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Presentation delivered at the 2014 BC Library Association conference by Lindsay Tripp (Copyright Librarian, Langara College)
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Moving from no to know: Recent developments in Canadian copyright
Lindsay Tripp 01.04.14 @lltripp
Copyright: The essentials
What is copyright?
The exclusive right to allow others to publish, adapt, reproduce, and to perform in public a literary or artistic work, for any purpose.
What is copyright?
Copyright:1. Applies to all original literary, dramatic, musical +
artistic works 2. Protects the expression of the idea
Warhol’s soup cans
What is copyright?
Copyright:1. Applies to all original literary, dramatic, musical +
artistic works 2. Protects the expression of the idea3. Lasts for the life of the creator +50 years4. Is automatic
The Oscar selfie
What is copyright?
Types of rights:• Economic rights
o Can be assigned, licensed, or given away• Moral rights
o Attribution + association + integrityo Can be waived (by contract) but not assigned
Michael Snow’s geese
What is copyright?
Copyright in Canada is governed by:1. Copyright Act (1921; amended in 1988, 1997, 2012)2. Treaties (Berne Convention)3. Supreme Court of Canada decisions
Copyright collective societies
• 34 copyright collectives in Canada• Each represents authors and owners in particular
fields in regards to specific rights• Collectives do not own © themselves• Examples:
o SOCAN (Society of Composers, Authors & Musical Publishers of Canada)
o Access Copyright (Canadian Copyright Licensing Agency)
Copyright Board of Canada
• Economic regulatory body for © collectives o Fixes royalties and related terms/conditions through
tariffs• Functions like a lower court
o Takes evidence; renders decisionso Decisions are subject to review
Where are we now?Where are we now?
Copyright Modernization Act (Bill C-11)
• Royal assent, June 2012; enacted November 2012• Long-awaited; introduced important reforms• Followed by the Pentalogy (5 landmark SCC
decisions)
Fair dealing (s. 29)
• Allows users to engage in some activities that would otherwise amount to infringement for eight purpose:o Research o Private study o Criticism o Review o News reporting o Parody o Satireo Education
Six factors of fair dealing
• Not set out in the Copyright Act; outlined by the SCC in CCH v. Law Society of Upper Canada
• The following six factors help determine whether a dealing is fair:1. Purpose 2. Character 3. Amount 4. Nature5. Available alternatives6. Effect
Short excerpt
• Not defined in the Copyright Act• Education has adopted the following guidelines:
o Up to 10% of a copyright-protected work o One chapter from a booko A single article from a periodicalo An entire artistic work (i.e. photo, painting, chart, map)o An entire newspaper article or pageo An entire poem or musical score from a copyright-
protected work containing other poems or musical scoreso An entire entry from a reference work
Case study: Alberta (Education) v. Access Copyright
• Primary issue: Photocopies made by K-12 teachers (outside of Quebec)
• SCC reversed the Copyright Board’s decision; Confirmed:o “Private study” does not mean solitudeo The point-of-view of the end usero The role of the intermediary o Proportion between excerpt and entire work (not
# of copies)
Educational exceptions (selected)Name It allows one to: Limitations Copyright Act
Live performances Perform a work • Audience must be primarily students & educators
• Copy must not be infringing
29.5(a)
Telecommunication of lessons
Distance learning including copyright materials
• Lessons must be destroyed within 30 days of course completion
30.01
Publically available material (PAM) on the Internet
Make ordinary use of the Internet including public performance, reproduction, communication
• Source must be named
• N/A if TPM or “clearly visible notice” present
30.04
Following charts adapted from Murray & Trosow, 2013, p. 189, 190.
LAMs exceptions (selected)Name It allows one to: Limitations Copyright Act
Management + maintenance of collections
Copy a work for collection management for 6 stated purposes
• Limited to situations in which an appropriate copy isn’t commercially avail.
