SlideShare ist ein Scribd-Unternehmen logo
1 von 56
Downloaden Sie, um offline zu lesen
Dr. Margaret Ann Wilkinson 2010
Copyright in Canada and the U.S.
Dr. Margaret Ann Wilkinson
Professor
Faculty of Law
(with doctoral supervisory status in Library & Information Science)
The University of Western Ontario,
London, Ontario, Canada
(with thanks for conversations with Dr. John Tooth
and research assistance by law students Justin Vessair,
Dan Hynes and Dave Morrison)
Western New York & Ontario -
Association of College & Research Libraries
East Aurora, New York, November 5, 2010
Dr. Margaret Ann Wilkinson 2010
Canada’s academic institutions
face tough decisions this year…
• These decisions must be taken by each academic
institution in Canada individually…
• Once taken, these decisions may alter the shape of
access to information in the Canadian academy…
• These decisions stem from copyright law but will,
paradoxically, be little affected by the current Bill C-
32 before the Canadian House of Commons,
whether or not it passes in its current form or in a
modified form…
• These decisions do not seem to be decisions that will
face American colleges and universities…
Dr. Margaret Ann Wilkinson 2010
How do Canadian and American academic
institutions come to this fork in the road?
First, let us look at some features of the
Canadian copyright environment that distinguish
it from the American …
And how these impact the current Canadian situation…
Then, let’s look at the effect of the differences on:
- the probable impact of Canada’s Bill C-32; and
- the importance of the open source movement on
academic libraries in the two countries…
Dr. Margaret Ann Wilkinson 2010
As in the United States, in Canada there is one statute for all
materials dealt with in Canada:
Copyright Act,
Revised Statutes of Canada 1985, c.C-42, as amended
Since the inception of the Berne Convention, Canada
has been compliant with it (first through its status as
a British colony – and then in its own right)…
The United States is a very recent adherent to Berne
and, even now, has not implemented the provisions of
Berne which relate to the protection of moral rights…
Because of the international principle of “national treatment” in
international copyright agreements, all materials in Canada, for all
practical purposes, are governed by Canadian law and vice versa in the
United States…
Dr. Margaret Ann Wilkinson 2010
The policy makers creating Canada’s copyright
environment:
Government
Legislature
In Canada, the federal government -- recent Bills C-60 and C-61 (both now dead) –
legislation again promised to be introduced this spring…
NO provincial interest –
Judiciary- since 2002 steadily confirming a large “public domain”
In Canada, Parliament has tried to limit the role of the courts: s. 89 Copyright Act
The Canadian Charter of Rights and Freedoms has never yet been applied directly to an
intellectual property law situation (but the Supreme Court in the Harvard Mouse case
in patent, for example, has indicated a willingness to apply it)
How will “users’ rights” be expressed and preserved in the future?
International Treaties
Are Perceived, once entered into, as limiting Domestic National Policy Options
19th Century Co-ordination (e.g. Berne, Paris)
1990’s World Trade Agenda Coercion (e.g. NAFTA, TRIPS)
Are irrelevant to Charter concerns, are not binding on Canadian legislatures; non-compliance
runs the risk of sanctions in the trade context
Intellectual Property Owners, Themselves
Canadian Governments -- As Crown Copyright Holders
Copyright holders working together through Canadian Collectives – AccessCopyright taking all
the universities to the Copyright Board for a Tariff instead of negotiating … begun
April 1, 2010…
Other individual copyright holders – both domestic and foreign
Not users – except indirectly as lobbyists and electors influencing the legislative process…
Dr. Margaret Ann Wilkinson 2010
TRIPS:
Article 13:
[Member states] shall confine limitations or exceptions to exclusive
rights
to certain special cases
which do not conflict with a normal exploitation of the work
and do not unreasonably prejudice the legitimate interests of
the right holder.
Dr. Margaret Ann Wilkinson 2010
Canadian Copyright Act -
Three sets of rights enshrined:
US system really only recognizes 1 set: Economic Rights…
ECONOMIC RIGHTS (from the
beginning)
MORAL RIGHTS (Canada 1st
common law country to
introduce; fully articulated in
1988)
USERS’ RIGHTS (expressed
by the SCC in 2004)
Life of the author + 50 years on works;
ALWAYS remain with the author – but can
be waived
Fully assignable (owned from the outset
by employers in an employment situation)
Life of the author + 50 years on works; 50
years generally for “other subject matter”
Dr. Margaret Ann Wilkinson 2010
What is copyrighted?
Expressions and not data or facts per se
Works:
• Literary - Includes computer programs, tables
• Artistic - includes photographs, diagrams, maps, charts, etc.
• Musical
• Dramatic -Includes cinematographic works, with or without
soundtrack
Compilations of works and Collective works
- Works resulting from the selection or arrangement of data
or of other works or parts of other works and any work
incorporating the work
Other subject matter:
• Sound recordings
• Performers’ performances
• Broadcasts
Dr. Margaret Ann Wilkinson 2010
Converting Work to a Digital Format is a Copyright Holder’s Right –
and Transmitting it anywhere is also a Copyright Holder’s Right…
(a) Converting a Work to a Digital
Format is a Copyright Holder’s Right:
Robertson v. Thomson 2006 Supreme Court
• “Converting” a work to digital is an act of
reproduction that only a Copyright Holder
has the right to do
• A copyright holder holds the same rights in a
digital work as would be held in a work in
traditional form.
Robertson et al v. Proquest et al
• Class Action Lawsuit in Ontario spring 2009
• 3rd party claims3rd party claims being made by Proquest et
al against journals, since the journals
originally published the articles that
Proquest et al later digitized
• Similar lawsuit in Quebec: ElectronicElectronic--RightsRights
Defence Committee v.Defence Committee v. SouthamSoutham et alet al,
certified class action Que SC April 15 2009
(b) Uploading or Downloading a Digital Work
involves a Copyright Holder’s Right:
SOCAN “Tariff 22” decision 2004 Supreme
Court
• Posting a work on the net is authorizing its
communication (ONE RIGHT) – and
communication occurs when the item is
retrieved by an end user (A SECOND RIGHT)
• When a content provider intends the public to
have access, that is a communication by
telecommunication to the public (THAT
SECOND RIGHT)…
Canadian Wireless Telecommunications
Association v. SOCAN (Federal Court of
Appeal)
• Transmission of ring tones to cellphone
customers, even when each transmission is
separately triggered by the customer, is a
right of the copyright holder
(AGAIN, that SECOND RIGHT)
Dr. Margaret Ann Wilkinson 2010
Converting Work to a Digital Format is a Copyright Holder’s Right –
and Transmitting it anywhere is also a Copyright Holder’s Right…
Crookes v. Newton (2009 BCCA 392) Leave to Appeal granted by the Supreme
Court
on April 1, 2010… a defamation (libel) case… copyright is not mentioned…
Appeal to be heard this December…
• A website owner putting a hyperlink to another site will not automatically be
considered “publication” of the material to which the link is made (and the majority
in this particular case said there was no publication)…BUT
• Both the majority (Saunders, JA, for herself and Bauman, JA) and the dissenting
judge (Prowse, JA) held that it is possible for the inclusion of a hyperlink to
 “If it is apparent from the context in which the hyperlink is used that it is being used
merely as a biographical or similarly limited reference to an original source, without in any
way activity encouraging or recommending to the readers that they access that source
then… this would not amount to publication.” [Majority at para.59]
 Factors tending toward a finding of publication, however, “would include the
prominence of the hyperlink, any words of invitation or recommendation to the reader
associated with the hyperlink, the nature of the materials which it is suggested may be
found at the hyperlink…, the apparent significance of the hyperlink in relation to the
article as a whole, and a host of other factors dependant on the facts of a particular
case.” [Majority atpara.61]constitute publication by the linking party of the material to
which the link is made…
Dr. Margaret Ann Wilkinson 2010
So, who owns the copyright interests …
The individual authors, who were not employees at the time of creation of the
works, if they have not assigned those rights, own the rights in works – and,
even if they were employees or assigned their economic rights, unless they
have waived them, they continue to hold moral rights.
Employers who employed authors who created works will own the copyrights,
but not the moral rights, in those works, unless they have assigned them.
Sound recording rights and rights in performances by performers will be
owned by the makers and performers, respectively (unless assigned to others),
even though the sound recordings or recorded performance may also carry
other copyright interests, for example in musical works or film, that are
owned, at least originally, by others.
Photographs are owned in Canada by the person commissioning them (if paid
for) rather than the photographer. Otherwise the photographer owns them. (If
photographs are owned by corporations now in Canada, the term of copyright
is only 50 years, whereas if they are owned by individuals (or corporations an
individual controls) the term is the life of the photographer + 50 years.)
Dr. Margaret Ann Wilkinson 2010
If passed, Bill C-32 will give the same protections
to photographs as are now given to every other
work under the Copyright Act – for the same
period of life of the photographer + 50 years…
And, in general, ownership will lie with the
photographer – but for certain private uses, a
commissioning person will still have rights…
Dr. Margaret Ann Wilkinson 2010
Economic rights in works
Economic rights
in “other subject matter”
Recall the basic rights given copyright holders under the Copyright Act:
to communicate a performer’s
performance by
telecommunication
to “fix” a performer’s
performance
to reproduce a fixed performance
to rent out a sound recording of the
performance
to publish, reproduce or rent a
sound recording
to fix a broadcast signal
to retransmit a signal
to authorize any of the above
to produce, reproduce
to perform in public
to translate
to convert from one type of
work to another
to make sound recordings or
cinematographs
to communicate the work by
telecommunication
to present art created after
1988 in public
to rent computer programs
to authorize any of the above
AccessCopyright
focused here for
English print
works
Dr. Margaret Ann Wilkinson 2010
…what are “Moral Rights”?
In Canada, the author of a work has a right :
• to the integrity of the work (i.e. to prevent the work from being
distorted, mutilated or otherwise modified to the prejudice of the
honour or reputation of the author)
• where reasonable in the circumstances, to be associated with the work
as its author by name or under a pseudonym (as well as the right to
remain anonymous) [often referred to as the right to paternity]
• to prevent the work from being used in association with a product,
service, cause or institution to the prejudice of the honour or reputation
of the author [commonly referred to as the right of association].
Not transferable… licensing not an option. Can be waived by the author.
Bill C-32 would extend moral rights to performers’ performance…
Dr. Margaret Ann Wilkinson 2010
The Canadian statute provides
for fair dealing in five
categories:
Research
Private study
Criticism *
Review *
News reporting *
* if source and
attribution mentioned
The Supreme Court specifically
said:
“a library can always attempt to
prove that its dealings with a
copyrighted work are fair under
section 29 of the Copyright Act.
It is only if a library were unable
to make out the fair dealing
exception under section 29 that
it would need to turn to the
Copyright Act to prove that it
qualified for the library
exception.” (para.49)
2004 Supreme Court decision in
CCH et al v. The Law Society of Upper
Canada, the “Law Society” case:
The largest Users’ Right is FAIR DEALING. These rights override the
copyright holders’ rights if you are using the works for certain purposes.
Bill C-32 would add education, parody and satire to this list
Dr. Margaret Ann Wilkinson 2010
The Supreme Court listed a non-statutory set of factors, first proposed
in the Federal Court of Appeal, that judges should consider as a
“useful analytic framework” in interpreting “fair dealing”:
• purpose of the dealing:
• must be an allowable purpose, one mentioned in the act
• character of the dealing:
• how was the infringing work dealt with?
• amount of the dealing:
• what was the amount and substantiality of portion used in
relation to the whole work?
• alternatives to the dealing:
• defense more likely allowed where no alternative available
• nature of the work:
• i.e., strong public interest in access to legal resources
• economic impact on owner:
• how is market for work impacted by fair-dealing in question?
Dr. Margaret Ann Wilkinson 2010
But, given those factors, the Supreme Court decided libraries can
deal fairly with works in a number of important ways – and, therefore,
that others can use works in similar ways:
It may be possible to deal fairly with the whole work… for the purpose
of research or private study, it may be essential to copy an entire academic
article or an entire judicial decision. (from para.56)
Faxing works to patrons is not “communications to the public” – the Supreme
Court agreed with the trial judge that such communications “emanated from
a single point and were each intended to be received at a single point”
(para.77, quoting from the trial judgment) (although a series to the same
patron might be a problem)
“…patrons … cannot reasonably be expected to always conduct their research
