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STRIKING the BALANCE

Submission to the Copyright Consultations


Canadian Federation of Students

September 2009
The Canadian Federation of Students

British Columbia
University of British Columbia Students’ Union Okanagan
Broadway Campus Students’ Union of Vancouver Community College
Camosun College Student Society
Capilano Students’ Union
Douglas Students’ Union
Downtown (City Centre) Students’ Union of Vancouver Community College
Emily Carr Students’ Union
Kwantlen Student Association
College of New Caledonia Students’ Union
North Island Students’ Union
Northwest Community College Students’ Union
Okanagan College Students’ Union
College of the Rockies Students’ Union
Selkirk College Students’ Union
Simon Fraser University Student Society
Thompson Rivers University Students’ Union
Vancouver Island University Students’ Union
University of Victoria Students’ Society

Prairies
Alberta College of Art and Design Students’ Association
Brandon University Students’ Union
Graduate Students’ Association at the University of Calgary
First Nations University of Canada Students’ Association
University of Manitoba Students’ Union
University of Manitoba Graduate Students’ Association
University of Regina Students’ Union
Association étudiante du Collège universitaire de Saint-Boniface
University of Saskatchewan Students’ Union
University of Saskatchewan Graduate Students’ Association
University of Winnipeg Students’ Association

Ontario
Algoma University Students’ Union
Brock University Graduate Students’ Association
Carleton University Students’ Association
Carleton University Graduate Students’ Association
Association étudiante de La Cité collégiale
Student Association of George Brown College
Glendon College Student Union
University of Guelph Central Student Association
University of Guelph Graduate Students’ Association
Lakehead University Student Union
Laurentian Association of Mature and Part-time Students
Laurentian University Graduate Students’ Association
Laurentian University Studens’ General Association
Association des étudiantes et étudiants francophones de l’Université Laurentienne
85 Member Students’ Unions
Over 600,000 University and College Students

McMaster University Graduate Students’ Association


Nipissing University Student Union
Ontario College of Art and Design Student Union
Student Federation of the University of Ottawa
Graduate Students’ Association des étudiant(e)s diplômé(e)s de l’Université d’Ottawa
Queen’s University Society of Graduate and Professional Students
Ryerson Students’ Union
Continuing Education Students’ Association of Ryerson
Saint Paul University Students’ Association
University of Toronto Scarborough Campus Students’ Union
University of Toronto Graduate Students’ Union
University of Toronto Students’ Union
University of Toronto at Mississauga Students’ Union
Association of Part-Time Undergraduate Students of the University of Toronto
Trent Central Student Association
Trent University Graduate Student Association
University of Western Ontario Society of Graduate Students
Wilfrid Laurier University Graduate Students’ Association
University of Windsor Students’ Alliance
University of Windsor Graduate Students’ Society
University of Windsor Organization of Part-time University Students
York Federation of Students
York University Graduate Students’ Association

Québec
Concordia Students’ Union
Concordia University Graduate Students’ Association
Dawson Students’ Union
Post-Graduate Students’ Society of McGill University

Maritimes
Cape Breton University Students’ Union
Dalhousie Association of Graduate Students
Holland College Student Union
University of King’s College Students’ Union
Mount Saint Vincent University Students’ Union
University of New Brunswick Graduate Students’ Association
Student Union of NSCAD University
University of Prince Edward Island Student Union
University of Prince Edward Island Graduate Student Association
Association générale des étudiants de l’Université Sainte-Anne

Newfoundland & Labrador


Grenfell College Student Union
Marine Institute Students’ Union
Memorial University of Newfoundland Students’ Union
Graduate Students’ Union of the Memorial University of Newfoundland
College of the North Atlantic Students’ Union
Executive Summary
Should copyright law lock down music and literature to protect the financial interests of
rights-holders? Or, should it promote broad access to, and use of, intellectual property?
These questions are at the core of the growing public debate over the need for fair and
balanced copyright law, a debate in which college and university students have a critical
stake.
As creators and owners of copyright material (essays, articles, theses, and multimedia
productions), students need to protect their work from unjust appropriation. But to
study, research, write, and create new knowledge, students also need ready access, at a
reasonable cost, to the copyrighted works of others. This tri-part perspective—of use,
creation, and ownership of copyright—gives students special credibility in the struggle
for fair and balanced copyright law.
This brief addresses the fundamental questions that must be considered when revising
copyright legislation for the digital age in a way that will allow it to stand the test of time.
The brief answers the following questions:

Section 1. How do Canada’s copyright laws affect you? How should existing laws be
modernized?
Section 2. What sorts of copyright changes do you believe would best foster
innovation and creativity in Canada?
What sorts of copyright changes would best foster competition and
investment in Canada?
Section 3. What kinds of changes would best position Canada as a leader in the
global, digital economy?
Section 4. Based on Canadian values and interests, how should copyright changes
be made in order to withstand the test of time?

