Statement on Copyright from the following provinces and territories:

Alberta, British Columbia, Manitoba, New Brunswick, Newfoundland, Northwest Territories, Nova Scotia, Ontario, Prince Edward Island, Saskatchewan,Yukon.

February 1995

• PURPOSE OF STATEMENT
  
• SUMMARY OF STATEMENT
  
• COPYRIGHT AND THE EDUCATION AND RESEARCH COMMUNITY
  
• PARTICULAR CONCERNS
  
  1. Definition of Educational Institution
  2. Fair Dealing/Fair Use
  3. Audio-Visual Works and Off-Air Taping
  4. New Media Technologies
  5. Collectives
  6. Articles in Academic Journals
  7. Other Important Issues
• FUTURE DIRECTIONS

This Statement on copyright is intended to serve two purposes:

1. to outline the position of provinces ( the word "province" as used throughout this statement should be taken to include territories) on copyright issues that are of importance to the nonprofit, publicly supported education and research communities of Canada;

2. to advocate the adoption by the Canadian government of amendments to the Copyright Act that reflect and address the position of provinces on copyright issues.

Provinces believe that in order to serve the public interest, the Copyright Act must balance two equally important rights:

1. the rights of creators to control the use of their works and to receive compensation for such use; and

2. the rights of the education and research communities to have fair access to created works.

Provinces believe that the present Copyright Act does not balance these rights, but favours the rights of creators. It is the position of provinces that the Act must be revised to allow education and research communities fairer access to created works, and that such a revision would be in the public interest.

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The federal government, as the administrator of the Copyright Act, must recognize its responsibility to consult both creators and users about the effectiveness of the current legislation and the need for and nature of possible changes to it. The Council of Ministers of Education, Canada has the support of its constituents to act as the conduit for information between the federal government and the provincial and territorial ministers and their education and research communities.

Provinces recognize the importance and value of copyright as a crucial element in the creation of works. Copyright rightly ensures that creators are recognized and fairly compensated for their works, and have a strong measure of control over the use of their works. Provinces further recognize that the education and research communities have a social responsibility to support copyright and be informed about copyright law.

By the same token, provinces ask creators (and legislators) to recognize that artistic, scientific and technological works are the fundamental tools of education. Canadian society, to progress and compete successfully in an increasingly complex world, must educate and train its citizens and encourage research in all fields of human endeavour, using all the tools at its disposal.

It is vital and socially desirable that the education and research communities have efficient and affordable access to these tools.

The rights of creators and the rights of educational users are not competing interests; rather, they should be seen as two circles of interest that partially overlap. Within the overlap lies an area of vital public interest.

Educators and researchers depend greatly on the works of creators and on the continuing spirit of creation. Creators benefit greatly from the exposure and dissemination of their works to students and researchers and from the influence of their works on students and researchers. These overlapping dependencies and benefits advance knowledge and inspire further creativity and learning, which benefits society as a whole.

The aims of education are different from the aims of commerce, and the Copyright Act must acknowledge this difference. Copyright legislation must achieve a balance between the rights of creators and the rights of society to gain fair access to protected works for educational purposes.

Provinces acknowledge that the Copyright Act tries to achieve this balance by protecting the basic rights of creators while providing specific limitations to these rights where considerations of the public interest justify such limitations.

Provinces believe, however, that the present Copyright Act does not succeed in achieving this balance, but rather favours the rights of creators. The Act must be revised to allow education and research communities fairer access to created works, including limited rights to reproduce works for educational purposes.

For access to works to be fair, it must be on reasonable terms and at a reasonable price.

1. Although teachers and researchers prefer to use works in their original form, circumstances (particularly time) often require them to reproduce the works they need to use. Conditions governing the use of protected works must be clear and flexible, so that teachers, students, and researchers are not plagued by uncertainties about the legality of their actions. Procedures for obtaining permissions must be simple and convenient, and administrative record-keeping kept to a minimum.

2. The price paid by the education and research communities for access to protected works must be fair and reasonable; in certain limited exceptions, access should be free. In addition, where access to works is negotiated with a collective, the costs associated with negotiating and administering the agreements must also be fair and reasonable. The cost of access to works is of particular concern in the current fiscal environment, when the funding available for essential social services like education is limited.

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1. Definition of Educational Institution

Provinces are concerned that the use in the legislation of the phrase "educational institution," or any similar phrase, may unfairly limit the ability of educators to use protected material for educational purposes.