on-site at the Great Library… it would be burdensome to expect them to
travel … each time they wanted to track down a specific source” (para.60)
Many of the “special” provisions for LAMs (only non-profits) are made
redundant by the Supreme Court’s view of the permissible actions by the
Great Library under fair dealing – eg. To the extent ILL practices can be
analogized to the Great Library’s practices, it is unnecessary to rely on the
special exceptions for LAMs.
Dr. Margaret Ann Wilkinson 2010
Approved by the Supreme Court:
The copyright law of Canada
governs the making of photocopies
or other reproductions of copyright
material. Certain copying may be an
infringement of the copyright law.
This library is not responsible for
infringing copies made by the users
of these machines.
Unnecessarily verbose
Under the Regulations since 1997:
WARNING!
Works protected by copyright may be photocopied only if
authorized by:
the Copyright Act for the purposes of specific exemptions
set out in that Act;
the copyright owner; or
a license agreement between this institution and a
collective society or a tariff, if any.
For details of authorized copying, please consult the
license agreement or applicable tariff, if any, and
other relevant information available from a staff
member.
The Copyright Act provides for civil and criminal
remedies for infringement of copyright.
Dr. Margaret Ann Wilkinson 2010
… a map of the Canadian “Public Domain” Adapted by M.A. Wilkinson
from P.Samuelson’s American map, described in M.A. Wilkinson, “National Treatment,…” (2003-4)1 & 2 University of
Ottawa Law and Technology Journal 23-48.
Scientific &
Mathematical
Principles
Facts, Data,
Information
Rights
Expired
Laws, Regulations,
Judicial Opinions
Words, Names,
Numbers,
Symbols
Ideas, Concepts,
Theories
Open
Source
Widely
Usable
w/o
Restriction
Classified
Information
Other IPR
Plant Breeders Rights Act
Integrated Circuit Topography Act
Trade
Secret
Patent
Trademark Copyright
Fair Dealing
RIGHTS PURCHASED
And other specific user exceptions
Dr. Margaret Ann Wilkinson 2010
Will Canada’s Constitution mean that the Supreme Court’s “Users’
Rights” can triumph, if Parliament tries to narrow, per TRIPS?
United States Constitution
“The Congress shall have power…To
promote the Progress of Science and
useful Arts, by securing for limited
Times to Authors and Inventors the
exclusive Rights to their respective
Writings and Discoveries”
Eldred v. Ashcroft (2003, USSC)
Canadian Constitution Act,1867, s.91
“…the exclusive Legislative Authority of the
Parliament of Canada extends to …
(23) Copyrights
In a Canadian case, constitutional
support for the Supreme Court’s concept
of “users’ rights”?
s. 2(b) Canadian Charter of Rights and
Freedoms (1982): freedom of
expression
ALTHOUGH
s.1 “subject to such reasonable limits
prescribed by law as can be
demonstrably justified in a free and
democratic society”
TRIPS and other agreements:
Members [states] shall confine limitation
or exceptions to exclusive rights
To certain special cases
which do not conflict with a
normal exploitation of the work
And do not unreasonably
prejudice the legitimate interests
of the right holder
(the “3 step” test)
Dr. Margaret Ann Wilkinson 2010
Technological Protection Measures (TPMs) are given legal
sanction by Bill C-32
BUT NOT IF THEY INTERFERE WITH
• Interoperability
• personal data protection or privacy rights
• Access needs because of perceptual disability
AND
• Libraries which are LAMs have special defence provisions with
respect to the TPM sections
Note: the definition of “Libraries, Archives and Museums” (LAMs)
is not changed by Bill C-32 and therefore, to the extent that Bill C-32
provides privileges to LAMs it further divides libraries amongst
themselves -- those who are owned by for profit entities (most
special libraries and some educational institution’s libraries, for
example) will not have access to the increased exemptions of their
LAMs colleagues…
Dr. Margaret Ann Wilkinson 2010
Intellectual Property Owners as Key Intellectual Property
Policy Makers
Decisions-
Assert intellectual property rights?
Assign to traditional publishers ?
Control with publishers, whether foreign or domestic.
Assign to alternative publishers (those who do not insist on full
transfer of rights) ?
Some control with publishers, whether foreign or domestic,
some rights remaining with copyright holder.
Grant certain permissions
Exercise rights collectively ?
Individually little power of enforcement and therefore of control
– but possible remuneration according to collective’s policies
and possible control through governance of collective
Renounce intellectual property rights?
No control and no further potential for economic value to that
copyright holder
Works and “other subject matter” available to be exploited by others
Dr. Margaret Ann Wilkinson 2010
FEDERAL GOVERNMENT LICENSE
SI/97-5, 8 January, 1997, Canada Gazette Part II, Vol 131, No. 1
Anyone may, without charge or request for permission, reproduce
Enactments
Consolidations of enactments
Decisions
Reasons for decisions
Provided
Reasonable diligence used in ensuring accuracy
No representation as official
NOTE: PERMISSION IS TO REPRODUCE
Does not go so far as the American statutory prohibition on federal government copyright – where the federal
government cannot claim copyright
These Canadian provisions are not statutory , not permanent…
Many governments in Canada provide permissions – but each is individually tailored and they are located in different
government instruments, depending upon each government’s predelictions
Crowns, as copyright holders, exercising their control to provide access
to their copyrighted material:
Dr. Margaret Ann Wilkinson 2010
Traditional Academic Publishing Cycle –
Typical Economic Allocation of Literary Output
Publication,
Distribution,
& Dissemination
Writing ,
Peer Review,
& Publication
Learning,
Research,
& Writing
$
time
Ownership within the
university community
Ownership by private
sector publishers
Dr. Margaret Ann Wilkinson 2010
Universities pay
AccessCopyright
(formerlyCANCOPY)
(3)
Traditionally,
professors write
and submit articles
to prestigious peer
reviewed journals
Journals
assume the
copyright in
return for
publication
When Academic Publishers, assigned rights by authors, join Collectives to
Assert their assigned rights: Universities, e.g, (both producers and users) Pay
3 Times for Written Product !?!?
Publication
Revenue
Cycle
$
$
$
Universities (and
others) support and
encourage
professors to write
(1)
Journals are
purchased by
university
libraries for use
by students and
professors
(2)
Dr. Margaret Ann Wilkinson 2010
Philanthropy vs. Entitlement
The philanthropy of copyright holders giving permissions or giving up the exercise of
their copyrights (“open access, creative commons”) is more palatable from the point
of view of the trade regimes…but it is contributing to the public interest, as is the
exercise by government of Crown Copyright, rather than enlarging the public
domain…
Fair Dealing
And other specific user
exceptions-
including those for
“Educational Institutions”
Open
Source
Widely
Usable
w/o
Restriction
RIGHTS PURCHASED
Users’ Rights:
In the public domain, inter alia,
Dr. Margaret Ann Wilkinson 2010
Users, in a copyright world, potentially have access to
materials in a number of different ways:
Users can use materials that are not works covered by copyright;
Users can make use of materials in ways not forming part of the
copyright holders’ rights bundle;
Users can use materials in ways that do form part of the copyright
holders’ rights bundle but are excepted by governments from
the purview of the copyright holders’ exercise of their rights;
Users can use materials in ways that do form part of the copyright
holders’ rights bundle but for which they have been given
permission by the copyright holders –
Through the copyright holders’ collectives or
Through permissions of the copyright holders given in advance
(“open content licensing” or “creative commons”)
Through permissions negotiated directly, from time to time, with
copyright holders.
Dr. Margaret Ann Wilkinson 2010
Can philanthropy be rendered unnecessary?
COPYRIGHT HOLDERS’ PHILANTHROPY
Only necessary where “users’ rights” or the limitations of copyright itself
(limited term, limited rights to copyright holders, the doctrine of
merger, etc.) do not give educational institutions and researchers
the access they desire
If Canada is operating under an extended repertoire or extended license
regime, the existence of the collective license with an appropriate
collective will protect the educational institution from liability for
infringement even from a non-member and will thus render
redundant the efforts of copyright holders to individually license
uses administered by the recognized collectives.
If Canada is not operating under an extended repertoire regime, then
educational institutions with collective licenses can breathe more
easily about those rightsholders not represented by the collective if
those rightsholder have publicly “donated” their rights.
In either case, if enough rightsholders decide to be philanthropic, it could
affect the Canadian collective licensing environment in either or
both of two ways:
(1) there could be a new collective formed of like-minded rightsholders
which could be recognized under the Act (since more than one
organization can, and is now, able to be recognized in a particular
market – although the Copyright Board actively discourages this);
and/or
(2) the existence of rights available at no cost to educational institution
users should have an effect upon the Copyright Board’s
determinations of the “fair price” for a tariff in a particular sector.
USERS’ ENTITLEMENT
“Users’ rights” through the
enacted “exceptions to
copyright holders’
rights” in the Copyright
Act…
Licensed rights – from the
appropriate rights
collectives, by
educational
institutions, for tariffs
approved by the
Copyright Board of
Canada
Dr. Margaret Ann Wilkinson 2010
Collectives have long existed in the Canadian music
industry --
Canadian Performing
Rights Society
1926
BMI Canada
1940
PROCAN
1978
SOCAN
1990
1988 - Copyright Act amendments
Composers Authors & Publishers
Association of Canada
CAPAC 1946
1935 – Copyright Appeal Board created for these rights
Dr. Margaret Ann Wilkinson 2010
A Collective is, generally, a voluntary organization that
represents the holders of a particular economic copyright
in terms of the administration and enforcement
of selected rights associated with that copyright
Music performing collectives
SOCAN
Retransmission collecting bodies
SOCAN (also)
Other reproduction collectives
CMRRA (mechanical reproductions of music)
CANCOPY and COPIBEC (successor to UNEQ) -
reproduction rights only
Dr. Margaret Ann Wilkinson 2010
The Copyright Board website lists more than 30 collectives --
1. Access Copyright
2. ACF – Audio Cine Films
3. AVLA – Audio-Video Licensing Agency
4. CARCC – Canadian Artists’ Representation Copyright Collective
5. CBRA – Canadian Broadcasters Rights Agency
6. CMRRA – Canadian Musical Reproduction Rights Agency
7. Criterion Pictures
8. COPIBEC – Societe quebeciose de gestion collective des droits de
reproduction
9. CRC – Canadian Retransmission Collective
10. CRRA – Canadian Retransmission Right Association
11. ERCC – Education Rights Collective of Canada
12. FWS – FWS Join Sports Claimants
13. MLB – Major League Baseball Collective of Canada
14. PGC – Playwrights Guild of Canada
15. SOCAN – Society of Composers, Authors and Music Publishers of Canada
16. SACD – Societe des auteurs et compositeurs dramatiques
17. SODRAC – Society for Reproduction Rights of Authors, Composers and
Publishers in Canada
18. SOPROQ – Societe de gestion collective des droits des producteurs de
phonogrammes et videogrammes du Quebec
19. SoQAD – Societe quebecoise des auteurs dramatiques
The following are involved in rights management associated with “works”
under s.3:
Dr. Margaret Ann Wilkinson 2010
(c) Convert a non-dramatic work by
performance
(b) Convert a dramatic work
(a) Translate the Work
Publish the Work
ACF (films)
Criterion Pictures (films)
ERCC (tv and radio, education only)
SOCAN (music)
SoQAD (theatre, education only)
Perform the Work in Public
Access Copyright (writing)
AVLA (music: videos and audio)
CARCC (visual arts)
CMRAA (audio & music)
COPIBEC (writing)
SODRAC (music)
Produce or Reproduce the Work
Associated Collective Societys.3(1) Right
Dr. Margaret Ann Wilkinson 2010
(i) Rent out a Sound Recording
(h) Rent out a Computer Program
(g) Present an Artistic work at a Public
Exhibition
CBRA (tv)
CRC (tv and film)
CRRA (tv)
FWS (sports)
MLB (sports, baserball)
SACD (theatre, film, radio, audio)
SOCAN (music)
SOPROQ (audio and video)
(f) Communicate the work by
Telecommunication
(e) Adapt a work as a cinematographic work
(d) sound/cinematography film to
mechanically reproduce a literary, dramatic
or music work
Associated Collective Societys.3(1) Right
Dr. Margaret Ann Wilkinson 2010
STATUTORY COPYRIGHT
OWNERS
(authors & their employers)
COPYRIGHT
COLLECTIVES
(e.g. AccessCopyright)
COPYRIGHT
USERS
(Librarians & Patrons)
COPYRIGHT
BOARD
OF
CANADA
$
$
LICENSE
LICENSE
ASSIGNEES OF
ORIGINAL
COPYRIGHT HOLDERS
(e.g. Publishers)
$LICENSE
ASSIGNMENT
$
$LICENSE
$
LICENSE
COPYRIGHT
OFFICE
optional
registration
of copyrights and assignments
Tariff
Dr. Margaret Ann Wilkinson 2010
Parliament, the Copyright Board and the Courts:
Parliament –
Bill C-32 The Copyright Modernization Act
Introduced Tuesday, June 2, 2010… 2nd Reading Tuesday November 2 –
expected to go to committee shortly…
The Copyright Board –
4 tariff proceedings are in play, at various stages, that affect various
Canadian library communities…
The Federal Court of Appeal –
1 of the 4 tariff proceedings was decided by the Copyright Board and has
been judicially reviewed by this court…and on appeal to SCC
These three copyright policy - developing areas are interrelated…
Dr. Margaret Ann Wilkinson 2010
The risk in CANADA -
Section 27 (1) It is an infringement of copyright for any
person to do, without the consent of the owner of the