Key Recommendations
1. Expand the definition of fair-dealing to be more flexible and inclusive.
2. Regulate the use of technological protection measures so that they do not
interfere with users’ legitimate attempts to use copyrighted works.
3. Eliminate Crown copyright.
4. Strictly limit statutory damages.
5. Enhance moral rights to protect creators.
6. Establish a “notice and notice” system of Internet copyright enforcement.

2009 Copyright Consultations PAGE 7


Creating Legislation for the 21st Century

Students, like most citizens, interact Digital technology has increased the
with copyrighted works on a daily basis. role of new media in popular culture,
Students use textbooks and articles in and students are often on the cutting
classes, quote from research papers and edge of such advancements. With new
publications in their essays, and often technology, students are becoming a
use images, sound and video in their major source of new and re-mixed media,
projects. Copyright legislation affects whether it be creating films and videos,
students virtually every time they walk producing music, or developing new
into a classroom, watch a video online, or ways to share and transform art and
step into the library. knowledge.
However, what is often overlooked is The central question of copyright reform
that students are not only users, but is how best to strike a balance between
also creators of copyrighted material. the needs of users for reasonable access
Students write essays, articles and theses; and use of copyrighted works, and the
develop new technologies, formulas, and need of creators to be protected from
computer software; and create music, unjust appropriation. Good public policy
produce videos and photographic works. should ensure that digital technology
protects the legitimate interests of
Being both users and creators of artists, writers, musicians, researchers,
copyrighted works, students are in a and other creators, while preventing
fairly unique position when it comes copyright owners from using new
to copyright. In order to be able to technologies to restrict reasonable
study, research, write, remix, and access to, and use of information.
regenerate existing creations for new
audiences, students need ready access,
at a reasonable cost, to the copyrighted
works of others.
At the same time, in the face of
aggressive, powerful, and, sometimes
exploitative, distributors of copyrighted
materials, students, like all creators, need
adequate protections from the unjust
appropriation of their works.

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Fostering Innovation and Creativity,
Competition and Investment
Innovation and creativity are best served Copyright laws should establish an
through a Copyright Act that balances incentive framework that produces an
the rights of creators, owners, and users. environment where creators are able
Creators require protection from unjust to create new things, but does not
appropriation and the ability to earn engender a system where the owners
from the works they produce while users and distributors of copyrighted works
require the ability to access these works maintain unnecessarily long-terms of
and, when reasonable, use them for the control over their use. Knowledge is at
basis of the creation of new works. the heart of a dynamic and productive
arts and research community and
All creators stand on the shoulders of must not be controlled by owners for
giants. Innovation is, by its very nature, exceedingly long periods of time if the
the result of building upon the works potential for competition and innovation
of others, so blocking access stifles the is to be maximised. The shorter
innovative process. Canadian students the legally protected monopoly on
cannot be saddled with an overly knowledge, the greater the incentive that
complex and inefficient subsection of exists to invest in the production of new
rules—such as those proposed previously material. However this must be balanced
within an “education exception”—that with the need of the creator to make a
will inevitably put them at a disadvantage living. Therefore, the current length of
compared to countries with more copyright terms should not be increased.
comprehensive and coherent copyright
legislation. Without a fair balance between the
interests of creators, users, and owners
Some of Canada’s most innovative there is reduced incentive for investment
research is carried out by graduate in the creation of new works and
students in universities. To be able knowledge. Investment in new products
to properly produce knowledge and innovation by creators requires
these graduate researchers and their that they benefit financially from their
supervisors need reasonable access works. However, if ownership rights are
to works published by their peers. too severe, they will greatly restrict the
Any increase in cost or limits to access ability of the Canadian public to access
resulting from restrictive copyright law and make use of these works for fair and
or unbreakable digital locks, will slow reasonable puposes, ones which inspire
down the rate of innovation and hinder creativity and future innovation.
Canada’s competitiveness.