To avoid an unfair limitation, provinces believe that the phrase used in the legislation should be defined to encompass all educational programs and institutions: schools (including inspected and licensed private schools); home schooling; colleges and universities (including those with multiple campuses); child care centres; literacy programs; training programs; distance education and open learning programs (whether remote classrooms or home sites); and school boards and ministries or departments of education.

Also, throughout this paper, references to education and research should be taken as references to nonprofit, publicly supported educational programs, institutions (including libraries within such institutions) and research.

2. Fair Dealing/Fair Use

"any fair dealing with any work for the purposes of private study, research, criticism, review or newspaper summary."

Certain legal precedents in Canada suggest that fair dealing is more limited than many believe, but until it is defined more clearly in the law or in the courts, fair dealing will remain an area of uncertainty.

Provinces support a clear definition of fair dealing in the Copyright Act that would provide:

explicit permission for educators, administrators, staff and students to reproduce, for the purposes of private study, research, education and teaching, one copy of an entire periodical article; an entire newspaper article; an entire article from an encyclopedia, dictionary, annotated bibliography or similar reference work; an entire short story, play, poem or essay, whether or not from a collective work; an entire item of print music from a book or periodical issue; a chart, graph, diagram, drawing, cartoon or picture from a book, periodical or newspaper; at least 10 per cent of a published work; and one chapter of a book.

The legislation should make it clear that fair dealing applies to the making of a reprographic, audio-visual or electronic copy of a work, and to the storage or transmission of a work by electronic means.

Further, the legislation should permit nonprofit libraries and their staff to make a copy of a work, in accordance with the fair-dealing provision, upon request, if the copy would have complied with the fair-dealing provision had it been made by the requester.

The legislation should also contain clear guidelines about the factors that would be used to establish whether use of a work is fair dealing, such as the purpose and character of the use (for example, commercial or nonprofit), the nature of the work copied, the proportion of the work copied, and whether the copying substitutes for the purchase of a work.

In the years since 1988, the Government of Canada has considered certain changes to the current fair-dealing provisions in the Copyright Act. One of the changes proposed in the past was to extend the benefit of fair dealing to unpublished works deposited in archives. This change would provide distinct benefits for academic research and is supported by provinces. Another of the proposed changes was to require that research be private in order to qualify for fair dealing. This change would disadvantage academic research and is opposed by provinces.

Another way of defining fair dealing for the education and research communities that is supported by provinces is to include in the legislation a provision for "fair educational use" of protected material. Such a provision would contain specific educational exceptions, such as:

copying works for overhead transparencies; the inclusion of short extracts of works in course materials; making back-up copies of works used in teaching; using works for assessment purposes; off-air taping for classroom use; live performances and the taping of live performances for later classroom use; and the broadcast and transmission of works for the purposes of distance education.

In suggesting changes to the fair-dealing provisions of the Canadian Copyright Act, provinces wish to draw the Canadian government's attention to a related provision in the United States Copyright Act. In section 107 of the U.S. Copyright Act, "fair use" is a right that allows reproduction by any means for purposes such as teaching, scholarship or research. Minimum guidelines for photocopying, negotiated by representatives of the education, author and publisher sectors and approved by the U.S. Congress in 1981, make it clear that under the U.S. Copyright Act, teachers have a fair-use right to make:

1. for their personal use in teaching or research, single copies of a chapter from a book, an article from a periodical, a short story or poem;
   
2. for classroom use by students, multiple copies of the same works, subject to criteria such as brevity, spontaneity and cumulative effect.

Similar agreements have established guidelines for educational uses of music and off-air taping in the U.S.

It is interesting to note that Canadian educators who have negotiated agreements with the Canadian Copyright Licensing Agency (CANCOPY) reimburse American authors, through these agreements, for use of their work. American educators, however, under the U.S. Copyright Act, may copy the work of Canadian authors without reimbursing them.

It is clear that the American fair-use provision is broader than Canada's fair-dealing provision, which does not permit multiple copying of works for teaching purposes.

Provinces do not necessarily advocate adoption of the U.S. right of fair use. They do believe, however, that the fair-dealing provisions of the Canadian Copyright Act should be clearly defined and, therefore, available to individuals and institutions who make, by any means, single copies of short works such as periodical articles, poems and short stories, or single copies of short portions of longer works, for private study, research or use in an educational program.

This level of copying is considered fair in many countries of the world, and would ensure similar access to information for Canadian researchers.

