Canadian Federation Of Students' #copycon Submission-- With Bonus Creative Commons License!

STRIKING the BALANCE Submission to the Copyright Consultations Canadian Federation of Students

September 2009

The Canadian Federation of Students

British Columbia University of British Columbia Students’ Union Okanagan Broadway Campus Students’ Union of Vancouver Community College Camosun College Student Society Capilano Students’ Union Douglas Students’ Union Downtown (City Centre) Students’ Union of Vancouver Community College Emily Carr Students’ Union Kwantlen Student Association College of New Caledonia Students’ Union North Island Students’ Union Northwest Community College Students’ Union Okanagan College Students’ Union College of the Rockies Students’ Union Selkirk College Students’ Union Simon Fraser University Student Society Thompson Rivers University Students’ Union Vancouver Island University Students’ Union University of Victoria Students’ Society

Prairies Alberta College of Art and Design Students’ Association Brandon University Students’ Union Graduate Students’ Association at the University of Calgary First Nations University of Canada Students’ Association University of Manitoba Students’ Union University of Manitoba Graduate Students’ Association University of Regina Students’ Union Association étudiante du Collège universitaire de Saint-Boniface University of Saskatchewan Students’ Union University of Saskatchewan Graduate Students’ Association University of Winnipeg Students’ Association

Ontario Algoma University Students’ Union Brock University Graduate Students’ Association Carleton University Students’ Association Carleton University Graduate Students’ Association Association étudiante de La Cité collégiale Student Association of George Brown College Glendon College Student Union University of Guelph Central Student Association University of Guelph Graduate Students’ Association Lakehead University Student Union Laurentian Association of Mature and Part-time Students Laurentian University Graduate Students’ Association Laurentian University Studens’ General Association Association des étudiantes et étudiants francophones de l’Université Laurentienne

85 Member Students’ Unions Over 600,000 University and College Students

McMaster University Graduate Students’ Association Nipissing University Student Union Ontario College of Art and Design Student Union Student Federation of the University of Ottawa Graduate Students’ Association des étudiant(e)s diplômé(e)s de l’Université d’Ottawa Queen’s University Society of Graduate and Professional Students Ryerson Students’ Union Continuing Education Students’ Association of Ryerson Saint Paul University Students’ Association University of Toronto Scarborough Campus Students’ Union University of Toronto Graduate Students’ Union University of Toronto Students’ Union University of Toronto at Mississauga Students’ Union Association of Part-Time Undergraduate Students of the University of Toronto Trent Central Student Association Trent University Graduate Student Association University of Western Ontario Society of Graduate Students Wilfrid Laurier University Graduate Students’ Association University of Windsor Students’ Alliance University of Windsor Graduate Students’ Society University of Windsor Organization of Part-time University Students York Federation of Students York University Graduate Students’ Association

Québec Concordia Students’ Union Concordia University Graduate Students’ Association Dawson Students’ Union Post-Graduate Students’ Society of McGill University

Maritimes Cape Breton University Students’ Union Dalhousie Association of Graduate Students Holland College Student Union University of King’s College Students’ Union Mount Saint Vincent University Students’ Union University of New Brunswick Graduate Students’ Association Student Union of NSCAD University University of Prince Edward Island Student Union University of Prince Edward Island Graduate Student Association Association générale des étudiants de l’Université Sainte-Anne

Newfoundland & Labrador Grenfell College Student Union Marine Institute Students’ Union Memorial University of Newfoundland Students’ Union Graduate Students’ Union of the Memorial University of Newfoundland College of the North Atlantic Students’ Union

Executive Summary Should copyright law lock down music and literature to protect the financial interests of rights-holders? Or, should it promote broad access to, and use of, intellectual property? These questions are at the core of the growing public debate over the need for fair and balanced copyright law, a debate in which college and university students have a critical stake. As creators and owners of copyright material (essays, articles, theses, and multimedia productions), students need to protect their work from unjust appropriation. But to study, research, write, and create new knowledge, students also need ready access, at a reasonable cost, to the copyrighted works of others. This tri-part perspective—of use, creation, and ownership of copyright—gives students special credibility in the struggle for fair and balanced copyright law. This brief addresses the fundamental questions that must be considered when revising copyright legislation for the digital age in a way that will allow it to stand the test of time. The brief answers the following questions: Section 1. How do Canada’s copyright laws affect you? How should existing laws be modernized? Section 2. What sorts of copyright changes do you believe would best foster innovation and creativity in Canada?

