This presentation addresses the Copyright Modernization Act and recent Supreme Court cases that have changed Canada's library and information environment. Changes in the law and the implications on fair dealing provisions are explored, as well as how national policy is shaped by relationships and agreements in the international sphere

Bail, Jeannie

Tiessen, Rob

Wilkinson, Margaret Ann

English

The presentation reviewed the Copyright Pentalogy (five Supreme Court Decisions on copyright that were all issued on July 12, 2012), the revisions to the Copyright Act and the issues regarding fair dealing versus copyright tariffs.N

Tiessen, Robert

PRISM: University of Calgary Digital Repository

Canadian Copyright Update

Memorial University Research Repository

© Bail, Tiessen, and WilkinsonCanadian Copyright UpdateCLA Copyright Committee MembersJeannie Bail (Memorial),Margaret Ann Wilkinson (Western), andRob Tiessen (Calgary)Winnipeg, May 31, 2013.© Bail, Tiessen, and WilkinsonCanadian Copyright Update:• Supreme Court Pentalogy: implications for librarians– Jeannie Bail, Information Services Librarian, Queen Elizabeth IILibrary, Memorial University of Newfoundland– jbail@mun.ca• Copyright Modernization Act & Bill C-56– Margaret Ann Wilkinson, Professor of Law, Western University– (with assistance of Law Student Ken Farrell)– mawilk@uwo.ca• Fair Dealing and Libraries– Rob Tiessen, Liaison Librarian for Communication and Culture,University of Calgary Library– tiessen@ucalgary.ca• Questions and Discussion© Bail, Tiessen, and WilkinsonTimeline of EventsJuly 12, 2012SupremeCourt rulingsJune 29, 2012Bill C-11received RoyalAssentNovember 7, 2012Bill C-11 wasproclaimed, andbrought into forceSeptember 29, 2011Bill C-11, CopyrightModernization Act, wasintroduced inParliament© Bail, Tiessen, and WilkinsonThe “Copyright Pentalogy”Or, five cases involving copyright law© Bail, Tiessen, and WilkinsonSupreme Court of Canada• Rulings issued on July 12, 2012• 5 copyright cases, 2 focus on Fair Dealing– Entertainment Software Association v. Society of Composers,Authors and Music Publishers of Canada, 2012 SCC 34– Rogers Communications Inc. v. Society of Composers,Authors and Music Publishers of Canada, 2012 SCC 35– Society of Composers, Authors and Music Publishers ofCanada v. Bell Canada, 2012 SCC 36– Alberta (Education) v. Canadian Copyright Licensing Agency(Access Copyright), 2012 SCC 37– Re:Sound v. Motion Picture Theatre Associations of Canada,2012 SCC 38© Bail, Tiessen, and WilkinsonFair Dealing-2 step analysis• What is the purpose ofthe dealing?– Research or privatestudy– News reporting– Criticism or review– The Pentalogy caseswere decided underthese five Fair Dealingcategories, withoutamendment.• Is the dealing fair?– Purpose of the dealing– Character of the dealing(including the aggregateamount of the taking)– Amount of the dealing(including theimportance of the work)– Alternatives to thedealing– The nature of the work– Effect of the dealing onthe work© Bail, Tiessen, and WilkinsonSociety of Composers, Authors and MusicPublishers of Canada v. Bell Canada, 2012 SCC 36• Case: Do online song previews = research?• SOCAN argued that they did not, and soughtroyalties for the use of previews. Stated thatresearch is “the systematic investigation into andstudy of materials and sources in order to establishfacts and reach new conclusions”• This is a very narrow definition that runs counter toCCH, which embraced an expansive view of thecategory of research.© Bail, Tiessen, and WilkinsonSociety of Composers, Authors and MusicPublishers of Canada v. Bell Canada, 2012 SCC 36• What did the court say? Yes. Song previews are research,and constitute fair dealing under the Act, because…• “consumers used the previews for the purpose ofconducting research to identify which music topurchase…”• “ ‘Research’ need not be for creative purposes only.Permitting only creative purposes to qualify as ‘research’would ignore the fact that one of the objectives of theCopyright Act is the dissemination of the worksthemselves. Limiting ‘research’ to creative purposeswould also run counter to the ordinary meaning of‘research’, which includes many activities that do notrequire the establishment of new facts or conclusions.”