The need for a clear definition is particularly compelling in the case of publications that report the results of research paid for with public funds (see section 6, "Articles in Academic Journals").

3. Audio-Visual Works and Off-Air Taping

To meet the needs of students today, teachers must have access to information and resources in a variety of formats, ranging from traditional print to computer software, and including such audio-visual formats as videotapes and television broadcasts.

It is essential to effective teaching that instructional materials be relevant. In a classroom, for example, the most timely teaching tool may be an off-air videotape of a television program. The television medium itself has become an object of study. Media literacy courses develop a student's ability to assess critically the value of information conveyed through the media. To teach media literacy, teachers must have immediate, flexible and open access to the entire range of media materials, especially television programs.

There are a number of complications involved in the use of off-air tapes. First, before a teacher can assess the usefulness of a program as a teaching tool, it must be taped. Taping a program off-air requires the permission of the copyright owner. Obtaining permission before taping may be impossible if the decision to tape is made near the time of the broadcast, as is often the case. A teacher's inspiration to seize "a teachable moment" usually requires swift action to obtain the resources necessary to the instruction. And, in the end, an off-air tape may never be used because a teacher may have found the program ultimately unsuitable for the purpose for which it was intended.

Off-air taping is further complicated by the large number of rights and rights holders involved. Broadcasters are unwilling or unable to provide access to a great deal of material because the limitations of their contracts with rights holders prevent them from granting access to educators via a collective or otherwise.

In addition, the right of public performance may have to be obtained before audio and video tapes, records and compact discs can be presented to a class of students. Teachers must obtain permission to show to students a rented videotape or a video purchased from a retail outlet, as these are usually only cleared for home use.

Access to protected works must be guaranteed through specific exceptions or limited-damage provisions in the copyright law. As noted earlier, provinces have the greatest respect for the rights of creators. But effective teaching sometimes requires spontaneous access to works, and the law must provide for this access in those instances where creators have not established the appropriate mechanisms to authorize it.

One limited exception that has been proposed would permit off-air taping of news and public affairs programs for subsequent performance in the classroom. Although this exception would be welcome, it would not answer the question of access to non-news-and-public-affairs programs, many of which are important in the context of education.

While audio-visual collectives could resolve some of the problems of access to broadcast programs, they have drawbacks. Requirements for record-keeping may be substantial, and the collective's membership may not include the majority of audio-visual producers. (The position of provinces on collectives is discussed more fully in section 5 below.)

Provinces believe that educational access to off-air taping is best dealt with through a specific exception to the copyright protections in the Act that would permit an educational institution to tape any program off-air. Such a fair-dealing exception, which would contain certain limitations, could be based on the "10-45" rule in the 1981 U.S. Guidelines for Off-Air Recording of Broadcast Programming for Educational Purposes.

This fair-dealing exception would permit a nonprofit educational institution to make an off-air recording of any broadcast program and retain it for 45 days from the date of the recording, at which time the tape would have to be erased. Teachers would be able to use the recording once for teaching purposes, and could retain it for evaluation purposes until the 45-day period had expired. Permissions would be required from the copyright owner or from a collective if the recording were to be retained for subsequent use.

Such a limited exception in the Canadian Copyright Act would resolve one of the most vexing aspects of the educator's off-air taping dilemma, without any appreciable derogation of copyright owners' rights.

With regard to rights of public performance, as noted in section 7 below, there should be an exception when the performance is used as a learning exercise within an educational program, and not purely for entertainment.

Beyond the fair-dealing exception, provinces would support compensating the rights holder for use of the work at a preferential rate that would recognize the public interest in access to the work for educational purposes.

4. New Media Technologies

Provinces believe that revisions to the Copyright Act must take account of the development and proliferation of new media technologies such as software programs, CD-ROMs, video-discs, interactive videos, interactive computer programs, distribution networks such as Internet and SchoolNet, and the use of new communications technology to deliver and distribute educational programs to students in remote locations (distance education).

Computers and other new media technology have become essential tools of learning in educational programs, but there is a considerable amount of uncertainty about their use in relationship to copyright law.

Although existing copyright law is inadequate to deal with uses of new media technology, provinces would not favour delaying urgently required amendments to the Copyright Act that would balance the rights of educational users with those of creators while detailed policies about new media technologies are worked out. In the immediate future, any definition of fair dealing in the Act, as proposed in section 2 above, should make it clear that fair dealing also applies to the making of an electronic copy of a work and to the storage or transmission of a work by electronic means.

