On February 13, 2013, I delivered a seminar on intellectual property at the New York Institute of Technology in Vancouver.
Great to see so many aspiring students with lit-up eyes who came to learn about IP.
The new Canadian Copyright Act introduces a concept that is novel to world copyright laws. More unjustified exceptions are now recognized in respect of a “lesson”.
A “lesson” is defined as a “lesson, test or examination” (or a part of a lesson, test or examination), in or during which an educational institution or a person acting under its authority does what would be considered an infringement of copyright, but is permitted under one of the numerous limitations or exceptions.
In other words, these are the elements of the definition:
1. a work (or other subject-matter) must be used in or during a lesson, test or examination;
2. the work (or other subject-matter) must be used by an educational institution or a person under its authority;
3. the use of the work (or other subject-matter) must be an infringement of copyright (except for limitations or exceptions contained in the Act);
4. there must exist exceptions or limitations in the Act that would permit the use of the work (or other subject-matter).
In other words, nothing is a “lesson” unless it involves unauthorized use of a work (or other subject-matter) justified under an exception or a limitation. In the attempt to be overly inclusive, the legislator has created a catch 22: Section 30.01 sets out an exception that only applies in respect of a work (or other subject-matter) that by definition would be infringed by the educational institution if not for the fact that such use is somehow already “permitted under a limitation or exception under the Copyright Act.”
Here is the question, if the use is already excused or justified through a different exception or limitation, what is the added benefit of Section 30.01? On the other hand, would exceptions and limitations set out in the Section 30.01 count towards the “exceptions and limitations” referred to in the definition? Based on the rules of statutory interpretation, they shouldn’t. But again – if they don’t, what is the purpose of Section 30.01?
In my post on Section 29.4 of the Copyright Act, I already questioned the interrelationship of the amended s. 29.4 and the new s. 30.01. Section 29.4 is so broad that I cannot see why anyone would ever want to use s. 30.01.
Things get even more convoluted with subsection 30.01(2), which states that Section 30.01 does not apply so as to permit reproduction, conversion of non-dramatic works into dramatic works and conversion of dramatic works into non-dramatic works, if such use of the works would infringe copyright. Again, the definition of “lesson” already states that the use must be permitted through a limitation or exception under the Act. If no such limitation or exception exists, the “lesson, test or examination” during which the work is used would not be a “lesson” under the definition of Section 30.01. If it’s not a “lesson”, then s. 30.01(2) is redundant. On the other hand, if s. 30.01(2) is not redundant, then we run into the problem with the definition.
Subsequent subsections don’t make things any clearer.
Subsection (3) sets out that a fixation of a “lesson” for the purpose of its communication to the public by telecommunication for educational or training purposes is not an infringement of copyright. Again, if fixation and communication of a work included in a “lesson, test or examination” is not permitted under a limitation or exception under the Act, then the lesson, test or examination do not constitute a “lesson”. In this case, Section 30.01(3) would not apply. If such use of a work is already permitted, then there is hardly any additional benefit in restating that the permission is valid for the use of the work as part of the “lesson”. Moreover, if the use of a work is already permitted, there is no reason why educational institutions should consider themselves limited with the additional conditions set out in the follow-up provisions of Section 30.01.
Subsection (5) allows a student who has access to a “lesson” through telecommunication to reproduce it in order to watch it and listen to it at a more convenient time, but the student must destroy all copies not later than 30 days after the student received the final course evaluation.
Subsection (6) requires that the educational institution take reasonable measures to limit access to the “lesson” to students only and then destroy all fixations of a lesson 30 days after the students received their final course evaluation.
BOTTOM LINE: Besides incomprehensible wording of this Section 30.01, a larger question remains: WHY is it OK to use protected works in “lessons”, to fixate and to communicate the lessons containing works used without permission?
To me, this is a poorly drafted arbitrary decision based on an out-of-place compromise.
Until recent amendments, educational institutions were already permitted to make single copies of news programs and news commentary programs and to perform such copies before the students. This exception used to be subject to an important limitation: it was only good for one year after the copy was made. After the expiration of the one year period, the educational institutions had a choice of either destroying the copy or paying royalties for its continued use.
