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Bill C-11: A Guide for Academic Instructors
by Devin Soper
Bill C-11 is poised to change Canadian copyright law in important ways, and these changes promise to have a significant impact on the copyright environment at academic institutions. This article outlines the amendments that are most likely to affect academic instructors, speculates about their practical implications, and addresses some of the main controversies concerning the act as a whole. Moreover, this article examines these topics strictly in terms of the best interests of academic instructors, and thus avoids the broader debate about whether the amendments constitute good public policy or are in the interests of Canadian society, more generally. This approach is directly relevant to the work of academic librarians, who are often called upon to inform instructors about copyright issues, and who act as instructors themselves during information literacy instruction. While the ensuing discussion is far from comprehensive, it aims to provide a broad overview of the main issues and the potential implications for everyday instructional practice.
Bill C-11 aims to update Canada’s Copyright Act to accommodate the massive technological changes that have transpired since the Act was last amended in 1997 (Lithwick & Thibodeau, 2011). If passed, Bill C-11 will introduce a number of new educational provisions that promise to expand the rights and exceptions afforded to academic instructors. At the time of writing, the Bill has passed through committee and is expected to become law by summer. (Geist, 2012).
The Copyright Act includes a number of exceptions that delineate the conditions under which individuals can use a copyrighted work without the permission of the copyright holder. The most expansive of these exceptions is fair dealing, which identifies a number of specific purposes for which copyrighted works can be used without permission, including private study, research, criticism, review, and news reporting. The fair dealing exception only applies if the use in question is “fair,” however, and the Copyright Act provides no guidelines for determining the fairness of a given use. We will return to this issue shortly, but, for now, suffice it to say that Bill C-11 would add education (as well as parody and satire) to the list of fair dealing categories.
In addition to fair dealing, the Copyright Act includes more specific exceptions that are only available to educational institutions, and Bill C-11 contains numerous amendments that promise to make these exceptions more permissive for academic instructors (Geist, 2010). Apart from amendments that revise existing exceptions to accommodate the use of new technologies, for instance, there are also amendments that introduce new rights and exceptions around (1) the use of materials that are publicly available on the internet, (2) the transmission of lessons over the internet, and (3) the in-class display of films and news broadcasts (Industry Canada, 2011b).
Though they might sound entirely permissive, these educational provisions come with numerous requirements and limitations. Moreover, there is widespread concern that Bill C-11’s provisions concerning technological protection measures (TPMs or “digital locks”) will unduly restrict the rights and exceptions available to educators. We will address the controversy around the Bill’s TPM provisions at the end of this paper, after taking a closer look at the proposed changes to fair dealing and the special educational exceptions.
Fair Dealing Before Bill C-11
As mentioned above, Bill C-11 would expand the fair dealing exception to include the purpose of education (section 29). Of all the educational provisions contained in Bill C-11, this expansion is the most far-reaching and generally significant for academic instructors. Before considering the extent of this significance, it is necessary first to clarify some points about fair dealing itself.
Since the Copyright Act does not provide guidelines for determining fairness, the fair dealing exception has always been subject to differences of interpretation. That said, this ambiguity was at least partially attenuated by the Supreme Court of Canada’s (SCC) ruling in CCH Canadian Ltd. v. Law Society of Upper Canada (2004), a landmark case that did much to clarify the official legal interpretation of fair dealing. The SCC ruling held that the exception “is a user’s right,” and that it “must not be interpreted restrictively” (para. 48). Further, the SCC stipulated that determinations of fair dealing involve a two-part test: in order to qualify as fair dealing, the use in question must not only fall under an existing fair dealing category (e.g., research or criticism), but also be shown to be fair (Geist, 2010).
Since the meaning of “fairness” is dependent on an array of different variables, the SCC did not attempt to provide a specific definition, but instead endorsed a six-part analytical framework “to govern determinations of fairness in future cases” (CCH, para. 53). According to this framework, determinations of fairness depend on the following six factors: “(1) the purpose of the dealing; (2) the character of the dealing; (3) the amount of the dealing; (4) alternatives to the dealing; (5) the nature of the work; and (5) the effect of the dealing on the work” (para. 53). While this framework does little to remove the ambiguity inherent in the concept of fairness, the SCC’s ruling, and particularly its description of the fair dealing exception as a right that “must not be interpreted restrictively,” has nonetheless helped to bolster confidence in the strength and flexibility of the exception itself.