It is also the position of provinces that, at this stage in the amendments to copyright law and in view of the rapidly evolving nature of technology, references to new media technology in the legislation should be kept as broad as possible.

The Council looks forward to working with the federal government in the future to ensure that the rights of both creators and users are protected in respect to the use of new media technologies.

5. Collectives

Provinces have supported the concept of the collective administration of copyright to simplify access to published works protected by copyright and to provide compensation to creators. In particular, provinces have supported licences with collectives as an effective way to address the issue of multiple copying.

Since the last round of revisions to the Copyright Act in 1988, the education ministries of a number of provinces have negotiated licences with copyright collectives -- l'Union des écrivains québécois (UNEQ) and the Canadian Copyright Licensing Agency (CANCOPY) for example. In addition, the Association of Universities and Colleges of Canada and CANCOPY have developed a model licence for universities and colleges.

The experience of the education and research communities in dealing with collectives, however, has not been without problems. In particular, educators have complained about the cost of negotiating agreements and the high costs associated with administering agreements. For example, some agreements require the users to conduct a survey on actual use (that is, the actual amount of photocopying of protected works that occurs in each institution), which requires a considerable amount of staff time and energy. In addition, it is disturbing to educational users that certain collectives have not yet devised mechanisms to distribute the fees they collect to the creators they represent.

As noted in section 2 above, provinces advocate that a definition of fair dealing be included in the legislation that would allow the making of single copies for educational purposes, leaving only the right to make multiple copies to be negotiated with collectives.

As noted in section 3 above, provinces also advocate that educators be guaranteed spontaneous access to audio-visual works through a specific exception or limited-damage provision in the copyright law. Such an exception or provision is particularly important in those instances where creators have not established the appropriate mechanisms to authorize access.

At present, there are no agreements between educators and audio-visual collectives in Canada. Provinces continue to support the principle of negotiation of rights with collectives, and remain open to negotiating agreements with collectives that may be formed to represent audio-visual creators. But, as noted in section 3 above, provinces are also concerned that agreements with collectives may not be the best way to provide the spontaneous access to audio-visual material that is required to seize the teachable moment.

In view of both the experience of the past few years and the limited number of collectives representing creators at the present time, provinces advocate balancing the concept of collectives with the concept of specific educational exceptions. Licences offered by collectives are only a partial answer to the copyright concerns of educators; they should not be seen as a complete alternative to legislation that sets out clear guidelines for fair-dealing and specific-user exceptions. Where collectives do operate, the legislation governing them should provide protection for the rights of education and research communities as well as the rights of creators, and should acknowledge the social benefits of access to information and protected works for educational purposes. The agreements negotiated should provide preferential rates for the use and reproduction of works for educational purposes (beyond the initial single copy). Guidelines should ensure that the licences negotiated provide a simple and expeditious method for obtaining permissions, and that the costs of the negotiation process are minimal. Any requirement imposed by a licence to ascertain and monitor actual use should consider the financial and other costs of such record-keeping.

Provinces would also be prepared to support the establishment of centralized administrative procedures that would simplify the securing of permissions for works not covered by exceptions, not represented by a collective, and not included in broadly based blanket agreements and voluntary guidelines.

For example, provisions could be made to ensure adequate access to such works upon payment of a fee determined by applying an agreed-to formula (for example, a fee based on the number of students in the schools). This fee could be remitted to an independent organization temporarily established by the federal government to deal with requests from educational programs, pending the creation of a collective.

6. Articles in Academic Journals

Provinces believe that the copyright protection held by academic publishers should be reviewed. Scientific and technical articles are written by creators whose main purpose is to communicate the results of their scholarship, which in many cases has been financed by the public purse. But the copyright on the articles is held by the publishers who provide the media for communicating the scholarship. Compensation of the creators is not an issue in these circumstances, because the interest of the creators lies in the widest possible dissemination of the work.

Provinces are also concerned that existing copyright law may place Canadian researchers at a competitive disadvantage to those in other nations (notably the United States), where researchers often have greater latitude than Canadians in gaining access to information and in the copying and sharing of information.

A definition of fair dealing as described in section 2 above would go a long way to alleviating provinces' concerns about access to articles in academic journals. Alternately, a specific exception for fair-dealing purposes could permit a library or archives to reproduce articles from scientific, technical and scholarly journals, and to enjoy all exceptions under the Act, such as fair dealing, that are enjoyed by its patrons.

