Copyright Bulletins

An Education Amendment Does Not Narrow Fair Dealing (March 2008)

Education organizations are asking the federal government to change the existing copyright law by introducing a new education amendment to clarify that the educational use of publicly (i.e. freely) available Internet material is not an infringement of copyright.  Current Canadian copyright law is unclear about the extent to which teachers, students, and other educational users can legally engage in routine classroom activities involving the use of text, images, or videos that are freely available on the Internet.

To clarify the law, Canada’s education community has proposed an education amendment.  This proposed amendment is being championed by the Association of Canadian Community Colleges (ACCC), the Canadian Association of Research Libraries (CARL), the Association of Universities and Colleges of Canada (AUCC), the Canadian Teachers’ Federation (CTF), the Canadian School Boards Association (CSBA), the Canadian Home and School Federation, and the Copyright Consortium of the Council of Ministers of Education, Canada (CMEC), which is made up of the provincial and territorial ministers of education in every province and territory except Quebec. 

Some have raised the question, “Will the education amendment, if enacted, create an implication that everyone other than those in the education community will have to pay to use publicly available Internet material?” The argument would be that if the government explicitly gives a right to one group but not to another, then its intention is that the second group does not qualify for the right.

The Supreme Court of Canada provided us with some guidance on this issue in 2004, in a landmark copyright case commonly called the “CCH decision.”  The CCH decision suggests that everyone, whether in or outside of the education community, benefits from a provision in the Copyright Act called fair dealing.  Fair dealing is a user’s right that may be available for some uses of publicly available Internet material. 

The Supreme Court of Canada in the CCH case established the approach to be taken in assessing whether an activity is an infringement of copyright.  The Court stated emphatically that “fair dealing is always available.”  The Supreme Court did not even consider whether a specific statutory exception could apply to the use of a copyright work until it had carried out a fair dealing analysis.  The first step is to determine whether the activity is fair dealing.  If the activity is fair dealing that is the end of the matter.  If it is not, the next step is to determine whether an exception is available that permits the activity in question. 

The point to be emphasized is: enacting a specific statutory exception like the education amendment would not narrow fair dealing for those outside the education community. Why? Because the analysis applied by the Supreme Court in the CCH case tells us that a court would first conduct a fair dealing analysis, and only if the use did not fall within fair dealing, would the court then look to see whether a use could fall within a statutory exception like the education amendment.

It is also important to note that the approach to a determination of copyright infringement outlined by the Supreme Court in the CCH decision also explains why an amendment for educational use of publicly available Internet material is necessary.  Given that it is not certain whether fair dealing applies to some routine educational uses of Internet works, a specific exception – the education amendment – is needed to clarify that all educational uses of publicly available Internet material are permissible without infringing copyright. 

Specific exceptions, like the education amendment, should be put in the Copyright Act for the purpose of clarifying uncertainties in the law to avoid costly disputes in the courts.  Exceptions like the proposed education amendment can overlap with fair dealing without narrowing its scope.  The presence of one does not negate either the need or the legitimacy of the other. 

*** The Council of Ministers of Education, Canada is producing a series of information notes on the education amendment. Future installments will explain why relying on litigation to define educational users’ rights to deal with publicly available Internet material is unsatisfactory.      

Education Organizations Need Clarity in Canada's New Copyright Law (March 2008)

Education organizations are asking the federal government to change the existing copyright law in order to make it clear that educational use of publicly available Internet material is not an infringement of copyright.  The Canadian copyright law needs to be changed because the law is not clear about the extent to which teachers, students, and other educational users can legally engage in routine classroom activities such as downloading, saving, and sharing text or images that are freely available on the Internet.  

The amendment being sought by education organizations deals only with the “free stuff” on the Internet — material posted there by the copyright owner without password protection or other technical restrictions on access or use.  This material is posted on the Internet with the intention that it be copied and shared by members of the public.  It is publicly available for anyone who wants to use it.  The problem is that the current copyright law may not protect schools, teachers, or students, even when they are making routine educational uses of this “free stuff.”

Educational institutions and the students, teachers, and staff that work in them, use the Internet in unique ways that may infringe copyright — even though many individual uses of the same material might be allowed under the Copyright Act.  This legal uncertainty necessitates a change to the Copyright Act. There needs to be legal clarity about the use of publicly available Internet material for educational purposes.   

The Copyright Act provides rights to people who create copyrighted works — music, art, photographs, movies, books, and magazines, for example.  These legal rights allow copyright owners to control who uses their works and to collect royalties for their use.  These rights extend to allowing or refusing permission to make copies or communicate material over the Internet — downloading, saving, and e-mailing, for example. 

The Copyright Act also provides rights to users of copyright works — teachers, students, educational institutions, and school libraries, for example.  There are two kinds of “users’ rights” in the Copyright Act: specific and general.  There are a number of specific users’ rights, for example, the right to reproduce a work protected by copyright for tests and examinations.  An example of a general users’ right is “fair dealing,” which is available to any user, not just someone involved in education. 

