determined by the absence of technological protection measures ("TPM"). This has nothing to do with whether or not the copyright owners actually intend to make their materials available for educational use for free. It is reasonable to suggest that there is an implied licence to browse posted material and make some personal use of it. But it is stretching the point too far to infer from a lack of TPM that any use may be made of freely accessible material. Persons who post to the Internet are entitled to rely on the protections of the Copyright Act. The use of TPM as the demarcation of so-called "freely available" materials may provide for the administrative ease for educational institutions in providing a workable, identifiable "bright line" for their students but it does not have any significant relationship to rights holders' intentions for use, or identify when rights holders might properly be considered to have consented to particular institutional uses.

The CMEC concept that all Internet sites can be usefully divided into "fee" and "free" is too simple and does not reflect the complex reality of rightsholders intentions. There are many sites that cannot be characterized as either fee or free. Much material is posted for limited implied uses – the "gray zone." Moreover, much of what is available is posted illegally, without copyright owner authorization, particularly in the case of music and movies (and increasingly with respect to textual excerpts). The fact that such material is not locked up by TPM does not mean that it is intended by the creator to be available for institutional uses and redistribution for free. No implied licence can be inferred that goes that far.

There is a wide gap between the notional idea – with which we all agree – that there is material on sites which is intended to be freely used for educational uses among others uses, and the operational idea which declares for the sake of a clear line that the indicator of such intentions is the presence or absence of TPM. This is the "grey zone" of material which rights holder believe may be cleared for educational purposes by collective licensing. Collective licensing in this context would operate as a kind of insurance. It would include an agreement as to measurement techniques and a negotiated tariff.

2. Forcing the use of TPM

There are numerous reasons to reject the requirement of TPM as the indicator of free educational use of materials posted on the Internet:

• This could force rights holders into using TPM when, for a variety of reasons, TPM interferes with the uses they want to make of their web-sites. Certain self-promotional web-sites, such as that of Andre Cornellier, photographer, must be TPM-free to function properly with search engines and with prospective clients. Such sites rely on copyright laws to protect against unfair uses;
• It is also somewhat contradictory to, in effect, encourage the use of TPM for these purposes, when CMEC's position regarding the implementation of the WIPO Treaties suggested that educational institutions should be permitted to circumvent TPM;
• It places the onus on rights holders to implement TPM which can be costly and time-consuming;
• TPM's are incompatible with numerous business models, such as advertising-based web-sites that rely on "eyeballs" or number of hits to attract advertising
• It would affect the development of business models at a time when they are still in a state of development;
• TPM's are themselves still in an early stage of development. Basing an exception on a technological measure within a dynamic changing technological environment invites rapid obsolescence;
• And significantly, in our view, requiring the use of TPM to preserve rights against the applicability of an exception would amount to requiring a formality or condition to the exercise of rights of copyright, contrary to Article 5(2) of the Berne Convention.

3. No need for an exception, where collective licensing is facilitated

It has been suggested that the proposed exception would not conflict with the normal exploitation of the work (one of the tests that must be met in justifying a legislative exception to rights of copyright under Article 9(2) of the Berne Convention, as reflected in Article 13 of TRIPS), because material is accessible online. However this ignores the fact that the educational market IS a market, and fails to recognize that rightsholders will strive to meet its need for legitimate access to materials online.

The reality is that if CMEC and others wish to make reproductions of such material it is because such material has value. Educational institutions are a marketplace. And notwithstanding the undeniable importance of education, there is no justifiable public policy reason to warrant creators being forced to subsidize Canada's educational system. There are many important inputs in our educational system; creators are merely one of them.

In the context of implementing the provisions of the European directive on the harmonization of certain aspects of copyright and related rights in the information society, many Member States have moved to a licensing approach for use of on-line digital works within the educational sector.

Rights holders are opposed to the creation of a new exception. Exceptions should be entertained only in situations justified under international treaty standards and where obtaining a licence is impossible or completely impracticable. Where collective licensing solutions are available, the obstacle to access is removed and the only remaining question is one of financial compensation for use. Within the flexible structure of a collective licence, the existence of material on the Internet which is truly intended to be free for the uses contemplated by CMEC's proposed exception can be recognized, and accounted for.

---

Previous | Table of Contents | Next