Heritage Committee Copyright Hearing, October 29, 2003

Posted by: Jason Young on Tuesday, November 11, 2003 – 11:49 PM EST


CopyrightThe lawyer stated that “licensing gives the right to publishers to regulate fair dealing”. I think this is especially true in this case, if licensing means that without the license, people would not even be able to access the works. If such is the case, licensing would lock away these materials so that no one could use them, even if such use would qualify as fair dealing. ...

Heritage Committee – Copyright Hearings
October 29, 2003
Warren Yeung

There were four presenters today, in front of the Committee:

* Paul Jones, Research and Education Officer for the Canadian Association of University Teachers
* Roanie Levy, Director of Legal Affairs and Government Relations, for the Canadian Copyright Licensing Agency
* Catherine Campbell, Publishing Consultant for the Canadian Publishers’ Council
* Harvey Weiner, Deputy Secretary General for the Canadian Teachers’ Federation

The Committee asked the witnesses to limit their comments to the reform process.

Canadian Association of University Teachers (Paul Jones)

Jones stated that the reform process should address the needs of both users and creators. He testified that there were some fundamental misunderstandings within the reform process. The first was that Copyright exists only to serve creators/owners; however, the fact that copyright exists for only limited terms, and because exceptions to infringement existed, goes to show that copyright laws do not serve solely creators/owners. He also quoted Théberge where the SCC stated that the Copyright Act exists to strike a balance between creators/owners and the public.

He also stated that it was a misunderstanding that copyright was not strong enough. As an example, Jones stated that whereas the Fair Use doctrine in the
U.S. allows mechanical reproduction for schools, under Fair Dealing in Canada, only manual reproductions can be made.

Jones stated that the reform process should be comprehensive. He asked the Committee not to legislate unless necessary; for example, extending copyright terms accomplished nothing other than giving copyright owners more money. If legislation is necessary, proceed carefully; as an example, Jones stated that while TPM’s could protect some rights, it may prohibit others. Finally, Jones asked the Committee to take a uniquely Canadian approach, such as placing limits on contractual limits on uses (shrink wrap).

In conclusion, Jones made some general statements: As society and tech changes, law does as well; and Digital technology should not undermine copyright, but also should not put total restrictions on use

Canadian Copyright Licensing Agency (Roanie Levy)

I appreciated Ms. Levy’s mannerisms the most out of all three. She was easily the most respectful, and gave her testimony and answered questions in the same, even-mannered tone that made it easy to listen to.

Levy explained why collective societies existed; the main reason was to provide access to owners, by opening up markets, and to users, so that they have easy and affordable access to works.

Levy explained that collective licensing could work in digital world; thus exemptions were not necessary; it seemed that her whole argument was aimed at persuading the Committee that this scheme is worth authorizing.

I was at the CCH hearing at the SCC today, and one of the lawyers said something that reminded me of the flaw in collective licensing. The lawyer stated that “licensing gives the right to publishers to regulate fair dealing”. I think this is especially true in this case, if licensing means that without the license, people would not even be able to access the works. If such is the case, licensing would lock away these materials so that no one could use them, even if such use would qualify as fair dealing. I’m not certain whether Levy’s idea of collective licensing would block materials from all but paying customers, but it is of some concern, and something I want to read the transcripts to clarify, as there was talk about applying collective licensing to public schools.

Canadian Publishers’ Council (Catherine Campbell)

Campbell spoke of access, education and collective copyright issues. One thing that she stated was that publishers want students to learn from the internet, but only if internet commerce is secure and rights are respected. Obviously, she is (understandably) fighting for the rights and interests of creators…but could you imagine the scenario if the conditions weren’t met? The internet would lose almost all educational value for students, and just be used for chatting, e-mailing and playing games. Hardly the most productive use of this tool.

Canadian Teachers Federation (Harvey Weiner)

Weiner stated that access is not an alternative to balanced copyright legislation, which must be fair and equitable and take into account needs of users and creators; collective licensing will not be the panacea of this (here it seems as though the Committee’s request to limit discussions to reform process is pretty much gone, as we’re going back and forth over licensing). Weiner stated that the amendment applies only to materials posted on internet so widely accessed and shared and no expectation by creator for compensation; for academic creators.

------ end witness presentations

Q: what is cost of imposing collective licensing?

This question was posed by one of the MP’s, whose name I unfortunately did not get. I thought that it was a really good, practical question. The answers from Jones and Weiner didn’t satisfy the questioner, as their response was based more on philosophical grounds – not focused on whether or not collective licensing is workable, but that it’s just a bad idea in the first place. I believe Levy stated that it would only cost $2200 for an elementary school of 1000, which was less than the cost of grounds upkeep (or some kind of upkeep). The figure sounded entirely reasonable; that’s the scary thing! My concern at the time was that, if collective licensing were allowed, what kind of price controls would there be? Would there be some organization/body that ensured that licensing fees stayed that low and affordable?

The whole theme of the rest of the meeting was pretty much commercial vs. public interest. The public interest (the Teachers bodies) never put up hard numbers, but was just afraid of what may happen (Ex. Databases – locking away knowledge may increase prices across the board).

One thing that (I think) Campbell stated was that if we want to be consistent with our major trading partners, then we need to have similar laws (in reference to mickey mouse, copyright term extension – the US extended copyright terms, so we in Canada should too). After the hearing, I asked her if such a philosophy would extend to matching our rather restrictive Fair Dealing regime to adopt
America’s more liberal Fair Use doctrine. I believe that Campbell stated that that change would not be really necessary as FD was stronger, and/or provided more rights to our students (ie. We don’t need to harmonize our laws in this instance, which coincidentally (I thought jadedly), if harmonized, may grant users more leeway in dealing with copyrighted materials). I can’t remember what exactly her reasoning was, because her grasp of the situation was much greater than mine, and I quickly got lost. I should contact her to follow up on that.

As my own work has been on fair dealing, the questions I left the hearing with were: How does fair dealing fall into a collective license? Would uses that would even be “fair dealing” fall within the ambit of the license?

Probably not, if materials were locked away and one couldn’t see it without paying. However, if it’s just a matter of having the materials available, and the licensing just allows all students to photocopy it without worrying about infringing copyright, is that so bad?

Note: Source: CIPPIC