CLA Submission to the Standing Committee on Canadian Heritage on the
Section 92 Review of the Copyright Act
September, 2003
Submitted to:
Standing Committee on Canadian Heritage
Summary
As an instrument of public policy, the Copyright Act has two primary
objectives: to encourage the creation and dissemination of original
works, and to promote access to those works for the benefit of Canadian
society as a whole. It is essential, therefore, that the copyright
reform process being launched by the Government respect the underlying
principle of balance between the protection provided to the creators of
original content and the guarantee of reasonable access by the public.
Every effort should be made to ensure that the process itself is
designed both to maintain and to fine tune the level of balance
currently reflected in the Act as adjustments are made to accommodate
change resulting from the introduction of new technologies and to
address other emerging issues. From the perspective of libraries and the
users they serve, it would be unacceptable if the copyright reform
process were to disrupt the balance by moving ahead on introducing new
and enhanced levels of protection for copyright owners without
addressing at the same time the impacts on user access.
In that context, the issues of primary concern to the Canadian
Library Association are:
- exceptions for libraries, archives and museums;
- implementation of the WIPO treaties;
- liability of network intermediaries;
- exceptions for persons with perceptual disabilities; and,
- contractual limitations on exceptions and uses.
Exceptions for libraries, archives and museums
The Copyright Act incorporates certain exceptions that recognize and
support the role libraries play in preserving Canada's cultural
resources, making those resources accessible to Canadians, and
supporting research and learning.
The exceptions are consistent with the provisions relating to
limitations and exceptions in the Berne Convention and the WIPO
treaties. They are formulated in such a way as to ensure they do not
conflict with the normal exploitation of the subject matter or
unreasonably prejudice the legitimate interests of rights owners. Each
exception is defined in relation to the specific purposes for which
copying is permitted, the conditions that have to be met beforehand, the
extent of copying that is allowed, the means by which a copy can be
produced, and the form in which it can be delivered to the user.
It is important to note that the exceptions for libraries in Canada's
Copyright Act are, on the whole, considerably more restrictive than the
corresponding exceptions in the copyright laws of many other national
jurisdictions, including Australia, the United Kingdom, and the United
States. In those jurisdictions, the range and extent of materials that
can be copied under the exceptions for libraries are generally broader.
The conditions that have to be met beforehand are in most cases less
restrictive. There are also, in several instances, fewer constraints on
the delivery of a copy to the user.
With the growing use of digital technologies to produce and
disseminate information resources, a number of restrictions embedded in
the Canadian exceptions for libraries have become more and more
problematic. Digital resources represent an increasingly large and
important part of library collections and comprise a unique source of
content within those collections for the support of research and
learning. Restrictions within the exceptions, many of which are linked
to older technologies, make it increasingly difficult for libraries to
meet the challenges of preserving and making accessible the materials in
their collections and to use digital technologies to provide the
services their users need.
Preserving digital resources
A rapidly increasing proportion of the materials in library
collections is produced only in digital form. Ensuring continued access
to those materials has become a major challenge, largely because of the
volatility of digital carriers and the rapid technological obsolescence
of encoding techniques and applications software.
Libraries are finding that they already need to "refresh" or
"migrate" content obtained as recently as ten years ago, transferring
the data to new carriers or converting it to encoding standards that can
be processed by current software. Section 30.1 of the Act contains an
exception that anticipates the need to transfer library materials from
one format to another, and entitles the library to do so, provided a
suitable replacement copy cannot be obtained on the Canadian market and
there is no collective offering a licence that would provide the
permissions necessary to reproduce the item. The current wording of the
exception, however, requires that the original format be obsolete or the
technology required to use the original be unavailable before the
exception can be exercised. With digital materials, those requirements
may effectively defeat the purpose of the exception. The content stored
on a particular item or the carrier itself may begin to degenerate
before the format per se becomes obsolete. Similarly, if the technology
required to use the item is unavailable, it may be technically
impossible to copy the content.
