Monday, December 06, 2010

why "education" needs clarity

Last week's C-32 Committee hearings in Ottawa saw detailed objections to the introduction of a vaguely defined "education" category within the fair dealing provisions of the Canadian Copyright Act.

We can expect to hear those objections fleshed out even more this afternoon, as the committee hears from Roanie Levy, General Counsel, and Director of Policy and External Affairs for Access Copyright, the copyright licencing collective that is the direct target of a great deal of the vicious anti-copyright campaigning of the last few years.

Access Copyright represents thousands of Canadian writers and their publishers in negotiations for licence arrangements with governments, industry and the educational sector. They have recently succeeded in setting a new, reasonable tariff for K-12 schools in Canada, which allows for confident and affordable access to content for our K-12 sector. They are in the middle of negotiating for a similar tariff with the Copyright Board of Canada for the post-secondary sector.

As noted here before, prominent consumer advocate, Michael Geist, and a number of other free-culture theorists have been openly campaigning to have Canada's universities walk away not only from these negotiations but from the very idea of collective copyright licencing altogether. While Geist makes a lot of distracting arm movements about alternate licencing arrangements and open-access materials, it's clear from the statements of key stakeholders that many in the educational sector would interpret the educational fair dealing category as an invitation to avoid collective licencing fees for post-secondary classroom use.

The National Post published an excellent article on this topic over the weekend. You can see the full article here, but here are some key quotes:
"Proponents of the education clause say the change will ensure that teachers, students and educational institutions will not have to worry about breaking the law in classroom settings as technology paves the way for increasingly collaborative and content-sharing exercises.

Critics -- authors, creators and publishers like Mr. Nordal-- argue the term "education" is too broad and could lead to widespread copying of textbooks, novels, study guides and anything else that could remotely be justified as learning materials."

"The debate is helping to pit two groups of unlikely opponents -- writers and students -- against each other, said Alan Cumyn, a Giller-prize nominated author and chair of the Writer's Union of Canada.

"Really there is no need to bring in this education exception, unless you want to save money for the education sector in the short run," he said. "Where is that money coming from? It's coming from writers and publishers.

"We're not saying to computer makers that a certain percentage of computers must go free to school boards. We're not saying teachers should take a cut in their salaries. So why stop paying for intellectual property?"

Testifying in the same session with Ms. Levy are:

Brian Isaac, Chair of the Canadian Anti-Counterfeiting Network;

Annie Morin, Chair of the Canadian Private Copying Collective, and CPCC representative artist, Sophie Milman;

Ysolde Gendreau, President of Association Littéraire et Artistique Internationale (ALAI Canada); and

Glen Bloom, Chair of the Copyright Legislation Committee (Technical), from the Intellectual Property Institute of Canada

As with the hearings last week, you can watch the testimony live online at the Parliamentary website beginning at 3:30 p.m. EST.

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Anonymous said...

I like my exemptions like I like my butter... clarified.

Gruesome said...

Glad you are at least calling fro clarity , most against are calling fro complete removal.

Crockett said...

As I've mentioned in our many conversations John, clarity is good. The whole concept of those opposed to fair dealing, instead calling it 'free dealing', is that everyone wants everything for free. Well any one with half a brain realizes that that is not a workable business model.

What I at least hope is the purpose of the educational exception is to enable creative and unencumbered uses for information in the classroom to enable better education for young people entering our economy.

To think that educators are going to tell their students to go to the library and stand in line at the photocopier is not teaching anyone the values of business and commerce and is a little absurd to boot.

Having said all that, I think some clear guidelines are necessary to assuage the fears of writers and publishers.

Crockett said...

This is interesting ...

When Glenn bloom was asked at the C-32 policy hearings today, "Would allowing circumvention for personal purposes meet WIPO?

Bloom responded: Can't answer - policy issue. C-32's digital locks compliant with WIPO. No opinion on whether more flexible approach would also be compliant.

Is that because he doesn't know or does know and doesn't want to say?

Gruesome said...

Put Barry Sookman in a corner and ask him under the guidelines for WIPO compliance he is advocating for Canada which countries in the world are compliant and he refuses to answer.
Put directly to him a number of times is whether the US is currently compliant using his own arguments and he's refused to answer. Or given evasive answers

Silence can be most telling.

Sandy Crawley said...

@Gruesome & Crockett
(A new law firm??)

Mr. Bloom was clear that he had not been authorized to speak on policy matters.

Crockett said...

I think that should be Crockett & Gruesome ;)

Crockett said...

John, a tweet today from WGC's Maureen Parker: Digital locks in C-32 about appeasing MPAA, no real benefit for creators, not forward thinking.

