Filtering the Flow from the Fountains of Knowledge: Access and Copyright in Education and Libraries
| Author | Margaret Ann Wilkinson |
| Pages | 331-374 |
Filtering
the
Flow
from
the
Fountains
Margaret
Ann
Wilkinson'
A.
INTRODUCTION1
Since
1997
the
Canadian
Copyright
Act2
has
contained
specific
exceptio
ns
to the
rights
of
copyright holders which
are
only available
to
defined,
tar-
geted institutions.
As
recently
as
March 2005,
in
their joint
Government
Statement
on
Proposals
for
Copyright
Reform,3
the
Ministers
of
Industry
a
nd
Heritage signalled
an
intention
to
continue singling
out
particular
insti-
tutions
for
special treatment under
the
copyright regime.
The
recent
Bill
C-6o
further demonstrates this
intent.4
Given
the
current minority gov-
ernment,5
it
remains uncertain whether
the
proposed enactments will
be
The
author would like
to
thank
law
student Jordan Cutler
for
research support
in the
preparation
of
this chapter.
The
author's research
is
supported through
the
Social Sciences
and
Humanities
Council
of
Canada.
This
chapter discusses
the
Canadian copyright environment
as at
i
July 2005.
Copyright
Act,
R.S.C.
1985,
c.
C-42.
Canada,
Ministries
of
Industry
and
Canadian Heritage,
Government
Statement
on
Proposals
for
Copyright
Reform
(March 2005).
progs/da-cpb/reform/statement_e.cfm>
[Statement].
Bill
C-6o,
An Act to
amend
the
Copyright
Act,
ist
Sess.,
3/th
Parl.,
2005,
ist
session,
38th Parliament, First reading
20
June 2005.
chambus/house/bills/government/C-6o/C-6o_i/C-6o-3E.html>.
The
final
distribution
of the 308
seats
after
the
election was: Liberals
135
seats,
Conservatives
99,
Bloc
Quebecois
54
(all
from
the
province
of
Quebec),
and New
Democratic
Party
19.
Also elected
was
i
independent member,
from
British
331
TWELVE
of
Knowledge:
i
2
3
4
5
Access and Copyright in Education and Libraries
IN THE
PUBLIC INTEREST:
THE
FUTURE
OF
CANADIAN COPYRIGHT
LAW
enacted. Nonetheless,
it is
important
to
discuss
and
comment upon
the
ongoing approach
of
government
to
limit certain copyright exceptions
to
particular institutional contexts.
Not
only
are its
reforms
to be
limited
to
particular institutional con-
texts,
but the
Government Statement also declared
that
"[t]he
Govern-
ment supports
the use of
leading-edge technologies
in
education
and
research" and, therefore,
that
the
proposed federal bill introducing copy-
right change "will propose
certain
measures
that
will facilitate
the use of
the
Internet
for
these purposes" [emphasis
added].
On the
other hand,
the
government
has
deliberately refrained
from
making other proposals
in
this
connection.
One
such absence occurs
in the
area
of the
Statement
headed "Educational
use of
Publicly Available Internet Material."
In
this
area,
the
Statement points
to the
need
for
further consideration
of
"the
implications
of
recent copyright decisions
by the
courts (notably
the re-
cent Supreme Court
of
Canada decision regarding
fair
dealing,
CCH
v. Law
Society
of
Upper
Canada)"
before
policy
can be
proposed.
It is the
argument
of
this
chapter
that
the
implications
of
recent decisions
of the
Supreme
Court
of
Canada
are
much wider
than
the
Government appears
to
believe
and
that
analysis
of
these decisions remains
an
important
factor
in
con-
sidering
the
proposals which
the
Government
is
putting forward,
as
well
as in
considering
the
issues which
the
Government proposes
to
defer.
The
chapter concludes
by
demonstrating
that
two of the
proposed amend-
ments
in
these areas
are
probably unnecessary, given
the
current
state
of
the
law,
and the
third
is
probably ill-timed
and may
also
be
ill-conceived.
B.
BACKGROUND
In
the
19805
there
was a
large round
of
consultations
on
copyright
in Ot-
tawa, which culminated
in an
important series
of
position
papers.6
Out of
Columbia (who
has
since died
of
cancer,
leaving
a
vacancy). Since
155
seats
are
needed
to
dominate
the
House,
this
has
been
a
very
interesting,
if
potentially
short-lived,
Parliament. Already
the
distribution
of
seats
has
changed, through
defections, resignations
and
death.
