AU President's Letter regarding proposed copyright changes

November 18, 2008

November 5, 2008

As you are aware, Bill C-61, An Act to Amend the Copyright Act, died on the order paper on September 7, 2008, the day the federal election writ was dropped.  It now appears that similar legislation will be introduced during this 40th Parliament.

Universities have an interest in protecting copyright as producers of intellectual and creative content and also in fair dealing as researchers and teachers.  So, we do support legislation that both protects copyright owners from infringement and protects the rights of educational users.  However, any legislation similar to Bill C-61 will have profound negative effects on researchers and educators as well as the general public.

It will place Canada at a disadvantage internationally and will even more significantly marginalize e-learning and distance education.  E-learning institutions now reach over 20 million learners per year with Canada as a recognized world leader in telecommunications and learning.  This legislation could well end our ability to contribute to building Canadian and overseas learning communities.  Countries with wiser copyright regimes that promote educational use will catapult ahead of Canada.  No longer will we be internationally competitive because of the restrictions contained in the legislation.  We need to seek balance between the protection of rights, the rights of learners and our international competitiveness in distance and e-learning.

Historically, copyright legislation originated with the Statute of Queen Anne 1710, An Act for the Encouragement of Learning.Similarly,The U.S. Constitution describes an act to "promote knowledge and the useful arts".  Significantly, Bill C-61 made no reference to this noble purpose, focusing on owners’ rights, making only passing reference to historical users’ rights and avoiding any sense of balance.  C-61 negated centuries of history, putting Canada at a distinct disadvantage.  I draw your attention to the following clauses within Bill C-61.

Non-circumvention measures

41.1 (1)  (a) No person shall circumvent a technological measure

This is highly problematic.  It is a restrictive replication of the U.S. Digital Millennium Copyright Act (DMCA).  While the traditional fair dealing rights of researchers in Canada have been upheld by the Supreme Court, this clause effectively removes this traditional right. 

Chief Justice McLaughlin ruled "Research must be given a large and liberal interpretation in order to ensure that users\' rights are not unduly constrained."

Researchers often research existing hardware and software to determine future use.  If researchers cannot legally remove a digital lock, then the control over future research use is exclusively exercised by the copyright owners, suspending, if not negating, users’ fair dealing rights.  This has serious harmful consequences for researchers.  For the past three years, faculty at our university, with the aid of federal funding, have been investigating the use of mobile devices for learning.  In order to do so, they have had to unlock mobile phones to test them in multiple environments and use them with different telephone companies and with assorted applications.  For example, the iPhone was not available in Canada for 18 months after it was made available in the United States.  Our researchers were nevertheless able to experiment with it by circumventing protection measures and exercising their fair dealing rights.  With Bill C-61’s anti-circumvention clause, researchers will not be able to legally conduct these investigations in the future.  They will be at a disadvantage in keeping up with research using new technologies.  The Americans can guarantee their researchers a permanent lead in selected technological developments, simply by applying digital locks.

Moreover, the following clause, wherein no person shall

41.1 (1) (b) offer services to the public or provide services if

(i) the services are offered or provided primarily for the purposes of circumventing a technological measure

will render much content and many applications and devices unusable, even when users have paid for the legal right to access.  If no one can legally offer the services, then legitimate users are without recourse.  This will be particularly hard on those with physical disabilities or learning difficulties, many of whom take courses from our university.  They will not be able to circumvent codes that prevent them from using their specialized devices such as readers for the blind or audio to text converters for the deaf.

The remedy for these problems would be to amend this section to ensure that accessing and using circumvention devices or applications would be an offence ONLY when it is done for illegal purposes.  This would eliminate the need for listing exceptions in the Bill and would be consistent with supporting the retention of users’ fair dealing and education rights, while enabling the prosecution of illegal ‘bootleggers’.

Format shifting

Bill C-61 overrode and rendered meaningless new rights that have been granted to users in regards to format shifting. It placed too much emphasis on devices.  In our generation, creative works have been accessed by phonograph records, audio and video tapes, cassettes, including 8 tracks, and VCRs (Betamax and VHS).  In the digital world, the formats have shifted from tape, to floppy discs (8", 5 1/4" and 3 ½"), to CDs and DVDs, to MP3s & MP4s. 

Now, our students are accessing the Internet and our course materials using a wide variety of devices (PCs, laptops, ultra notebooks, iPods, mobile phones, 3G mobile devices, etc.). There is every reason to believe that this trend will continue for the foreseeable future.  Format shifting is ongoing.  Unfortunately, legislation like C-61 freezes our use of content in a format deemed acceptable to the copyright owners and constrains us from researching and using the latest technologies to gain a better understanding of human-computer interaction and pedagogy.