copyright, anything that by this Act only the owner of the
copyright has the right to do.
Section 28.1 Any act or omission that is contrary to any of
the moral rights of the author of a work is, in the absence
of consent by the author, an infringement of the moral
rights.
BUT there are also USERS (and intermediaries’)
RIGHTS in the Copyright Act…
Dr. Margaret Ann Wilkinson 2010
Identify a
Copyright issue
Perform a RiskPerform a Risk
AssessmentAssessment
Produce Policy
Document(s)
to Govern Your
Institution’s
Activities
Best PracticesBest Practices
informationinformation
ProfessionalProfessional
ArticlesArticles
ScholarlyScholarly
WritingWriting
CopyrightCopyright
WorkshopsWorkshops
Inputs:
Dr. Margaret Ann Wilkinson 2010
“Best Practices” as a Defence
Negligence is a branch of tort law,
developed at common law by the
courts…
In a lawsuit based on allegations that
you have been negligent, showing that
you are practicing to a level equal to or
greater than your professional peers
can establish that you have NOT been
negligent…
Even in this branch of law, where a
statute states a rule, evidence of
customary practice will NOT
exonerate someone who breaks that
rule…
(Drewry v. Towns (1951), 2 WWR
(NS) 217)
Copyright law is completely statute-
based.
Although recent courts have relied on
evidence of custom to establish who
owns a particular copyright interest…
(Robertson v. Thomson)… AND good
management practices can provide
evidence to satisfy elements of the
FAIR DEALING test (the Law Society
case, as above)
… courts have NOT permitted
evidence of custom to establish a
defence to allegations of copyright
infringement…
(Gribble v. Manitoba Free Press Ltd.
[1932] 1 DLR 169)
Dr. Margaret Ann Wilkinson 2010
Potential Strategies…. …the Use of Best Practices
1. Rely on the library’s
connection with its users’
FAIR DEALING rights, or
on the philanthropy of
rightsholders (Open Access)
to provide COST FREE
services.
2. Buy often COSTLY,
TEMPORARY permissions
for uses of works.
1. Best Practices can help establish
FAIR DEALING and should, at a
minimum, comply with the Great
Library’s practices described and
approved in the Law Society decision.
Being offered a license by a
vendor should not stop the Library
from using FAIR DEALING in
appropriate cases (para.70 of the
Law Society case)
2. Best Practices can help the Library
to develop negotiating strategies to
bargain with vendors about (a) the
rights being purchased; (b) the term
(length) of the rights; and (c) price.
EACH library has four choices with respect to material that is in copyright:
Dr. Margaret Ann Wilkinson 2010
Potential Strategies…. …the Use of Best Practices
3. Where user rights are not
extensive enough and where
permissions are not available (at
all, or, affordably), CURTAIL USE
of copyright material and provide
LESS SERVICE; OR
4. USE MATERIAL WITHOUT
PERMISSION AND RISK
ENFORCEMENT action
enforcement by rightsholder(s).
4. The risk here CANNOT be
minimized by adopting “Best
Practices” in or across
libraries.
EACH library has four choices with respect to material that is in copyright:
Dr. Margaret Ann Wilkinson 2010
How do we get permissions from copyright holders?
 Through permissions of the copyright holders given in
advance (“open content licensing” or “creative commons”)
(FREE) or
 Through permissions negotiated with copyright collectives
in blanket licenses (where the right(s) you seek and the
copyright holder of the work you are interested in are
represented) ($$) or
 Through permissions negotiated directly, from time to time,
with copyright holders ($$ or FREE –choice of copyright
holder).
Depending upon whether and how the copyright holder make the
permissions available… MUTUALLY EXCLUSIVE…
Dr. Margaret Ann Wilkinson 2010
What are the processes before the Copyright
Board in which libraries have become engaged?
1. In the educational sector, there is increasing “action” related to the
Copyright Board that affects libraries in the K-12 and post-secondary
environment right across the country:
 School boards everywhere except in Quebec have been affected by the decision of
AccessCopyright to take the Ministers of Education to the Board for a Tariff for 2005-
2009…
 School boards everywhere except in Quebec are now being affected by the decision
of AccessCopyright to take the Ministers of Education to the Board for a Tariff for 2010-
2012
 Universities are affected by the recent decision by AccessCopyright to abandon
individual negotiations with universities (or with an organization representing them) and
to apply instead for a Tariff before the Board.
2. In the government sector, AccessCopyright has applied to impose a Tariff
for 2005-2009 and another for 2010-2012 to the Provincial and Territorial
governments… and the Board has set a hearing for Sept. 13, 2011
3. AccessCopyright has the option under the Act to apply to the Board for
Tariffs in respect of other sectors of libraries, including public
libraries…
Dr. Margaret Ann Wilkinson 2010
The Copyright Board’s formula for setting tariffs:
• Take all copying done within the institution
 (determined by actual surveying, using statistically robust sampling)
• Subtract all copies for which the rightsholders should not be compensated
 (a) because the materials in question were not “works” or works in which the
rightsholders in the collective have rights (eg materials created by schools for
themselves, in which they hold copyright)
AND
 (b) because although the materials in question are prima facie materials in
which the collectives’ members have rights, there are users’ rights
(exceptions) which mean the rightsholders are not exercise their rights for
these uses (fair dealing, rights for educational institutions or LAMs)
SUB- TOTAL: NUMBER OF COMPENSABLE COPIES
x the value of each copy as determined on economic evidence by the
Copyright Board
EQUALS THE AMOUNT OF THE TARIFF EACH INSTITUTION IS TO PAY TO THE
COLLECTIVE
Dr. Margaret Ann Wilkinson 2010
The situation of the K-12 Tariff for 2005-2009
The Copyright Board rendered its decision in the tariff proceeding
between
The Ministers of Education (the users)
and
Access Copyright (the copyright holders)
June 26, 2009
Setting the amount schools needed to pay the owners of copyright in
print materials for photocopying during the years 2005-2009
everywhere in Canada except in Quebec
This replaced the Pan Canadian Schools/Cancopy License Agreement
agreed between the Ministers of Education and Cancopy (without
going to the Board) that lasted from 1999 until 2009…
See: http://www.cb-cda.gc.ca/decisions/2009/Access-Copyright-2005-2009-Schools.pdf
Dr. Margaret Ann Wilkinson 2010
COPIES NOT
INVOLVING
RIGHTSHOLDER
RIGHTS
K-12 2005-2009 findings of
the Copyright Board -
ALL COPIES MADE –10.3 billion
COPIES INVOLVING
RIGHTSHOLDERS’ RIGHTS BUT
WHERE USERS’ RIGHTS
EXEMPT THESE USES
COMPENSABLE COPIES ( 2% )—
250 million
X value per copy
= total tariff of $5.16/student
(previous agreement negotiated without
the Board – $2.56/student)
98%
Dr. Margaret Ann Wilkinson 2010
At the Federal Court of Appeal – File No.A-302-09
The Province of Alberta as Represented by the Minister of Education
(and Others) – Applicants
And
The Canadian Copyright Licensing Agency Operating as “ACCESS
COPYRIGHT” – Respondent
And
Canadian Publishers’ Council, The Association of Canadian Publishers, and the
Canadian Educational Resources Council – Interveners (#2)
(Leave to intervene sought January 7, 2010 and given February 18, 2010)
And
Canadian Association of University Teachers – Intervener (#1)
(Leave to intervene sought November 27, 2009 and given December 23, 2009)
The appeal was heard Tuesday June 8 and the decision released July 23,
2010 – Justice Trudel writing for Chief Justice Blais & Justice Noël
Dr. Margaret Ann Wilkinson 2010
K-12 new 2010-2012 tariff before the Copyright Board
2005-9 2010-12
Digital copies of paper works added
Sheet music added
Users’ Rights exempt
for these uses
Compensable
Copies
No RightsALL COPIES MADE
Dr. Margaret Ann Wilkinson 2010
What is Access Copyright proposing for the
2010-2012 tariff?
Tariff fee proposed is $15.00/FTE student– up from the
$5.16/FTE student appealed to the Federal Court of
Canada and to be adjusted slightly by remission back to
the Board on the question of whether exam copying was
actually not available in a medium that is appropriate for
the purpose and thus not compensable (which would
reduce the tariff now payable of $5.16 a bit
(but note enlarged scope of “product” AccessCopyright is
offering in the 2010-2012 tariff for schools)
Canadian Ministers of Education (CMEC) has indicated its
intention to oppose…
Access Copyright has not sought a hearing date with the
Copyright Board to pursue this new tariff
Dr. Margaret Ann Wilkinson 2010
Access Copyright’s proposed 2005-2009 and 2010-2014
Provincial and Territorial Government Tariffs
• Proposed fee is $24.00/FTE civil servant
• Coverage of the proposed Tariff is similar to Schools
Tariff
Presumably AccessCopyright expects less government copying to be
identified as non-compensable because of the users’ rights in the Act
(the difference between seeking $15/student and $24/civil servant)
Dr. Margaret Ann Wilkinson 2010
What is AccessCopyright’s proposed Tariff for
Post-Secondary institutions for 2005-2009?
On March 30th, 2010, Access Copyright filed a proposal with the
Copyright Board of Canada for a tariff for reproductions for course packs
and day-to-day photocopying for Post-Secondary Educational Institutions
Unlike the 2005-2009 School Tariff, the proposed post-secondary tariff
would include both print and digital works in its repertoire
The proposed tariff is $45.00/FTE – presumably the difference
AccessCopyright expects between the value of print and print to digital in
the education and civil service tariffs and print and digital in this one for
universities and colleges
The proposed tariff is posted to the Copyright Board of Canada website
The Association of Colleges and Universities of Canada, on behalf of the
individual institutions, has written opposing (July 15, 2010) – and other
university-related organizations have written opposing (such as the
Canadian Association of University Teachers (CAUT), although it does
not represent institutions on which the tariff would be levied)
Dr. Margaret Ann Wilkinson 2010
How might these future Tariff proceedings before the
Board be affected by Bill C-32 if it passes?
Users’ Rights exempt
for these uses
Compensable
Copies
No RightsALL COPIES MADE
2011-2013 Post- Secondary Tariff as Proposed for $45/FTE
Copies of works available digitally
added beyond what the K-12 2005-
2009 Tariff covers
Digital copies of paper works added
beyond what the K-12 2005-2009 Tariff
covers
Dr. Margaret Ann Wilkinson 2010
Research
Private study
Criticism *
Review *
News reporting *
* if source and attribution mentioned
The Supreme Court has said:
“It is only if a library were unable to
make out the fair dealing exception
under section 29 that it would need
to turn to the Copyright Act to prove
that it qualified for the library
exception.” (LSUC case)
The greatest area of exemption for library
activities is FAIR DEALING
Bill C-32 would expand FAIR
DEALING to add
Education
Parody
Satire
And a category of Non-
commercial user-generated
content (s.29.21)
And reproduction for private
purposes – without
circumventing Technological
Protection Measures (s.29.22)
And time-shifting (s.29.23)
And back-up copies (s.29.24)
Dr. Margaret Ann Wilkinson 2010
If Fair Dealing Users’ Rights are enlarged and if
Educational and LAMs Exceptions are expanded?
Users’ Rights exempt
for these uses
Compensable
Copies
No RightsALL COPIES MADE
Again, what AccessCopyright
is asking from Post-Secondary
Institutions…
… and how Bill C-32 might change
the equation.
Dr. Margaret Ann Wilkinson 2010
Bill C-32 is silent on collectives…
To give colleges and universities the protection under tariffs
that they had negotiated under the earlier licenses, the
Copyright Act would have to be changed
1. To say that contracts cannot override fair dealing rights
And
2. Where a collective exists, it represents that class of
rightsholders on a worldwide basis unless the rightsholder
specifically opts out (the extended repertoire or extended
licensing system)
Bill C-32 proposed neither of these changes to the Copyright Act…
Dr. Margaret Ann Wilkinson 2010
In the Canadian environment, open source may not be so
important in the future…
Direct licensing of material by
users from database vendors (over
70% of collections budgets in
Canadian academic libraries)
bypasses both the “open source”
movement and the rights
otherwise “sold” by collectives…
If Canadian collectives represent
all those with rights in Canada
(and the Copyright Board says they
already represent both their
members and any who cash
cheques received from the
collective), they will render the
“open source” movement
irrelevant … and if Canada does
move to a European-style
extended repertoire or extended
licensing system (as many in
academe now want), it will render
“open source” totally irrelevant
for those rights represented by
collectives…
User rights confirmed by statute
are permanent, guaranteed to
users, and directly accessible and
thus will always be better for
users than “open source”… which
relies on the philanthropy of
owners…
Dr. Margaret Ann Wilkinson 2010
Thank You
1. Copyright Board of Canada http://www.cb-cda.gc.ca/
2. OLA’s position and a summary of Bill C-32 as it affects libraries
(prepared by Western Law students Justin Vessair, Dave Morrison and
Dan Hynes) is at
http://www.accessola.com/ola/bins/content_page.asp?cid=1-99-3377
3. Margaret Ann Wilkinson,“Copyright, Collectives, and Contracts:
New Math for Educational Institutions and Libraries” in a new
collection edited by Michael Geist, From "Radical Extremism" to
"Balanced Copyright": Canadian Copyright and the Digital Agenda
(Irwin Law, 2010) http://www.irwinlaw.com/store/product/666/from--
radical-extremism--to--balanced-copyright-
4. Margaret Ann Wilkinson, “Open Access and Fair Dealing:
Philanthropy or Rights?” in Mark Perry and Brian Fitzgerald (eds)
Digital Copyright in a User-Generated World.— Irwin Law, forthcoming.

