Correspondence
April 21, 2005
The Honourable Liza Frulla
Minister of Canadian Heritage
25 Eddy Street
Gatineau, Quebec K1A 0M5
The Honourable David L. Emerson
Minister of Industry
5th Floor, West Tower
C.D. Howe Building
235 Queen Street
Ottawa, Ontario K1A 0H5
Dear Minister Frulla and Minister Emerson,
I am writing as President of the Canadian Library Association (CLA)
to comment on your recent announcement regarding proposed amendments to
the Copyright Act.
The Canadian Library Association (CLA) is Canada's major national
library association, representing the concerns of some 57,000
individuals who work in library and information services in Canada. CLA
encompasses all types of libraries - public, school, post-secondary
academic and special (private- and public-sector) - from
coast-to-coast-to-coast.
CLA's immediate response to your March announcement is cautiously
optimistic, especially given the consternation felt by the Canadian
library community following last year's release of the Standing
Committee on Canadian Heritage Interim Report. The statement of intent
regarding pending legislation demonstrates that several of the key
concerns of the users of copyrighted content have been heard. As
presented, the framework for copyright reform stands as a reasonable
attempt to balance the competing interests in this complex and
contentious area.
However, as other commentators have already pointed out, "the devil
is in the details" and we continue to have several very serious
concerns. Past experience with copyright reform has taught us that
initial intent can be substantially altered as legislation moves through
the political process in the House of Commons and Senate. The potential
for unintended and intended negative consequences introduced in the
details of legislative language cannot be ignored in areas as complex as
digital copyright and regulation of the Internet. CLA is committed to
working with your Government to ensure that changes to the Copyright Act
recognize both legitimate user rights the reasonable economic interests
of the holders of copyright in intellectual content.
With respect to your announcement, CLA applauds the proposed means of
addressing the circumvention of technological protection measures,
altering rights management information and Internet service provider
liability. The broad statements of intent in these areas are reasonable
and balanced, and will have the support of CLA if the intent is realized
in legislative language.
The full implications of several of the new areas of copyright law
prompted by WIPO treaty implementation are unclear to the library
community at this time. The areas of your announcement falling into this
category include the exclusive communication right, the first
distribution right and reproduction and moral rights for performers. CLA
will defer from directly commenting on these areas until draft
legislation language is available.
While having sympathy for the rights of photographers as creators in
some circumstances, CLA cautions the proposed changes to term of
protection for photography have the potential to become very contentious
with a number of broadly based groups. Much like the aborted attempt to
change the term of protection for some unpublished works (the "Lucy Maud
Montgomery provisions"), the photography changes are likely to become a
lightening rod for discontent over shrinking the public domain, given
the implications for citizens, researchers, archivists, museums and
libraries.
CLA regrets that the Government has chosen to defer addressing issues
relating to Kindergarten to Grade 12 and post-secondary classroom uses
of copyrighted Internet-based content. We are puzzled that the
Government feels that further consultation is required on this issue, as
this specific area has been consulted upon more than any other in the
past three years. Some content providers have described educational use
of the Internet as the single most contentious issue in the current
copyright reform process. It is unclear to CLA how more consultation
will do anything other than further entrench stakeholder positions. The
Government should move forward with legislation which provides Canadian
students and educators with reasonable access to copyrighted Internet
based content for uses likely to fall outside fair dealing.
With respect to print on paper and audio-visual content, current
Canadian legislation places our teachers and students at a significant
disadvantage to their counterparts in other developed countries,
especially the U.S.A. The introduction of significant costs on the use
of Internet content by schools and teachers through licensing will widen
this gap and will be unacceptable to Canadians.
CLA is pleased to see recognition in your announcement that the desk
top delivery of copyrighted content by libraries should be permitted by
legislation. It is recognized that the use of effective safeguards to
limit subsequent dissemination may be required. There will be resistance
to attempts to unduly limit what content may be provided in this way. If
a library or individual can lawfully make a copy for research or private
study, the library should be permitted to provide this content
electronically. This right should not be limited to "certain copyright
material, notably academic articles." Why should constraints be placed
on how a library provides a copy of a 50-year-old obituary from a local
newspaper to a genealogist when the same constraints are not placed on
providing an article from a history journal to the same user? This makes
no sense and will lead to significant conflict between libraries and
their users. It is inappropriate for legislation to hinder the
application of technology in this arbitrary manner.
CLA regrets that the Government statement is silent on the issue of
standard form contracts (shrink-wrap or click-through agreements); i.e.
contracts which are imposed on users of intellectual content without the
user having the opportunity to negotiate terms and conditions, some of
which may unilaterally override the users' lawful rights. Without
legislative recognition of a user's right to "circumvent" a standard
form contract for non-infringing purposes, as is proposed for
technological protection measures, any user right in legislation can be
overridden. New legislation must ensure that basic user rights such as
fair dealing and reproducing public domain content are always
available.
CLA wishes you success as your Government moves forward with
copyright legislation. The Association and its members are committed to
working with you and your staff to ensure that the rights of Canadians
and the libraries which serve them are properly reflected in the new
Act.
Yours sincerely,
Canadian Library Association
Stephen Abram, MLS
President
cc.
The Right Honourable Paul Martin, Prime Minister of Canada
Stephen Harper, Leader of Her Majesty's Loyal Opposition
Jack Layton, Leader of the New Democratic Party
Gilles Duceppe , Leader of the Bloc Québécois
The Honourable Sarmite Bulte, Parliamentary Secretary to the Minister of
Canadian Heritage
The Honourable Jerry Pickard, Parliamentary Secretary to the Minister of
Industry
House of Commons Standing Committee on Industry
House of Commons Standing Committee on Canadian Heritage
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