Glad to see both sides are starting to move closer together. There is a glimmer of hope on the horizon.

Sandy Crawley said...


The WGC point is accurate. Unfortunately it's not only the MPAA, it is also the Canadian film and TV producers who seem to think locks are a winning strategy. They are trying to preserve their contractual business model, not learning from the music industry's past pitfalls.

John said...

Sigh... how many times do I have to say that I think any kind of really disruptive TPM (I despise the term digital lock, btw - extremely inaccurate) is vestigial and will not last in the marketplace.

It is the principle behind TPM protection that I support. TPM circumvention is the decision of the copyright holder, not the user. If you take that decision away from the copyright holder then you have destroyed the principle that creators have a right to control their works.

There are all sorts of industrial and consumer mechanisms available to us all to work against disruptive TPM experiences. For creators, I believe this will start with contract demands. Of course, if we destory the aforementioned principle, creators won't have the auhtority over their own content to make contract demands.

You see how it's all linked together? You see how a narrow focus on the consumer experience is unhelpful?

Chris A said...

But wouldn't that constitute commercial infringement?

Plus what you want to use TPMs for would be much better accomplished with changing the copyright law with regards to what can and can't be signed away than making it so you can't break TPMs.

And yes, they are digital locks. They are locking something to prevent it from being used, like locking a jewelry box prevents you from using the jewelry inside (unless you have the key).

Crockett said...

Glad to hear sounds of flexibility entering the discussions. And, of course I am focusing on the consumer side John, just as you have said many times that you focus on the creator.

The two do not necessarily have to be at odds. Actually I think if some of the fat can be cut out of the system there can be once again be a beneficial symbiotic relationship.

It's just going to take creative solutions and out of the box thinking to bring it around. The copyright framework we have in place today is like a beautifully designed quilt with all these ragged 'digital solution' patches sewn on. Might be time to get out the batting and start over.

John said...


I respectfully suggest if you are just now hearing the sounds of flexibility, you may in fact have just taken the quilt-batting out of your ears. The point I made today, I've made many, many times in the past.

Chris A., I'm pretty certain you didn't get my point. I don't want to use TPMs for anything really. I want their protection under the law as a matter of principle.

Crockett said...

John, I'm not sure if many people are lobbying for the abolishment of TPM all together. Rather to place limits on how it can be used. It's all good to say if you don't like it then don't buy it. But if a entire industry, say the movie business, chooses to use TPM on all their products they it is a little unrealistic (and counter-productive) to expect your average person to never purchase a movie again.

So again, it's not to eradicate TPM but to not let it be a blanket tool to eradicate fair use either.

It balance we need.

John said...

... and again, fair dealing (in Canada) does not guarantee you the right to have a technologically exact copy of anything. It gives you certain restricted permissions for use of the intellectual property.

In other words, even if the movie industry locks everything down so you can only view it on your DVD player (unlikely given current trends) you are still allowed to research, study, refer to and quote from any movie you like.

Why do you think Family Guy doesn't get sued constantly for their hilariously inappropriate movie references? They are utilizing their fair use (in the US) rights to do so.

The stumbling block here (for you, conceptually) is the fact that digital copying is perfect. It's great that you can cut whole scenes out of some Hitler biopic and make parody youTube clips (stop, already -- it's not funny anymore), but there is nothing in fair dealing that says you should be allowed to use that exact clip to make your point, especially of the owners of that performance don't want you to.

In fact, wouldn't life be even more interesting if someone were to put more effort into a parody clip than just a few minutes of "hilarious" subtitling? Hire an actor maybe -- gasp, write something of your own, pick up a camera. You know, create your own intellectual property.

Gruesome said...

TPM's are unacceptable because they control how the product I purchased is used.
Including limiting devices I can use it on.
These kinds of limitations negate the idea of a sale altogether.
If someone is allowed to come into my house and tell me that I may not use something i have purchased as intended because I wish to use it on a device of my choosing then that's wrong.
Copyright is protected under law, not under TPM's. TPM's have no place in copyright law.
Even if I were to support the idea of TPM protections, it should still be a separate issue from copyright law.

Backup copies can not exist under tpm's.
Why should the right to circumvent tpm's be the right of the creator?
The law dictates the rights.
The TPM should be circumvented where the law says it is allowable.

Why is it we continue to ignore the whole equation as copyright as both a consumer and creator right.
Copyright grants the rights, the creator and the consumer live within them.

Chris A said...

So you don't want to use TPM, but you want it protected? That really makes no sense whatsoever. If you don't want to use them, then they don't need to be protected.

