Jan14th

2013

January 14, 2013 @ 06:00:00
New Section 30.01 (Unauthorized Use In Lessons) - Good Or Bad?
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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.

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