What is needed is a provision that would permit the library to
undertake the "refreshing" or "migration" process at the stage at which
it is needed (i.e., before the deterioration of the carrier or the data
reaches the point where the content is compromised, and while the
technologies required to process the data are still readily available
and effective).
Assisting library users engaged in research and private study
With the rapidly growing number of digital resources in library
collections, library services have become increasingly network-oriented.
Users expect to access library collections and services from their homes
and offices via the Internet; they expect turn-around times to be quick;
and they expect information to be delivered digitally via the
network.
The exception that allows a library to assist a user engaged in
research or private study, in theory at least, can be used to provide
the user with an excerpt from a digital resource, provided the portion
copied is deemed to fall within the limits of fair dealing as set out in
sections 29 and 29.1 of the Act. However, digital technologies make
compliance with the exception problematic. If, in the process of making
the copy, the library triggers a network or computer process that
reproduces (i.e., downloads or displays) a larger portion of the work or
even the whole work, the library could be deemed to have committed an
infringement. That is because the Act currently makes no provision for
the transient copying that is performed by computer and network software
as an integral part of communication and display processes. Strictly
speaking, the library could be deemed guilty of infringement even if the
copy ultimately provided to the user falls within the limits allowed
under fair dealing.
In order to remedy this and other similar anomalies, there needs to
be a recognition in the Act that the reproduction right does not apply
to the transient copying of data that is integral to the communication
and display of digital content.
Providing users with copies of articles for research
An increasing number of scholarly, scientific and technical
periodicals are available in digital form. Electronic journals now
represent a substantial proportion of the periodical collections in
libraries, and a proportion that is not only rapidly expanding but also
increasingly comprises a unique source of content (i.e., content that is
not duplicated in printed form).
With electronic journals, licensing has largely supplanted the
conventional periodical subscription. Licences for electronic journals
typically contain terms and conditions defining the users (faculty,
students, staff, etc.) authorized to access the journal, the number of
simultaneous uses permitted, the period of retention of access rights,
etc. Consequently, copying done under the terms of a licence has largely
displaced the making of copies of articles under the exception provided
in the Act. Nevertheless, libraries still need to make use of the
exception in order to provide services involving "non-commercial"
electronic journals for which no licence is offered.
In this instance, a potential problem arises because the exception in
section 30.2(2) permits copying only by means of reprographic
reproduction. A narrow interpretation of reprographic reproduction
(i.e., one that would rule out the making of a copy from an original in
digital form even if the copy produced was in printed form) could
effectively prevent the library from making a copy. If the required
article is from a "non-commercial" electronic journal and no licence is
available, the library is left with no legitimate means of making a copy
for the user other than by locating the copyright owner and obtaining
permission to make a copy on an article-by-article basis.
In other jurisdictions the problem does not arise because the
exceptions for libraries place no restrictions on the means by which a
copy is made. That would seem a viable model for Canadian legislation to
follow.
Providing services to users of other libraries
Libraries develop and maintain reference and periodical collections
designed to serve the needs of their users. However, the enormous range
of materials produced, the degree of specialization in coverage by
individual titles, budgetary and space constraints make it impossible
for even the largest research libraries to maintain comprehensive
collections. Libraries, therefore, rely to varying degrees on networking
as a means of providing reference services and on resource sharing as a
means of meeting user requests for articles from periodicals that lie
outside the library's collecting scope.
Increasingly, the materials on which a library would draw to respond
to a request from another library are in digital form. However, the use
of the library's digital resources to provide service to a user of
another library is constrained by the fact that, under the current
provisions of the Act, when the copying is done for a user of another
library, the exceptions can be used only when copying from printed
matter. If that restriction remains, increasing proportions of a
library's collection will be "off limits" as a source for providing
responses to either reference or interlibrary loan requests coming from
users of other libraries.
The use of digital technologies to provide services to a user of
another library is further constrained by the current restriction in the
Act prohibiting the delivery of a digital copy to a user of another
library. That effectively rules out the delivery of any copy to the user
(even a copy scanned from a print original) via a digital network.