© Bail, Tiessen, and WilkinsonAlberta (Education) v. Canadian CopyrightLicensing Agency (Access Copyright), 2012 SCC 37• Case: Does the copying of requiredreadings (short excerpts of textbooks) byteachers for students constitute researchor private study? If so, is the purpose ofthe dealing fair?• AC argued that teachers were engaging ininstruction, and this was not research orprivate study. The teachers were notmaking the copies at the request ofstudents© Bail, Tiessen, and WilkinsonAlberta (Education) v. Canadian CopyrightLicensing Agency (Access Copyright), 2012 SCC 37• What did the court say? Yes, copying small excerpts forstudent use is fair – although the case is premised upon thestudents already having had texts purchased for them; thecase only involves the question of supplementary texts…• “The word ‘private’ in ‘private study’ should not beunderstood as requiring users to view copyrighted works insplendid isolation.”• “The teacher/copier therefore shares a symbiotic purposewith the student/user who is engaging in research or privatestudy.”• As for the “effect of the dealing on the work” factor, therewas no evidence of a link between photocopying shortexcerpts and a decline in textbook sales.© Bail, Tiessen, and WilkinsonDecision Implications• Minimum analysis given to whether dealing falls intoone of the enumerated purposes• The user of the copied material is the main focus,not who made the copies• The amount of the dealing is calculated by thepercentage of the original work, not in the aggregate(which is part of the character of the work factor)• Technological neutrality is a “foundational principle”© Bail, Tiessen, and WilkinsonThe Copyright Modernization Act and Bill C-561. The Technological Protection Measuresprovisions from the Copyright ModernizationAct now in effect in the Copyright Act2. Changes to Part VII “Copyright Board andCollective Administration” from the CopyrightModernization Act also now in effect in theCopyright Act but very minor3. Changes to the Copyright Act proposed in BillC-56 “An Act to amend the Copyright Act andthe Trade-marks Act and to makeconsequential amendments to other Acts”© Bail, Tiessen, and WilkinsonFurther Notes on the CopyrightModernization ActThe CMA made changes regarding “Libraries,Archives and Museums” and “EducationalInstitutions”However, these exceptions are likely less vitalnow due to the significant changes to FairDealing (more on this next from Rob Tiessen)Under the LAM and EI headings, a number ofsections say regulations will be provided, butno regulations have yet been issued.© Bail, Tiessen, and WilkinsonSection 41.1 prohibits three types of acts:a)circumventing access controls;b)offering circumvention services to the public;and,c)manufacturing, importing, distributing, selling,renting or providing devices, technologies orcomponents whose primary purpose iscircumvention.“circumvent” meansto descramble a scrambled work or decrypt an encryptedwork or to otherwise avoid, bypass, remove, deactivate orimpair the technological protection measure© Bail, Tiessen, and WilkinsonUnderstanding the implications of TPMsA TPM cannot be circumventedeven if the use of the work behind theTPM would be otherwise non-infringing,unless an express exception exists.Contracts, such as those with onlinevendors, should now include a clause thataddresses the possibility and ramificationsof TPMs.