As of
July 2005,
the
distribution
is:
Liberals
133
(through three defections
— to sit as
Independents
— and one
death
and
then
success
in one
by-election
and one
defection from
the
Conservatives); Con-
servatives
98,
Bloc
Quebecois
unchanged
at 54, NDP
unchanged
at 19,
Indepen-
dents
now
3
plus
i
vacancy.
The
first
federal discussion paper
was
From
Gutenberg
to
Teledon:
A
Guide
to
Can-
ada's
Copyright
Revision
Proposals
(Ottawa: Government
of
Canada,Consumer
and
Corporate
Affairs,
Department
of
Communications, 1984), which
was
followed
by
A
Charter
of
Rights
for
Creators
(Ottawa: Government
of
332
6
this
process,
however,
the first
tangible statutory changes occurred only
in
1988
and
these
changes, generally, enhanced
the
position
of
rightsholders
in the
copyright
environment.7
One
consequence
of the
reforms
of
1988
has
been
the
rapid creation
and
growth
of
collective societies representing
the
rightsholders
of
different
aspects
of the
range
of
copyright
interests
originally bestowed
by the
Copyright
Act. Prior
to
1988,
the two
collectives
then
active
in the
music industry were
the
only
major
players
of
this
type
in the
copyright policy
environment.8
Now
there
are
many.9
As
the
decade
of the
19803
passed with
no
sign
of the
anticipated "Phase
2"
legislative reforms, which
it was
thought
would address
users'
perspec-
tives,
those
groups
who had
participated
in the
consultations
represent-
ing
the
perspectives
of
information users
and
intermediaries,
rather
than
copyright owners, were disappointed
and
disillusioned
by the
process.10
However,
lobbying
efforts
continued, aimed
at
getting
the
federal govern-
Canada,Parliament,
House
of
Commons,
Sub-Committee
on the
Revision
of
Copyright,
1985).
For
example,
up
until 1988, most copyright holders were discouraged
from
engaging
in
collective administration
of
their
rights because
of the
threat
of
anti-combines prosecution pursuant
to the
Competition
Act,
R.S.C.igSs,
c. C-
34. In
1988, however,
s.
70.5(3)
of the
Copyright
Act was
added which provides:
"Section
45 of the
Competition
Act
does
not
apply
in
respect
of any
royalties
or
related
terms
and
conditions arising under
an
agreement
filed in
accordance
with
subsection
(2)."
Immediately
two
large
print
collectives became very active
in
Canada:
CANCOPY
(which
was
incorporated
as a
federal non-profit organiza-
tion
in
August, 1988),
now
AccessCopyright,
for
English language materials
and
UNEQ,
now
COPIBEC,
for
French language materials.
The
Composers, Authors,
and
Publishers Association
of
Canada
(CAPAC)
and
the
Performing Rights Organization
of
Canada
(PROCAN).
With origins
as
early
as
1925,
the two
joined together
in
1990
to
form
the
Society
of
Composers,
Authors,
and
Music
Publishers
of
Canada
(SOCAN).
CANCOPY,
now
AccessCopyright, Christian Copyright Licensing Inc., Neigh-
bouring Rights Collective
of
Canada,
and so on. The
Copyright Board
of
Canada
maintains
a
list
at
In the
controversy following
the
appearance
of the
Charter
of
Rights
for
Creators,
groups representing user interests were persuaded
that
copyright reform
was
being packaged
as a
two-phase process.
The first
phase
was to be
Bill
C-6o
which,
when enacted
in
1988, created
the
amendments
to the
Copyright
Act
that
largely favoured copyright owners.
A
second phase
was
promised, which
was
to
focus
on the
needs
of
information users
and
intermediaries.
The
promised
second phase, however, failed
to
appear
in a
timely manner.
See
Linda Hansen,
"The
Half-circled "C": Canadian Copyright Legislation," (1992)
19
Government
Publications Review 137.
Filtering
the
Flow from
the
Fountains
of
Knowledge
333
7
8
9
10
Chapter Twelve
To continue reading
Request your trial