"Education" as the "E" Word in Bill C-32

(Access Copyright)

There were many good comments at today’s hearing today on educational issues from those in the educational, library, museum and book seller communities.

The Committee was particularly focussed on the word “education”, which Bill C-32 proposes to include in a revised s. 29. It seems that “education” has become something of an “E” word in Bill C-32.

Despite the orchestrated and inaccurate histrionics and hysteria of Access Copyright et al (e.g. see above for today's latest installment),  the inclusion of the word “education” in and of itself will clearly cause no harm to anyone, since any dealing for the purpose of “education” (whatever that may mean) must also pass the Supreme Court of Canada’s six part fairness test.  In fact, given the recent CMEC K-12 ruling by the Copyright Board as upheld by the Federal Court of Appeal, any dealing involving multiple copies in a classroom is not “fair” and any copies made when “a student is instructed to read the material” are ipso facto “likely” not “fair”. With all respect, I believe that these rulings are incorrect and I hope that the Supreme Court of Canada grants leave to appeal in this case and that the decisions are reversed. CMEC is to be commended for pursuing this matter. (I should disclose that I acted for an intervener,  CAUT, in this case, but these views, as always on this blog, are my own).

Indeed, as some on the Access Copyright side have pointed out, the inclusion of the word “education” by itself may lead to much uncertainty and litigation. The irony is that their side has the resources and presumably the will to litigate, whereas the other side lacks one or the other or both. For example, AUCC, a prominent organization representing universities in the current Access Copyright proposed $45 per student tariff hearing at the Copyright Board, clearly has the means to litigate. However, it has backed away from seeking judicial review of AC’s controversial interim tariff - even though it was “vigorously” opposed to it.

Moreover, if the bill is passed, some will try to submit that the inclusion of the word “education” by itself could suggest - as Access Copyright has already prematurely tried to argue in the Federal Court of Appeal - that “educational” purposes are not part of the present law. Unfortunately, the Court took the then days old first reading bill into consideration and pronounced, by way of obiter dicta, that “ this amendment serves only to create additional allowable purposes”.

All in all, it would seem in everyone’s interest to have more rather than less clarity here - so that the word “education” has some meaning and is still clearly subject to a “fairness” analysis. There is also a need, on many fronts, to ensure that the K-12 decision of the Copyright Board is reversed as soon as possible, since this Bill could become law before the Supreme Court of Canada even hears the K-12 case - assuming that it grants leave. The earliest that the Court might hear this case would be in the late part of this year - and normally there is a six month or so period after the hearing before judgment is rendered.

The Canadian Civil Liberties Association - who I had the privilege of helping as counsel on at the Committee - had a good suggestion for the Committee that takes all of the above into effect. Here is what CCLA has put before the Committee for its consideration on the subject of fair dealing, including the “education” issue (footnotes omitted):

1.    Ensuring an expressive society: Meaningful and flexible protection for fair dealing user rights

a.    In its current form, the Copyright Act (the "Act") recognizes some critical user rights that allow individuals and institutions to access, reproduce and distribute otherwise copyrighted work. The 'fair dealing' exceptions found under s. 29 of the Act state that using works fairly for research or private study do not violate copyright, and neither does criticism, review or news reporting so long as the work is properly cited. There are also additional exemptions for educational institutions,  libraries, archives and museums.  These fair dealing rights are essential to maintaining a healthy balance between an author's interests in compensation, and the public interest in maintaining an open, expressive and informed society. In order to maintain the delicate balance between expressive freedom and author compensation, any future amendments to the Copyright Act should fully respect user rights, and recognition of these rights should be incorporated into all aspects of copyright protection.

As the Supreme Court of Canada eloquently stated in the CCH decision in 2004, ""Research" must be given a large and liberal interpretation in order to ensure that users' rights are not unduly constrained, and is not limited to non-commercial or private contexts."  The Court thus confirmed that fair dealing is a users' right and should not be interpreted restrictively against the purpose for which it was clearly intended.

Indeed, the very first copyright law in the world, the legendary English Statute of Anne of 1709 had, as a full title "An Act for the Encouragement of Learning, by vesting the Copies of Printed Books in the Authors or purchasers of such Copies, during the Times therein mentioned".  This title confirms that the very origin of copyright law was not so much for the purpose of the protection of publishers but rather for the purpose of education. This purpose is now under attack in at the Copyright Board and in the Courts by those who would prefer, in effect, to "tax" education in the name of copyright and to impose high costs, rigid restrictions and even privacy invasive record keeping obligations on Canada's educational institutions at all levels - especially at the post-secondary level.

