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

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Annex G

Modified Proposal by the Educational Sector

Working Group on Educational Access — Proposal by the Creator Group

All working group members support effective use of the Internet as part of a program of learning by teachers and students. Working group members also agree that a significant number of works are "available for free" on the Internet, meaning that they can be used by teachers and students for educational purposes without the need to obtain prior authorization from or to provide payment to the copyright owner. The creators agree with the Education Consortium that such works should not be subject to payment under collective licensing or otherwise.

The creators understand the need to maintain and encourage "learning moments" and wish to work with the Education Consortium to find means for educators and students to access and use works on the Internet easily while also promoting an understanding of and respect for copyright.

The creators also understand and share the need for a solution, which is easily understood by teachers and students of all ages. The difference in point of view is in the definition of what should be considered available for free or, as referred to by the Education Consortium, "publicly available." Unfortunately the definition proposed by the Education Consortium is not tenable given that it would include works that, although publicly accessible are not available for use without prior authorization by the rights holder and (usually) payment to the copyright owner. In addition, reliance on technological protection measures, as the criterion that determines whether a work is publicly available, is inconsistent with Internet practices and often impedes e-commerce business strategies. To put it simply,

Consistent intellectual property laws encourage the movement of services and products incorporating, or based on, intellectual property. This has always been true but has taken new meaning in the context of the Internet where goods and services primarily rely on intellectual property for protection and are routinely exchanged across borders. It is thus crucial not to stray too far from what other countries have done to maintain Canada's competitiveness.

The European Directive on the harmonization of certain aspects of copyright and related rights in the information society directs Member States to ensure that all existing and new exceptions or limitations to copyright

Consistent with the Directive many Member States have decided to adopt a licensing approach to provide the education sector access to works on the Internet. For example, Denmark's extended licensing regime now also covers works on the Internet. Under this regime, educators and students may copy a maximum of 20% or 30 pages of a work, whichever is less. A similar regime also exists in Finland. Norway is finalizing the details of a regime that will resemble the Danish regime. The copyright legislation in Greece, and the proposed legislation in Spain, implementing the Directive does not include any digital exceptions or limitations for the education community. Even the Teach Act in the United States is very limited in scope and places the burden of educational use exceptions on the educators, contrary to the proposal by the Education Consortium.

In the spirit of introducing a regime which can easily be applied by a teacher, a grade 3 student or a university student and, at the same time, supports innovation and culture, the creators are proposing a system which relies on universally recognizable symbols such as a red or green light to indicate availability for educational purposes. The regime would work as follows:

Scenario A: If the school has a licence with an authorized collective society that extends to such use, assuming legislative amendments to the Copyright Act that facilitate the granting of comprehensive licences in a digital environment³¹ , then, the educational institution would be able to consider every web-site to have a "green light" for that use unless the web-site puts a "red light" on the site, i.e. an indication in writing, by a special symbol, a copyright collective notice or by TPM that indicates that such activities are prohibited.

Scenario B: In the absence of collective licensing, the onus would shift, an educational institution should consider every web-site to have a "red light" (i.e., permission needed for anything beyond browsing) unless the web-site owner puts a "green light" on the site, i.e. an indication in writing or by a special symbol that such activities are specifically authorized for schools.

The proposal covers literary works, photographs and illustrations on the web. It would not cover music or moving pictures, the use of which would require the specific permission of the rights holder.

Scenario B is similar to Cable in the Classroom, where specific programs are cleared and green lights provided. To facilitate it, rights holder groups and educators would work together to come up with a series of internationally recognized symbols (perhaps through an ISO-like process) that could be added to web-sites to clarify their status. The creator community and the collectives would actively promote use of the symbols. Access Copyright and COPIBEC have already commenced discussions with the international community regarding possible use of symbols for rights clearance.

Proposal:

In the presence of a collective licence or tariff, an educational institution or a person acting under its authority, including a student, may do the following acts in accordance with the terms of the collective licence or tariff approved by the Copyright Board in relation to a work that has been made available for educational purposes in digital form on a communication network, provided the act is done in a place where the 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:

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, for the purposes of Scenario A, a work or other subject-matter that is communicated to the public by telecommunication with the consent of the copyright owner that is without any technological protection measure or without a red school symbol or specific on-site statement that the work is not available.

The collective licence fees or tariff set by the Board shall take into consideration the amount of copyright protected material used by the educational institution, which does not require prior authorization from or payment to the copyright owner.

In the absence of a collective licence or tariff, an educational institution or a person acting under its authority, including a student, may do the following acts to works that have been made available for educational purposes in digital form on a communication network, provided the act is done in a place where the 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:

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, 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 school symbol or a specific on-site statement that the work is available.

None of the foregoing shall apply if 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.

None of the foregoing shall apply to sound recordings and moving pictures.

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31 Collective Licensing: Liability Limits for Collectives and Users, presented by Access Copyright to the Departments of Canadian Heritage and Industry Canada and the Education Consortium in December 2002. A copy of the paper is available at www.accesscopyright.ca.

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