Works that are available through open access or Creative Commons licenses that allow copying.

1. Canadian Copyright
Reform: What it Means
for Post-Secondary
Education
Tony Horava
AUL -Collections
OALT Conference
May 6, 2011

2. Outline
• How we got here: The state of copyright today
• Digital copyright and our patrons
• Copyright reform: Bill C-32 – key issues
• Access Copyright and The Interim Post-Secondary Tariff
• Implications and Best Practices
• Conclusion

3. How we got here: The state of
copyright today
• Copyright law first enacted in 1921
• Phase One – 1988 – copyright collectives were given
legal power; computer works given copyright protection
• Phase Two – 1997 – New copyright exceptions were
introduced for non profit educational institutions
• Bill C-60 (2005): pre-empted by federal election
• Bill C-61 (2008): pre-empted by federal election

4. How we got here: The state of
copyright today
• National consultation in 2009 – over 8,000 submissions
received via various media and roundtables/town halls
• Facebook group (‘Fair Copyright for Canada’) garnered
84,000 members
• Bill C-32 (June 2010): once again, pre-empted by
federal election!

5. The world of post-secondary
education today
Almost everything about post-secondary education has
changed with the Internet–
how professors teach;
how students learn;
the range of content available;
the tools & technologies used;
and how libraries support learning and teaching;
But copyright law seems frozen in time…

6. The world of post-secondary
education today
“The ability to digitally reproduce anything within seconds,
and to communicate multiple reproductions rapidly to
any part of the world at any time of day or night is
forcing academic institutions….to reconceptualize how
they think about their creations”
- Richard Nolan, “Campus Intellectual Property Policy Development” Reference
Services Review 32(1) 2004: 31.

7. Digital copyright and our patrons
Challenges:
• Lack of understanding of copyright basics
• Copyright myths, ie copyright doesn’t apply in the
educational community;
• Great complexity – creates a barrier to understanding
• ‘Culture of free’: remixing, sharing, and creating
content regardless of intellectual property issues
• Everyone is a publisher
• Hostility towards copyright law: collision with freedom
of expression and cultural development

8. What is the purpose of copyright
law?
• A limited-term monopoly for the author (or rights
owner) that provides for exclusive rights to produce or
reproduce an intellectual work;
• Is intended to provide an incentive to create new works
and protect economic and moral rights;
• Intended to be balanced against the public interest in
sharing knowledge, supporting culture and learning
– The doctrine of ‘fair dealing’ is an important
exception for the educational community, and will be
discussed further on

9. Bill C-32: Copyright Modernization
Act
SUMMARY
This enactment amends the Copyright Act to
(a) update the rights and protections of copyright owners to better
address the challenges and opportunities of the Internet, so as to be
in line with international standards;
(b) clarify Internet service providers’ liability and make the enabling of
online copyright infringement itself an infringement of copyright;
(c) permit businesses, educators and libraries to make greater use of
copyright material in digital form;

10. Bill C-32: Copyright Modernization
Act
SUMMARY (cont’d)
(d) allow educators and students to make greater use of
copyright material;
(e) permit certain uses of copyright material by
consumers;
(f) give photographers the same rights as other creators;
(g) ensure that it remains technologically neutral; and
(h) mandate its review by Parliament every five years.

11. Bill C-32: key clauses for libraries
and post-secondary education
• Extension of ‘fair dealing’ purposes:
Section 29. Fair dealing for the purpose of research or
private study, education, parody or satire does not
infringe copyright.
However, there is a two-step analysis to determine if a
specific use is fair:
1- Does the use fall within one of the allowable
purposes;
2- Does the use pass the fairness test (six factors in
relation to the CCH vs LSUC case)

12. Bill C-32: Reproduction for
instruction
• Section 29.4 (1) It is not an infringement of copyright
for an educational institution or a person acting under
its authority for the purposes of education or training on
its premises to reproduce a work, or do any other
necessary act, in order to display it.
• This reinforces the broader view of fair dealing, but
various groups (publishing industry, creator groups) feel
threatened by it.

