THE CMEC RED HERRING

CMEC is spending a lot of political capital on its campaign for a special education exception for use of the internet, using reasoning that Prof. Michael Geist bluntly and succinctly describes as “utter nonsense” and which Prof. Sam Trosow has dissected in greater detail.

One wonders whether CMEC is aware of the following:

• Since 1871, there has been a firmly established doctrine of “implied license” in the law of intellectual property, which holds that when somebody has acquired something that was put on the market by the rights holder, that person can use it as they wish, absent some clearly binding agreement to the contrary. Here’s the original wording as repeated recently in the House of Lords by Lord Hoffmann:

Put shortly, the problem is to explain why, for example, a patentee cannot not complain when someone to whom he had sold the patented product then, without any further consent, uses it or disposes of it to someone else. The answer given by Lord Hatherley L.C. in the leading case of Betts v. Willmott (1871) L.R. 6 Ch. App. 239, 245 (which concerned the resale of a patented product) was that he did so by virtue of an implied licence.

"I apprehend that, inasmuch as [the patentee] has the right of vending the goods in France or Belgium or England, or in any other quarter of the globe, he transfers with the goods necessarily the licence to use them wherever the purchaser pleases. When a man has purchased an article he expects to have the control of it, and there must be some clear and explicit agreement to the contrary to justify the vendor in saying that he has not given the purchaser his licence to sell the article, or to use it wherever he pleases as against himself."

(emphasis added)

• That decision has been followed innumerable times in other IP contexts and cases. Translated into the current context, one can reasonably assume that when a newspaper or anyone else puts something on the internet without a pay wall or other TPM and especially if the site includes a “print” or “e-mail” or similar explicit invitation, the user can do just that. Everyone knows how to cut, paste and save material from the internet - and everyone who posts material knows that it can and will be used that way. With or without a “print” or “e-mail” button, it is child’s play to use the browser menu to do just that.

The CMEC position is oblivious to one of the most lucid and empowering landmark decisions of any court anywhere anytime with respect to users’ rights, which holds that” "Research" must be given a large and liberal interpretation in order to ensure that users' rights are not unduly constrained.” Our Supreme Court in the CCH v. LSUC case in the words of its Chief Justice as unanimously concurred in by her colleagues was willing to allow law firms to make copies for commercial research purposes. The legal profession routinely makes multiple copies of entire works. For example, the rules of the Supreme Court itself require 24 copies of everything in the “record.” So, why is CMEC so worried about lawsuits reaching into K-12 classrooms for activity that is clearly either explicitly or impliedly permitted by the person posting it on the internet? Why does CMEC want to gild this extraordinary lily from the Supreme Court with an unnecessary and counterproductive amendment?

How will CMEC justify to everyone else outside its tent that there is an inevitable “a contrario” implication of their amendment, i.e. that everyone not in their tent must now get ready to pay an undoubtedly eager and ready collective known as Access Copyright, which would benefit greatly from the curtailment of the CCH decision that would result from CMEC’s proposed amendment? Does CMEC not appreciate that this process will almost certainly do it no good, the general public and corporate Canada much harm, and be of great benefit to Access Copyright?

Instead of potentially harming everyone else in Canada and weakening if not undoing the CCH v. LSUC decision, why doesn’t CMEC ask simply for what the Americans have enjoyed for years - which is immunity for educators from statutory damages where there is a good faith belief in fair use (or fair dealing in Canada’s case) and an explicit “classroom” exception, such as is found in §107 of the US legislation? Here’s the US provision. If CMEC and AUCC really want more certainty, which nobody else thinks they need, they it should ask for something along the lines of the emphasized wording to be included in a list of “such as” examples of fair dealing:

Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include —

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the copyrighted work.

The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.

Instead, the following is what we can surmise that CMEC and AUCC want to get, according to a paper recently published in (2007) 23 C.I.P.R. 1 by Wanda Noel and Steve Wills, who respectively advise CMEC and AUCC:

The education amendment would permit an educational institution or a person acting under its authority, including a student, to do the following acts in relation to all or part of a work or other subject matter that has been made publicly available on a communication network, provided the act is done in a place where a student is participating in a program of learning under the authority of an educational institution, for not-for-profit educational or training purposes, and provided that the source is mentioned, and, if given in the source, the name of the author, performer, maker, or broadcaster:
1. use a computer for reproduction, including making multiple reproductions for use in a course for instruction;
2. perform in public before an audience consisting primarily of students of the educational institution, 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 to the public by telecommunication to or from a place where a person is participating in a program of learning under the authority of an educational institution.

Ironically, if this is what CMEC is asking for, it would almost certainly end up giving educators and students far less rights than they already have. For example, as drafted this suggests that the exception doesn’t even apply to the student or teacher doing at home what they supposedly could do at the institution under the exception but which they almost certainly can do now anywhere without the exception. Go figure.

Who knows what wording we may seen in the new bill? Hopefully, nothing along the above lines.

HPK