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Positioning Canada as a
Leader in the Global Digital Economy

With the development of technologies the development of new and innovative


that facilitate the high-speed, low-cost products and works.
transfer of digital information, there
has come a massive increase in the Canada needs to ensure that creators
speed of research and innovation. can be remunerated for the work they
Despite the clear benefits of these produce as an incentive to create further
developments, some groups have works, while at the same time ensuring
proposed to use technology to prevent the public has the ability to enjoy these
some communications and lock down works and create new ideas by building
knowledge in its digital form in order to upon the ideas of others. Only with
maximize their ability to control and to such a copyright framework will Canada
profit from copyrighted works. remain competitive in the global digital
economy.
Copyright law was initially developed in
response to technological advancements Incentives created by a coherent
in the mass production of intellectual copyright framework can only go so far
and creative work—a strikingly similar in spurring on the production of new and
situation to the one we face today. innovative works. The government must
Copyright law was created to restore a also increase support for students and
balance (disrupted by the development other creators through adequate public
of printing press monopolies) between funding for post-secondary education
the economic interests of creators and and the arts. Truly innovative ideas
mass distributors so that the public develop in an environment that fosters
would have access to new cultural works. creativity and allows citizens to build on
These monopolies still exist today and the creations of those that came before
continue to demand that copyright laws them. However, it is also important to
be skewed in their favour. However, note that ideas are only turned into great
these opponents of balanced copyright works when the economic environment is
law have not articulated a satisfactory supportive of creators so that they may
rationale as to why Canada should make transform those ideas into something
a historical deviation from the principles real.
of balanced copyright.
Federal policy-makers should not over-
react by developing restrictive copyright
legislation that will inevitably hinder

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Building on Canadian Values: Creating
Legislation to Withstand the Test of Time

Policy must be written in broad terms In consideration of the foregoing, the


in order to remain relevant and useful Federation recommends the following:
for years to come. This is especially
true when considering policy that deals
with rapidly evolving technologies. Fair dealing
Three decades ago the ability to rapidly The most important step the government
transfer files from one side of the world can take in ensuring that copyright
to the other had barely been imagined, remains fair and balanced is to adopt a
and the music industry was just starting more flexible and open-ended definition
to explore digital methods for recording of fair dealing within the Copyright
and releasing music. Now, less than a Act. Such a definition would reflect the
lifetime later, it is hard to imagine a world principles the Supreme Court has already
where these technologies do not exist. set out in its decision in CCH Canadian
Ltd. v. Law Society of Upper Canada. In
Copyright legislation must represent that case, the court rejected the view that
Canadian values and beliefs, and should fair dealing was simply a limited defense
do so in broad terms, articulating shared to infringement, instead finding that fair
values and principles. During the last two dealing needs to be given a broad and
rounds of copyright reform debates the liberal interpretation with a focus on
government spent significant amounts users’ rights.
of time developing a narrowly defined
series of exemptions that would allow for The Supreme Court’s recognition of
the use of copyrighted works in a handful a new copyright doctrine based on
of circumstances, employing specific users’ rights and a need for the careful
technologies. This approach was, and is, balancing of interests between the
fundamentally flawed. Law-makers today rights of owners and users now needs
cannot hope to accurately predict how to be enshrined in the Copyright Act.
citizens five, ten, or fifteen years down This open-ended approach reflects
the road will be creating, accessing, and the meaning of the CCH case, and also
using works. As such, lawmakers should serves the interests of students, teachers,
consider how to ensure that balance is librarians, and administrators; as well
maintained no matter what technological as other life-long learners who aren’t
innovations come about that may limit affiliated with an institution. This general
or expand users’ abilities to access approach would avoid having to ask
materials. for special exceptions for educational
institutions that are not available to the
general public.