13. Use of videos/films on campus
• A key change is the inclusion of cinematographic works
in what can be presented in a class without infringing
copyright:
Section 29.5 “the performance in public of a
cinematographic work, as long as the work is not an
infringing copy or the person responsible for the
performance has no reasonable grounds to believe that
it is an infringing copy.”
This means that public performance rights would no longer
be required

14. Bill C-32: ‘Communication by
telecommunication’ (Distance
education)
• Distance education is recognized and substantially
strengthened:
• Subject to certain conditions, “to communicate a lesson
to the public by telecommunication for educational or
training purposes, if that public consists only of
students who are enrolled in a course of which the
lesson forms a part or of other persons acting under the
authority of the educational institution” Section 30.01
(3) (a)
• However, the ‘lesson’ material needs to be destroyed
within 30 days after the end of the course (both for
students and professors)

15. Bill C-32: Internet exception (for
use of copyrighted materials)
• Section 30.04: “it is not an infringement of copyright for an
educational institution, or a person acting under the authority of one,
to do any of the following acts for educational or training purposes in
respect of a work or other subject-matter that is available through the
Internet:
– (a) reproduce it;
– (b) communicate it to the public by telecommunication, if that
public primarily consists of students of the educational institution
or other persons acting under its authority;
– (c) perform it in public, if that public primarily consists of students
of the educational institution or other persons acting under its
authority; or
– (d) do any other act that is necessary for the purpose of the acts
referred to in paragraphs (a) to (c).

16. Bill C-32: Maintenance and
management of collections
(eg creating preservation copies)
Section 30.01: It is not an infringement to copy a work
“ …in an alternative format if the library, archive or
museum or a person acting under the authority of the
library, archive or museum considers that the original is
currently in a format that is obsolete or is becoming
obsolete, or that the technology required to use the
original is unavailable or is becoming unavailable”
Currently this is an infringement of copyright unless the
format is already obsolete….

17. Bill C-32: Interlibrary loans –
Digital transmission
This is permitted, but with limitations….
Section 30.5 (02) : “A library, archive or museum, or a person acting
under the authority of one, may, under subsection (5), provide a copy
in digital form to a person who has requested it through another
library, archive or museum if the providing library, archive or museum
or person takes measures to prevent the person who has requested it
from:
(a) making any reproduction of the digital copy, including any paper
copies, other than printing one copy of it;
(b) communicating the digital copy to any other person; and
(c) using the digital copy for more than five business days from the day
on which the person first uses it.

18. Bill C-32: Technological Protection
Measures (digital locks)
41.1 (1) No person shall
(a) circumvent a technological protection measure within the meaning of
paragraph (a) of the definition “technological protection measure”
[TPM] in section 41;
Definition of TPM: controls access to a work, to a performer’s
performance fixed in a sound recording or to a sound recording and
whose use is authorized by the copyright owner;
Problem: this doesn’t permit circumvention for non-
infringing purposes, such as research, private study,
and education. This clause trumps all of the user rights
& library/educational exceptions…thus undermining the
favourable provisions of the bill

19. Bill C-32: User-generated content
(‘YouTube clause’)
Subject to various conditions:
“It is not an infringement of copyright for an individual
to use an existing work or other subject-matter or copy
of one, which has been published or otherwise made
available to the public, in the creation of a new work or
other subject-matter in which copyright subsists and for
the individual — or, with the individual’s authorization, a
member of their household — to use the new work or
other subject-matter or to authorize an intermediary to
disseminate it… (section 29.21)
-This would encourage creativity and innovation in
teaching and learning practices.