Clause 29.21 (1) allowed for shifting the format ONLY from photographs, print or videocassettes to one digital format.  This limitation is particularly onerous for online universities like ours.  Today, few users, if any, even use videocassettes and nearly all photos and text are digital.  Those students who might wish to reformat digital content, taped lectures or their music CDs for use online or on their mobile devices will not be able to legally do so.  Formats are constantly shifting as new technologies and applications arise.  We can expect an ever increasing number of new formats in the future.  Who can predict how many there will be and how often they will become available?  Why can we not format-shift digital texts?  Do the vendors really want to limit the consumers’ right to reproduce their content on new devices and applications so that they will be able to resell over and over again the same content to the same consumers? Is the government’s intention to make universities pay again and again for the same content as the formats continue to change?

Contractual override of fair dealing

Another problematic clause is 29.21 (2), which abrogated educational exceptions and fair dealing rights while allowing companies to place onerous conditions on users.  If the contract prevails over established rights then the rights become meaningless.  With a clause such as this, the use of recorded lectures and other audio educational content will be allowed only under circumscribed conditions.  The previous exceptions in the Bill allowing for online use for teaching and the fair dealing rights for research along with other educational provisions are meaningless if any contract can override them.

Statutory damages

Statutory damages are those payable to the vendors or as fines regardless of loss, even if no damages can be proven. The statutory damages clause creates an unacceptable burden for educators (30 (1.1)).  At the very least, teachers and librarians, who inadvertently contravene these rather complex and contradictory copyright laws should not be subject to fines.  If an educator believes that his or her actions are fair dealing or within the educational provisions of any Act, they should not be subject to statutory damages, otherwise our educators will be reluctant to experiment with online content and new technologies to the detriment of our students and our competitive position internationally, in an increasingly global environment.

Destruction of content

For AU as an online university, and for other universities delivering some courses online, the Bill C-61 included welcome recognition that an electronically transmitted lesson will indeed count as a lesson (30.01).  Unfortunately, it is then expected that online lessons can be treated in the same manner as face-to-face lessons.  The most onerous provision for an e-learning university like ours and for any university that delivers e-learning was this one:

30.01 (5) The educational institution and any person acting under its authority, except a student, shall

(a) destroy any fixation of the lesson within 30 days after the day on which the students who are enrolled in the course have received their final course evaluations;

Students are expected to somehow accumulate knowledge as they proceed through their studies.  The content delivered in one course builds on the knowledge acquired in previous courses.  The provision that content from Algebra 1 must be destroyed so that students taking Algebra 2 cannot refer back to it when needed is counter to the principles of education and how people learn.  It just does not make sense.

Clause 30.01 is also unclear in this respect:  Does it mean that students can retain the materials and the university must destroy its copy?  Or does it mean that the university is responsible for ensuring that the student copies are destroyed?  Universities have always taken reasonable precautions to ensure that copyright is respected, but new legislation modeled after C-61 will increase the responsibilities of the institutions and transfer the obligation of policing copyright from the copyright owners to the educational institutions.  This could prove to be an onerous and expensive responsibility, which may explain why the owners wish to transfer the burden of enforcement to the universities.

Athabasca University has continuous enrollment, with individual student examinations happening throughout the year.  We cannot possibly continually destroy our materials after each student’s examination. We could not exist with this restriction. We would have to rely almost solely on open access resources, institutionally generated materials or commercial educational materials for which we have negotiated explicit and likely very expensive exclusions. 

In addition, Clause 30.2(5) (c) allowed researchers only five days to examine digital documents borrowed from libraries, after which they must destroy them.  This would seriously undermine the work of Canadian researchers, who often need to check and recheck their sources while developing their research papers.  Accumulating research documents for one to three years indeed a lifetime is not unusual.

The Internet is providing learners with uncomplicated access to the priceless shared heritage of humanity.  These new restrictions will make the educational use of the Internet at a minimum more problematic and possibly so restrictive as to significantly undermine scholarly activities in Canada. 

I would like to request that you contact your Member of Parliament and the Honourable Tony Clement, MP, Minister of Industry, 235 Queen Street Ottawa, Ontario K1A 0H5, to request that they consider these issues carefully and to allow sufficient time for a broad public consultation on this important issue.

Sincerely,

Frits Pannekoek, Ph.D.

President

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Updated August 21, 2012