What sorts of copyright changes would best foster competition and investment in Canada?

Section 3. What kinds of changes would best position Canada as a leader in the global, digital economy? Section 4. Based on Canadian values and interests, how should copyright changes be made in order to withstand the test of time?

Key Recommendations 1. Expand the definition of fair-dealing to be more flexible and inclusive. 2. Regulate the use of technological protection measures so that they do not interfere with users’ legitimate attempts to use copyrighted works. 3. Eliminate Crown copyright. 4. Strictly limit statutory damages. 5. Enhance moral rights to protect creators. 6. Establish a “notice and notice” system of Internet copyright enforcement.

2009 Copyright Consultations

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Creating Legislation for the 21st Century Students, like most citizens, interact with copyrighted works on a daily basis. Students use textbooks and articles in classes, quote from research papers and publications in their essays, and often use images, sound and video in their projects. Copyright legislation affects students virtually every time they walk into a classroom, watch a video online, or step into the library.

Digital technology has increased the role of new media in popular culture, and students are often on the cutting edge of such advancements. With new technology, students are becoming a major source of new and re-mixed media, whether it be creating films and videos, producing music, or developing new ways to share and transform art and knowledge.

However, what is often overlooked is that students are not only users, but also creators of copyrighted material. Students write essays, articles and theses; develop new technologies, formulas, and computer software; and create music, produce videos and photographic works.

The central question of copyright reform is how best to strike a balance between the needs of users for reasonable access and use of copyrighted works, and the need of creators to be protected from unjust appropriation. Good public policy should ensure that digital technology protects the legitimate interests of artists, writers, musicians, researchers, and other creators, while preventing copyright owners from using new technologies to restrict reasonable access to, and use of information.

Being both users and creators of copyrighted works, students are in a fairly unique position when it comes to copyright. In order to be able to study, research, write, remix, and regenerate existing creations for new audiences, students need ready access, at a reasonable cost, to the copyrighted works of others. At the same time, in the face of aggressive, powerful, and, sometimes exploitative, distributors of copyrighted materials, students, like all creators, need adequate protections from the unjust appropriation of their works.

2009 Copyright Consultations

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Fostering Innovation and Creativity, Competition and Investment Innovation and creativity are best served through a Copyright Act that balances the rights of creators, owners, and users. Creators require protection from unjust appropriation and the ability to earn from the works they produce while users require the ability to access these works and, when reasonable, use them for the basis of the creation of new works. All creators stand on the shoulders of giants. Innovation is, by its very nature, the result of building upon the works of others, so blocking access stifles the innovative process. Canadian students cannot be saddled with an overly complex and inefficient subsection of rules—such as those proposed previously within an “education exception”—that will inevitably put them at a disadvantage compared to countries with more comprehensive and coherent copyright legislation. Some of Canada’s most innovative research is carried out by graduate students in universities. To be able to properly produce knowledge these graduate researchers and their supervisors need reasonable access to works published by their peers. Any increase in cost or limits to access resulting from restrictive copyright law or unbreakable digital locks, will slow down the rate of innovation and hinder Canada’s competitiveness.

2009 Copyright Consultations

Copyright laws should establish an incentive framework that produces an environment where creators are able to create new things, but does not engender a system where the owners and distributors of copyrighted works maintain unnecessarily long-terms of control over their use. Knowledge is at the heart of a dynamic and productive arts and research community and must not be controlled by owners for exceedingly long periods of time if the potential for competition and innovation is to be maximised. The shorter the legally protected monopoly on knowledge, the greater the incentive that exists to invest in the production of new material. However this must be balanced with the need of the creator to make a living. Therefore, the current length of copyright terms should not be increased. Without a fair balance between the interests of creators, users, and owners there is reduced incentive for investment in the creation of new works and knowledge. Investment in new products and innovation by creators requires that they benefit financially from their works. However, if ownership rights are too severe, they will greatly restrict the ability of the Canadian public to access and make use of these works for fair and reasonable puposes, ones which inspire creativity and future innovation.

