November 6, 2012 @ 09:00:00
Expansion of the Scope of Exemption in Section 29.4 of the Copyright Act (Reproduction By Educational Institutions) - Good Or Bad?
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The Copyright Modernization Act introduced several changes to Section 29.4 of the Copyright Act.

This exemption used to only apply to:

1. manual reproductions of a work on a dry-erase board, flip chart or other similar surface intended for displaying handwritten material; and

2. copies of a work used to project an image of that work using an overhead projector or similar device.

The changes introduced to the section are very significant, since the amended exemption applies to ANY reproduction or any other act necessary to display works otherwise protected by copyright.

Naturally, this changes the whole purpose of the exemption. What used to be a reasonably limited exception that had virtually no effect on the market for the work is now so wide that it is very difficult to understand the meaning of subsection 29.4(3). The purpose of that subsection was to exclude from the operation of the exemption works that are “commercially available in a medium that is appropriate for the purposes referred to” in subsection 29.4(1). What this used to mean is that if one could purchase on the Canadian market (or obtain a license from a collective society to use) images of the works for overhead projectors or works used for a test or examination (as per subsection 29.4(2)), then the exemption did not apply, and the educational institutions had to buy or get a license to use the work.

After the expansion of the scope of the exception in subsection 29.4(1) to ANY reproduction, it appears that the exemption would only apply unless the work is commercially available “in a medium that is appropriate for the purpose” of education or training. Does the exception apply to e-books and PDFs if the educational institution decides that for the purposes of education or training it would be desirable to distribute electronic copies of a textbook which only exists in the paper form? Does it apply to course packs? Does it apply to AVI versions of films that are only commercially available on DVDs and Blurays? Does it apply to JPG versions of paintings that are not commercially available as digital files?

Anything can be a medium appropriate for the purpose of education!

Another question will be about the interrelationship of this amended section and the new batch of exceptions relating to unauthorized use of works in relation of “lessons”. The lessons exceptions require that royalties be paid for digital reproduction of lessons. Section 29.4 contains no such requirement. It sets forth an absolute defence that is not subject to payment of any royalties. If it is not meant to apply in the circumstances to which the lessons exception applies, the question is “why not?”. If Section 29.4 applies in these circumstances, the question is “why would an educational institution want to use the lessons exception that requires payment of royalties, when it can get off the hook using the general educational institutions exception?”

Even worse, unlike new sections 29.22 – 29.24, Section 29.4 does contains no limitations relating to TPMs. So even if a work contains TPMs but is not available on a “medium appropriate” for the purpose of education, it appears that the TPMs can be circumvented.

BOTTOM LINE: The new wording of the exception is unreasonably broad and inconsistent with the rest of the Act.

I know I sound like a broken record with some of these comments, but really, one of the purposes of the Copyright Modernization Act was to simplify the life of consumers by allowing them many additional ways they can use copyrighted works without permission. Unfortunately, the Act contains so many inconsistencies and so much inaccurate wording that it will be years before the meaning of these new provisions will be clarified by the courts (I sincerely pity the judges who will hear the first cases on interrelationship between the overlapping exemptions).

As Ayn Rand wrote, “An undefineable law is not a law, but merely a license for some men to rule others.” I don’t know a single user who would understand the new rules with any degree of precision by reading the Act. Lawyers’ opinions on what these rules mean are just that, opinions.

The purpose of any law is to create certainty that specific behaviour will result in specific consequences. The Copyright Modernization Act has certainly failed to achieve it.

Categories:Intellectual Property:Copyright
Additional Tags:New Copyright Act
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