Vancouver, British Columbia
May 15-17, 1996

Leading the Agile Organization

Amending Canada’s Copyright Law While Renegotiating the CANCOPY License

Graham R. Hill, University Librarian
McMaster University

Figure 1

Chronology

1988

Bill C-60 (Phase I) becomes law:

• Computer programmes
  
• Anti-piracy remedies
  
• Relationship between copyright and industrial design
  
• Established a Copyright Board
  
• Provided for the collective management of copyright without offending the Competition Act

• CAN©OPY (the Canadian Copyright Licensing Agency) starts to negotiate licenses

Government establishes two Consultative Committees:

1. Educational Uses of Copyright
   
2. Library Uses of Copyright

Objective: advise government on: "exceptions" to be included in Phase II (Users’) legislation; concept of "fair dealing," etc.

~ ~ ~

Copyright Act (R.S.C. 1985, c. C-42):

Section 27. Infringement of Copyright

(2) Acts not constituting infringement of copyright.–The following acts do not constitute an infringement of copyright:

(a) any fair dealing with any work for the purposes of private study, research criticism, review or newspaper summary;

(f) the reading or recitation in public by one person of any reasonable extract from any published work;

FIGURE 2

Chronology

1989—1996

1990 (July 17)

The Racine letter:

"…we are looking at the following exceptions as a basis for the library provisions: To permit libraries (or library patrons) to…
o make a single copy of a periodical article for purposes of private study or research if the article is of a scientific, technical or scholarly nature;
o make one copy of an out-of-print work; etc."

1992 (November 9)

Fourteen sub-committees established to engage in "consultation on copyright reform"

1993 (January 6)

Draft legislation (Phase II) circulated for comment to committee members who have signed a non-disclosure agreement

1994 (October 13)

Minister of Canadian Heritage (The Hon. Michel Dupuy) says*: "It would not be realistic to think that Phase II will solve all problems… I have no doubt… there will have to be a Phase III. For the moment, John Manley [Minister of Industry – responsible for the administration of the Copyright Act] and I are firm in our goal of bringing Phase II before our Cabinet colleagues this autumn."

(*Canadian Intellectual Property Institute Conference: Copyright in transition: enforcement, fair dealing, and digital developments. Ottawa, Canada)

1996 (April 25)

Bill C-32, An Act to amend the Copyright Act, tabled in Parliament

FIGURE 3

Bill C-32

An Act to Amend the Copyright Act

(First reading: April 25, 1996)

Website: http://www.pch.gc.ca/

HIGHLIGHTS

• Neighboring Rights:
  A broad scheme of rights in addition to those already owned by composers and lyricists given to performers and producers of sound recordings and broadcasts.

• Private Copying of Sound Recordings:
  A levy payable by manufacturers and importers (buyers) of blank audio tapes to benefit composers and lyricists, and eligible (Canadian) performers and producers of sound recordings.

• EXCEPTIONS:
  New exceptions in favour of non-profit educational institutions, libraries, museums and archives and persons with perceptual disabilities.

• Protection from Parallel Importation of Books:
  A new right in favour of Canadian-based exclusive distributors of books to prevent the importation into Canada of unauthorized editions of works for which Canadian rights have been sold (exception to allow libraries to import a single copy of a anew book, and any used books).

• Enforcement and Technical Matters:
  Improved remedies for copyright infringement, including statutory damages and a requirement that a "collective society" publish a repertoire of its works.

FIGURE 4

EXCEPTIONS: New exceptions in favour of non-profit educational institutions, libraries, museums and archives and persons with perceptual disabilities.

§29-29.2 Fair dealing remains, but not defined or clarified. Requires the source to be mentioned if for criticism, review, or news reporting. ["Fair dealing for the purpose of research or private study does not infringe copyright"–Section 29]

§29.3-30 Allows non-profit educational institutions to:

• copy works on to boards, acetate, etc.
  
• use copyright materials for tests or examinations
  
• copy a broadcast news programme and perform it within a year (after which it must be erased, or records kept and royalties paid)

§30.1-30.7 Allows libraries, archives and museums to:

• copy published or unpublished works (so long as copies are not commercially available) in order to maintain or manage their permanent collections
  
• make a single copy of an article from a scientific, technical or scholarly journal for private study or research purposes at any time, an from a newspaper or magazine* that is more than 12 months old at the time of copying
  
• (*to be defined in regulations)
  
• benefit from limited liability for self-service copiers, providing copyright notices are posted

§32 Allows a single copy of a work, other than a film, to be made in an alternate format (e.g., Braille, talking book–but not "large print") if a work in the required format is not commercially available.

FIGURE 5

MAIN FEATURES OF THE FIRST MODEL LICENSE

(1) Two-year agreement, (August 1, 1994)—August 31, 1996

(2) Covers photocopying by students, faculty and staff

(3) Covers a wide selection of works, though no defined repertoire

(4) Does not cover:

• copying that would constitute "fair dealing";
  
• works of publishers and authors who have specifically stated that they do not want to be represented by CAN©OPY (identified on an "exclusions list")
  
• Crown copyright material
  
• certain types of work, e.g., sheet music, workbooks, manuals, etc.

(5) TWO-PART LICENSE:

Part A: covers all compensable copying (i.e., for classroom distribution, personal use, library reserve, inter-library loan, etc.) @ $2.50 per FTE/year

Part B: covers photocopying of material sold to students (i.e., course packs) @ 3.5¢ per page/copy

(6) All copying subject to limits:

Part A: 10? Of a work, OR a whole chapter, article, short story, poem, whichever is greater.

Part B: 15% of a work, OR a whole chapter, article, short story, poem, whichever is greater.

(7) Comprehensive indemnity provision: protects faculty, students and staff in the event that a work is copied which is not on the exclusions list, but for which the rights-holder has not given CAN©OPY permission to represent them.

(8) Obligations on the University to inform students, faculty and staff on the provisions of the license.

FIGURE 6

KEY ISSUES IN THE LICENSE RENEGOTIATION

• Re-structuring of license to remove inter-library loan from Part A, and put it into a separate schedule (Part C) called "Document Supply"

Proposed (educational) tariff for all ILL:

16¢ per page, or $1.30 per article
Hospitals & Associations: 32¢ per page
Corporate and Professional: 40¢ per page

• Require surveying and sampling to facilitate distribution of Part A royalties

• Effectively increase tariff for Part A: maintain $2.50 per FTE for Part A, but add a separate tariff for non-credit course students; and remove ILL

• Increase tariff for Part B (coursepacks) from 3.5¢ per page to 5¢ (+42%)