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Positioning Canada as a Leader in the Global Digital Economy With the development of technologies that facilitate the high-speed, low-cost transfer of digital information, there has come a massive increase in the speed of research and innovation. Despite the clear benefits of these developments, some groups have proposed to use technology to prevent some communications and lock down knowledge in its digital form in order to maximize their ability to control and to profit from copyrighted works. Copyright law was initially developed in response to technological advancements in the mass production of intellectual and creative work—a strikingly similar situation to the one we face today. Copyright law was created to restore a balance (disrupted by the development of printing press monopolies) between the economic interests of creators and mass distributors so that the public would have access to new cultural works. These monopolies still exist today and continue to demand that copyright laws be skewed in their favour. However, these opponents of balanced copyright law have not articulated a satisfactory rationale as to why Canada should make a historical deviation from the principles of balanced copyright.

the development of new and innovative products and works. Canada needs to ensure that creators can be remunerated for the work they produce as an incentive to create further works, while at the same time ensuring the public has the ability to enjoy these works and create new ideas by building upon the ideas of others. Only with such a copyright framework will Canada remain competitive in the global digital economy. Incentives created by a coherent copyright framework can only go so far in spurring on the production of new and innovative works. The government must also increase support for students and other creators through adequate public funding for post-secondary education and the arts. Truly innovative ideas develop in an environment that fosters creativity and allows citizens to build on the creations of those that came before them. However, it is also important to note that ideas are only turned into great works when the economic environment is supportive of creators so that they may transform those ideas into something real.

Federal policy-makers should not overreact by developing restrictive copyright legislation that will inevitably hinder

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Building on Canadian Values: Creating Legislation to Withstand the Test of Time Policy must be written in broad terms in order to remain relevant and useful for years to come. This is especially true when considering policy that deals with rapidly evolving technologies. Three decades ago the ability to rapidly transfer files from one side of the world to the other had barely been imagined, and the music industry was just starting to explore digital methods for recording and releasing music. Now, less than a lifetime later, it is hard to imagine a world where these technologies do not exist. Copyright legislation must represent Canadian values and beliefs, and should do so in broad terms, articulating shared values and principles. During the last two rounds of copyright reform debates the government spent significant amounts of time developing a narrowly defined series of exemptions that would allow for the use of copyrighted works in a handful of circumstances, employing specific technologies. This approach was, and is, fundamentally flawed. Law-makers today cannot hope to accurately predict how citizens five, ten, or fifteen years down the road will be creating, accessing, and using works. As such, lawmakers should consider how to ensure that balance is maintained no matter what technological innovations come about that may limit or expand users’ abilities to access materials.

2009 Copyright Consultations

In consideration of the foregoing, the Federation recommends the following: Fair dealing The most important step the government can take in ensuring that copyright remains fair and balanced is to adopt a more flexible and open-ended definition of fair dealing within the Copyright Act. Such a definition would reflect the principles the Supreme Court has already set out in its decision in CCH Canadian Ltd. v. Law Society of Upper Canada. In that case, the court rejected the view that fair dealing was simply a limited defense to infringement, instead finding that fair dealing needs to be given a broad and liberal interpretation with a focus on users’ rights. The Supreme Court’s recognition of a new copyright doctrine based on users’ rights and a need for the careful balancing of interests between the rights of owners and users now needs to be enshrined in the Copyright Act. This open-ended approach reflects the meaning of the CCH case, and also serves the interests of students, teachers, librarians, and administrators; as well as other life-long learners who aren’t affiliated with an institution. This general approach would avoid having to ask for special exceptions for educational institutions that are not available to the general public.

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DRM and TPM

Crown Copyright

In recent years many owners of copyrighted works have sought to circumvent users’ rights through the use of Digital Rights Management (DRM) and Technological Protection Measures (TPMs). It is claimed that these measures are needed to “shield” digital works from unauthorised access and monitor their use, when in fact they deny users’ rights detailed in the Copyright Act and allow corporate copyright owners to ignore Canadian copyright laws and make their own rules.