Weitere ähnliche Inhalte

Was ist angesagt?

Yes You Can Use Copyrighted Materials
Yes You Can Use Copyrighted MaterialsYes You Can Use Copyrighted Materials
Yes You Can Use Copyrighted MaterialsRenee Hobbs
 
Copyright power point
Copyright power pointCopyright power point
Copyright power pointcannonj
 
Copyright And Fair Use
Copyright And Fair UseCopyright And Fair Use
Copyright And Fair UseSpiro Bolos
 
Ccumc beyond copyright presentation slides
Ccumc beyond copyright presentation slidesCcumc beyond copyright presentation slides
Ccumc beyond copyright presentation slidesStephen Marvin
 
HUM 140: Social Media: Copyright, plagiarism, remix
HUM 140: Social Media: Copyright, plagiarism, remixHUM 140: Social Media: Copyright, plagiarism, remix
HUM 140: Social Media: Copyright, plagiarism, remixRay Brannon
 
Copyright Education for Teachers
Copyright Education for TeachersCopyright Education for Teachers
Copyright Education for TeachersMelissa
 
Copyright In The Classroom
Copyright In The ClassroomCopyright In The Classroom
Copyright In The Classroomahopkins
 
Copyright, Fair Use, And Creative Commons
Copyright, Fair Use, And Creative CommonsCopyright, Fair Use, And Creative Commons
Copyright, Fair Use, And Creative CommonsPatrick Woessner
 
You tube regulations
You tube regulationsYou tube regulations
You tube regulationspoozu
 
Copyright & Plagiarism for Educators
Copyright & Plagiarism for EducatorsCopyright & Plagiarism for Educators
Copyright & Plagiarism for EducatorsValerie Knight
 
634062fall11copyrtcarmona2
634062fall11copyrtcarmona2634062fall11copyrtcarmona2
634062fall11copyrtcarmona2cherubess
 
Creative Commons in Education (incl. OER and MOOCs) and Research
Creative Commons in Education (incl. OER and MOOCs) and ResearchCreative Commons in Education (incl. OER and MOOCs) and Research
Creative Commons in Education (incl. OER and MOOCs) and ResearchccAustralia
 
634062fall11copyrtcarmonaversion3
634062fall11copyrtcarmonaversion3634062fall11copyrtcarmonaversion3
634062fall11copyrtcarmonaversion3cherubess
 
Creative Commons and Government in Australia
Creative Commons and Government in AustraliaCreative Commons and Government in Australia
Creative Commons and Government in AustraliaccAustralia
 
Copyright and Open Content Licensing: the role of the Creative Commons licences
Copyright and Open Content Licensing: the role of the Creative Commons licencesCopyright and Open Content Licensing: the role of the Creative Commons licences
Copyright and Open Content Licensing: the role of the Creative Commons licencesccAustralia
 
Copyright Clarity: Using Copyrighted Materials for Digital Learning
Copyright Clarity: Using Copyrighted Materials for Digital LearningCopyright Clarity: Using Copyrighted Materials for Digital Learning
Copyright Clarity: Using Copyrighted Materials for Digital LearningRenee Hobbs
 

Was ist angesagt? (18)

Yes You Can Use Copyrighted Materials
Yes You Can Use Copyrighted MaterialsYes You Can Use Copyrighted Materials
Yes You Can Use Copyrighted Materials
 
Copyright & Fair Use
Copyright & Fair UseCopyright & Fair Use
Copyright & Fair Use
 
Copyright power point
Copyright power pointCopyright power point
Copyright power point
 
Copyright And Fair Use
Copyright And Fair UseCopyright And Fair Use
Copyright And Fair Use
 
Ccumc beyond copyright presentation slides
Ccumc beyond copyright presentation slidesCcumc beyond copyright presentation slides
Ccumc beyond copyright presentation slides
 
HUM 140: Social Media: Copyright, plagiarism, remix
HUM 140: Social Media: Copyright, plagiarism, remixHUM 140: Social Media: Copyright, plagiarism, remix
HUM 140: Social Media: Copyright, plagiarism, remix
 
Copyright Education for Teachers
Copyright Education for TeachersCopyright Education for Teachers
Copyright Education for Teachers
 
Copyright In The Classroom
Copyright In The ClassroomCopyright In The Classroom
Copyright In The Classroom
 
Copyright, Fair Use, And Creative Commons
Copyright, Fair Use, And Creative CommonsCopyright, Fair Use, And Creative Commons
Copyright, Fair Use, And Creative Commons
 
You tube regulations
You tube regulationsYou tube regulations
You tube regulations
 
Copyright & Plagiarism for Educators
Copyright & Plagiarism for EducatorsCopyright & Plagiarism for Educators
Copyright & Plagiarism for Educators
 
634062fall11copyrtcarmona2
634062fall11copyrtcarmona2634062fall11copyrtcarmona2
634062fall11copyrtcarmona2
 
Creative Commons in Education (incl. OER and MOOCs) and Research
Creative Commons in Education (incl. OER and MOOCs) and ResearchCreative Commons in Education (incl. OER and MOOCs) and Research
Creative Commons in Education (incl. OER and MOOCs) and Research
 
634062fall11copyrtcarmonaversion3
634062fall11copyrtcarmonaversion3634062fall11copyrtcarmonaversion3
634062fall11copyrtcarmonaversion3
 
Creative Commons and Government in Australia
Creative Commons and Government in AustraliaCreative Commons and Government in Australia
Creative Commons and Government in Australia
 
Copyright and Open Content Licensing: the role of the Creative Commons licences
Copyright and Open Content Licensing: the role of the Creative Commons licencesCopyright and Open Content Licensing: the role of the Creative Commons licences
Copyright and Open Content Licensing: the role of the Creative Commons licences
 
Copyright Clarity: Using Copyrighted Materials for Digital Learning
Copyright Clarity: Using Copyrighted Materials for Digital LearningCopyright Clarity: Using Copyrighted Materials for Digital Learning
Copyright Clarity: Using Copyrighted Materials for Digital Learning
 
Liasa Faife Seminar 280909
Liasa Faife Seminar 280909Liasa Faife Seminar 280909
Liasa Faife Seminar 280909
 

Ähnlich wie Copyright in Canada and the U.S.

Copyright Laws And Copyright Law
Copyright Laws And Copyright LawCopyright Laws And Copyright Law
Copyright Laws And Copyright LawMichele Lata
 
Internet Copyright Laws Essay
Internet Copyright Laws EssayInternet Copyright Laws Essay
Internet Copyright Laws EssaySarah Michalak
 
Short History of Creative Commons
Short History of Creative Commons Short History of Creative Commons
Short History of Creative Commons Maria Garruccio
 
The Digitial Millenium Copyright Act Essay
The Digitial Millenium Copyright Act EssayThe Digitial Millenium Copyright Act Essay
The Digitial Millenium Copyright Act EssayKimberly Brooks
 
IT Developers And Copyright Management
IT Developers And Copyright ManagementIT Developers And Copyright Management
IT Developers And Copyright ManagementLaura Ochoa
 
The Oldest International Agreement Of The Copyright For...
The Oldest International Agreement Of The Copyright For...The Oldest International Agreement Of The Copyright For...
The Oldest International Agreement Of The Copyright For...Tonya Strongheart
 
Copyright 101 - davisu05a2
Copyright 101 - davisu05a2Copyright 101 - davisu05a2
Copyright 101 - davisu05a2Kerri Davis
 
Copyright 101 - davisu05a2
Copyright 101 - davisu05a2Copyright 101 - davisu05a2
Copyright 101 - davisu05a2Kerri Davis
 
Essay About Canada Have Too Many Laws
Essay About Canada Have Too Many LawsEssay About Canada Have Too Many Laws
Essay About Canada Have Too Many LawsSheri Elliott
 
Canadian Copyright Law
Canadian Copyright LawCanadian Copyright Law
Canadian Copyright LawMaria Polite
 
Copyright Law And Its Effects On The World Of Art
Copyright Law And Its Effects On The World Of ArtCopyright Law And Its Effects On The World Of Art
Copyright Law And Its Effects On The World Of ArtLisa Brown
 
Copyright In The Music Industry
Copyright In The Music IndustryCopyright In The Music Industry
Copyright In The Music IndustryKatie Harris
 
The Purpose Of Copyright Law
The Purpose Of Copyright LawThe Purpose Of Copyright Law
The Purpose Of Copyright LawNicole Fields
 
Ownership And Infringement Of Copyrights
Ownership And Infringement Of CopyrightsOwnership And Infringement Of Copyrights
Ownership And Infringement Of CopyrightsLisa Fields
 
Copyright Violation Essay
Copyright Violation EssayCopyright Violation Essay
Copyright Violation EssayRobin Anderson
 

Ähnlich wie Copyright in Canada and the U.S. (20)

Copyright Laws And Copyright Law
Copyright Laws And Copyright LawCopyright Laws And Copyright Law
Copyright Laws And Copyright Law
 
Internet Copyright Laws Essay
Internet Copyright Laws EssayInternet Copyright Laws Essay
Internet Copyright Laws Essay
 
Short History of Creative Commons
Short History of Creative Commons Short History of Creative Commons
Short History of Creative Commons
 
Ownership In Music
Ownership In MusicOwnership In Music
Ownership In Music
 
Copyright lecture
Copyright lectureCopyright lecture
Copyright lecture
 
Research Paper
Research PaperResearch Paper
Research Paper
 
The Digitial Millenium Copyright Act Essay
The Digitial Millenium Copyright Act EssayThe Digitial Millenium Copyright Act Essay
The Digitial Millenium Copyright Act Essay
 
IT Developers And Copyright Management
IT Developers And Copyright ManagementIT Developers And Copyright Management
IT Developers And Copyright Management
 
The Oldest International Agreement Of The Copyright For...
The Oldest International Agreement Of The Copyright For...The Oldest International Agreement Of The Copyright For...
The Oldest International Agreement Of The Copyright For...
 
Copyright 101 - davisu05a2
Copyright 101 - davisu05a2Copyright 101 - davisu05a2
Copyright 101 - davisu05a2
 
Copyright 101 - davisu05a2
Copyright 101 - davisu05a2Copyright 101 - davisu05a2
Copyright 101 - davisu05a2
 
6.copyright.2020
6.copyright.20206.copyright.2020
6.copyright.2020
 
Essay About Canada Have Too Many Laws
Essay About Canada Have Too Many LawsEssay About Canada Have Too Many Laws
Essay About Canada Have Too Many Laws
 
Essay On Copyright Laws
Essay On Copyright LawsEssay On Copyright Laws
Essay On Copyright Laws
 
Canadian Copyright Law
Canadian Copyright LawCanadian Copyright Law
Canadian Copyright Law
 
Copyright Law And Its Effects On The World Of Art
Copyright Law And Its Effects On The World Of ArtCopyright Law And Its Effects On The World Of Art
Copyright Law And Its Effects On The World Of Art
 
Copyright In The Music Industry
Copyright In The Music IndustryCopyright In The Music Industry
Copyright In The Music Industry
 
The Purpose Of Copyright Law
The Purpose Of Copyright LawThe Purpose Of Copyright Law
The Purpose Of Copyright Law
 
Ownership And Infringement Of Copyrights
Ownership And Infringement Of CopyrightsOwnership And Infringement Of Copyrights
Ownership And Infringement Of Copyrights
 
Copyright Violation Essay
Copyright Violation EssayCopyright Violation Essay
Copyright Violation Essay
 

Mehr von Western New York/Ontario Chapter Association of College and Research Libraries

Mehr von Western New York/Ontario Chapter Association of College and Research Libraries (8)

Focus groups for graduate students: a needs assessment
Focus groups for graduate students: a needs assessmentFocus groups for graduate students: a needs assessment
Focus groups for graduate students: a needs assessment
 
What can we learn from campus leaders, quickly?
What can we learn from campus leaders, quickly?What can we learn from campus leaders, quickly?
What can we learn from campus leaders, quickly?
 