20. Persons with perceptual disabilities
• The law would have permitted alternate formats to be
made for persons with perceptual disabilities, BUT there
is a requirement that this “not unduly impair the
technological protection measure”
• In effect, this means that alternate formats could be
illegal, depending on circumstances

21. CCH v Law Society of Upper
Canada (2004)
“The fair dealing exception under s. 29 is open to those
who can show that their dealings with a copyrighted
work were for the purpose of research or private
study.“Research” must be given a large and liberal
interpretation in order to ensure that users’ rights are
not unduly constrained.”
CCH Canadian Ltd. v. Law Society of Upper Canada,
[2004] 1 S.C.R. 339, 2004 SCC 13 , para 51)

22. The decision established six factors
to be considered in assessing
whether a dealing is fair
• The purpose of the dealing, e.g. Is it commercial or
educational / non-profit?
• The character of the dealing, e.g. What was done with
the work? Was it an isolated use or an ongoing,
repetitive use? How widely was it distributed?
• The amount of the dealing, e.g. How much was copied?

23. The six factors (cont’d)
• Alternatives to the dealing, e.g. Could the purpose have
been achieved without using the work?
• The nature of the work, e.g. Is there a public interest in
its dissemination? Was it previously unpublished?
• The effect of the dealing on the work, e.g. Does the use
compete with the market of the original work?

24. Application of the six factors
• No set formula - The six factors are viewed holistically
and provide an analytical framework for judicial
assessment of fairness.
• The first factor, however, (‘the purpose of the dealing’)
must be met before the other factors are considered.
• “ these allowable purposes should not be given a
restrictive interpretation or this could result in the
undue restriction of users’ rights. “ (CCH v LSUC
decision)

25. The Rise of Access Copyright*
• As the 1990’s progressed Access Copyright approached public
libraries, universities, colleges, and school boards and convinced
them that copying practices that had vaguely been justified as fair
dealing since photocopiers were commonly available were copyright
infringement unless they had a license from Access Copyright.
*courtesy of Rob Tiessen, Head of Access Services, University of Calgary

26. Access Copyright and The Interim
Post-Secondary Tariff
• Access Copyright agreement ended Aug. 31st, 2010
(and extended to Dec. 31, 2010).
• Rather than negotiate a renewal, Access Copyright
decided in June 2010 to apply for a Post-Secondary
Education Tariff with the Copyright Board
• This proposed a unitary fee of $45 per FTE (for
universities) and $35 per FTE (for colleges)
• This was their choice under the Copyright Act. Many
groups filed objections.
• An Interim Tariff certified by the Copyright Board on
Dec. 23, 2010
• This would lead to a huge cost increase for universities
and colleges!

27. Copyright Board of Canada – What
does it do?
Mandate:
“The Board is an economic regulatory body empowered
to establish, either mandatorily or at the request of an
interested party, the royalties to be paid for the use of
copyrighted works, when the administration of such
copyright is entrusted to a collective-administration
society.
The Board also has the right to supervise agreements
between users and licensing bodies and issues licences
when the copyright owner cannot be located.”

28. Access Copyright agreement: quick
snapshot
• Since 1997, all universities & colleges have signed a
license with two main parts:
• (A) for photocopying, including copying for course
reserves, interlibrary loan, class hand-outs,
administration, and personal use at photocopiers; and
(B) for production of course packs.
• In the 2007-2010 agreement, there was an FTE-based
fee for “Part A copying”: $3.38 per FTE
• And a per-page cost for course packs “Part B” : 10
cents per page).

29. Access Copyright and The Interim
Post-Secondary Tariff (cont’d)
• Consensus among AUCC members that the Tariff is
unacceptable and needs to be appealed.
• AUCC will challenge the Interim tariff at the Copyright
Board on behalf of its members.
• Most universities & colleges have decided -reluctantly -
to accept the Interim Tariff. Some have opted out.
• What it means: Status quo regarding terms of copying
& royalty fees until the appeal is heard and the case
resolved (likely several years) or the expiration of the
Tariff in Dec 2013, whichever comes first.

