Robert Dewald is a JD Candidate at Osgoode Hall Law School
Technology plays an important role in today’s educational institutions by providing easy access to and distribution of music, art, literature and other information that forms the foundation of a person’s education. Yet the innovation and technological advances that have created powerful teaching tools, such as the internet, have significantly surpassed the antiquated version of the Copyright Act which only contemplates a limited means of communicating information such as using dry-erase boards, flip charts and other hand-written methods.
As the capability to access and distribute information increases, creators of art, texts and other copyrighted information seek greater protection for their works which are destined for use in classrooms or by consumers. Ultimately the result of the outdated Copyright Act is that educators have little statutory guidance regarding their ability to use the internet and other modern technologies to provide an education.
The ambiguity surrounding access to and distribution of copyrighted material for educational purposes will be addressed in Parliament’s latest attempt at amending the Copyright Act in Bill C-32. For instance in Bill C-32, ‘education’ has explicitly been incorporated into the Fair Dealing exceptions to copyright infringement. This clarifies that educators and students will have the ability to utilize copyrighted material for educational purposes, assuming that the criteria for fair dealing as set out in CCH v. LSUC are met. The addition of ‘education’ may allow for a liberal application of fair dealing to educational institutions, however to be certain, future judicial interpretation of the new fair dealing provision would be required. (For information on the differences between fair dealing in Canada and fair use in the United States, see the summary table (PDF) prepared by the Association of Universities and Colleges of Canada).
The outdated Copyright Act has also created ambiguity in the requirements for presenting copyrighted works in a classroom setting. Current copyright law limits reproduction of material, for the purpose of educating, to technology such as dry-erase boards and overhead projectors. The use of modern technology, as an educational tool, has created ambiguity which Bill C-32 seeks to clarify. It is proposed that an educator may now use ‘any means’ available to reproduce a work in order to display it for an educational purpose. Thus educators will be given greater freedom to display works in a classroom setting, using any technology available. This flexible approach to utilizing technology in a classroom will also extend to online education.
The growth and popularity of the internet has naturally created methods where an entire or part of an education is taught online in virtual classrooms or through electronic correspondence. This method of education, in the past, has existed as a grey area in the law which now will be illuminated by Bill C-32. Educators will now be permitted to communicate lessons electronically and students participating or corresponding by telecommunication (i.e. online) in lessons, like students writing notes in a classroom, will be able to reproduce the lessons for use at a later time. However, reproducing online lessons is limited by the requirement that both educators and students destroy any reproduction of a lesson within 30 days after the students receive their final evaluation for the course. The educational institution must also take measures to restrict communication of lessons only to the participating students, and prevent the lessons from being reproduced digitally or used by those other than the intended student.
Creating digital copies (i.e. scanning) from the paper version of copyright protected works has also been clarified in the proposed amendments to the Copyright Act. Scanned copies of protected works, by educational institutions, can be communicated to persons acting under the authority of the institution and then converted into ‘one’ hardcopy by that person for an educational or training purpose.
The flexibility granted to educational institutions to make digital copies of works is progressive, but is limited in certain circumstances. First, when digital copies of works are created from paper versions and subsequently distributed, the educational institution must then pay the appropriate royalties to the collective society for each person to whom the work was distributed. Second, educational institutions must endeavour to prevent further reproduction (i.e. digital or paper copies) and communication of the digital copy to any person not acting under its authority. The institution must also ensure that the persons to whom the works are communicated may only make one copy. Third, digital reproduction of a work can be prevented if the copyright owner instructs the collective society, from which the works are taken, not to allow the digital reproduction of the work.
Finally, Bill C-32 will clarify the current uncertainty regarding the extent to which teachers, students, and other educational users can legally engage in routine classroom activities involving the use of text, images, or videos that are freely available on the Internet. Bill C-32 will allow educational institutions and their staff to reproduce and communicate any work available on the internet for educational purposes. This use of the internet is subject to the requirement that the source and respective author, performer, maker, or broadcaster is mentioned. This greatly increases the ability of educators to utilize any information found on the internet to instruct and educate students. However, broad access to works or subject matter on websites is limited in certain circumstances. Websites to which access is restricted does not fall under this expanded allowance for educators and students to access works on the internet. Also, if the educational institution or people acting under its authority know or should have known that a copyright was infringed upon when the work was placed on the internet, they should not use it. This can be particularly important when using works available on youtube, BitTorrent or other sites where copyrighted material can potentially be viewed or distributed.
The clarification and enhancement of the Copyright Act provisions, by Bill C-32, relating to educational institutions, is a welcome change from the current outdated act. These changes properly recognize the important role that educators play in our society and grant them the ability to utilize modern technology to access, distribute and display copyrighted works for educational purposes.
In my new article, “Modernization of the Inconceivable”, at http://mincov.com/articles/index.php/fullarticle/modernization_of_the_inconceivable/ (http://bit.ly/8YQZ3r), I explain why modernization of the copyright law based on compromise and concessions, without a good understanding of the underlying principles of copyright protection, is doomed to fail.
Copyright laws exist either for the protection of the creator, or for the benefit of the public. There is no middle ground. As long as we keep entrusting the government (any government) to find the right “balance” between the two, we are destined to keep on making up exclusions from limitations on exceptions from the rights – without even stopping for a second to question why we are doing this.
41.1 (1) No person shall
(a) circumvent a technological protection measure within the meaning of paragraph (a) of the definition “technological protection measure” in section 41;
(b) offer services to the public or provide services if
(i) the services are offered or provided primarily for the purposes of circumventing a technological protection measure,
(ii) the uses or purposes of those services are not commercially significant other than when they are offered or provided for the purposes of circumventing a technological protection measure, or
(iii) the person markets those services as being for the purposes of circumventing a technological protection measure or acts in concert with another person in order to market those services as being for those purposes; or
(c) manufacture, import, distribute, offer for sale or rental or provide — including by selling or renting — any technology, device or component if
(i) the technology, device or component is designed or produced primarily for the purposes of circumventing a technological protection measure,
(ii) the uses or purposes of the technology, device or component are not commercially significant other than when it is used for the purposes of circumventing a technolog- ical protection measure, or
(iii) the person markets the technology, device or component as being for the purposes of circumventing a technological protection measure or acts in concert with another person in order to market the technology, device or component as being for those purposes.
“technological protection measure”
« mesure technique de protection »
“technological protection measure” means any effective technology, device or component that, in the ordinary course of its operation,
(a) controls access to a work, to a perform- er’s performance fixed in a sound recording or to a sound recording and whose use is authorized by the copyright owner; or
(b) restricts the doing — with respect to a work, to a performer’s performance fixed in a sound recording or to a sound recording — of any act referred to in section 3, 15 or 18 and any act for which remuneration is payable under section 19.
Please take note that this section of the bill about digital locks undermines every right a consumer has , and is in my opinion not fair, in the Fair Dealings.
All the exemptions that educators were given in this bill are taken away by this digital locks provision in the bill ,because practically “no one” shall break a digital lock, unless it involves a police investgation and a few other exemptions, which education isn’t included.
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