From My Mouth to Faculty Ears: A Model for Successful Teaching
From My Mouth to Faculty Ears: A Model for Successful TeachingFrom My Mouth to Faculty Ears: A Model for Successful Teaching
From My Mouth to Faculty Ears: A Model for Successful Teaching
 
Promoting Scholarship with Services, Programs and Publishing
Promoting Scholarship with Services, Programs and PublishingPromoting Scholarship with Services, Programs and Publishing
Promoting Scholarship with Services, Programs and Publishing
 
Ex malo bonum: a bold new focus on scholarly communication
Ex malo bonum: a bold new focus on scholarly communicationEx malo bonum: a bold new focus on scholarly communication
Ex malo bonum: a bold new focus on scholarly communication
 
From My Mouth to Faculty Ears: A Model for Successful Teaching
From My Mouth to Faculty Ears: A Model for Successful TeachingFrom My Mouth to Faculty Ears: A Model for Successful Teaching
From My Mouth to Faculty Ears: A Model for Successful Teaching
 
Assessing Awareness of Scholarly Communication Issues On Campus
Assessing Awareness of Scholarly Communication Issues On CampusAssessing Awareness of Scholarly Communication Issues On Campus
Assessing Awareness of Scholarly Communication Issues On Campus
 
Open Access Publishing: More Readers, More Impact
Open Access Publishing: More Readers, More ImpactOpen Access Publishing: More Readers, More Impact
Open Access Publishing: More Readers, More Impact
 

Kürzlich hochgeladen

Patient Counselling. Definition of patient counseling; steps involved in pati...
Patient Counselling. Definition of patient counseling; steps involved in pati...Patient Counselling. Definition of patient counseling; steps involved in pati...
Patient Counselling. Definition of patient counseling; steps involved in pati...raviapr7
 
Prescribed medication order and communication skills.pptx
Prescribed medication order and communication skills.pptxPrescribed medication order and communication skills.pptx
Prescribed medication order and communication skills.pptxraviapr7
 
Education and training program in the hospital APR.pptx
Education and training program in the hospital APR.pptxEducation and training program in the hospital APR.pptx
Education and training program in the hospital APR.pptxraviapr7
 
How to Add a many2many Relational Field in Odoo 17
How to Add a many2many Relational Field in Odoo 17How to Add a many2many Relational Field in Odoo 17
How to Add a many2many Relational Field in Odoo 17Celine George
 
Benefits & Challenges of Inclusive Education
Benefits & Challenges of Inclusive EducationBenefits & Challenges of Inclusive Education
Benefits & Challenges of Inclusive EducationMJDuyan
 
DUST OF SNOW_BY ROBERT FROST_EDITED BY_ TANMOY MISHRA
DUST OF SNOW_BY ROBERT FROST_EDITED BY_ TANMOY MISHRADUST OF SNOW_BY ROBERT FROST_EDITED BY_ TANMOY MISHRA
DUST OF SNOW_BY ROBERT FROST_EDITED BY_ TANMOY MISHRATanmoy Mishra
 
Practical Research 1: Lesson 8 Writing the Thesis Statement.pptx
Practical Research 1: Lesson 8 Writing the Thesis Statement.pptxPractical Research 1: Lesson 8 Writing the Thesis Statement.pptx
Practical Research 1: Lesson 8 Writing the Thesis Statement.pptxKatherine Villaluna
 
In - Vivo and In - Vitro Correlation.pptx
In - Vivo and In - Vitro Correlation.pptxIn - Vivo and In - Vitro Correlation.pptx
In - Vivo and In - Vitro Correlation.pptxAditiChauhan701637
 
2024.03.23 What do successful readers do - Sandy Millin for PARK.pptx
2024.03.23 What do successful readers do - Sandy Millin for PARK.pptx2024.03.23 What do successful readers do - Sandy Millin for PARK.pptx
2024.03.23 What do successful readers do - Sandy Millin for PARK.pptxSandy Millin
 
Practical Research 1 Lesson 9 Scope and delimitation.pptx
Practical Research 1 Lesson 9 Scope and delimitation.pptxPractical Research 1 Lesson 9 Scope and delimitation.pptx
Practical Research 1 Lesson 9 Scope and delimitation.pptxKatherine Villaluna
 
Human-AI Co-Creation of Worked Examples for Programming Classes
Human-AI Co-Creation of Worked Examples for Programming ClassesHuman-AI Co-Creation of Worked Examples for Programming Classes
Human-AI Co-Creation of Worked Examples for Programming ClassesMohammad Hassany
 
Patterns of Written Texts Across Disciplines.pptx
Patterns of Written Texts Across Disciplines.pptxPatterns of Written Texts Across Disciplines.pptx
Patterns of Written Texts Across Disciplines.pptxMYDA ANGELICA SUAN
 
Ultra structure and life cycle of Plasmodium.pptx
Ultra structure and life cycle of Plasmodium.pptxUltra structure and life cycle of Plasmodium.pptx
Ultra structure and life cycle of Plasmodium.pptxDr. Asif Anas
 
CAULIFLOWER BREEDING 1 Parmar pptx
CAULIFLOWER BREEDING 1 Parmar pptxCAULIFLOWER BREEDING 1 Parmar pptx
CAULIFLOWER BREEDING 1 Parmar pptxSaurabhParmar42
 
3.21.24 The Origins of Black Power.pptx
3.21.24  The Origins of Black Power.pptx3.21.24  The Origins of Black Power.pptx
3.21.24 The Origins of Black Power.pptxmary850239
 
How to Manage Cross-Selling in Odoo 17 Sales
How to Manage Cross-Selling in Odoo 17 SalesHow to Manage Cross-Selling in Odoo 17 Sales
How to Manage Cross-Selling in Odoo 17 SalesCeline George
 
CHUYÊN ĐỀ DẠY THÊM TIẾNG ANH LỚP 11 - GLOBAL SUCCESS - NĂM HỌC 2023-2024 - HK...
CHUYÊN ĐỀ DẠY THÊM TIẾNG ANH LỚP 11 - GLOBAL SUCCESS - NĂM HỌC 2023-2024 - HK...CHUYÊN ĐỀ DẠY THÊM TIẾNG ANH LỚP 11 - GLOBAL SUCCESS - NĂM HỌC 2023-2024 - HK...
CHUYÊN ĐỀ DẠY THÊM TIẾNG ANH LỚP 11 - GLOBAL SUCCESS - NĂM HỌC 2023-2024 - HK...Nguyen Thanh Tu Collection
 
PISA-VET launch_El Iza Mohamedou_19 March 2024.pptx
PISA-VET launch_El Iza Mohamedou_19 March 2024.pptxPISA-VET launch_El Iza Mohamedou_19 March 2024.pptx
PISA-VET launch_El Iza Mohamedou_19 March 2024.pptxEduSkills OECD
 

Kürzlich hochgeladen (20)

Patient Counselling. Definition of patient counseling; steps involved in pati...
Patient Counselling. Definition of patient counseling; steps involved in pati...Patient Counselling. Definition of patient counseling; steps involved in pati...
Patient Counselling. Definition of patient counseling; steps involved in pati...
 
Prescribed medication order and communication skills.pptx
Prescribed medication order and communication skills.pptxPrescribed medication order and communication skills.pptx
Prescribed medication order and communication skills.pptx
 
Education and training program in the hospital APR.pptx
Education and training program in the hospital APR.pptxEducation and training program in the hospital APR.pptx
Education and training program in the hospital APR.pptx
 
How to Add a many2many Relational Field in Odoo 17
How to Add a many2many Relational Field in Odoo 17How to Add a many2many Relational Field in Odoo 17
How to Add a many2many Relational Field in Odoo 17
 
Benefits & Challenges of Inclusive Education
Benefits & Challenges of Inclusive EducationBenefits & Challenges of Inclusive Education
Benefits & Challenges of Inclusive Education
 
DUST OF SNOW_BY ROBERT FROST_EDITED BY_ TANMOY MISHRA
DUST OF SNOW_BY ROBERT FROST_EDITED BY_ TANMOY MISHRADUST OF SNOW_BY ROBERT FROST_EDITED BY_ TANMOY MISHRA
DUST OF SNOW_BY ROBERT FROST_EDITED BY_ TANMOY MISHRA
 
Practical Research 1: Lesson 8 Writing the Thesis Statement.pptx
Practical Research 1: Lesson 8 Writing the Thesis Statement.pptxPractical Research 1: Lesson 8 Writing the Thesis Statement.pptx
Practical Research 1: Lesson 8 Writing the Thesis Statement.pptx
 
In - Vivo and In - Vitro Correlation.pptx
In - Vivo and In - Vitro Correlation.pptxIn - Vivo and In - Vitro Correlation.pptx
In - Vivo and In - Vitro Correlation.pptx
 
2024.03.23 What do successful readers do - Sandy Millin for PARK.pptx
2024.03.23 What do successful readers do - Sandy Millin for PARK.pptx2024.03.23 What do successful readers do - Sandy Millin for PARK.pptx
2024.03.23 What do successful readers do - Sandy Millin for PARK.pptx
 
Practical Research 1 Lesson 9 Scope and delimitation.pptx
Practical Research 1 Lesson 9 Scope and delimitation.pptxPractical Research 1 Lesson 9 Scope and delimitation.pptx
Practical Research 1 Lesson 9 Scope and delimitation.pptx
 
Human-AI Co-Creation of Worked Examples for Programming Classes
Human-AI Co-Creation of Worked Examples for Programming ClassesHuman-AI Co-Creation of Worked Examples for Programming Classes
Human-AI Co-Creation of Worked Examples for Programming Classes
 
Patterns of Written Texts Across Disciplines.pptx
Patterns of Written Texts Across Disciplines.pptxPatterns of Written Texts Across Disciplines.pptx
Patterns of Written Texts Across Disciplines.pptx
 
Ultra structure and life cycle of Plasmodium.pptx
Ultra structure and life cycle of Plasmodium.pptxUltra structure and life cycle of Plasmodium.pptx
Ultra structure and life cycle of Plasmodium.pptx
 
Prelims of Kant get Marx 2.0: a general politics quiz
Prelims of Kant get Marx 2.0: a general politics quizPrelims of Kant get Marx 2.0: a general politics quiz
Prelims of Kant get Marx 2.0: a general politics quiz
 
CAULIFLOWER BREEDING 1 Parmar pptx
CAULIFLOWER BREEDING 1 Parmar pptxCAULIFLOWER BREEDING 1 Parmar pptx
CAULIFLOWER BREEDING 1 Parmar pptx
 
3.21.24 The Origins of Black Power.pptx
3.21.24  The Origins of Black Power.pptx3.21.24  The Origins of Black Power.pptx
3.21.24 The Origins of Black Power.pptx
 
How to Manage Cross-Selling in Odoo 17 Sales
How to Manage Cross-Selling in Odoo 17 SalesHow to Manage Cross-Selling in Odoo 17 Sales
How to Manage Cross-Selling in Odoo 17 Sales
 
CHUYÊN ĐỀ DẠY THÊM TIẾNG ANH LỚP 11 - GLOBAL SUCCESS - NĂM HỌC 2023-2024 - HK...
CHUYÊN ĐỀ DẠY THÊM TIẾNG ANH LỚP 11 - GLOBAL SUCCESS - NĂM HỌC 2023-2024 - HK...CHUYÊN ĐỀ DẠY THÊM TIẾNG ANH LỚP 11 - GLOBAL SUCCESS - NĂM HỌC 2023-2024 - HK...
CHUYÊN ĐỀ DẠY THÊM TIẾNG ANH LỚP 11 - GLOBAL SUCCESS - NĂM HỌC 2023-2024 - HK...
 
