Thursday, January 31, 2008

The "A Contrario" Scenario & CMEC

The Council of Ministers of Education Canada (CMEC) seems very confident that their prized exception for free use of the internet will be included in the new bill. Here’s their announcement today. Note this rather confident language:
This change is being referred to as the “educational use of the Internet amendment.” (You are soon going to be hearing a lot about this amendment in the media as proposals to change the Copyright Act make their way through Parliament.) The education community views this amendment as an essential piece of modernizing Canada’s copyright laws to reflect the new realities of our digital world.
(emphasis added)

The inclusion of this amendment seems to be a fait accompli, according to this. How could CMEC possibly know that, I wonder?

In any event, this would not be surprising. It would seem at first like good politics. The government has probably been convinced that it will seem user and education friendly and be good for federal provincial relations, although perhaps not necessarily so with Quebec.

But it will be a monumental error on the part of the government if it believes all of this.

CMEC’s has long lobbied for an educational exception for publicly available material (“PAM”) from the internet. This will supposedly ensure that educators and students can download, save, print, mix, remix, and generally do what everyone does with stuff that isn’t DRMed or TPMed or pay-walled on the internet.

What’s wrong with that? The answer is simple - just about everything. All of the aforesaid is what has already been going on for years with the express or implied consent of the content posters. Any doubts about this were largely alleviated by the Supreme Court of Canada’s landmark 2004 CCH decision. Research and private study are what educators and students use the internet for. Besides, there is almost a century and a half of common law about “implied license”, which goes back at least to 1871. The extra scintilla of certainty that the educators have been convinced that they need will likely create the implication that everyone outside of their tent does not have these rights. CMEC’s lack of awareness of the implications of the CCH decision and its lack of faith in the Supreme Court of Canada’s CCH decision are manifestly apparent in its copyright manifesto, published here, which came out the year after the CCH decision but which is apparently oblivious to its existence.

I’m not sure what CMEC doesn’t understand about the notion that when a website has an explicit “print” button on it or is freely available and allows printing , saving, forwarding, cutting and pasting, etc. by using ordinary point and click browser commands, then the poster has provided consent for printing, saving, forwarding, and all of the other things that ordinary computers and software permit. Nobody is forced to make their material available online. There are ways to restrict how it is used, if the poster so wishes. Mostly, they don’t.

The CMEC proposal would, if implemented, directly and adversely impact on public libraries, corporate users, and millions of ordinary Canadians with their Rogers and Sympatico and other ISP accounts. What the student can do with her campus account will now by implication be illegal with her mother’s Sympatico or her father’s Rogers account.

But wait - there would be a “solution”, of course. Access Copyright, Canada’s ever so convenient collective, would ask the Copyright Board for a tariff on corporate and private ISP accounts - because ordinary businesses and folks outside of the educational tent are precisely the kind of subscribers that the ISPs serve. Something modest - just a few bucks a month per subscribers. Or a few tens of millions a year - most of which will flow out the country when it finally gets distributed. But what else is new? A few tens of millions a year is a routine transaction for the Copyright Board. It would soon adds up to a few hundreds of millions. But just another few bucks a month for most ISP subscribers. The CRTC and the Copyright Board have allowed these small monthly charges here and there to become billions overall. This is how Canada increasingly seems to work - or to not work, depending on one's point of view.

Naturally, nothing comparable exists or would be dreamt of in the USA, to which most of the money would flow. The USA would never tolerate what would effectively be a “tax” on free information on the internet and the right to deal with it and use it fairly.

The Government will tout this as a user friendly exception to balance its predicably content owner friendly Canadian DMCA (“CDMCA”) approach.

But nothing could be further from the truth. This could be THE most directly costly and user unfriendly component of the new bill. On a par with the CDMCA aspect we fear. And even more immediately and obviosly costly, financially speaking.

Cui Bono? Just “follow the money”, as various people are said to have said in another era. The answer is - and it’s a no brainer - Access Copyright. CMEC wouldn’t benefit because it would merely be getting what most expert critics believe it essentially already has in any event.

Would Access Copyright sue the educators without this PAM internet exception? Highly unlikely. And even if it did, the educators would have a very strong case and huge resources to fight it with the best available IP litigators. The maxim of “Make my day” comes to mind. And if worst came to worst and the trial level court were to somehow rule against the educators, the Government could then step in if necessary and provide an amendment in the highly unlikely event that one was needed. There is precedent for such legislative intervention in the midst of litigation. Believe me.

A typical educator is probably more likely to be struck by lightning on the way to school or to win a huge jackpot in Lotto 649 than to see a successful law suit against his or her institution for using the internet in the way that countless millions of those who post PAM material obviously intend.

Whatever CMEC’s apparently good intentions may be, the road to public policy disaster in paved with such intentions this instance. The CMEC “PAM” internet educational exception along with the “CDMCA” approach are likely to be by far the most controversial features of this potential bill.

The exception that CMEC now seeks is nothing like the “library exception” that was briefly discussed in the CCH case. That exception was not a substantive exception - it merely reflected the obvious principle that a library should not be liable for doing something for a patron that patron could legally do for herself. That is at best redundant and the Supremes politely pointed out that it was unnecessary to consider it. In this instance, the CMEC exception would be anything but redundant. It would define, by implication, both what is legal inside the educational tent and by implication what is illegal outside. It is difficult to imagine any drafting ingenuity sufficient to avoid this necessary implication.

The educators, such as CMEC and AUCC, in my humble opinion should be focussed on reducing or eliminating the possibility of statutory damages in their environment and other efforts to achieve comparable status to their counterparts in the USA in respect of classroom and distance learning activity. This is clearly achievable because it has existed for a long time in the USA, from whence most pressure for copyright reform is coming. This would be more useful and less harmful than an unnecessary and unprecedented special exception with harmful “a contrario” effects for everyone else.

Prof. Sam Trosow also has a very insightful take on this, with more to come.


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