30.1(1)
Inter-library loan Photocopy a periodical for any person requesting to use the copy for research or private study
• Excludes fiction, poetry, dramatic & musical works
• Any copy from a newspaper must be more than 1 year old
30.2(2)
Inter-library loan: Digital delivery
Digitally deliver ILL requests
• Must take measures to prevent patrons from: communicating the digital file, making more than 1 paper copy & using the copy for more than 5 business days
30.2(5.02)
Other exceptions (selected)Name It allows one to: Limitations Copyright Act
Persons with perceptual disabilities
Copy a work in a format for persons with a perceptual disability
• Excludes cinematographic works
• Must not be commercially available in appropriate format
• Cannot break TPMs
32
Back-up copies Make a back-up copy • Must be solely for back-up purposes
• Source copy must not be infringing
• Cannot break TPMs
29.24(I)
Mash-ups (non-commercial user-generated content)
Use an existing work in the creation of a new work
• Must be non-commercial in nature; have no substantial adverse effect on the existing work
• Existing work must be credited; non-infringing
29.21
The mash-up: Lessig + Phoenix
Where are we going?
Access Copyright
• 60 out of 82 community colleges in Canada have terminated licenses with AC (as of Dec. 31, 2013)
• Why is this?o Copyright Modernization Acto SCC’s strong support for users’ rightso Concerns about AC’s business model:
o Exponential rise in charge per student ($3.58 -> $35/$45)o Arduous audit, monitoring & reporting provisionso Questions about transparency
The other side of the coin
1. “A large and leaky market may actually provide more revenue than a small one over which one’s control is much stronger” (Murray & Trosow, p. 89)
2. The ‘owner/user dichotomy’ is artificial 3. Ideas & expression of ideas are non-rival in
consumption4. Transaction costs slow growth
Looking forward
• Two issues:1. Education’s interpretation of fair dealing
o AC/publishing industry’s past lobbying attempts were unsuccessful
o User rights are now law o 2 of 4 dissenting judges from Alberta v. AC have or
will soon be retired o No taste for further © reform in Ottawa
2. Relevance of Access Copyright
Looking forward
We must be willing to: 1. Educate ourselves; participate in © discussion2. Preserve our fair dealing rights 3. Find creative ways to support writers 4. Encourage openness 5. Demonstrate a little courage
Staying in the © loopName Blog/Website
Michael Geist @mgeist http://www.michaelgeist.ca/
Lesley Ellen Harris @copyrightlaws http://www.copyrightlaws.com/
Ariel Katz @relkatz http://arielkatz.org/
Howard Knopf @howardknopf http://excesscopyright.blogspot.ca/
Sam Trowsow @strosow http://samtrosow.wordpress.com/
Peer 2 Peer University @p2pu http://info.p2pu.org/
SLA Click U – CCM program
@SLAhq http://www.sla.org/learn/
ReferencesBrett, B. (2012, June 28). An open letter on Access Copyright and the Canadian copyright emergency. The Tyee. Retrieved from
http://thetyee.ca/Mediacheck/2012/06/28/Access-Copyright/
Canadian Copyright Institute. (2013). A fair and better way forward. Retrieved from:http://www.writersunion.ca/news/canadian-copyright-institute-releases-fair-and-better-way-forward
Geist, M. (2014, March 14). Canadian authors & publishers: We demand education talk to us as long as it leads to new payments. Retrieved from http://www.michaelgeist.ca/content/view/7091/125/
Geist, M. (2013). The copyright pentalogy: How the Supreme Court of Canada shook the foundations of Canadian copyright law. Ottawa, ON: University of Ottawa
Press.
Harris, L.E. (2014). Canadian copyright law. 4th ed. Hoboken, NJ: Wiley.
Murray, L.J. & Trosow, S.E. (2013).Canadian copyright: A citizen’s guide. 2nd ed. Toronto, ON: Between the Lines.
Images: Ed Schipul. (2008, March 5). “Lawrence Lessig at ETech 2008.” Flickr Creative Commons. Retrieved from https://www.flickr.com/
Jérome. (2007, May 2). “Accélère.” Flickr Creative Commons. Retrieved from https://www.flickr.com/
krishna81. (2008, May 28). “Shelves of those soup cans.” Flickr Creative Commons. Retrieved from https://www.flickr.com/
Peter Fasano . (2013, September 10). “Flight Stop sculpture of 60 full size Canadian geese by Michael Snow.” Flickr Creative Commons. Retrieved from https://www.flickr.com/
rachel a.k. (2007, April 27). Untitled. Creative Commons. Retrieved from https://www.flickr.com/
…and, free stock photos from MorgueFile http://www.morguefile.com/
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