PISA-VET launch_El Iza Mohamedou_19 March 2024.pptx
PISA-VET launch_El Iza Mohamedou_19 March 2024.pptxPISA-VET launch_El Iza Mohamedou_19 March 2024.pptx
PISA-VET launch_El Iza Mohamedou_19 March 2024.pptx
 
Finals of Kant get Marx 2.0 : a general politics quiz
Finals of Kant get Marx 2.0 : a general politics quizFinals of Kant get Marx 2.0 : a general politics quiz
Finals of Kant get Marx 2.0 : a general politics quiz
 

Copyright in Canada and the U.S.

  • 1. Dr. Margaret Ann Wilkinson 2010 Copyright in Canada and the U.S. Dr. Margaret Ann Wilkinson Professor Faculty of Law (with doctoral supervisory status in Library & Information Science) The University of Western Ontario, London, Ontario, Canada (with thanks for conversations with Dr. John Tooth and research assistance by law students Justin Vessair, Dan Hynes and Dave Morrison) Western New York & Ontario - Association of College & Research Libraries East Aurora, New York, November 5, 2010
  • 2. Dr. Margaret Ann Wilkinson 2010 Canada’s academic institutions face tough decisions this year… • These decisions must be taken by each academic institution in Canada individually… • Once taken, these decisions may alter the shape of access to information in the Canadian academy… • These decisions stem from copyright law but will, paradoxically, be little affected by the current Bill C- 32 before the Canadian House of Commons, whether or not it passes in its current form or in a modified form… • These decisions do not seem to be decisions that will face American colleges and universities…
  • 3. Dr. Margaret Ann Wilkinson 2010 How do Canadian and American academic institutions come to this fork in the road? First, let us look at some features of the Canadian copyright environment that distinguish it from the American … And how these impact the current Canadian situation… Then, let’s look at the effect of the differences on: - the probable impact of Canada’s Bill C-32; and - the importance of the open source movement on academic libraries in the two countries…
  • 4. Dr. Margaret Ann Wilkinson 2010 As in the United States, in Canada there is one statute for all materials dealt with in Canada: Copyright Act, Revised Statutes of Canada 1985, c.C-42, as amended Since the inception of the Berne Convention, Canada has been compliant with it (first through its status as a British colony – and then in its own right)… The United States is a very recent adherent to Berne and, even now, has not implemented the provisions of Berne which relate to the protection of moral rights… Because of the international principle of “national treatment” in international copyright agreements, all materials in Canada, for all practical purposes, are governed by Canadian law and vice versa in the United States…
  • 5. Dr. Margaret Ann Wilkinson 2010 The policy makers creating Canada’s copyright environment: Government Legislature In Canada, the federal government -- recent Bills C-60 and C-61 (both now dead) – legislation again promised to be introduced this spring… NO provincial interest – Judiciary- since 2002 steadily confirming a large “public domain” In Canada, Parliament has tried to limit the role of the courts: s. 89 Copyright Act The Canadian Charter of Rights and Freedoms has never yet been applied directly to an intellectual property law situation (but the Supreme Court in the Harvard Mouse case in patent, for example, has indicated a willingness to apply it) How will “users’ rights” be expressed and preserved in the future? International Treaties Are Perceived, once entered into, as limiting Domestic National Policy Options 19th Century Co-ordination (e.g. Berne, Paris) 1990’s World Trade Agenda Coercion (e.g. NAFTA, TRIPS) Are irrelevant to Charter concerns, are not binding on Canadian legislatures; non-compliance runs the risk of sanctions in the trade context Intellectual Property Owners, Themselves Canadian Governments -- As Crown Copyright Holders Copyright holders working together through Canadian Collectives – AccessCopyright taking all the universities to the Copyright Board for a Tariff instead of negotiating … begun April 1, 2010… Other individual copyright holders – both domestic and foreign Not users – except indirectly as lobbyists and electors influencing the legislative process…
  • 6. Dr. Margaret Ann Wilkinson 2010 TRIPS: Article 13: [Member states] shall confine limitations or exceptions to exclusive rights to certain special cases which do not conflict with a normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the right holder.
  • 7. Dr. Margaret Ann Wilkinson 2010 Canadian Copyright Act - Three sets of rights enshrined: US system really only recognizes 1 set: Economic Rights… ECONOMIC RIGHTS (from the beginning) MORAL RIGHTS (Canada 1st common law country to introduce; fully articulated in 1988) USERS’ RIGHTS (expressed by the SCC in 2004) Life of the author + 50 years on works; ALWAYS remain with the author – but can be waived Fully assignable (owned from the outset by employers in an employment situation) Life of the author + 50 years on works; 50 years generally for “other subject matter”
  • 8. Dr. Margaret Ann Wilkinson 2010 What is copyrighted? Expressions and not data or facts per se Works: • Literary - Includes computer programs, tables • Artistic - includes photographs, diagrams, maps, charts, etc. • Musical • Dramatic -Includes cinematographic works, with or without soundtrack Compilations of works and Collective works - Works resulting from the selection or arrangement of data or of other works or parts of other works and any work incorporating the work Other subject matter: • Sound recordings • Performers’ performances • Broadcasts
  • 9. Dr. Margaret Ann Wilkinson 2010 Converting Work to a Digital Format is a Copyright Holder’s Right – and Transmitting it anywhere is also a Copyright Holder’s Right… (a) Converting a Work to a Digital Format is a Copyright Holder’s Right: Robertson v. Thomson 2006 Supreme Court • “Converting” a work to digital is an act of reproduction that only a Copyright Holder has the right to do • A copyright holder holds the same rights in a digital work as would be held in a work in traditional form. Robertson et al v. Proquest et al • Class Action Lawsuit in Ontario spring 2009 • 3rd party claims3rd party claims being made by Proquest et al against journals, since the journals originally published the articles that Proquest et al later digitized • Similar lawsuit in Quebec: ElectronicElectronic--RightsRights Defence Committee v.Defence Committee v. SouthamSoutham et alet al, certified class action Que SC April 15 2009 (b) Uploading or Downloading a Digital Work involves a Copyright Holder’s Right: SOCAN “Tariff 22” decision 2004 Supreme Court • Posting a work on the net is authorizing its communication (ONE RIGHT) – and communication occurs when the item is retrieved by an end user (A SECOND RIGHT) • When a content provider intends the public to have access, that is a communication by telecommunication to the public (THAT SECOND RIGHT)… Canadian Wireless Telecommunications Association v. SOCAN (Federal Court of Appeal) • Transmission of ring tones to cellphone customers, even when each transmission is separately triggered by the customer, is a right of the copyright holder (AGAIN, that SECOND RIGHT)
  • 10. Dr. Margaret Ann Wilkinson 2010 Converting Work to a Digital Format is a Copyright Holder’s Right – and Transmitting it anywhere is also a Copyright Holder’s Right… Crookes v. Newton (2009 BCCA 392) Leave to Appeal granted by the Supreme Court on April 1, 2010… a defamation (libel) case… copyright is not mentioned… Appeal to be heard this December… • A website owner putting a hyperlink to another site will not automatically be considered “publication” of the material to which the link is made (and the majority in this particular case said there was no publication)…BUT • Both the majority (Saunders, JA, for herself and Bauman, JA) and the dissenting judge (Prowse, JA) held that it is possible for the inclusion of a hyperlink to  “If it is apparent from the context in which the hyperlink is used that it is being used merely as a biographical or similarly limited reference to an original source, without in any way activity encouraging or recommending to the readers that they access that source then… this would not amount to publication.” [Majority at para.59]  Factors tending toward a finding of publication, however, “would include the prominence of the hyperlink, any words of invitation or recommendation to the reader associated with the hyperlink, the nature of the materials which it is suggested may be found at the hyperlink…, the apparent significance of the hyperlink in relation to the article as a whole, and a host of other factors dependant on the facts of a particular case.” [Majority atpara.61]constitute publication by the linking party of the material to which the link is made…
  • 11. Dr. Margaret Ann Wilkinson 2010 So, who owns the copyright interests … The individual authors, who were not employees at the time of creation of the works, if they have not assigned those rights, own the rights in works – and, even if they were employees or assigned their economic rights, unless they have waived them, they continue to hold moral rights. Employers who employed authors who created works will own the copyrights, but not the moral rights, in those works, unless they have assigned them. Sound recording rights and rights in performances by performers will be owned by the makers and performers, respectively (unless assigned to others), even though the sound recordings or recorded performance may also carry other copyright interests, for example in musical works or film, that are owned, at least originally, by others. Photographs are owned in Canada by the person commissioning them (if paid for) rather than the photographer. Otherwise the photographer owns them. (If photographs are owned by corporations now in Canada, the term of copyright is only 50 years, whereas if they are owned by individuals (or corporations an individual controls) the term is the life of the photographer + 50 years.)
  • 12. Dr. Margaret Ann Wilkinson 2010 If passed, Bill C-32 will give the same protections to photographs as are now given to every other work under the Copyright Act – for the same period of life of the photographer + 50 years… And, in general, ownership will lie with the photographer – but for certain private uses, a commissioning person will still have rights…
  • 13. Dr. Margaret Ann Wilkinson 2010 Economic rights in works Economic rights in “other subject matter” Recall the basic rights given copyright holders under the Copyright Act: to communicate a performer’s performance by telecommunication to “fix” a performer’s performance to reproduce a fixed performance to rent out a sound recording of the performance to publish, reproduce or rent a sound recording to fix a broadcast signal to retransmit a signal to authorize any of the above to produce, reproduce to perform in public to translate to convert from one type of work to another to make sound recordings or cinematographs to communicate the work by telecommunication to present art created after 1988 in public to rent computer programs to authorize any of the above AccessCopyright focused here for English print works
  • 14. Dr. Margaret Ann Wilkinson 2010 …what are “Moral Rights”? In Canada, the author of a work has a right : • to the integrity of the work (i.e. to prevent the work from being distorted, mutilated or otherwise modified to the prejudice of the honour or reputation of the author) • where reasonable in the circumstances, to be associated with the work as its author by name or under a pseudonym (as well as the right to remain anonymous) [often referred to as the right to paternity] • to prevent the work from being used in association with a product, service, cause or institution to the prejudice of the honour or reputation of the author [commonly referred to as the right of association]. Not transferable… licensing not an option. Can be waived by the author. Bill C-32 would extend moral rights to performers’ performance…
  • 15. Dr. Margaret Ann Wilkinson 2010 The Canadian statute provides for fair dealing in five categories: Research Private study Criticism * Review * News reporting * * if source and attribution mentioned The Supreme Court specifically said: “a library can always attempt to prove that its dealings with a copyrighted work are fair under section 29 of the Copyright Act. It is only if a library were unable to make out the fair dealing exception under section 29 that it would need to turn to the Copyright Act to prove that it qualified for the library exception.” (para.49) 2004 Supreme Court decision in CCH et al v. The Law Society of Upper Canada, the “Law Society” case: The largest Users’ Right is FAIR DEALING. These rights override the copyright holders’ rights if you are using the works for certain purposes. Bill C-32 would add education, parody and satire to this list
  • 16. Dr. Margaret Ann Wilkinson 2010 The Supreme Court listed a non-statutory set of factors, first proposed in the Federal Court of Appeal, that judges should consider as a “useful analytic framework” in interpreting “fair dealing”: • purpose of the dealing: • must be an allowable purpose, one mentioned in the act • character of the dealing: • how was the infringing work dealt with? • amount of the dealing: • what was the amount and substantiality of portion used in relation to the whole work? • alternatives to the dealing: • defense more likely allowed where no alternative available • nature of the work: • i.e., strong public interest in access to legal resources • economic impact on owner: • how is market for work impacted by fair-dealing in question?