Again, there are models in other jurisdictions that focus on the
purpose of the copying and the use that is made of the copy rather than
on the format of the original from which the copy is made or the form in
which the copy is delivered to the user. The current restrictions in
section 30.2(5) need to be replaced with provisions that restrict the
use of the copy that is provided to the user rather than the form of the
original from which the copy is made or the form in which it is
delivered.
Machines installed in libraries
The introduction of digital technologies has had a major impact on
the exposure of libraries to possible legal claims arising from
infringing acts committed by users of equipment provided by the library.
Because of the increasing importance of digital materials and networked
resources to the information requirements of users, it is essential for
libraries to provide users with access to terminals and networks.
Libraries warn users against infringement of copyright, but it is
impossible for the library to monitor use of computer equipment and
network access on a transaction-by-transaction basis. Currently,
however, there are no protections or limitations of liability provided
to the library to cover infringements committed by users while using
equipment (other than photocopiers) or network access provided by the
library. The library is left open, therefore, to the possibility that a
claim will be brought against it by a copyright owner arising from an
infringement committed by a user of the library's equipment or network
services.
The Act needs to be amended to exempt libraries from liability for
infringing acts carried out by persons using not only photocopiers but
computers and other machines installed by the library for public use
provided the library posts notices warning of infringement of
copyright.
Implementation of the WIPO treaties
Amendments currently under consideration in connection with the
implementation of the WIPO Copyright Treaty and the WIPO Performances
and Phonograms Treaty could have a significant impact on the current
balance between the protection provided to rights owners and the public
interests that are served through the guarantee of reasonable access to
protected materials. The impact that added protection and sanctions may
have on users and on the public interest must be taken into
consideration in framing new provisions designed to bring the Canadian
Copyright Act into conformity with the WIPO treaties.
There are a number of issues pertaining to the making available
right, the legal protection of technological measures, and the legal
protection of rights management information that are of particular
concern to libraries.
Making available right
For all practical purposes, "making available" as defined in the WIPO
treaties is the digital equivalent of publishing. If amendments to the
Act introducing a making available right fail to recognize that there
will be significant consequences for both rights holders and users.
If the making available right is linked to the right of communication
to the public by telecommunication, either explicitly or implicitly, and
if the current definition of publication remains unchanged, works that
are "made available" will be treated as unpublished works unless or
until they are also disseminated in a manner that conforms with the
definition of publication. Classing such works as unpublished may
disqualify certain of them from copyright protection in Canada. The term
of protection for certain works will be affected. The applicability to
the work of specific exceptions will also be affected.
Amendments will be required in order to make it clear that "making
available" is, for the purposes of the Act, the equivalent of
publication. Such amendments will be required regardless of whether a
making available right is made explicit through amendment or is made
implicit by confirming an interpretation of the right of communication
to the public by telecommunication that is consistent with the newly
defined communication right in the WIPO treaties.
One example of the many provisions that will require amendment is the
exception applying to the making of a copy of an article from a
periodical in section 30.2(2). That exception, as currently worded,
applies only if the article is "published" in a periodical or newspaper.
Given that an increasing proportion of scholarly, scientific and
technical periodical literature is disseminated uniquely via digital
networks, it is essential that the scope of the exception be expanded to
include articles "made available" in electronic journals as well as
those "published" in conventional print periodicals.
Legal protection for technological measures
Copyright provides creators with a range of rights and redress
mechanisms sufficient to protect their interests, but limited so as to
enable reasonable public access to those works. Limitations on owners
rights are reflected in the formulation and defined scope of the
specific statutory provisions associated with copyright, in the term of
protection afforded to various categories of works, in the definition of
non-infringing uses of protected works, in provisions made for
compulsory licensing, and in limitations of liability that are attached
to certain uses.