© Bail, Tiessen, and WilkinsonThe Act does include specific exceptions toTPMs for the purposes of:• law enforcement and national security;• making computer programs interoperable;• encryption research;• the collection or communication of personal info;• security testing of computer systems;• accessibility for persons with disabilities;• broadcasters ; and• unlocking cell phonesThere is NO exception for “libraries, archives, ormuseums” or “educational institutions”© Bail, Tiessen, and WilkinsonNote:Where a “library, archive, or museum” isinvolved, if the institution is unaware and hadno reasonable grounds to believe that its actscontravened the TPM provisions, the onlyremedy available to the copyright owner is aninjunction.Even if unaware or reasonable grounds tobelieve exist, you can still be sued orcharged, only the remedies against youon conviction are limited…© Bail, Tiessen, and WilkinsonCriminal penalties attached to thecircumvention of TPMs:•On indictment, the penalty is a fine of up to$1,000,000 and/or imprisonment of up to fiveyears.•On summary conviction, the penalty is a fineof up to $25,000 and/or imprisonment of up tosix months.© Bail, Tiessen, and Wilkinson“rights management information” (RMI)• RMI can identify the owner or author of thework and define the types of permitted accessusers can make and track usages andtransmit information back to the• The removal or alteration of RMI is prohibited,unless the person removing or altering theRMI did not know that doing so would eitherfacilitate or conceal infringement of copyright.• If the RMI provisions are contravened, thecopyright owner is entitled to all the remediesfor copyright infringement.© Bail, Tiessen, and WilkinsonPart VII of the Copyright ActThe Copyright Modernization Act made nochanges to Part VII of the Copyright Act, whichestablishes the Copyright Board and theCollective Management of Copyright, except•amendments necessary for the inclusion of newprovisions•to remove references to repealed sections•to reference new sections where necessaryThe functions and procedures of the Boardhave not changed.© Bail, Tiessen, and WilkinsonBill C-56March 1, 2013: Introduction and firstreading of An Act to amend theCopyright Act and the Trade-marksAct and to make consequentialamendments to other ActsKey Proposal: the Copyright Actwould be expanded to further prohibitthe exportation of protected works.© Bail, Tiessen, and WilkinsonBill C-56The addition of the provisionsprohibiting the act of exporting works inviolation of copyright might have anaffect international inter-library loans.Where such loans are requested:The interaction of fair dealing and therules around LAMs will also be factors.Each unique situation should beindividually considered.© Bail, Tiessen, and WilkinsonBill C-56Note: The punishment for criminal infringement ofcopyright would be moved to a new section, but wouldbe otherwise unchanged.S. 42(2.1) Every person who commits an offence undersubsection (1) or (2) is liable•(a) on conviction on indictment, to a fine of not morethan $1,000,000 or to imprisonment for a term of notmore than five years or to both; or•(b) on summary conviction, to a fine of not more than$25,000 or to imprisonment for a term of not more thansix months or to both.© Bail, Tiessen, and WilkinsonFair Dealing and LibrariesFair Dealing is not copyright infringement and doesn’trequire permission from the copyright owner. It is partof user’s rights.The amendments to the Copyright Act which havecome into effect through the Copyright Modernizationhave increased the number of Fair Dealing categories.Fair Dealing is now for the purposes of research,private study, education, parody, satire, review,criticism and news reporting.How the courts will interpret these new categories isnot known because there has not yet been litigationinvolving them.© Bail, Tiessen, and WilkinsonTariff1.Materials licensed from others notaffected by this Tariff;2.Proceed to copy under terms of theTariff;3. Can use only Access Copyrightrepertoire of materials under Tariff: noaudio-visual, musical materials;4. Guidelines may help your communityunderstand how to comply with theterms of the Tariff;5.“Fair Dealing” NOT in here directlybut will factor into the Board’svaluation formula for setting the Tariff.Access CopyrightLicense1.Materials licensed from others notaffected by this License;2.Proceed to copy under terms of thelicense agreement;3. Can use only Access Copyrightrepertoire of materials under thisLicense: no audio-visual, musicalmaterials;4. Guidelines may help your communityunderstand how to comply with theterms of the license agreement;5.