Plus everything that a TPM would protect you from copyright law already should, so it's really redundant. Unless of course your intention is to take away consumer rights granted under copyright law.

And who cares if a digital copy is perfect? As long as I'm not selling/giving away said copy you shouldn't really care at all what I'm doing with it. So really, TPM don't help you at all from what I can see that you could not get just by just strain copyright law with no TPM protection.

Crockett said...

I have heard it said by some creator groups that copies have value and thus should be compensated. I can understand that reasoning, but I don't want to make copies for simultaneous use, I just want to use what I purchased and have good value for my investment in your products.

Now let's apply it to a real world situation.

I recently bought a DVD for my daughter called Tinkerbell. She just loves it and watches it often, I like it too (which is good as I have had to watch it with her a number of times). Inevitably, the DVD got scratched and now a section of the movie is not playable.

Now the movie is only 3 months old and she has not tired or watching it, so to appease those tearing eyes I must replace it.

I could:
A) Buy another DVD of the movie.
B) Reach for the backup I made.

Option A is attractive to content creator as it will earn them more money. Option B is attractive to the consumer because it will save them money. So who should benefit from this situation? Which is fair?

The creator could argue that if something breaks too bad, buy another one. The consumer could argue that the product is easily damaged, thus poorly designed and should include some type of warranty. Which is fair?

Under Bill C-32 it ironically gives the right to the consumer to make that backup and then takes it away by giving that choice and control to do so to the creator. The movie has a digital lock, 99% of movies do. Is that fair? Is it logical?

When Bill C-32 passes is the content industry going to all of a sudden stop putting digital locks on DVDs? I think not, so a 'market solution' is not in the cards, regardless of what Mr. Moore says.

John, you have asked that there be more clarity in regards to educational fair dealing and feel the provision is too broad. Well, consumers also wish clarity on the use of the media they purchase and feel the provisions are too restrictive.

You mentioned earlier that too narrow a focus on the consumer experience is not helpful, well sometimes it is. Case in point.

Crockett said...

John, I just read the rather long conversation thread you had on my previous oats topic do I can see we will just have to disagree. I would like to add a a point though, you mentions an analogy to not being able to 'backup' a car. This is true but a car has a five year warranty, media 'containers' have none. If you are going to offer content on easily damaged media (CD, DVD, and even worse vinyl) without any warranty or replacement program then is it surprising that people would want to protect their investment? The creator has been paid where is the consumer protection? You have already said there should be none, but I'm afraid 98% of the world disagrees with you.

John said...


I think warranties for things like DVDs are a good idea, and I think consumers should demand that - especially if they are incapable of keeping their things undamaged.

Warranties are not a copyright issue, I'm afraid, and that is my whole point. There are valid consumer demands in this argument (though I have trouble with the idea that it is prohibitive to re-buy a $20 DVD after many viewings), but they are aimed in the wrong direction. It helps no-one in the long run to take away creator rights in order to provide open-ended consumer protections. Better to use well-defined consumer protection laws to do that.

Crockett said...

John, I'm not sure what demographic you are in? Did you have children in the home during the DVD phase? Those 'durable' DVDs all of a sudden take on a new character. And $20 may not be much to you but to young families it often is, especially when you multiply it by a dozen or so shows. But that is still besides the point, I do not see the harm to the creator in making a backup, how is this impacting them?

The only way I can see an impact is if there is planned obsolescence built into the product and thus a scheme to get more $$ out of the customer. Otherwise why would the creator care?

Is it instead the manufacturer of the media and equipment that is to blame? Possibly, but then why is it copyright law that is preventing the making of a backup instead of an industrial law?

This is why TPM does not belong in copyright law, it's preventing the satisfactory use of technology. It does not, or should not, impact the creator who has already been paid by the consumer for the content.

One final obvious note. TPM is utterly ineffective in curbing piracy, thus again in this capacity is of no impact to the creator. It would be so much less disingenuous if the 'content' industry would be up front on that so we could discuss the real issues.

John said...

On TPMs, may I suggest you read the slides from Barry Sookman's presentation on the subject. He has generously supplied them free of charge on his website:

And here are some take-home points:

'User rights´ under copyright do not transfer the copyright in a work to the buyer of a
work. There may be ownership or a right to use the copy, but not transfer of the

¬ The creation of an exception for private copying does not as a matter of law create any
'user right´ that trumps 'authors rights´.

That is the essence of the "principle" I've mentioned a few times on this blog (since about 2005).

Crockett said...