Fair Dealing After Bill C-11
Fair dealing for the purpose of education will still be subject to the six-part analytical framework for determining fairness (Geist, 2010). In other words, the proposed expansion of fair dealing would permit the use of a copyrighted work for the purposes of education, but only provided that the use is fair. This proviso is important because it will place substantial limits on the ways in which academic instructors can use copyrighted works, even if these uses are unequivocally for the purpose of education.
To illustrate this point, one need only look to the fair dealing guidelines that many academic institutions already provide for persons working under their authority. These guidelines are intended to alleviate some of the uncertainty involved in determining the fairness of a given use, and, to that end, they typically outline the conditions under which copying is permitted and place specific limits on how much material can be reproduced. Since these guidelines are also intended to minimize the risk of litigation for copyright infringement, they tend to be based on conservative interpretations of fair dealing rights, and the limits that they impose are often quite restrictive (Trosow, 2010).
When Bill C-11 becomes law, these guidelines will be expanded to provide guidance on fair dealing for the purpose of education. Academic institutions will therefore play an important role in determining the significance of educational fair dealing to everyday instructional practice. If current policy is any indication, then the new guidelines will likely place many limits on the kind and extent of copying permitted in particular situations. While these guidelines could potentially alleviate much uncertainty in the minds of instructors, moreover, they will doubtless be far from comprehensive, and so instructors will still regularly be required to evaluate the fairness with which they are using a copyrighted work.
Practical Implications for Academic Instructors
Since Bill C-11 has yet to become law and academic institutions have yet to release new guidelines, any attempt to discuss the practical implications of educational fair dealing is arguably premature. Further, it is difficult to speculate about these implications in anything but the most abstract terms, as there is likely to be considerable variation between the copyright environments that develop at different institutions (Wilkinson, 2010), and there are of course numerous criteria to consider in establishing the fairness of each particular case. Despite these obstacles, however, it would perhaps be instructive to identify at least one broad category of use that may stand to benefit from educational fair dealing, depending on how the new legislation is interpreted.
One of the most important categories for academic instructors is the use of copyrighted images (including figures and illustrations). At the moment, academic instructors are permitted to use copyrighted images in presentation slides that they display on campus, but they are generally prohibited from reproducing or distributing such images in print or electronic copies of their slides, unless they first obtain permission from the relevant copyright holders. Because the fair dealing exception currently includes the purposes of criticism and review, instructors could theoretically distribute copies of slides containing copyrighted images, but only provided that they critique or review the images in a substantial way, and that their use of the images meets a number of other conditions, besides. In practice, however, this exception is currently of little use to academic instructors, who tend not to include substantial written commentary about each of the images in their slides, and who are far more likely to use images to support the content of their lessons and make the educational experience more engaging for their students. While the reproduction of images for these purposes is currently outside the purview of the fair dealing exception, such reproduction will likely qualify as fair dealing for the purpose of education, provided that it meets the criteria for fairness discussed earlier (Geist, 2010).
That said, the ambiguity of these criteria (and the consequent uncertainty about the distinction between fair dealing and infringement) is precisely what has led academic institutions to adopt conservative, risk-averse fair dealing policies in the past; and so, even if the use of images described above would theoretically qualify for educational fair dealing, it might nonetheless be prohibited by the policies in place at a particular institution. Although the expansion of fair dealing will open up the possibility of new and significant changes to the copyright environments at academic institutions, then, it is presently impossible to predict precisely how the practical implications of educational fair dealing will unfold.