  • 17. Dr. Margaret Ann Wilkinson 2010 But, given those factors, the Supreme Court decided libraries can deal fairly with works in a number of important ways – and, therefore, that others can use works in similar ways: It may be possible to deal fairly with the whole work… for the purpose of research or private study, it may be essential to copy an entire academic article or an entire judicial decision. (from para.56) Faxing works to patrons is not “communications to the public” – the Supreme Court agreed with the trial judge that such communications “emanated from a single point and were each intended to be received at a single point” (para.77, quoting from the trial judgment) (although a series to the same patron might be a problem) “…patrons … cannot reasonably be expected to always conduct their research on-site at the Great Library… it would be burdensome to expect them to travel … each time they wanted to track down a specific source” (para.60) Many of the “special” provisions for LAMs (only non-profits) are made redundant by the Supreme Court’s view of the permissible actions by the Great Library under fair dealing – eg. To the extent ILL practices can be analogized to the Great Library’s practices, it is unnecessary to rely on the special exceptions for LAMs.
  • 18. Dr. Margaret Ann Wilkinson 2010 Approved by the Supreme Court: The copyright law of Canada governs the making of photocopies or other reproductions of copyright material. Certain copying may be an infringement of the copyright law. This library is not responsible for infringing copies made by the users of these machines. Unnecessarily verbose Under the Regulations since 1997: WARNING! Works protected by copyright may be photocopied only if authorized by: the Copyright Act for the purposes of specific exemptions set out in that Act; the copyright owner; or a license agreement between this institution and a collective society or a tariff, if any. For details of authorized copying, please consult the license agreement or applicable tariff, if any, and other relevant information available from a staff member. The Copyright Act provides for civil and criminal remedies for infringement of copyright.
  • 19. Dr. Margaret Ann Wilkinson 2010 … a map of the Canadian “Public Domain” Adapted by M.A. Wilkinson from P.Samuelson’s American map, described in M.A. Wilkinson, “National Treatment,…” (2003-4)1 & 2 University of Ottawa Law and Technology Journal 23-48. Scientific & Mathematical Principles Facts, Data, Information Rights Expired Laws, Regulations, Judicial Opinions Words, Names, Numbers, Symbols Ideas, Concepts, Theories Open Source Widely Usable w/o Restriction Classified Information Other IPR Plant Breeders Rights Act Integrated Circuit Topography Act Trade Secret Patent Trademark Copyright Fair Dealing RIGHTS PURCHASED And other specific user exceptions
  • 20. Dr. Margaret Ann Wilkinson 2010 Will Canada’s Constitution mean that the Supreme Court’s “Users’ Rights” can triumph, if Parliament tries to narrow, per TRIPS? United States Constitution “The Congress shall have power…To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Rights to their respective Writings and Discoveries” Eldred v. Ashcroft (2003, USSC) Canadian Constitution Act,1867, s.91 “…the exclusive Legislative Authority of the Parliament of Canada extends to … (23) Copyrights In a Canadian case, constitutional support for the Supreme Court’s concept of “users’ rights”? s. 2(b) Canadian Charter of Rights and Freedoms (1982): freedom of expression ALTHOUGH s.1 “subject to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society” TRIPS and other agreements: Members [states] shall confine limitation or exceptions to exclusive rights To certain special cases which do not conflict with a normal exploitation of the work And do not unreasonably prejudice the legitimate interests of the right holder (the “3 step” test)
  • 21. Dr. Margaret Ann Wilkinson 2010 Technological Protection Measures (TPMs) are given legal sanction by Bill C-32 BUT NOT IF THEY INTERFERE WITH • Interoperability • personal data protection or privacy rights • Access needs because of perceptual disability AND • Libraries which are LAMs have special defence provisions with respect to the TPM sections Note: the definition of “Libraries, Archives and Museums” (LAMs) is not changed by Bill C-32 and therefore, to the extent that Bill C-32 provides privileges to LAMs it further divides libraries amongst themselves -- those who are owned by for profit entities (most special libraries and some educational institution’s libraries, for example) will not have access to the increased exemptions of their LAMs colleagues…
  • 22. Dr. Margaret Ann Wilkinson 2010 Intellectual Property Owners as Key Intellectual Property Policy Makers Decisions- Assert intellectual property rights? Assign to traditional publishers ? Control with publishers, whether foreign or domestic. Assign to alternative publishers (those who do not insist on full transfer of rights) ? Some control with publishers, whether foreign or domestic, some rights remaining with copyright holder. Grant certain permissions Exercise rights collectively ? Individually little power of enforcement and therefore of control – but possible remuneration according to collective’s policies and possible control through governance of collective Renounce intellectual property rights? No control and no further potential for economic value to that copyright holder Works and “other subject matter” available to be exploited by others
  • 23. Dr. Margaret Ann Wilkinson 2010 FEDERAL GOVERNMENT LICENSE SI/97-5, 8 January, 1997, Canada Gazette Part II, Vol 131, No. 1 Anyone may, without charge or request for permission, reproduce Enactments Consolidations of enactments Decisions Reasons for decisions Provided Reasonable diligence used in ensuring accuracy No representation as official NOTE: PERMISSION IS TO REPRODUCE Does not go so far as the American statutory prohibition on federal government copyright – where the federal government cannot claim copyright These Canadian provisions are not statutory , not permanent… Many governments in Canada provide permissions – but each is individually tailored and they are located in different government instruments, depending upon each government’s predelictions Crowns, as copyright holders, exercising their control to provide access to their copyrighted material:
  • 24. Dr. Margaret Ann Wilkinson 2010 Traditional Academic Publishing Cycle – Typical Economic Allocation of Literary Output Publication, Distribution, & Dissemination Writing , Peer Review, & Publication Learning, Research, & Writing $ time Ownership within the university community Ownership by private sector publishers
  • 25. Dr. Margaret Ann Wilkinson 2010 Universities pay AccessCopyright (formerlyCANCOPY) (3) Traditionally, professors write and submit articles to prestigious peer reviewed journals Journals assume the copyright in return for publication When Academic Publishers, assigned rights by authors, join Collectives to Assert their assigned rights: Universities, e.g, (both producers and users) Pay 3 Times for Written Product !?!? Publication Revenue Cycle $ $ $ Universities (and others) support and encourage professors to write (1) Journals are purchased by university libraries for use by students and professors (2)
  • 26. Dr. Margaret Ann Wilkinson 2010 Philanthropy vs. Entitlement The philanthropy of copyright holders giving permissions or giving up the exercise of their copyrights (“open access, creative commons”) is more palatable from the point of view of the trade regimes…but it is contributing to the public interest, as is the exercise by government of Crown Copyright, rather than enlarging the public domain… Fair Dealing And other specific user exceptions- including those for “Educational Institutions” Open Source Widely Usable w/o Restriction RIGHTS PURCHASED Users’ Rights: In the public domain, inter alia,
  • 27. Dr. Margaret Ann Wilkinson 2010 Users, in a copyright world, potentially have access to materials in a number of different ways: Users can use materials that are not works covered by copyright; Users can make use of materials in ways not forming part of the copyright holders’ rights bundle; Users can use materials in ways that do form part of the copyright holders’ rights bundle but are excepted by governments from the purview of the copyright holders’ exercise of their rights; Users can use materials in ways that do form part of the copyright holders’ rights bundle but for which they have been given permission by the copyright holders – Through the copyright holders’ collectives or Through permissions of the copyright holders given in advance (“open content licensing” or “creative commons”) Through permissions negotiated directly, from time to time, with copyright holders.
  • 28. Dr. Margaret Ann Wilkinson 2010 Can philanthropy be rendered unnecessary? COPYRIGHT HOLDERS’ PHILANTHROPY Only necessary where “users’ rights” or the limitations of copyright itself (limited term, limited rights to copyright holders, the doctrine of merger, etc.) do not give educational institutions and researchers the access they desire If Canada is operating under an extended repertoire or extended license regime, the existence of the collective license with an appropriate collective will protect the educational institution from liability for infringement even from a non-member and will thus render redundant the efforts of copyright holders to individually license uses administered by the recognized collectives. If Canada is not operating under an extended repertoire regime, then educational institutions with collective licenses can breathe more easily about those rightsholders not represented by the collective if those rightsholder have publicly “donated” their rights. In either case, if enough rightsholders decide to be philanthropic, it could affect the Canadian collective licensing environment in either or both of two ways: (1) there could be a new collective formed of like-minded rightsholders which could be recognized under the Act (since more than one organization can, and is now, able to be recognized in a particular market – although the Copyright Board actively discourages this); and/or (2) the existence of rights available at no cost to educational institution users should have an effect upon the Copyright Board’s determinations of the “fair price” for a tariff in a particular sector. USERS’ ENTITLEMENT “Users’ rights” through the enacted “exceptions to copyright holders’ rights” in the Copyright Act… Licensed rights – from the appropriate rights collectives, by educational institutions, for tariffs approved by the Copyright Board of Canada
  • 29. Dr. Margaret Ann Wilkinson 2010 Collectives have long existed in the Canadian music industry -- Canadian Performing Rights Society 1926 BMI Canada 1940 PROCAN 1978 SOCAN 1990 1988 - Copyright Act amendments Composers Authors & Publishers Association of Canada CAPAC 1946 1935 – Copyright Appeal Board created for these rights
  • 30. Dr. Margaret Ann Wilkinson 2010 A Collective is, generally, a voluntary organization that represents the holders of a particular economic copyright in terms of the administration and enforcement of selected rights associated with that copyright Music performing collectives SOCAN Retransmission collecting bodies SOCAN (also) Other reproduction collectives CMRRA (mechanical reproductions of music) CANCOPY and COPIBEC (successor to UNEQ) - reproduction rights only
  • 31. Dr. Margaret Ann Wilkinson 2010 The Copyright Board website lists more than 30 collectives -- 1. Access Copyright 2. ACF – Audio Cine Films 3. AVLA – Audio-Video Licensing Agency 4. CARCC – Canadian Artists’ Representation Copyright Collective 5. CBRA – Canadian Broadcasters Rights Agency 6. CMRRA – Canadian Musical Reproduction Rights Agency 7. Criterion Pictures 8. COPIBEC – Societe quebeciose de gestion collective des droits de reproduction 9. CRC – Canadian Retransmission Collective 10. CRRA – Canadian Retransmission Right Association 11. ERCC – Education Rights Collective of Canada 12. FWS – FWS Join Sports Claimants 13. MLB – Major League Baseball Collective of Canada 14. PGC – Playwrights Guild of Canada 15. SOCAN – Society of Composers, Authors and Music Publishers of Canada 16. SACD – Societe des auteurs et compositeurs dramatiques 17. SODRAC – Society for Reproduction Rights of Authors, Composers and Publishers in Canada 18. SOPROQ – Societe de gestion collective des droits des producteurs de phonogrammes et videogrammes du Quebec 19. SoQAD – Societe quebecoise des auteurs dramatiques The following are involved in rights management associated with “works” under s.3:
  • 32. Dr. Margaret Ann Wilkinson 2010 (c) Convert a non-dramatic work by performance (b) Convert a dramatic work (a) Translate the Work Publish the Work ACF (films) Criterion Pictures (films) ERCC (tv and radio, education only) SOCAN (music) SoQAD (theatre, education only) Perform the Work in Public Access Copyright (writing) AVLA (music: videos and audio) CARCC (visual arts) CMRAA (audio & music) COPIBEC (writing) SODRAC (music) Produce or Reproduce the Work Associated Collective Societys.3(1) Right
  • 33. Dr. Margaret Ann Wilkinson 2010 (i) Rent out a Sound Recording (h) Rent out a Computer Program (g) Present an Artistic work at a Public Exhibition CBRA (tv) CRC (tv and film) CRRA (tv) FWS (sports) MLB (sports, baserball) SACD (theatre, film, radio, audio) SOCAN (music) SOPROQ (audio and video) (f) Communicate the work by Telecommunication (e) Adapt a work as a cinematographic work (d) sound/cinematography film to mechanically reproduce a literary, dramatic or music work Associated Collective Societys.3(1) Right
  • 34. Dr. Margaret Ann Wilkinson 2010 STATUTORY COPYRIGHT OWNERS (authors & their employers) COPYRIGHT COLLECTIVES (e.g. AccessCopyright) COPYRIGHT USERS (Librarians & Patrons) COPYRIGHT BOARD OF CANADA $ $ LICENSE LICENSE ASSIGNEES OF ORIGINAL COPYRIGHT HOLDERS (e.g. Publishers) $LICENSE ASSIGNMENT $ $LICENSE $ LICENSE COPYRIGHT OFFICE optional registration of copyrights and assignments Tariff
  • 35. Dr. Margaret Ann Wilkinson 2010 Parliament, the Copyright Board and the Courts: Parliament – Bill C-32 The Copyright Modernization Act Introduced Tuesday, June 2, 2010… 2nd Reading Tuesday November 2 – expected to go to committee shortly… The Copyright Board – 4 tariff proceedings are in play, at various stages, that affect various Canadian library communities… The Federal Court of Appeal – 1 of the 4 tariff proceedings was decided by the Copyright Board and has been judicially reviewed by this court…and on appeal to SCC These three copyright policy - developing areas are interrelated…
