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

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Annex F

Rights Holders' Counter-proposal

Working Group on Educational Access

Response of Education Representatives to Creators' Proposal

This document responds to two documents prepared by creator representatives on the Working Group on Educational Access to the Internet. The first document is entitled "Working Group on Educational Access: Proposal by the Creator Group." The second document is entitled "Response of Rights Holders Representatives to CMEC Recommendation for an Exception for Educational Use of the Internet."

This response was prepared jointly by the representatives of six national education organizations in the Working Group:

• Association of Canadian Community Colleges
• Association of Universities and Colleges of Canada
• Canadian Association of University Teachers
• Canadian School Boards Association
• Canadian Teachers' Federation
• Copyright Consortium of the Council of Ministers of Education, Canada

In the view of the education representatives, significant progress has been made in that members of the Working Group have unanimously agreed on at least four key issues. It is to be hoped that their shared views will assist the Government of Canada in determining an appropriate legislative solution to the problem of copyright infringement by students and teachers for routine uses of the Internet. The four issues where there is agreement are succinctly stated by the creator representatives in their document "Working Group on Educational Access: Proposal by the Creator Group":

1. That a significant number of works are "available for free" on the Internet, that is, they can be used by students and teachers for educational purposes without the need to obtain prior authorization from or to provide payment to the copyright owner.
2. That such works should not be subject to payment under collective licensing or otherwise.
3. That there is need to maintain and encourage "learning moments."
4. That there is need for a solution which is easily understood by students and teachers.

Having reviewed the proposal tabled by the creator representatives, education representatives are of the view that it may lead to the development of a compromise solution acceptable to both creators and users. It is noted, however, that compromise solutions often necessitate difficult deliberations on the details. For example, the use of a red light symbol could ostensibly meet the objectives of both creators and educators. However, education representatives cannot agree with some of the details in the creators' proposal. While the use of a symbol may be agreeable to both creators and educators, whether that symbol should function as a red light or green light, and how that symbol should be used, requires in-depth analysis and deliberation.

The education sector has proposed using a technological protection measure as a clear and easily understood mechanism to distinguish "free" Internet material from material for which a fee is expected. Like the creator representatives, the education representatives believe that a symbol could similarly meet the objective of providing a clear demarcation between these two categories of materials. It is also agreed that a symbol could address creators' concerns in that it specifically restricts educational access without restricting broad commercial access, the latter being a valid concern for creators.

With a view to moving forward, education representatives are prepared to consider revising the proposed education amendment such that a symbol is included as an alternative to the use of a TPM. In this context, creators who choose to restrict educational access to their materials could effectively do so with a TPM or with a symbol. In the latter case, if the symbol is to meet the agreed-upon objective of being easily understood by students and teachers, it must function as a red light that is continuously visible on the viewer's screen. Use of a continuously visible symbol or a TPM would have the legal effect of precluding application of the education amendment to the creators' materials. The education amendment would thus provide educational institutions with clear guidelines to promote within their ongoing copyright awareness initiatives.

Education sector representatives are also prepared to revise the proposed education amendment such that it further addresses creators' concerns regarding its application to materials posted without the consent of the copyright owner. It bears noting, first, that the proposed amendment specifically applies only to material posted on the Internet with the consent of the copyright owner, and that it would not apply if the teacher or student had knowledge that the material had been posted without consent. However, to reinforce that the proposed amendment is limited in application and to further address the creator representatives concerns, it is proposed that the knowledge requirement in the original proposal be modified. Reasonable grounds to suspect that material was posted without consent, instead of actual knowledge, would be sufficient to make the education amendment inapplicable. Proving that someone has actual knowledge is difficult. Within the revised amendment, reasonable grounds to suspect that material has been posted on the Internet without permission would be sufficient to preclude its application.

Finally, it must be noted that the revisions to the proposed education amendment as outlined above ultimately require the formal approval of the 6 national education organizations represented on the Working Group before they can be considered official. The officials who represent each of the respective organizations support the said revisions, however, they do not have the authority to make them official. If the Working Group unanimously supports these revisions as part of an overall solution that addresses the educational use of the Internet, the education representatives are prepared to recommend the revisions for approval by their respective organizations.

The revisions to the proposed education amendment follow below:

An educational institution or a person acting under its authority, including a student, may 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 is done in a place where a student is participating in a program of learning under the authority of an educational institution, is done for educational or training purposes, and is not for profit, and provided that the source is mentioned, and, if given in the source, the name of the author, performer, maker or broadcaster:

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 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
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.

The term "publicly 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 intended to limit access or distribution or without a continuously visible symbol that the work is not available for educational purposes.

The exception does not apply if the educational institution or a person acting under its authority has actual knowledge, or reasonable grounds to suspect, 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.

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