Special Exceptions for Educational Institutions
In addition to the fair dealing exception, the Copyright Act includes a number of special exceptions available to educational institutions and individuals acting under their authority. The amendments in Bill C-11 would not only revise many of these exceptions, but also introduce a number of new special exceptions for educational institutions. For academic instructors, there is a sense in which many of these exceptions would be redundant, as the uses that they cover would in many cases already be covered under the expanded fair dealing exception discussed above. Indeed, this overlap has led some commentators to contend that Bill C-11 would be considerably more useful if it provided a more robust articulation of the fair dealing exception, instead of providing a series of complex (and extensively qualified) special exceptions (Trosow, 2010). From a different perspective, others have argued that these exceptions are still useful insofar as they provide a legislative “safe harbour”—such that, if a particular use were determined not to qualify as fair dealing, it might still be covered by one of the special exceptions (Trosow, 2010). Given the ambiguity around the criteria for determining fairness, it stands to reason that many academic instructors would value the certainty afforded by the special exceptions, even if this certainty comes at the expense of rights that they would theoretically be entitled to under fair dealing.
Use of Publicly Available Online Materials
Of the special educational exceptions that Bill C-11 would introduce, the exception concerning the use of publicly available online materials (section 30.04) is perhaps the most widely discussed. This exception would allow academic instructors to reproduce and communicate works that are publicly available on the internet, provided that the audience is comprised primarily of students (or other individuals under the institution’s authority), and that the works in question are (1) legitimately posted by the copyright holders, (2) not accompanied by a statement prohibiting such reproduction, and (3) not protected by TPMs (Lithwick & Thibodeau, 2011).
Online Transmission of Lessons
Bill C-11 would introduce another special educational exception for the online transmission of lessons (section 30.01). This exception would allow educational institutions and persons acting under their authority to create “fixations” (including recordings) of lessons and to transmit these fixations to students over the internet, provided that the institution not only destroys the fixation within 30 days after students have received their final course evaluations, but also takes measures to prevent students from reproducing more than a single copy of the lesson for personal use—a copy which each student would also be obligated destroy by the above 30-day deadline (Lithwick & Thibodeau, 2011).
Since this exception applies to lessons that contain copyrighted works, it effectively extends the existing exception for in-class display to the digital environment, providing distance-education instructors and students with a similar set of rights as those that have long been enjoyed in the classroom. It is unclear how the requirements of this exception will play out in practice, but the wording suggests that instructors will need to create new fixations for each iteration of a course, and that students will be required to destroy a significant portion of their learning materials shortly after completing a course (Brunet & Gray, 2010; Trosow, 2010). While the sentiment behind this exception may be commendable, then, the exception’s numerous requirements seem overly restrictive, and are emphatically not in the best interests of academic instructors or their students.
Amendments to Existing Educational Exceptions
Bill C-11 also includes a number of amendments to existing educational exceptions, most of which aim to make these exceptions more permissive and technologically accommodating. The amendment to the exception concerning public performances (section 29.5) will likely be the most significant for academic instructors, as it introduces a new subsection that would allow instructors to display films and other cinematographic works in class, provided that the works have been acquired legitimately (Industry Canada, 2011a). At the moment, instructors can only do this with films or videos that come with public performance rights, that have been licensed for the purpose of classroom display, or that are displayed in a way that meets the requirements for fair dealing. Coupled with the new exception for use of publicly available online materials, then, this amendment will help to lift the restrictions that currently prevent academic instructors from displaying much of the valuable educational content available through video-hosting websites like Youtube.
The other amendments to existing exceptions are less significant: the exception for classroom display (section 29.4) has been amended to remove references to outdated technologies—and will thereby officially legitimize the already widespread practice of displaying presentation slides and other course materials on modern video projectors—and the exception for classroom use of news broadcasts (section 29.6) has been amended to allow instructors to keep recordings for more than a year without having to pay royalties (Lithwick & Thibodeau, 2011).