  • 36. Dr. Margaret Ann Wilkinson 2010 The risk in CANADA - Section 27 (1) It is an infringement of copyright for any person to do, without the consent of the owner of the copyright, anything that by this Act only the owner of the copyright has the right to do. Section 28.1 Any act or omission that is contrary to any of the moral rights of the author of a work is, in the absence of consent by the author, an infringement of the moral rights. BUT there are also USERS (and intermediaries’) RIGHTS in the Copyright Act…
  • 37. Dr. Margaret Ann Wilkinson 2010 Identify a Copyright issue Perform a RiskPerform a Risk AssessmentAssessment Produce Policy Document(s) to Govern Your Institution’s Activities Best PracticesBest Practices informationinformation ProfessionalProfessional ArticlesArticles ScholarlyScholarly WritingWriting CopyrightCopyright WorkshopsWorkshops Inputs:
  • 38. Dr. Margaret Ann Wilkinson 2010 “Best Practices” as a Defence Negligence is a branch of tort law, developed at common law by the courts… In a lawsuit based on allegations that you have been negligent, showing that you are practicing to a level equal to or greater than your professional peers can establish that you have NOT been negligent… Even in this branch of law, where a statute states a rule, evidence of customary practice will NOT exonerate someone who breaks that rule… (Drewry v. Towns (1951), 2 WWR (NS) 217) Copyright law is completely statute- based. Although recent courts have relied on evidence of custom to establish who owns a particular copyright interest… (Robertson v. Thomson)… AND good management practices can provide evidence to satisfy elements of the FAIR DEALING test (the Law Society case, as above) … courts have NOT permitted evidence of custom to establish a defence to allegations of copyright infringement… (Gribble v. Manitoba Free Press Ltd. [1932] 1 DLR 169)
  • 39. Dr. Margaret Ann Wilkinson 2010 Potential Strategies…. …the Use of Best Practices 1. Rely on the library’s connection with its users’ FAIR DEALING rights, or on the philanthropy of rightsholders (Open Access) to provide COST FREE services. 2. Buy often COSTLY, TEMPORARY permissions for uses of works. 1. Best Practices can help establish FAIR DEALING and should, at a minimum, comply with the Great Library’s practices described and approved in the Law Society decision. Being offered a license by a vendor should not stop the Library from using FAIR DEALING in appropriate cases (para.70 of the Law Society case) 2. Best Practices can help the Library to develop negotiating strategies to bargain with vendors about (a) the rights being purchased; (b) the term (length) of the rights; and (c) price. EACH library has four choices with respect to material that is in copyright:
  • 40. Dr. Margaret Ann Wilkinson 2010 Potential Strategies…. …the Use of Best Practices 3. Where user rights are not extensive enough and where permissions are not available (at all, or, affordably), CURTAIL USE of copyright material and provide LESS SERVICE; OR 4. USE MATERIAL WITHOUT PERMISSION AND RISK ENFORCEMENT action enforcement by rightsholder(s). 4. The risk here CANNOT be minimized by adopting “Best Practices” in or across libraries. EACH library has four choices with respect to material that is in copyright:
  • 41. Dr. Margaret Ann Wilkinson 2010 How do we get permissions from copyright holders?  Through permissions of the copyright holders given in advance (“open content licensing” or “creative commons”) (FREE) or  Through permissions negotiated with copyright collectives in blanket licenses (where the right(s) you seek and the copyright holder of the work you are interested in are represented) ($$) or  Through permissions negotiated directly, from time to time, with copyright holders ($$ or FREE –choice of copyright holder). Depending upon whether and how the copyright holder make the permissions available… MUTUALLY EXCLUSIVE…
  • 42. Dr. Margaret Ann Wilkinson 2010 What are the processes before the Copyright Board in which libraries have become engaged? 1. In the educational sector, there is increasing “action” related to the Copyright Board that affects libraries in the K-12 and post-secondary environment right across the country:  School boards everywhere except in Quebec have been affected by the decision of AccessCopyright to take the Ministers of Education to the Board for a Tariff for 2005- 2009…  School boards everywhere except in Quebec are now being affected by the decision of AccessCopyright to take the Ministers of Education to the Board for a Tariff for 2010- 2012  Universities are affected by the recent decision by AccessCopyright to abandon individual negotiations with universities (or with an organization representing them) and to apply instead for a Tariff before the Board. 2. In the government sector, AccessCopyright has applied to impose a Tariff for 2005-2009 and another for 2010-2012 to the Provincial and Territorial governments… and the Board has set a hearing for Sept. 13, 2011 3. AccessCopyright has the option under the Act to apply to the Board for Tariffs in respect of other sectors of libraries, including public libraries…
  • 43. Dr. Margaret Ann Wilkinson 2010 The Copyright Board’s formula for setting tariffs: • Take all copying done within the institution  (determined by actual surveying, using statistically robust sampling) • Subtract all copies for which the rightsholders should not be compensated  (a) because the materials in question were not “works” or works in which the rightsholders in the collective have rights (eg materials created by schools for themselves, in which they hold copyright) AND  (b) because although the materials in question are prima facie materials in which the collectives’ members have rights, there are users’ rights (exceptions) which mean the rightsholders are not exercise their rights for these uses (fair dealing, rights for educational institutions or LAMs) SUB- TOTAL: NUMBER OF COMPENSABLE COPIES x the value of each copy as determined on economic evidence by the Copyright Board EQUALS THE AMOUNT OF THE TARIFF EACH INSTITUTION IS TO PAY TO THE COLLECTIVE
  • 44. Dr. Margaret Ann Wilkinson 2010 The situation of the K-12 Tariff for 2005-2009 The Copyright Board rendered its decision in the tariff proceeding between The Ministers of Education (the users) and Access Copyright (the copyright holders) June 26, 2009 Setting the amount schools needed to pay the owners of copyright in print materials for photocopying during the years 2005-2009 everywhere in Canada except in Quebec This replaced the Pan Canadian Schools/Cancopy License Agreement agreed between the Ministers of Education and Cancopy (without going to the Board) that lasted from 1999 until 2009… See: http://www.cb-cda.gc.ca/decisions/2009/Access-Copyright-2005-2009-Schools.pdf
  • 45. Dr. Margaret Ann Wilkinson 2010 COPIES NOT INVOLVING RIGHTSHOLDER RIGHTS K-12 2005-2009 findings of the Copyright Board - ALL COPIES MADE –10.3 billion COPIES INVOLVING RIGHTSHOLDERS’ RIGHTS BUT WHERE USERS’ RIGHTS EXEMPT THESE USES COMPENSABLE COPIES ( 2% )— 250 million X value per copy = total tariff of $5.16/student (previous agreement negotiated without the Board – $2.56/student) 98%
  • 46. Dr. Margaret Ann Wilkinson 2010 At the Federal Court of Appeal – File No.A-302-09 The Province of Alberta as Represented by the Minister of Education (and Others) – Applicants And The Canadian Copyright Licensing Agency Operating as “ACCESS COPYRIGHT” – Respondent And Canadian Publishers’ Council, The Association of Canadian Publishers, and the Canadian Educational Resources Council – Interveners (#2) (Leave to intervene sought January 7, 2010 and given February 18, 2010) And Canadian Association of University Teachers – Intervener (#1) (Leave to intervene sought November 27, 2009 and given December 23, 2009) The appeal was heard Tuesday June 8 and the decision released July 23, 2010 – Justice Trudel writing for Chief Justice Blais & Justice Noël
  • 47. Dr. Margaret Ann Wilkinson 2010 K-12 new 2010-2012 tariff before the Copyright Board 2005-9 2010-12 Digital copies of paper works added Sheet music added Users’ Rights exempt for these uses Compensable Copies No RightsALL COPIES MADE
  • 48. Dr. Margaret Ann Wilkinson 2010 What is Access Copyright proposing for the 2010-2012 tariff? Tariff fee proposed is $15.00/FTE student– up from the $5.16/FTE student appealed to the Federal Court of Canada and to be adjusted slightly by remission back to the Board on the question of whether exam copying was actually not available in a medium that is appropriate for the purpose and thus not compensable (which would reduce the tariff now payable of $5.16 a bit (but note enlarged scope of “product” AccessCopyright is offering in the 2010-2012 tariff for schools) Canadian Ministers of Education (CMEC) has indicated its intention to oppose… Access Copyright has not sought a hearing date with the Copyright Board to pursue this new tariff
  • 49. Dr. Margaret Ann Wilkinson 2010 Access Copyright’s proposed 2005-2009 and 2010-2014 Provincial and Territorial Government Tariffs • Proposed fee is $24.00/FTE civil servant • Coverage of the proposed Tariff is similar to Schools Tariff Presumably AccessCopyright expects less government copying to be identified as non-compensable because of the users’ rights in the Act (the difference between seeking $15/student and $24/civil servant)
  • 50. Dr. Margaret Ann Wilkinson 2010 What is AccessCopyright’s proposed Tariff for Post-Secondary institutions for 2005-2009? On March 30th, 2010, Access Copyright filed a proposal with the Copyright Board of Canada for a tariff for reproductions for course packs and day-to-day photocopying for Post-Secondary Educational Institutions Unlike the 2005-2009 School Tariff, the proposed post-secondary tariff would include both print and digital works in its repertoire The proposed tariff is $45.00/FTE – presumably the difference AccessCopyright expects between the value of print and print to digital in the education and civil service tariffs and print and digital in this one for universities and colleges The proposed tariff is posted to the Copyright Board of Canada website The Association of Colleges and Universities of Canada, on behalf of the individual institutions, has written opposing (July 15, 2010) – and other university-related organizations have written opposing (such as the Canadian Association of University Teachers (CAUT), although it does not represent institutions on which the tariff would be levied)
  • 51. Dr. Margaret Ann Wilkinson 2010 How might these future Tariff proceedings before the Board be affected by Bill C-32 if it passes? Users’ Rights exempt for these uses Compensable Copies No RightsALL COPIES MADE 2011-2013 Post- Secondary Tariff as Proposed for $45/FTE Copies of works available digitally added beyond what the K-12 2005- 2009 Tariff covers Digital copies of paper works added beyond what the K-12 2005-2009 Tariff covers
  • 52. Dr. Margaret Ann Wilkinson 2010 Research Private study Criticism * Review * News reporting * * if source and attribution mentioned The Supreme Court has said: “It is only if a library were unable to make out the fair dealing exception under section 29 that it would need to turn to the Copyright Act to prove that it qualified for the library exception.” (LSUC case) The greatest area of exemption for library activities is FAIR DEALING Bill C-32 would expand FAIR DEALING to add Education Parody Satire And a category of Non- commercial user-generated content (s.29.21) And reproduction for private purposes – without circumventing Technological Protection Measures (s.29.22) And time-shifting (s.29.23) And back-up copies (s.29.24)
  • 53. Dr. Margaret Ann Wilkinson 2010 If Fair Dealing Users’ Rights are enlarged and if Educational and LAMs Exceptions are expanded? Users’ Rights exempt for these uses Compensable Copies No RightsALL COPIES MADE Again, what AccessCopyright is asking from Post-Secondary Institutions… … and how Bill C-32 might change the equation.
  • 54. Dr. Margaret Ann Wilkinson 2010 Bill C-32 is silent on collectives… To give colleges and universities the protection under tariffs that they had negotiated under the earlier licenses, the Copyright Act would have to be changed 1. To say that contracts cannot override fair dealing rights And 2. Where a collective exists, it represents that class of rightsholders on a worldwide basis unless the rightsholder specifically opts out (the extended repertoire or extended licensing system) Bill C-32 proposed neither of these changes to the Copyright Act…
  • 55. Dr. Margaret Ann Wilkinson 2010 In the Canadian environment, open source may not be so important in the future… Direct licensing of material by users from database vendors (over 70% of collections budgets in Canadian academic libraries) bypasses both the “open source” movement and the rights otherwise “sold” by collectives… If Canadian collectives represent all those with rights in Canada (and the Copyright Board says they already represent both their members and any who cash cheques received from the collective), they will render the “open source” movement irrelevant … and if Canada does move to a European-style extended repertoire or extended licensing system (as many in academe now want), it will render “open source” totally irrelevant for those rights represented by collectives… User rights confirmed by statute are permanent, guaranteed to users, and directly accessible and thus will always be better for users than “open source”… which relies on the philanthropy of owners…
  • 56. Dr. Margaret Ann Wilkinson 2010 Thank You 1. Copyright Board of Canada http://www.cb-cda.gc.ca/ 2. OLA’s position and a summary of Bill C-32 as it affects libraries (prepared by Western Law students Justin Vessair, Dave Morrison and Dan Hynes) is at http://www.accessola.com/ola/bins/content_page.asp?cid=1-99-3377 3. Margaret Ann Wilkinson,“Copyright, Collectives, and Contracts: New Math for Educational Institutions and Libraries” in a new collection edited by Michael Geist, From "Radical Extremism" to "Balanced Copyright": Canadian Copyright and the Digital Agenda (Irwin Law, 2010) http://www.irwinlaw.com/store/product/666/from-- radical-extremism--to--balanced-copyright- 4. Margaret Ann Wilkinson, “Open Access and Fair Dealing: Philanthropy or Rights?” in Mark Perry and Brian Fitzgerald (eds) Digital Copyright in a User-Generated World.— Irwin Law, forthcoming.