“Fair Dealing” IS recognized under thecurrent AC license and its extent mayfactor into renegotiation of the price ofthe license when the current licenseexpires.Opt-Out1. Materials licensed from creators orothers will not be affected by thedecision to opt-out of any relationshipwith Access Copyright;2.Proceed to copy under the “Users’Rights” exceptions in the CopyrightAct, includingi. Fair Dealingii. Educational Institutionsiii. LAMs3.Can use all materials, all formats, aspermitted in these sections;4. Guidelines may help your institutionprovide evidence of its compliancewith the requirements of “Fair Dealing”under the Act5.If Users’ Rights exceptions don’tapply, seek permission or do not usethe material.© Bail, Tiessen, and WilkinsonLarge & liberal interpretationPara. 51 of the Supreme Court judgment :“"Research" must be given a large andliberal interpretation in order to ensure thatusers' rights are not unduly constrained….Lawyers carrying on the business of lawfor profit are conducting research withinthe meaning of s. 29 of the Copyright Act. “© Bail, Tiessen, and WilkinsonAmount of the DealingPara. 56 of the Supreme Court judgment CCHCanadian v Law Society of Upper Canada:“For example, for the purpose of research orprivate study, it may be essential to copy anentire academic article or an entire judicialdecision. However, if a work of literature iscopied for the purpose of criticism, it will not likelybe fair to include a full copy of the work in thecritique.”© Bail, Tiessen, and WilkinsonAs part of considering the 6 factors mentioned byJeannie, the Court said:Para. 55 of the Supreme Court judgment CCHCanadian v Law Society of Upper Canada:“It may be relevant to consider the customor practice in a particular trade or industryto determine whether or not the characterof the dealing is fair.”© Bail, Tiessen, and Wilkinson1997 Certain Libraries in the Copyright Act• The 1997 amendments to the Copyright Actcreated new rights for most Canadian libraries(those who fit into the definition of LAMs):• Section 30.1 allowed such libraries under certaincircumstances to make entire copies ofcopyrighted works for preservation purposes.• Section 30.2 allowed such libraries to act onbehalf of their users for fair dealing.• Section 30.3 confirmed the right of educationalinstitutions, libraries, archives and museums tohave self serve photocopiers, but they wererequired to have a licence from a reprographiccopyright collective.© Bail, Tiessen, and WilkinsonRelying on fair dealing instead of theLAMs exemptionsPara. 49 of the Supreme Court judgment CCHCanadian v Law Society of Upper Canada:“… the s. 29 fair dealing exception is alwaysavailable. Simply put, a library can always attempt toprove that its dealings with a copyrighted work arefair under s. 29 of the Copyright Act. It is only if alibrary were unable to make out the fair dealingexception under s. 29 that it would need to turn to s.30.2 of the Copyright Act to prove that it qualified forthe library exemption.”© Bail, Tiessen, and WilkinsonLibraries now seem to fall into three groupswith respect to ILL• After a slow start, many libraries are now providinginterlibrary loan directly under fair dealing rather thanusing S30.2 as per paragraph 49 of CCH.• There is still a large group of libraries appears to bereluctant to use the Supreme Court Judgment, preferringto operate under 30.2. Debating how to make it workafter the changes in 2012.• A third group in an interesting twist has interpreted CCHas allowing digital delivery from a library’s own collectionto its clients, but not from other libraries (interlibrary loan)© Bail, Tiessen, and WilkinsonPost Secondary Institutions and AccessCopyright this past year:• April & May of 2012, AUCC & ACCC negotiatelicences with Access Copyright.• On April 24, 2012 AUCC formally withdrew from thetariff hearings before the Copyright Board.• Eventually 20 members of the AUCC decide to opt outof both the licence and the tariff. Over 60% of ACCCmembers opt out.