Fair Dealing and Technological Prevention Measures (TPMs)
One of the main controversies surrounding Bill C-11 concerns the question of whether the Bill’s TPM provisions (section 41) will trump its educational provisions, including both the fair dealing exception and some of the special exceptions afforded to educational institutions. On the one hand, there are many who hold that the TPM provisions do trump the educational provisions, and that this situation threatens to negate the Bill’s more progressive elements. This group is comprised mainly of concerned educators, librarians, and students, and is arguably championed by Michael Geist. On the other hand, there are also many legal professionals who argue that the relationship between the Bill’s TPM provisions and educational provisions is too complex to cast in such totalizing terms (Gannon, 2011a; Gannon, 2011b; Glover, 2011; McCutcheon, 2011; Sookman, 2010; Sookman, 2011).
Among the points raised by this second group is that Bill C-11 distinguishes between copy-control TPMs and access-control TPMs, and that, while the Bill unilaterally prohibits circumvention of the latter, it permits circumvention of the former for uses that are in accordance with the Bill’s educational provisions. These categories of TPMs encompass a range of different technologies, but the primary difference between them is adequately conveyed by their names: access-control TPMs restrict access to works (e.g., through password protection), whereas copy-control TPMs restrict copying (e.g., through digital rights management technologies that prevent users from making copies of e-books). In explaining the practical implications of this distinction, Gannon (2011a) provides a helpful example:
[Fair dealing] allows users to make fair copies of portions of a work for certain purposes. It does not grant any user a right to free access to that work. A researcher must still legally obtain access to a work in order to make a fair dealing copy. . . . For example, if an academic article was only being provided behind a “paywall” (where the reader must pay a certain amount to access the article), users desiring to make fair dealing copies would still have to pay to access the article. However, once the content is legally accessed or acquired, users could circumvent any technology that prevents them from making fair dealing copies of the text of the article.
This same point has been made by other members of the second camp identified above (Glover, 2011; Sookman, 2010; Sookman, 2011), and it suggests that the intention behind the TPM provisions is not to stifle fair dealing and other educational exceptions, but rather to help ensure that copyright holders receive fair compensation for their work. The members of this second camp also point out that Bill C-11 includes a section (41.21) that allows the government to swiftly introduce supplementary regulations that clarify how the TPM provisions are applied, and to do so specifically in the event that these provisions hamper uses that are legitimately covered under fair dealing (Gannon, 2011a; Gannon, 2011b; McCutcheon, 2011; Sookman, 2010). Although Bill C-11 prohibits the circumvention of access-control TPMs, moreover, academic instructors are already accustomed to accessing works protected by such controls through the legitimate channels provided by their institutions, and so it seems reasonable to suggest that this prohibition will likely have a minimal impact on their everyday instructional practice (Gannon, 2011b). Against all this, Geist (2010) has argued that access- and copy-control TPMs are often bundled together (notably on ebooks and DVDs), but this is not always the case, as different companies employ different models of digital rights management, and so overcoming this particular obstacle might in many cases be as simple as purchasing from a different vendor.
While it remains to be seen how this will all play out in practice, then, it would be premature to dismiss the more progressive elements of Bill C-11 on the basis that its TPM provisions will under certain circumstances trump its educational provisions. And, on a more practical note, it is worth mentioning that this controversy has little bearing on the categories of works that currently raise the most copyright concerns for academic instructors: namely, images and film/video, both of which are widely available online in forms that are not protected by any TPMs whatsoever.
On the whole, Bill C-11’s educational provisions bode well for academic instructors, as they include a number of rights and exceptions that are not currently available to instructors under Canadian copyright law. The expansion of fair dealing to include the purpose of education, the new special exceptions for the use of publicly available online materials and the online transmission of lessons, the broadening of existing exceptions to accommodate the use of new technologies—all of these changes promise to ease the restrictions around the use of copyrighted materials for educational purposes. Although these changes certainly look promising on paper, it is difficult to predict the extent to which they will contribute to a more permissive copyright environment for academic instructors, as academic institutions have yet to provide any indication of how they will interpret Bill C-11’s educational provisions, and there is also considerable uncertainty over the practical implications of the Bill’s TPM provisions. Despite these areas of uncertainty, however, academic instructors have every reason to be hopeful, as there is little doubt that Bill C-11 will have a positive impact on their everyday instructional practice, even if the extent of this impact is presently unclear.
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