In addition, the Copyright Board could be given authority to review copyright fees charged by academic publishers:

1) where the author's work was supported primarily by grants from a provincial or federal research council;
and

2) when asked to do so by one of the three federal granting councils (the Medical Research Council, the Social Sciences and Humanities Research Council, and the Natural Sciences and Engineering Research Council) or by a formally recognized provincial research council.

Alternately, publicly sponsored research findings published in any media could be clearly marked as being in the public domain and therefore not requiring permission to use or copy.

7. Other Important Issues

A number of other important issues of concern to the education and research communities in Canada have arisen in the years since 1988. In addressing these issues, it is the desire of provinces to achieve a satisfactory balance between the rights of creators and those of the education and research communities in Canada.

a) Production of alternate format material for persons with perceptual disabilities

Provinces believe that educators should be able to provide material to persons with perceptual disabilities (those who are blind, visually impaired, learning-disabled or motor-impaired) at no additional cost for copyright, including the conversion, adaptation or transfer of such material to an alternate format such as Braille, audio tape, large print or computer diskette.

Provinces support databases, such as CANUC:H, that have been created for Braille, large print and audio books. These databases require that copyright be waived before a work is registered.

b) Public performance of works in schools

Provinces question the applicability of the phrase "public performance" to works performed as a learning exercise within an educational program, and not for entertainment purposes.

Provinces support an exception from copyright provisions for live performances for educational purposes, by teachers and students, of literary, dramatic, musical or choreographed works, and the copying and subsequent showing of copies of such live performances for educational purposes.

Provinces further support exceptions for pre-recorded feature and theatrical films for performance in the classroom for educational purposes, and for pre-recorded audio-visual materials if purchased or rented at retail outlets for performance in the classroom for educational purposes.

c) Copying for use in educational programs

Provinces support an exception for the copying of works or parts of works, for the purpose of displaying these works for educational purposes on blackboards or overhead projector transparencies; the inclusion of short extracts of works in course materials for students, so long as these extracts do not constitute an anthology and are not sold to students; the non-commercial uses of protected works of a reasonable length in setting, communicating or answering questions in an examination, test or other assessment instrument; and broadcast and facsimile rights to the material described in this exception for the purposes of distance education.

d) Copying for maintenance of a library collection

Provinces support an exception for the making of one copy to replace a damaged or deteriorating work, or to prevent the damage and deterioration of works, in library collections where, with reasonable efforts, it can be determined that copies of the work are not available commercially at a reasonable price and within a reasonable time.

e) Copying out-of-print materials

Provinces support an exception for copying out-of-print materials where the owner of the copyright is not known or cannot be ascertained (for example, if the publisher is out of business or the author unknown).

Provinces further support an exception for a library making a single copy of an out-of-print book for the purpose of including it in its permanent collection or in the permanent collection of another library.

f) Royalties for blank tapes

Provinces are concerned about the recent decision of the federal government to apply royalty charges to the purchase of blank audio tapes to compensate creators for "home" copying. Agreements between educational users and collectives cover payments to creators; a royalty for blank tapes requires the educational user who has an agreement with a collective to pay twice. Provinces support an exception for educational users purchasing blank tapes.

g) Liability for misuse of copying equipment

Provinces support the clarification of criminal and civil sanctions for infringement of copyright as it applies to educational use, including when a collective licence is involved.

Provinces further support limiting or eliminating the criminal and civil liability of publicly supported corporations for illicit or unauthorized copying by employees or clients, regardless of use, providing the corporation has made a reasonable effort to inform its employees and clients about the limitations to copying protected works (such as affixing a notice near each machine).

Provinces further support making the defence of fair dealing available to third parties who make copies on behalf of someone who may use that defence.

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The Council of Ministers of Education, Canada and individual provincial and territorial ministers have an important role to play in determining the direction of copyright and the collective administration of copyright legislation in Canada.

The Council will:

1. facilitate the sharing of information on copyright among provincial and territorial education authorities, and between those authorities and copyright owners' associations;
   
2. regularly update the ministers and their various committees on legislative developments in the field of copyright;
   
3. encourage the development within the education sector of a consensus on copyright that is based on a balance between the respect for creators' and users' rights;
   
4. convey the position of provinces on copyright to the appropriate federal ministers and ensure that these views are widely known by the education sector when copyright legislation is introduced;
   
5. encourage and facilitate the dissemination of current, accurate information about copyright laws and issues to educators, researchers and students.

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• Canadian Copyright Law, by Lesley Ellen Harris
• Internet Content-Related Liability Study

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