Captain Copyright - Confusion, Confession or Confrontation?

Captain Copyright is asking for your help. In the course of an unusual and somewhat apologetic and confessional "statement" that sends mixed signals, his sponsor, Access Copyright (“AC”), says:

We have already secured a number of subject matter experts and educators to serve on an advisory panel to review and revise the existing Captain Copyright materials, as well as assist with the creation of new materials focusing on topics such as the Creative Commons, fair dealing, and the public domain. One organization, the Canadian Library Association, has, unfortunately, declined our invitation to work with us on making these improvements and has chosen instead to publicly condemn the site. Access Copyright has nothing but respect for the CLA and its members, so we are saddened that the CLA has chosen not to work with us on improving the site and materials for educators.

I frankly think that CLA is wise to stay outside the tent and to be fully free to openly criticize. I and many others have said that Captain Copyright has no place in our Canadian class rooms. I highly doubt that he would be allowed by his sponsor to teach a truly balanced and informative view of Canadian copyright law, as I suggested the other day, such as explaining the concept of “users’ rights” as confirmed by the Supreme Court of Canada’s decision in CCH v. LSUC and how users’ rights enable students and teachers to use material for free and without permission in a potentially very broad range of circumstances. As I said the other day, “I can’t imagine how a consortium of Coca Cola, Pepsi, MacDonald’s, Wendy’s and KFC would be allowed to develop a “Captain Nutrition” or “Dr. Diet” program for Canadian schools that would be allowed in the classroom.”

Not having been invited to participate in this “advisory panel”, I don’t know what the express or more likely implied terms and conditions of such participation would be. But such participation would probably muzzle or co-opt the participants to at least some extent - and perhaps that’s why CLA has wisely refrained. Hopefully, the rest of the “Copyright Forum” - which includes the CLA and a who’s who of the Canadian library, archive, museum and educator establishment which somehow seem to take their lead from the Council of Ministers of Education, Canada (“CMEC”), will agree with the CLA’s approach.

Michael has reported that AC is in the lineup of copyright lobbyists asking for a handout from Canadian Heritage. Could it be to help fund the Captain’s quest for retroactive vindication by way of a legal opinion concerning his incredible linking policy - discussed here in its original form? Even currently, the policy says that:

Permission is expressly granted to any person who wishes to place a link in his or her own website to www.accesscopyright.ca or any of its pages with the following exception: permission to link is explicitly withheld from any website the contents of which may, in the opinion of the Access Copyright, be damaging or cause harm to the reputation of Access Copyright. Specifically, permission to link is explicitly withheld from sites featuring pornographic, racist or homophobic content. If you link to or otherwise include www.captaincopyright.ca on your website, please let us know.

AC has actually retained a law firm to advise on this. AC says that:

We are also saddened by the misconceptions that have been perpetuated regarding our web linking policy. We want to be absolutely clear that is was never the purpose of the policy to limit debate regarding copyright or criticism of Access Copyright. The purpose of the policy was to protect children from inappropriate content by restricting the types of sites that could link to the Captain Copyright materials. While we have seen similar language in, for example, the policies of school boards, we acknowledge that it was not clear in this case, so we have hired a law firm with expertise in this area to review and revise the policy.

Well, its rather basic that that the World Wide Web is all about linking and that there is simply no legal basis for AC to stop anyone - not even a pornographer or a hate monger - from non-defamatory criticism that includes a direct link to www.captaincopyright.ca It would be very interesting to see any legal opinion that suggests otherwise.

Anyway, the bottom line is that kids won’t likely find their way to www.captaincopyright.ca from a porn or hate site, or even from this site or Michael’s site or the many other critical and satirical sites. The danger is that they will find their way there from a gullible school board or other credible educational entity more concerned with “Copyright Correctness” than in teaching their students and encouraging innovative research and activity in the class room. Our schools, colleges and universities should be more striving to take full advantage of the internet and every other tool available in this competitive world of 2006. It is not their job to be copyright security guards.

At least on educational authority has already issued an advisory against using www.captaincopyright.ca The province of Manitoba quite properly points out that “The content on the site is selective and misrepresents what students and teachers may do without paying copyright royalties or asking for permission from the copyright owner. Critical information of benefit to students, teachers, and school boards is omitted.”

This is a positive sign in the educational community. Unfortunately, however, the same advisory also alternatively points the reader to Wanda Noel's Copyright Matters!, a booklet published by CMEC, a publication that is also very problematic in its own way, mainly by being excessively cautious, as I have discussed before. Not unlike Captain Copyright, Copyright Matters! seems much more directed at what teachers and students cannot do than what they can. Although Copyright Matters! was published the year after the Supreme Court’s 2004 decision in CCH v. LSUC, it inexplicably fails to mention or apparently take that landmark decision into account.

So - is Captain Copyright confessing to his sins and preparing for his own demise? Apparently, not likely. Or is Captain Copyright confronting his critics and preparing his next attack on the enemies and violators of copyright lurking in our schools and on the internet?

It's all a bit confusing - and dangerously distacting from the rumours of the impending maximalist legislation that the Captain will likley love.

HK