For a number of years now, several national education organizations have been asking the federal government to amend Canadian copyright law to introduce a new specific users’ right saying that educational use of publicly available Internet works does not infringe copyright.  The Ministry of Education is one of the education organizations supporting this amendment. 

The education amendment has many supporters in Canada’s education community. It is being championed by the Association of Canadian Community Colleges (ACCC), the Canadian Association of Research Libraries (CARL), the Association of Universities and Colleges of Canada (AUCC), the Canadian Teachers’ Federation (CTF), the Canadian School Boards Association (CSBA), the Canadian Home and School Federation, and the Copyright Consortium of the Council of Ministers of Education, Canada (CMEC), which is made up of the provincial and territorial ministers of education in every province and territory except Quebec. 

All these education organizations accept the principle that many individual uses of such works may be users’ rights under the Copyright Act.  However, they collectively agree that the law is not clear about whether some educational uses of publicly available Internet material can occur without permission or payment.  Examples of the kind of educational use that is surrounded by legal uncertainty is the making of multiple copies of an entire work like a photograph or article found on the Internet for all of the students in a class, or posting an item from the Internet on a class Web site.  

The education amendment is necessary to clarify the law so that students and teachers can have the assurance that they will not infringe copyright law when they engage in routine uses of publicly available Internet works for educational purposes. 

*** The Council of Ministers of Education, Canada (CMEC) is producing a series of information notes on the education amendment. Future installments will explain why other provisions in the Copyright Act don’t solve the problem and why students and teachers need a specific users’ right dealing with publicly available Internet material.      

Changes to the Copyright Law Must Include An Amendment to Address Educational Use of the Internet (January 2008)

In the federal government’s attempt to modernize our country’s copyright laws, it must address the educational use of the Internet.  Teachers, students, and schools — elementary, secondary, colleges, and universities — need an amendment to the Copyright Act allowing them to use material on the Internet that is publicly available for anyone to use, without being afraid they are breaking the law. 

Sound like a no brainer?  Well, it isn’t.  Copyright protection is automatic in Canada.   That means that images, photographs, music, and print material like books, magazines, and even e-mail messages, are automatically protected by copyright by the simple act of creating them.  Under the Copyright Act, creators automatically receive a number of legal rights to control what they create.  In most cases, anyone who wants to use the material must request permission and pay royalties if asked.  The rights provided in the Copyright Act include allowing or refusing permission to make copies or communicate material over the Internet — downloading, saving, and e-mailing.

The result is that schools, teachers, and students need the permission of rights holders — and can be required to pay royalties — for some educational uses of material on the Internet.   These rules apply even to “free stuff” on the Internet.  “Free stuff” refers to material posted on the Internet by the copyright owner without password protection or other technological restrictions on access or use.  “Free stuff” is posted on the Internet with the intention that it be copied and shared by members of the public using the Internet.  It is publicly available for anyone who wants to use it, but the current copyright law may not protect schools, teachers, or students even when they are making normal educational uses of this “free stuff.”

This is the crux of the issue and the reason why the education community is asking for a legal framework clearly laid out in the new Copyright Act.  Canadian students and teachers may be infringing current copyright by downloading, printing, and sharing Internet files in their classroom or in completing their course work.  

Therefore, the federal government needs to change the Copyright Act to make it clear that this “free stuff” is available for all educational uses.  This change is being referred to as the “educational use of the Internet amendment.”  You are soon going to be hearing a lot about this amendment in the media as proposals to change the Copyright Act make their way through Parliament.  The education community views this amendment as an essential piece of modernizing Canada’s copyright laws to reflect the new realities of our digital world.   

The education community is not asking for — nor does it expect — a free ride.  Educators respect the right of copyright owners to say how their material is used and to be compensated for that use if they so wish.  The proposed education amendment has conditions to protect the legitimate interests of rights holders.  First, the material must be posted on the Internet with the consent of the rights holder.  If the educational user knows, or has reasonable grounds to suspect, that the owner has not consented to its use for educational purposes, the material can not be used without permission.  Second, rights holders can opt out of the amendment by using passwords or technology that limits access or use of the Internet material, or by informing Internet users that the material cannot be used for educational purposes.  Third, the amendment applies only to educational uses that take place under an official program of learning provided by a school, college, or university. 

The amendment proposed by the education community addresses the educational use of the Internet in a balanced way, respecting both the rights of the copyright owners and creators, and the needs of the user community — Canadian schools, teachers, and students.

The Council of Ministers of Education, Canada (CMEC) is producing a series of information notes on the education amendment. Future installments will explain why the educational use of the Internet amendment is urgently needed, why other provisions in the Copyright Act don’t solve the problem, and will provide suggestions about what you can do to influence your MP to get this important copyright change through Parliament.