The introduction to the Act of sanctions against the circumvention of
technological measures used by copyright owners to protect their works
has the potential of providing copyright owners an unchallenged means of
overriding all limitations on their statutory rights and of denying
users their legitimate rights of access to protected works. To introduce
sanctions against the circumvention of technological measures that make
no reference to the limitations and exceptions otherwise provided for
under the Act would have the effect of totally negating the intent and
force of the law with respect to those limitations and exceptions.
To be consistent with the purpose and scope of the Act as a whole,
sanctions against the circumvention of technological measures must be
limited in duration to the term of protection provided for the work,
performance, or sound recording to which the technological measure has
been applied. Once the work, performance, or sound recording falls into
the public domain, any legal protection for technological measures
applied to that work, performance, or sound recording should cease.
By the same token, any use that is made of a legitimately acquired or
accessed copy of a work, performance, or sound recording under the
provisions relating to fair dealing or any other statutory exception
ought to be exempted from sanctions against the circumvention of
technological measures. A library, for example, should be permitted to
make a preservation copy of a work it has acquired for its permanent
collections either by purchase or by licence (even if that entails
circumventing technological measures), provided it complies with the
provisions of the exception relating to the management and maintenance
of collections. The same would apply to the exercise of the exceptions
that permit a library to assist a user engaged in research or private
study and to provide a user with a copy of an article for research
purposes.
It should be noted further that the obligations relating to
technological measures imposed on contracting parties under the WIPO
treaties extend only to technological measures that restrict acts that
are not authorized by the owners of copyright or neighbouring rights in
the work or subject matter concerned or permitted by law. There is no
obligation to provide legal protection for technological measures used
to restrict acts that are otherwise permitted by law. In that regard,
Canada should consider following the lead of the European Union and
attach a condition to any protection given to rights owners with respect
to technological measures, requiring the rights owner to provide the
beneficiaries of statutory exceptions with the means of exercising those
exceptions.
Legal protection of rights management information
For the purposes of the Act, rights management information has to be
defined more precisely than it is in the WIPO treaties. The treaty
definition is so broad in its scope that it would encompass any
information identifying the work, the author, etc., regardless of who
created the information or for what purpose, provided only that it is
"attached to a copy of a work" or "appears in connection with the
communication of a work to the public." Libraries and other information
service providers and intermediaries produce information that would fall
within the scope of that definition even though it is created for
reasons that have nothing to do with rights management. The
cataloguing-in-publication (CIP) data created by the National Library
and agent libraries in the Canadian CIP programme is "attached to a copy
of a work." The metadata created by information service providers to
support resource discovery can be "attached to a copy of a work" or
"appear in connection with the communication of a work to the
public."
To "lock up" all such information, regardless of who created it and
for what purpose, would lead to a completely unworkable situation.
Accepting the WIPO treaty definition of rights management information
without qualification could have the unintended effect of inhibiting
organizations such as libraries and information service providers from
correcting or updating information provided by themselves or their
counterparts for purposes quite distinct from rights management. It
could also leave users of the services of such organizations uncertain
as to whether they could alter or remove any such information attached
to copies of works they may be downloading into their own information
management systems.
In the interests of clarity, the Act should stipulate that the types
of information enumerated in the WIPO definition are protected as rights
management information only when clearly identified as originating with
the rights owner or the owner's appointed agent, and only when
specifically identified as having been recorded for purposes of rights
management.
In addition, the Act needs to make allowance for the removal or
alteration of rights management information when that information
interferes unreasonably with the exercise of the exceptions in sections
30.1 and 30.2 relating to the maintenance and management of library
collections, assisting library users engaged in research or private
study, and making copies of articles for research. Removal or alteration
of rights management information in order to exercise those exceptions
should be permitted, provided the library makes a reasonable effort to
restore the rights management information to the original and to add it
to the copy made.
Liability of network intermediaries
For the purposes of the Act, the term "network intermediary" needs to
be defined with sufficient breadth of scope to encompass all entities
providing services that facilitate user access to networked resources.
