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/