30. What’s Wrong with the Tariff?*
• Access Copyright is trying to use the tariff process to make
universities and colleges pay twice for digital rights.
• Claims that linking is protected under copyright
• Wants payment for projecting an image in a classroom already an
educational right: Section 29.4.
• For Universities, copyright royalties would go up 3.5 to 4 times the
rate under the old license.
• Invasion of privacy. The institution would have to go through faculty
email and compile lists of all digital works they email to anyone.
• Access Copyright would receive full access to all of an institution’s
secure networks and course management systems.
*Courtesy of Rob Tiessen, Head of Access Services, University of Calgary

31. The AUCC/ACCC Fair Dealing policy
• This was drafted with the aim of surviving scrutiny by
the Copyright Board and the courts.
• Having a fair dealing policy is essential to safe copying
practices – you would be judged on the fairness of the
policy.
– However if you don’t have a policy, you would need
to justify every instance of copying… this is
extremely difficult to do – and this would increase
the tariff rate to be paid.
• For institutions that have opted out of the Tariff, the
policy provides practical guidance and minimizes legal
risk: a safe harbour approach.

32. The AUCC/ACCC Fair Dealing policy
Key contacts:
For AUCC:
Steve Wills
Manager, Government Relations and Legal Affairs
(613) 563-3961, x234
swills@aucc.ca
For ACCC:
Michèle Clarke,
Director, Government Relations and Policy Research
(613) 746-2222, ext. 3150
mclarke@accc.ca

33. Best practices in the current
environment
• Formally adopt a fair dealing policy- if we don’t, we risk
seeing ‘fair dealing’ diminished as a legal defense
• Prioritize efforts for copyright education of students,
faculty, and staff – using whatever resources and
communication channels are appropriate
• Develop a campus-wide copyright committee to
coordinate training, communication, and procedures.
• Materials that faculty make available through a course
web page need to be verified for rights clearance, ie the
same as for printed coursepacks.

34. Suggested best practices
• Instruct faculty to use links to material – rather than
scanning and posting documents – this is very
important.
• Discourage use of off-campus copy shops: this is very
problematic, since appropriate royalties aren’t being
paid to Access Copyright.

35. In light of the Tariff, what can be
used without permission?
• Works in the public domain (remember that copyright
lasts for the author’s lifetime plus 50 years….)
• Content that cannot be copyrighted, eg facts, ideas,
names, phrases
• Works that include a notice indicating the terms under
which they can be copied;
• Insubstantial parts of a work;
• Federal and Ontario statutes & regulations
• Uses under a ‘fair dealing’ policy.
• Works licensed under Creative Commons
• Works for which you own the copyright;

36. A few implications
• If the Library has already obtained a license to use
materials directly with from the publisher, then there is
already consent and the further protection of the Access
Copyright tariff is not necessary.
• It is important to recognize that the Library already
pays lots of $$ for licensing digital content that allow
inclusion in course packs
• Hence the importance of ensuring that we aren`t
paying twice, eg to the publisher and to Access
Copyright, for course packs.

37. Core library values
• Equity of access
• Intellectual freedom
• Privacy
• Stewardship
• Trustworthiness
• Democracy
• Information literacy
• Key question: How does copyright reform promote – or
not – these values that we hold dear?

38. Conclusion
• Copyright law has profound effects on how we acquire,
manage and deliver information resources & services to
our patrons – it affects us on a daily basis
• In the context of the Access Copyright Interim Tariff, we
need to promote best practices in copyright
management – there are huge financial & legal liability
issues at stake
• The new government will resurrect a copyright reform
bill – it’s essential that as a community we assert the
need for a balanced regime that respects educational
and library interests, while recognizing the rights of
copyright holders.

39. A few resources
• Canadian Intellectual Property Office -
http://www.cipo.ic.gc.ca/epic/site/cipointernet-
internetopic.nsf/en/Home
• Canadian Copyright Act -
http://laws.justice.gc.ca/en/C-42?index.html
• Canadian Library Association -
http://www.cla.ca/AM/Template.cfm?
Section=Copyright_Information&Template=/CM/HTMLDi
splay.cfm&ContentID=6044
• Michael Geist blog - www.michaelgeist.ca
• Canadian Association of Research Libraries –
http://www.carl-abrc.ca

40. Thanks! Any questions?
Tony Horava
thorava@uottawa.ca
(613) 562-5800 ext3645