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Setting the intellectual property agenda: opinion column


Educators must add to the debate

by Victoria Owen

Copyright has always been about the balance of private rights and the public good. In Canada, copyright law was originally based on the principle of the encouragement of learning and thus the purpose of the law was to place limits on monopoly and to provide access to learning. Today, the balance inherent in the copyright environment in Canada is under considerable threat from a number of fronts.

Digitization, with its concomitant ease of copying and distribution, spurred a fierce lobby from the content industry (which can be broadly defined to include publishers’ associations, reprographic rights organizations [RROs], scientific, technical and medical [STM] publishers and large companies such as Disney and Sony). In addition, Canada’s legislative agenda is being influenced by international pressures from the World Intellectual Property Organization (WIPO) and the World Trade Organization (WTO) and by our copyright maximalist neighbours to the south. The United States and WIPO, publishers’ associations and RROs promote the full utilization of all control mechanisms for the regulation of intellectual property (IP). Examples include the criminalization of encryption research (a branch of mathematics) and the requirement of jail terms or punitive damages for copyright infringement. It seems that intellectual property, as championed by the powerful and affluent content industry, has become a matter of trade and is to be controlled by technology.

On the other hand, intellectual property is not yet seen by our elected officials as a compelling matter of information policy through which to express and protect the public benefits that foster learning and culture. Without political engagement, Canadian public policy will remain undefined, unarticulated and undefended.

The interplay between private rights and the public good has informed Canada’s information policy in the past and continues to frame the struggle for balance. Our national discussion should be about what can and cannot be done legally with a copyrighted work in order to protect the creator and at the same time to provide users of copyrighted material with access to knowledge. Instead, a matter of significant public policy is being driven by a reflexive

response to the private interests of the content lobby rather than reflective, considered legislation that upholds the values and protects the culture of Canadian society. Is Canadian cultural sensibility not sufficiently evolved to know that tailoring its legislative agenda to the concerns of one particular industry is a disservice to all its citizens?

Canada’s cultural and information policy is at risk of being handed over to the WTO and WIPO and other influential entities, which would result in a loss of control over our culture and our access to knowledge, as well as control over the manner in which we interpret, communicate and distribute them.

The threat is embodied in Canada’s new legislation, Bill C-61, and although the bill may be destined to die on the order paper when an election is called, it will inevitably reemerge in the near future with similar provisions unless there is a change in focus of the legislative agenda. We are all users of copyrighted works, many of us are creators and all of us are concerned with access to knowledge. We create and use information in our daily lives, in classes, lectures, reading assignments and research papers.

In materials we produce for publication we often assign our copyright to the publisher and relinquish our rights in perpetuity. We sometimes contribute to the commons, from which everyone may benefit, and we make use of and embellish the riches of the public domain. As we juggle our various roles in the complex arena of rights we realize that the management of IP rights requires a nuanced approach so that its intricacy is captured to serve our needs. While it is essential to protect the rights of creators, it is necessary to reasonably limit that protection so that we may continue to enjoy our rights of access to knowledge and especially the provisions of fair dealing for the purposes of research and private study.

Bill C-61 would destroy the balance between creators and users. It is replete with heavy-handed provisions to protect the content industry at the expense of users by invalidating statutory rights of access and use. Bill C-61 abrogates the hard-won rights of users that Canadians have benefited from for many years, upending long-established practice.

For example, if a content owner places any technological protection measures (TPMs) or digital lock on material, a user cannot disable or break the lock for non-infringing purposes, such as copying a work under fair dealing for research or private study. Control has shifted from a matter of policy-based legal principles, with all its nuances and complexities, to technology. TPMs are either on or off. With Bill C-61 our rights are on a toggle switch, reducing Canadian information policy to zeroes and ones.

TPMs also threaten the robustness of the public domain. Use of material in the public domain that is inadvertently included with protected works and new works falling into the public domain will be constrained by our inability to remove the digital locks.

On the other hand, individual Canadians believe that we have some control over the material that we access every day, material that we purchase, read, listen to and watch. We don’t believe that as we continue to use information in the same way we always have, we suddenly become pirates and thieves. With this new legislation, civil remedies for copyright infringement would be transformed into criminal law, shifting the responsibility and burden to the Crown, enabling criminal prosecution of individuals for interfering with digital locks for non-infringing purposes.

Under current legislation Canadians are protected from standard form contracts, such as click-through licenses, if they cancel out our statutory rights. (Click-through licenses pop up on websites and in the installation process for new software. Unless the user clicks on “I agree” to all the terms and conditions, the installation will not proceed.) Bill C-61 erodes the primacy of Canadian statutory rights and allows contracts to override the Copyright Act. Contracts created in other jurisdictions have the potential to import much stricter terms of use that can be applied to materials purchased and used in Canada. The sovereignty of our legislation is under threat.

Further, Bill C-61 would enable subsequent changes to the Copyright Act to be made by regulation rather than through legislation with full parliamentary debate. I submit that Canadian public policy should be set by elected legislators to uphold Canada’s principles, not determined by administrators and bureaucrats. We need policy-based legislation grounded in Canadian culture and values.

With encouragement, Parliament can choose to implement minimal provisions that reflect Canadian policy and past practices and yet adhere to our international responsibilities and obligations. Without a public policy foundation our future is being determined by the most powerful and best-funded influences.

Academics, librarians, creators and users have a responsibility to contribute to such an important public policy debate. Our MPs may be particularly attentive in the upcoming weeks and our professional associations (Association of Universities and Colleges of Canada, Canadian Association of University Teachers, Canadian Library Association, Canadian Association of Research Libraries, etc.) are eager to hear from their constituents on this matter. Tell MPs about your position on access to knowledge and its impact on scholarship, on democracy and on the flow of information. Canada’s public policy needs to be fair to its citizenry and driven by its values and not by a single industry and its use of digital locks.

Victoria Owen is head librarian at U of T Scarborough. In May 2008 she convened a plenary session on Why Copyright? for all library staff from the three local universities, Toronto,  Ryerson and York. She is active in the copyright field and serves as a member of the Canadian Library Association’s copyright working group, the Canadian Association of Research Libraries’ copyright committee and the International Federation of Library Associations and Institutions’ copyright and legal matters committee and as a member of its executive board.

© University of Toronto Scarborough