Crown Copyright is the means by which the government is granted copyright in all work created under its direction. One of Canada’s most basic values is public ownership and access to a collective commons. Government work is paid for by tax dollars and the property of the government is, by its very nature, public. Given that work produced by the government is paid for through tax dollars, the public should not have to pay twice in order to access and make use of that work.

However, technically savvy individuals are often able to bypass these TPMs which has led copyright owners to fall back upon the very laws they’ve attempted to circumvent, and demand that governments make it illegal to bypass, or purchase products that bypass, TPMs. What these corporate copyright owners are actually asking, is for governments to make it illegal for users to exercise their own rights when it comes to copyrighted works.

Under United States copyright law, works produced by the U.S. federal government are not entitled to any kind of protection under copyright law. In essence these worked, viewed to be the property of the people, become part of the public domain as soon as they are produced.

The dangers of these measures should be obvious. They often prevent lawful activities such as fair dealing, accessing works in the public domain, archival preservation, time and format shifting, device interoperability, and library lending. To achieve balance in the Copyright Act, Canada must reject these types of amendments. Any effort to address these issues must not limit the ability of users to bypass TPMs that undermine personal privacy or statutory rights of access.

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Rather than lock up knowledge and work that the public has paid to create with restrictive copyright licences, the Copyright Act should be amended to reflect the laws in the United States, where all works produced by the government are released into the public domain. Statutory Damages If a person is found liable for copyright infringement, the owner of the infringed work is entitled to “actual” or “statutory” damages. Actual damages are based either on the losses suffered by the owner, or the gains obtained by the infringer. Statutory damages, on the other hand, are set out in legislation and

Canadian Federation of Students

can result in substantially larger payments for each infringement. Because of their punitive nature, the very availability of statutory damages often acts as a constraint against users exercising their legitimate rights to use copyrighted works, such as fair dealing. For user rights to be meaningful, statutory damages need to be limited. If an individual acts with a good-faith belief that their use of a work is justified by fair dealing or another legitimate use, they should not be liable for statutory damages even if their use is found to be infringing. moral rights Section 14.1 (1) of Canada’s Copyright Act says: The author of a work has…the right to the integrity of the work and…the right, where reasonable in the circumstances, to be associated with the work as its author by name or under a pseudonym and the right to remain anonymous.

These rights, characterised as moral rights to distinguish them from the economic rights (to publish, reproduce, exhibit or perform a work) contained in the Copyright Act, protect an author’s honour and reputation and cannot be sold or otherwise transferred. They can, however, be waived and creators often find themselves under enormous pressure from commercial publishers to do so. If a student is hired to write a report, for example, the contracting agency may wish to change the conclusion but

2009 Copyright Consultations

still attach the student’s name to the document. With moral rights intact, a student can prevent this from happening. If moral rights are waived, the student has no such power. To avoid these situations, the Copyright Act should be amended to state that moral rights being waived cannot be required as part of any publishing or distribution agreement. This would help protect students who find that they are being pressured to waive these rights in order to have their works published. Notice regulations Under the U.S. Digital Millennium Copyright Act, Internet Service Providers (ISPs) must comply with “Notice and Take Down” provisions. There, a copyright owner need only send a notice to an ISP alleging infringement in order to legally require them to remove the identified work. Such rules circumvent the courts, assume guilt, and deny the individual who posted the work a chance to respond to the allegations and defend themselves before the work is removed. The alternative is “Notice and Notice”, in which the ISP only has the legal responsibility to pass a notice of infringement on to the alleged infringer. This is a reasonable compromise. The idea that materials could be unilaterally removed from a website based on unproven allegations of infringement is offensive not only to academic freedom, but to everyone’s rights to expression.

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This document has a Creative Commons AttributionNoncommercial-No Derivative Works license. This licence allows users to freely view, copy and distribute the work, as long as it is not for commercial gain. Creative Commons is a non-profit organization devoted to expanding the range of creative works available for others to build upon legally and to share. [1] The organization has released several copyrightlicenses known as Creative Commons licenses. These licenses allow creators to communicate which rights they reserve, and which rights they waive for the benefit of recipients or other creators. Photo credits: Page 1: Canadian Federation of Students Page 4, 10, 12: UBC Library Page 6: Flickr ID vlasta2 Page 8: Jeongyoon Kim