Copyright Reform in Canada Couldn’t Wait for the Government

The Canadian government has been holding this summer a public “copyright consultation” on proposed legislative changes to the country’s copyright act, with the consultation period, featuring town hall meetings and online submissions and comments, now drawing to a close on September 13, 2009. For the most sensible of approaches to copyright reform, many of us simply turn to Michael Geist, Canada Research Chair of Internet and E-commerce Law at the University of Ottawa. He is currently running, as a public service, a Speak Out on Copyright site. A recent posting cites Industry Minister Tony Clement’s announcement that, following this consultation process a new bill will not be brought before the House until the end of the year if not early into 2010.

In the time that we now have before the legislation arrives, and amid much discussion on this continent and in Europe on the Google Book Search Settlement, I want to take advantage of the attention being paid to copyright issues to propose an educational trade-off that might figure in arriving at a new law and other sorts of legal agreements, such as Google’s. Education holds a special place in copyright matters. Education is recognized as a rightful exception to the monopoly otherwise granted to copyright holders, as part of what is known as “fair dealing” in Canada (or “fair use” in the United States, if under somewhat different terms). Education is one of the key points in the copyright trade-off between the creator’s and the public’s rights. Yet this is a highly limited right. The Copyright Act protects the rights of those doing “research” and engaged in “private study.” It protects the rights of educators to use work with groups of students on examinations alone.

But fair dealing offers little to a class working together with a common text, film or other source. For that privilege in Canada, the Access Copyright Elementary and Secondary School Tariff is currently set at $5.16 per pupil annually, and even then, while it covers unlimited numbers of copies, teachers are still constrained because it applies only “from print to print,” so that teachers cannot share with a class material published or available online, by paying over and above the current tariff by special arrangement. Unless, that is, these online materials have explicitly been made freely available through a Creative Commons license or by some other means.

This raises three important points, for me at least. The first is the very encouraging sign that people are taking these educational matters into their own hands, rather than relying on the law. Not only are they creating Wikipedia entries and other forms of open accessible works of learning, they are placing their photos and blogs under the innovative new Creative Commons license (which Lawrence Lessig developed for the express purpose of making it far easier for people to share their work). The government needs to recognize and appreciate the growing public interest in the right to share and learn, not as a special, carefully contained exemption from business-as-usual monopoly of copyright, but as a constituent part of our cultural lives.

A second, related, point is the need for Canadian copyright reform to address the educational value of online resources (see Michael Geist’s cogent criticism of the attempts to do so in the 2008 proposed copyright bill). Rather than trying to add the educational use of the Internet to the price of the Access Copyright school tariff, the law needs to recognize that the Internet is an educational resource of the first order, and defend the right to learn on that basis.

And the third point is to say that, if creators are sharing more of their work then educators could do more to instill a sense of values among intellectual properties. That is, if we seek to reduce the punitive weight of copyright reform, then let us create greater respect for the principle that the expression of ideas have value, sometimes just in the sharing, sometimes at a necessary and fair cost. In fact, you might ask how is it that we do not teach the young more about intellectual property, the driving force, after all, of this knowledge-based global economy. How is it that we imagine we are preparing the young to compete in such an economy, while offering them little understanding of, or experience working with, this fundamental concept? Could we not find opportunities within a dozen years of schooling for students themselves to contribute to intellectual properties of at least local community value to this public sphere (consider, for example, Bill Munn’s students writing a history of their town)?

In a sense copyright reform is already underway in Canada as this new public spiritedness takes hold, with musicians sharing their music and the federal government sharing its funded research. What legislators and educators, publishers and authors can do is find creative ways of reflecting this new cultural spirit in which intellectual properties matter, not in one singularly commercial way (with limited exceptions) but through various economies, including the common-wealth of learning. Let our teaching contribute to this new understanding and respect for intellectual property. Let commercial interests recognize the monopoly is dead. Long live the open marketplace.