The Canadian Civil Liberties Association is concerned that, notwithstanding the CCH decision, the Copyright Board and the Federal Court of Appeal, operating under the current legislation, have been interpreted the "fair dealing" provisions in a fixed and restrictive manner thereby preventing a meaningful balancing that can take into account a rapidly changing field. The Copyright Board has recently held, in the context of K-12 education, that multiple copies in a classroom and anything prescribed by a teacher cannot be fair dealing. This ruling has been upheld by the Federal Court of Appeal.   While the CCLA is hopeful that the decision will be reversed in the Supreme Court of Canada, at the date of submissions of this brief, we do not even know if the Supreme Court of Canada will grant leave to appeal.

In order to make 'fair dealing' more responsive to the purposes of the legislation, the CCLA joins with others in calling for the addition of the words "such as," to make the current list of fair dealing purposes suggestive rather than exhaustive.

b.    CCLA also supports the inclusion of the word "education" in section 29. However, in view of the current jurisprudence from the Federal Court of Appeal, this word by itself may not be sufficient since that Court has confirmed the Copyright Board's interpretation that the use of multiple copies in a class room will not pass the "fairness" analysis. CCLA suggests the inclusion of explicit language such as is found in the §107 of the US Copyright Act confirming that fair dealing for the purpose of education can include multiple copies for class room use and copies prescribed by a teacher.

The US provision is as follows:

§ 107. Limitations on exclusive rights: Fair use40

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.
        (Emphasis added)

c.    The CCLA was concerned that the existing fair dealing exceptions may not be expansive enough to allow for criticism in the form of parody and satire. Canada should celebrate intelligent, creative forms of social critique and commentary. However, our Courts have put a severe chill on such activity in the form of the controversial 1996 Michelin  decision that is still on the books and has not been overruled. In this decision, the depiction by way of clear parody of the "Bibendum" Michelin character in the context of a union protest was held to infringe copyright.  This is completely at odds with the 1994 decision of the US Supreme Court that permitted a blatantly commercial transformation into a raunchy "rap" song by way of parody of the popular song "Pretty Woman" based on the American fair use doctrine.   Thus, CCLA is pleased that Bill C-32 explicitly include parody and satire as examples of 'fair dealing' and we support the inclusion of such language in Bill C-32.

d.    Therefore, CCLA suggests the amendment of section 29 of the Act  to read as follows:

29.    Fair dealing for purposes such as scholarship, research, private study, parody, satire or education does not infringe copyright. For greater clarity, education may include teaching with the use of multiple copies, and the use of single or multiple copies as prescribed by an instructor.

e.    Bill C-32 does not contain a blanket immunization against statutory minimum damages for educational institutions acting on a good faith belief that their practices involve fair dealing. There is an equivalent provision in the USA - namely §504(c)(2). The "ad terrorem" implied and even explicit threat by certain parties to invoke statutory damages against educational institutions in Canada has been instrumental in the imposition of costs and restrictions that have no counterpart in the American educational system. The result is that Canada is at a considerable disadvantage in terms of excessive costs and, even more importantly, greatly restricted freedom on the part of teachers and students at all levels. Section 46 of the Bill, which deals with section 38.1 of the Act, should be amended to include a provision implementing the foregoing principle.

f.    Finally, with respect to fair dealing and exceptions, the CCLA is concerned that the proposed educational exception for educational use of publicly available material on the internet is not only unnecessary but may actual prove to be seriously harmful. There is no reason why educators need any special exception, if principles of fair dealing and implied license are sufficient.  Moreover, such a provision risks the creation of an "a contrario" implication that anyone outside of the educational framework cannot save, store, print, communicate  or otherwise use publicly available material on the internet in the way in which such use is commonly undertaken and in respect of which certain educators seek a special exception. It is noted that this special exception is sought mainly by the K-12 sector and that there is little if any support in the post-secondary realm and, indeed, some active opposition. Therefore, proposed section 30.04 of the Bill should be eliminated.

(emphasis added)

HK