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DRM and TPM Crown Copyright
In recent years many owners of Crown Copyright is the means by which
copyrighted works have sought to the government is granted copyright in
circumvent users’ rights through the use all work created under its direction. One
of Digital Rights Management (DRM) of Canada’s most basic values is public
and Technological Protection Measures ownership and access to a collective
(TPMs). It is claimed that these measures commons. Government work is paid
are needed to “shield” digital works from for by tax dollars and the property of
unauthorised access and monitor their the government is, by its very nature,
use, when in fact they deny users’ rights public. Given that work produced by
detailed in the Copyright Act and allow the government is paid for through tax
corporate copyright owners to ignore dollars, the public should not have to pay
Canadian copyright laws and make their twice in order to access and make use of
own rules. that work.
However, technically savvy individuals are Under United States copyright law, works
often able to bypass these TPMs which produced by the U.S. federal government
has led copyright owners to fall back are not entitled to any kind of protection
upon the very laws they’ve attempted under copyright law. In essence these
to circumvent, and demand that worked, viewed to be the property of
governments make it illegal to bypass, the people, become part of the public
or purchase products that bypass, TPMs. domain as soon as they are produced.
What these corporate copyright owners
are actually asking, is for governments to Rather than lock up knowledge and
make it illegal for users to exercise their work that the public has paid to create
own rights when it comes to copyrighted with restrictive copyright licences, the
works. Copyright Act should be amended to
reflect the laws in the United States,
The dangers of these measures should where all works produced by the
be obvious. They often prevent lawful government are released into the public
activities such as fair dealing, accessing domain.
works in the public domain, archival
preservation, time and format shifting, Statutory Damages
device interoperability, and library If a person is found liable for copyright
lending. To achieve balance in the infringement, the owner of the infringed
Copyright Act, Canada must reject work is entitled to “actual” or “statutory”
these types of amendments. Any effort damages. Actual damages are based
to address these issues must not limit either on the losses suffered by the
the ability of users to bypass TPMs that owner, or the gains obtained by the
undermine personal privacy or statutory infringer. Statutory damages, on the
rights of access. other hand, are set out in legislation and

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can result in substantially larger payments still attach the student’s name to the
for each infringement. document. With moral rights intact, a
student can prevent this from happening.
Because of their punitive nature, the If moral rights are waived, the student
very availability of statutory damages has no such power.
often acts as a constraint against users
exercising their legitimate rights to use To avoid these situations, the Copyright
copyrighted works, such as fair dealing. Act should be amended to state that
moral rights being waived cannot be
For user rights to be meaningful, required as part of any publishing or
statutory damages need to be limited. distribution agreement. This would help
If an individual acts with a good-faith protect students who find that they are
belief that their use of a work is justified being pressured to waive these rights in
by fair dealing or another legitimate use, order to have their works published.
they should not be liable for statutory
damages even if their use is found to be Notice regulations
infringing.
Under the U.S. Digital Millennium
moral rights Copyright Act, Internet Service Providers
(ISPs) must comply with “Notice and Take
Section 14.1 (1) of Canada’s Copyright Down” provisions. There, a copyright
Act says: owner need only send a notice to an ISP
The author of a work has…the right to alleging infringement in order to legally
the integrity of the work and…the right, require them to remove the identified
where work. Such rules circumvent the courts,
reasonable in the circumstances, to be assume guilt, and deny the individual
associated with the work as its author by who posted the work a chance to
name or
respond to the allegations and defend
under a pseudonym and the right to remain themselves before the work is removed.
anonymous.
The alternative is “Notice and Notice”,
These rights, characterised as moral in which the ISP only has the legal
rights to distinguish them from the responsibility to pass a notice of
economic rights (to publish, reproduce, infringement on to the alleged infringer.
exhibit or perform a work) contained in This is a reasonable compromise. The
the Copyright Act, protect an author’s idea that materials could be unilaterally
honour and reputation and cannot be removed from a website based on
sold or otherwise transferred. They can, unproven allegations of infringement is
however, be waived and creators often offensive not only to academic freedom,
find themselves under enormous pressure but to everyone’s rights to expression.
from commercial publishers to do so.
If a student is hired to write a report,
for example, the contracting agency
may wish to change the conclusion but

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This document has a Creative Commons Attribution-
Noncommercial-No Derivative Works license. This
licence allows users to freely view, copy and distribute
the work, as long as it is not for commercial gain.
Creative Commons is a non-profit organization
devoted to expanding the range of creative works
available for others to build upon legally and to share.
[1] The organization has released several copyright-
licenses known as Creative Commons licenses.
These licenses allow creators to communicate which
rights they reserve, and which rights they waive for
the benefit of recipients or other creators.
Photo credits:
Page 1: Canadian Federation of Students
Page 4, 10, 12: UBC Library
Page 6: Flickr ID vlasta2
Page 8: Jeongyoon Kim