The amended Copyright Act removes these limitations and allows educational institutions to make and use such copies at any time without paying royalties.
BOTTOM LINE: This amendment will streamline the way educational institutions use recordings of news broadcasts. They no longer have to keep track of whether the recording was made more than a year ago.
By itself, this could be regarded as a positive step.
However, taken together with the rest of the amendments vastly expanding the legalized unauthorized use of works protected by copyright, Canada is finding itself more and more testing the boundaries of its obligation under the Berne Convention, which requires that any exceptions to the exclusive right of copyright owners to reproduce their works be subject to three limitations:
1. the exception may only be permitted in certain special cases;
2. unauthorized use must not conflict with a normal exploitation of the work; and
3. unauthorized use must not unreasonably prejudice the legitimate interests of the copyright owner.
Instead of carefully carving out situations where an exception would make it easier to use protected works without hurting the interests of copyright owners, Canada is taking the road of thwarting the interests of copyright owners under the guise of serving the interests of the public and in the name of mythical “user rights”.
The changes to this particular section will likely have a miniscule effect on the market for news programs, but the general trend is threatening. How long will it be until we face a situation masterfully described in “Atlas Shrugged” by Ayn Rand:
”All patents and copyrights, pertaining to any devices, inventions, formulas, processes and works of any nature whatsoever, shall be turned over to the nation as a patriotic emergency gift by means of Gift Certificates to be signed voluntarily by the owners of all such patents and copyrights. The Unification Board shall then license the use of such patents and copyrights to all applicants, equally and without discrimination, for the purpose of eliminating monopolistic practices, discarding obsolete products and making the best available to the whole nation.”
The new Canadian Copyright Act has a clarified and expanded section 29.5 relating to performances made or authorized by educational institutions.
The former version of the Copyright Act contained a closed list of three instances when educational institutions could perform protected works without first obtaining permission from the copyright owner. They could (1) arrange live performances of protected works by their students; (2) play back sound recordings; and (3) organize public showings of broadcasts.
The new version does two things.
On the one hand, with respect to the playback of sound recordings, it limits the exception to legitimate sound recordings only. The added wording in the Act is “as long as the sound recording is not an infringing copy or the person responsible for the performance has no reasonable grounds to believe that it is an infringing copy.”
On the other hand, the new version adds another instance which will now be excused under this exception, namely it allows educational institutions to also demonstrate movies, as long as they use a legitimate copy to do it.
Copyright is a bundle of rights, and just because you buy a legitimate copy of a sound recording or a movie, does not give you the right to invite the public and conduct public demonstrations or listening parties. This is a separate right that has just been taken away from the copyright owners in favour of educational institutions.
BOTTOM LINE: One arbitrary construction has just been replaced by another arbitrary construction. The former version of the Act allowed some unauthorized acts which did not cover cinematographic works, while the new version further extends to such unauthorized use as well. Just as there was no moral or legal reasons to exclude cinematographic works from the application of the exception, there are no moral or legal reasons to include them now.
In my opinion, the real problem is not that educational institutions are going to impoverish copyright owners by not paying royalties for the use of their works, performances, sound recordings and broadcasts. The real problem is that students who attend these educational institutions are receiving the message that it’s ok to use copyrighted works without asking permission and without paying royalties. They are given a life lesson that copyright owners are a hindrance that a bunch of politicians and activist law professors gloriously help them overcome. These students will grow to expect to be entitled to use other people’s intellectual property whenever they feel like it – simply because it benefits them and the “public”.
This, I maintain, is the true reason why activist professors are so adamant about the education exceptions. They know that one day, some of the students will be the new politicians who will gladly pick up where the current generation has left off the Copyright Act and create more new exceptions – to further spread this sense of entitlement.
It’s a vicious circle, if you ask me.
After the publication of the Governor General Order in Council in the Canada Gazette, most parts of the Copyright Modernization Act are now in force.
As I explained after the Order in Council was posted online, the provisions relating to the adoption by Canada of the WIPO treaties will come into force when these treaties are officially in force in Canada.
The “notice and notice” provisions for ISPs (Sections 41.25, 41.26, and 41.27(3)) will not come into force until after regulations are adopted in this regard.
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