The definition must include libraries, archives, museums, and
educational institutions providing such services (both for profit and
not-for-profit), as well as the commercially-oriented enterprises
commonly referred to as Internet service providers (ISPs).
A network intermediary should be under no obligation to monitor
content provided by and stored at the request of a user of its services.
Likewise, a network intermediary should be under no obligation to
determine whether user transactions conducted using its services involve
infringing activity.
A network intermediary should not be liable for infringing content
supplied by and stored on or communicated through the intermediary's
facilities at the request of a user, provided the intermediary has no
knowledge of an infringement. The intermediary should be under no
obligation to take down allegedly infringing material simply on the
basis of a notice issued by a person claiming to own rights in the
material. On receipt of a notice, the intermediary should be obligated
simply to forward the notice to the user responsible for posting the
allegedly infringing material. If the person claiming to be the rights
owner is not satisfied with such action, that person should be required
to obtain a court order for any further action that he/she wishes to be
taken.
A network intermediary should not be liable for infringement
resulting from the transmission of or the provision of access to content
that has been made available on the network by another party (including
its users), provided the transmission or access is initiated by a user,
and the intermediary acts solely as a facilitator.
A network intermediary should not be liable for infringement
resulting from the temporary reproduction of content that is made
automatically in the process of receiving a communication or the onward
transmission of content in response to a request from the recipient,
provided the intermediary acts solely as a facilitator.
Consideration should also be given to limiting the liability of
network intermediaries in connection with any linking mechanisms they
might provide in the form of indexes or other resource discovery tools.
Provided such tools contain links only to content that has been made
publicly accessible on the network (or to front pages or gateways that
have been made publicly accessible), the network intermediary should not
be liable for any infringement that may be construed to have taken place
through the simple act of making the link.
Exceptions for persons with perceptual disabilities
The exceptions for persons with perceptual disabilities in section 32
need to be reviewed and revised in order to provide a more reasonable
level of access to audiovisual materials. Among the facilitating acts
that ought to be included in the exception are the non-commercial
narrative description, the captioning, and the making of transcripts of
audiovisual materials, as well as the use of sign language to interpret
audiovisual materials for persons with perceptual disabilities.
Contractual limitations on exceptions and uses
A concern that is central to access in a digital environment is the
issue of standard form contracts and the validity of their terms and
conditions with respect to the statutory provisions set out in the
Copyright Act. "Shrink wrap", "click wrap', and "web wrap" licences all
have the potential to significantly alter the balance between copyright
owners and users that is reflected in the Copyright Act, effectively
overriding statutory provisions designed to ensure reasonable access. If
balance is to be ensured not just in name but in reality, that issue has
to be dealt with as a matter of priority.
At a minimum, the Act needs to be amended to stipulate that the terms
and conditions of a standard form contract restricting the making of a
copy as permitted under the exceptions for libraries, archives and
museums in sections 30.1 and 30.2 have no force, provided the conditions
and restrictions applying to that section are respected.
Conclusion
In his report to Parliament on the provisions and operation of the
Copyright Act - Supporting Culture and Innovation - the Minister has
stressed the importance of "striking an appropriate balance between
creator's rights and users' needs." Achieving that balance is essential
for the advancement of the Government's efforts to promote cultural
expression, innovation, and the knowledge economy.
There is a clear need for reform of the Copyright Act to respond to
technological innovation, to provide clarity, and to ensure fairness and
balance both for rights owners and for users. In the interest of
ensuring fairness and balance, it is essential that the reform process
itself give the same priority to addressing impediments to access as it
does to the protection of owners' rights. Any proposed extension of
owners' rights must be assessed for its impact on user access, and
appropriate limitations and exceptions must be considered in tandem with
the proposed extension.
The agenda for copyright reform put forward by the Government
identifies access issues among those that it intends to address in the
short term. The Canadian Library Association urges the Standing
Committee to support the need to address access issues as a matter of
priority, and to encourage the Government to deal expeditiously with the
issues raised in this submission, as well as those related to access
that are raised by other sectors.