• October 23, 2012, Access Copyright withdraws anapplication before the Copyright Board trying to forcethe opt out members of AUCC back into the tariff.• April 8, 2013, Access Copyright sues York Universitytrying to force it back into the tariff process• ACCC still part of Post Secondary Tariff hearings.© Bail, Tiessen, and WilkinsonOpt Out*Tariff(2011-2013)Tariff(2014-2017)ACLicense(2012-2015)AC License(2012-2013)Universities $0 $45 $35 $26 $27.50(UofT & UWO)Colleges $0 $35 $25 $10 n/aPayments to Access Copyright under various currentpost-secondary models* Note that there is considerable institutional investment required for opt-out option.© Bail, Tiessen, and WilkinsonWhere do the Tariffs before theCopyright Board sit?• Access Copyright K-12 2005 – 2009 Determination now completed (Tariff released Jan 19, 2013)$4.81 per student per year; down from $5.16 originally awarded by the Board…• Access Copyright K-12 2010-2012 Filed with the Board 2009…• Access Copyright K-12 2013 – 2015 filed with the Board (published in Canada Gazette June 16, 2012)K-12 2010-12 & 2013-15 to be heard together April 29, 2014• Access Copyright Provincial and Territorial Governments 2005-2009 AND 2010-2014 Heard by the Board; decision pending• Access Copyright Post-secondary 2011-2013 Set for hearing by the Board Feb 14, 2014• Access Copyright Post-secondary 2014 – 2017• Filed by Access Copyright and posted to Canada Gazette May 18, 2013.© Bail, Tiessen, and WilkinsonCouncil of Ministers of Education K-12and Post-Secondary• As of January 2013, with respect to K-12,Provinces and most Ontario school boardsannounce they will opt out of the Access CopyrightTariff.• April 8, 2013, Access Copyright files for an interimtariff with the Copyright Board trying to force CMEC& the school boards back into paying the tariff.• CLA Statement on Access Copyright lawsuitagainst York Universityhttp://www.cla.ca/Content/NavigationMenu/Resources/Copyright/CLA_Statement_on_Access_Copyright-York_may13.pdf© Bail, Tiessen, and WilkinsonSupreme Court & Fair Dealing• Don’t need a licence for self serve photocopiers ifthere is appropriate signage. CCH para 39-46.• Libraries can operate directly under fair dealing fortheir users rather than under S30.2. CCH para 49.• An entire academic article is a fair dealing forresearch and private study. CCH para 56• Handouts to students can qualify as fair dealing forresearch & private study – at least where thequestion is providing supplementary materials inaddition to texts already purchased. Alberta vs.Access Copyright para 25.© Bail, Tiessen, and WilkinsonFurther ReadingGeist, M. (ed.). (2013). The copyright pentalogy: How the Supreme Court ofCanada shook the foundations of Canadian copyright law. Ottawa: U. ofOttawa Press. http://www.press.uottawa.ca/the-copyright-pentalogyincluding chapter 3, “The Context of the Supreme Court’s CopyrightCases” by M.A. Wilkinson, 71-92.Robert Tiessen (2012), “How copyright affects interlibrary loan and electronicresources in Canada” Interlending & Document Supply, Vol. 40 No.1, 49 – 54Owen, Victoria (2012)“Who Safeguards the Public Interest in Canada?” Journal ofthe Copyright Society of the USA, Vol.59 No.4, 803-842.Wilkinson, Margaret Ann (2010), "Copyright, Collectives, and Contracts: NewMath for Educational Institutions and Libraries" in Michael Geist (ed.) From"Radical Extremism" to "Balanced Copyright": Canadian Copyright and theDigital Agenda (Toronto: Irwin Law), 503-540.© Bail, Tiessen, and WilkinsonIs the workbehind a digitallock?Copyright FlowchartInstitutional considerationsIs the work incopyright?Is this workfrom alicenseddigital source?Are therealternativelicensedworks?Do not proceed to copyProceed to copy.Proceed to access and use the work inaccordance with the terms of thelicense agreement.Proceed to copy from OA or CC orinstitutionally licensed materialsaccording to terms given.YesNoYesYesYesNoNoConsider Fair Dealing Rights or Licensing or Not copying

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