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BOTTOM LINE: One arbitrary construction has just been replaced by another arbitrary construction.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.