John, I don't want the copyright 'transfered to the buyer'. I want to make a backup of the original to use if the original is damaged. Thus if the original is no longer functioning then there is in essence no longer a copy but only the 'original'. This is in different from 'private copying' in the sense that I am not making multiple copies to be used simultaneousness on different devices/locations. Although that in itself is another discussion, in this case I am talking about backups only.

If creators truly do not recognize the 'right' if not the practice of backing up digital media then I have to say they are fundamentally at odds with the expectations and demands of the common consumer. In this case consumer rights will supersede creators rights, if not in law then in reality. Then there will be continued erosion of relationship between the user and creator, and look where that has gotten us already. Certainly not where either creators or users are happy. John, the perfect creator's copyright world you envision is not workable and a fantasy.

If a system is broken then fix it, you're not going to get far on that flat tire,

Sandy Crawley said...

John, your patience in defending the principle embodied in the WIPO treaties' recognition of the necessity for Technical Protection Measures is much appreciated.


Do you actually question the concept of property protection as a principle?

Gruesome said...

The law determines the right, tpm's should have no place in that sphere.
Tpm's shouldn't even be in copyright law.
If it's not infringing then it can't be against the law
No Rights should be trumped by anyone else's rights, that's the balance
Each side are given rights they can exercise under the law.
tpm's where they conflict with the law should loose
To allow tpm's to become the overriding factor for copyright in essence replaces the law

Gruesome said...

I can't even see how this pass a supreme court challenge .
Fair dealing has been interpreted by the Supreme Court of Canada as being “an integral part of the
Copyright Act … In order to maintain the proper balance between the rights of a copyright owner
and users’ interests, it must not be interpreted restrictively.”

Tpm's certainly make fair use extremely restrictive

Gruesome said...

I can't even see how this pass a supreme court challenge .
Fair dealing has been interpreted by the Supreme Court of Canada as being “an integral part of the
Copyright Act … In order to maintain the proper balance between the rights of a copyright owner
and users’ interests, it must not be interpreted restrictively.”

Tpm's certainly make fair use extremely restrictive

Gruesome said...

Also from the Supreme Court

“The Copyright Act is usually presented as a balance
between promoting the public interest in the
encouragement and dissemination of works of the arts and
intellect and obtaining a just reward for the creator…The
proper balance among these and other public policy
objectives lies not only in recognizing the creator’s rights
but in giving due weight to their limited nature."

Gruesome said...

The Supreme court also cited "User rights are not just loopholes. Both owner rights and user rights
should therefore be given the fair and balanced reading that befits
remedial legislation."

The reason I'm posting these is that there seems to be some kind of push to exclude users from copyright.

Even if you think that something different may come from a supreme court challenge it would be quite an uphill battle with precedents like these already set

Gruesome said...

After you get through what the supreme court identifies as a user "RIGHT"
Thats when you get to the fairness test
Nothing in the fairness test would allow fair dealing to be eliminated by a tpm

Even if tpm's become part of the law my feeling is that you would be better off removing the fair dealing exceptions because if it gets challenged at the supreme court level the TPM part will get struck down

Crockett said...

Sandy, of course not. As I said I do not want anyone else's property. I want to be able to use the PROPERTY I purchased. My question was how does making a backup of the content I purchased in case the media it is on becomes damaged is taking something from the creator?

In such a case I am only in essence repairing the damage by moving the content to a working media to again use the content. I suppose there is the question of whether you are buying the physical media for $20 (costs pennies to make) or buying the right to use the content on the media. If it's the former then I think the price needs to come way down, if the latter then how is the creator being taken advantage of by my 'repairing' the media to make the content usable again?

I may not have a creator's perspective on this but I can guarantee if you put this question to the man on the street then 99 out 100 will agree with me on this.

Crockett said...

And this is then the difficulty and I think the reason for so much infringement. What average people see as completely reasonable you are calling 'theft'. Is it any wonder the two sides cannot see eye to eye?

This is why I advocate for changes not just to laws to bring them into line with reality, but to the attitudes and tactics of the creative community. Calling people thieves for behavior they see as fair and realistic is no way to win friends and influence people.

Why not just come out and say, "Hey everyone, we thinks it's OK to make a backup of your DVD as we understand how easily they can get damaged. But, please keep that backup to yourself. Don't you think that will go over way better than. "Hey everyone, when you make a backup of that DVD you are stealing the bread out of the mouths of starving artists".

People don't react well to being accused of something they don't think they are guilty off. That's basic human psychology and something that is generally learned in the playground. True there are people who do steal from creators and they should have been taught better manners as well.

Bridges over bombs, sugar over vinegar. Let's work on hearing and understanding each other. Battling it out with lobbyists and lawsuits is a recipe for failure.