CMEC has released the third and fourth installments of its Copyright Bulletin calling for a new exception to copyright infringement for the educational use of publicly available materials on the Internet.
The third Bulletin entitled Educational Use of the Internet: 'Fair-Dealing' May Just Not Be Enough argues that since the Act does not define what is "fair" nor what is included in research, private study, criticism, or review, it is not enough.
The fourth installment, entitled Concerning the Educational Use of the Internet: An Education Amendment Does Not Narrow Fair Dealing, is in response to the concerns that if enacted, a specific exemption would narrow fair dealing for everyone else by implication.
The third Bulletin states:
This is a difficult exercise for someone who is not knowledgeable about copyright. What one person thinks of as "fair," another may not. If a copyright owner disagrees with your judgment, he or she can sue you for copyright infringement.
It is precisely because it is so difficult to decide whether many educational uses are permitted under fair dealing that education organizations seek a clear statement in the law that all educational uses of publicly available Internet material are not infringements of copyright.
CMEC argues that educators and students need to be rescued from this state of "legal limbo" and that it needs to be done by an explicit "safe-harbour" provision:
An amendment to the Copyright Act is needed to create a safe harbour for all educational uses of publicly available Internet material. Without the amendment, educational institutions and their students, teachers, and staff will remain in a most uncomfortable position - contorted in a legal limbo - awaiting some future court ruling to clarify more precisely the notion of "fair dealing."
The fact that there is undue uncertainty in the legal system is well taken. Indeed, this uncertainty is aggravated by the aggressive tactics of some rightsholders and their representatives who fail to recognize the reality of fair dealing and who constantly press for the imposition of payment mechanisms even in cases where it is not technically necessary. But this uncertainty, in the case of educational institutions, also may be somewhat self-inflicted. And in any event, these problems apply to everyone, not just those working under the auspices of an educational institution.
CMEC provides three examples of why a special educational exception is needed are provided, but all fall short of justifying a special provision that would apply to certain users and uses, but not to others.
One example of a use of publicly available Internet material in educational institutions that may or may not be permitted under fair dealing is the use of the whole of a work. Whether or not a complete work is needed depends on the nature of the instruction. A teacher copying an entire audiovisual work (such as a TV program) from the Internet for use in a media studies class requires the entire program. The Supreme Court of Canada has said that in some circumstance using a whole work may be fair dealing while in other circumstances it may not be fair dealing. As a result, the law is not clear about whether this use and other uses of the whole of an Internet work for educational purposes are fair dealing.
The point that use of the entire work may well constitute fair dealing is very well taken. The Supreme Court has made it clear that the amount of the work used alone is not determinative of whether the dealing is fair. It is but one of several factors to be considered. Indeed, the use of an entire work may constitute fair dealing, and then again it might not. The resolution would then turn on the other factors as well as the institution's stated policies.
So what is the problem here that CMEC is trying to fix?
Apparently, it is the uncertainty that arises from requiring users and institutions to grapple with a multi-part analysis. But is this necessarily a bad thing? And in any event, isn't everyone in the same situation regardless of their institutional affiliation?
As a second example, they point to the uncertainty involved with distributing multiple copies of a work:
Another example is the making of multiple copies of publicly available Internet materials for educational purposes. An instructor placing publicly available Internet material on a class Web site and instructing each student to conduct research, study, review, or criticize the material could be considered to be the same as making multiple copies — a copy is made available for each student in the class.
This begs the question why, if the materials are publicly available on the Internet, is it necessary to upload the materials onto a class website in the first place? Why not just give the students the url? The copy is indeed being made available for the student, but it is being done so through the original website. The answer to this question is not that the students do not have adequate computer access, because the example assumes a class website.
As a third example, the facts are varied a bit and instead of distributing the materials on a class website, they are e-mailed to each student.
Similarly, an instructor who e-mails publicly available Internet material to each student in a class could also be considered to be engaged in making multiple copies of the material. The Supreme Court of Canada has said that making multiple copies and distributing them widely tends to be unfair. Given what the Supreme Court said, it is not clear to a teacher whether making these kinds of multiple copies for students is fair dealing.
But if the instructor is using e-mail to communicate with the class about material publicly available on the internet, why not just send along the link? Students should be taught good e-mailing practices, and this includes avoiding attachments where a direct link to a url is available.
So none of these examples really shed any light on why a special exemption is needed. They do not deal with the threshold issue of consent, they do not provide an adequate fair dealing analysis, and above all, they fail to explain why other users in a variety of situations do not face similar issues in dealing with groups.
Turning to the fourth installment, entitled Concerning the Educational Use of the Internet: An Education Amendment Does Not Narrow Fair Dealing, we are given a response to the concerns raised that a specific exemption would, by implication, narrow fair dealing for everyone else:
Some have raised the question, “Will the education amendment, if enacted, create an implication that everyone other than those in the education community will have to pay to
use publicly available Internet material?” The argument would be that if the government
explicitly gives a right to one group but not to another, then its intention is that the second group does not qualify for the right.
They are referring to the a contrario scenario, the problem that the enactment of a new special exemption could weaken the rights of everyone else, to which they respond:
The point to be emphasized is: enacting a specific statutory exception like the education amendment would not narrow fair dealing for those outside the education community. Why? Because the analysis applied by the Supreme Court in the CCH case tells us that a court would first conduct a fair dealing analysis, and only if the use did not fall within fair dealing, would the court then look to see whether a use could fall within a statutory exception like the education amendment.
It is good to see that CMEC is attempting to respond to this crucial issue. But in order to properly evaluate their argument, we should have the text of the proposed exemption in front of us, something that has not been forthcoming in the first four installments of CMEC's Bulletins. The fourth installment closes with the conclusion:
Exceptions like the proposed education amendment can overlap with fair dealing without narrowing its scope. The presence of one does not negate either the need or the legitimacy of the other.
But just what is this "proposed education amendment"? In his recent blog entry entitled The CMEC Red Herring, Howard Knopf points to a recent paper on the subject published in the Canadian Intellectual Property Review [(2007) 23 C.I.P.R. 1] authored by Wanda Noel and Steve Wills.
Noel & Wills, who advise CMEC and AUCC respectively, proffer the following text in their article:
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.
The same language was included in AUCC's 2001 Comments on the Government's Framework for Copyright Reform. I will reserve further comment on this proposal for now, but CMEC & AUCC should indicate whether this is the text they are still proposing, or whether it has been substantially changed.