Hands off educational materials, academics tell Heritage committee

Canada’s education community is asking Ottawa to enact a controversial new measure during the current round of copyright reform that would give teachers free access to materials found on the Internet for use in the classroom. A coalition of teachers, professors and provincial ministers of education held a press conference on Sept. 22 during which they urged the federal government to adopt a new exception in the Copyright Act specifically for classroom use. At the media event, the coalition, made up of the Association of Canadian Community Colleges, the Association of Universities and Colleges of Canada (AUCC), the Canadian Association of University Teachers, the Canadian Teachers Federation (CTF), the Canadian School Boards Association and the Copyright Consortium of the Council of Ministers of Education, Canada, decried a blanket licensing scheme that would levy a copyright royalty on schools to compensate the authors of works published on the Internet, and proposed a new exception that would allow fair and reasonable use of publicly available Internet materials. Asked to define "publicly available," New Brunswick education minister Madelaine Dubé told Canadian NEW MEDIA that the exception would apply to any material that isn’t locked up by password or other technological protection measure. The teachers say that the proposed exception would help them to use the vast number of images, documents and other material in their lessons, and having unrestricted access to use the Internet would assist in what they call "teaching moments" - instances in the classroom when they can take advantage of Internet material to exploit teaching opportunities that arise suddenly. CTF policy advisor Harvey Weiner said at the press conference that, "The Internet provides a wealth of free material that enriches classroom instruction and learning. Limiting access to the Internet will inhibit the learning potential of students and will result in a chilling effect on developing literacy skills, at a time when the acquisition of knowledge is universally recognized as key to social and economic prosperity." The eleventh-hour plea for a new exception in the act, however, is seen by observers as throwing a wrench in the work of Industry Canada and Canadian Heritage bureaucrats now hammering out an agreement on the first phase of copyright reform. The two departments are seen to be closing the gap on differences over how to implement the World Intellectual Property Organization (WIPO) treaties to which Canada is a signatory, and the timetable set down by the Standing Committee on Canadian Heritage seems to be proceeding apace (CNM, May 14/04 and July 23/04). Some experts see the teachers’ request as an exercise in misdirecting resources better spent on other issues, since the exceptions in the current act relating to private study and research seem to cover the uses for which the academics are now asking an explicit exception. Asked whether the best route to achieve what the teachers are seeking might not be to let a court case decide the applicability of exceptions already written into the legislation - especially as the courts are currently perceived to be friendly to "users’ rights" issues, AUCC manager of legal affairs Steve Wills tells CNM that the group would prefer to avoid the expense and time of a court case. Nor, he says, is it practical for teachers to wait for the possibility that a licensing scheme such as the Creative Commons system might come into widespread use that would clearly indicate when authors wish for non-commercial users to exploit their works. "(The proposed amendment) certainly meets with strong opposition on the part of rightsholders who want to claim that, ‘well, we have a business plan or we expect remuneration for the use of these works,’ which flies in the face of what we see out there. My view is that you judge people by their actions, not by their words. If they’re making something available to the public, to every individual in the world without restriction, without any remote possibility of controlling individual’s use of it, then what is so wrong with taking advantage of this vast warehouse of knowledge? In fact, in many cases the people who create and post this material want that kind of use. We shouldn’t be confused; there are all sorts of governmental bodies, there are non-profit associations, there are even commercial enterprises that freely make this stuff available - sometimes as a loss leader to attract you to the publication, etc. It should be clear, we’re not talking about commercial use. We’re not talking about making money off of somebody’s property…We think it makes no sense for the law to make the use of that in non-profit educational activity illegitimate or illegal." Wills continues: "You’ve got 3% of the content on the Internet that is Canadian. The vast majority of it is American. You would have quite a vast undertaking trying to contact all of the individuals who might have relevant material that you would be interested in using. To suggest that they undertake this step of joining a Creative Commons or licensing their material through the Creative Commons - yes, in an ideal world that would make a lot of sense. In practical terms, to actually contact this vast universe of web site owners is really impractical." Wills concedes that even in the absence of explicit controls on downloading content, the current copyright regime still has a default position that no use be made of it without rightsholder consent, but says as a matter of practice it’s unlikely that most authors are able to control the use of their works on an unrestricted medium such as the Internet. "That’s a technical position that I think the rightsholders organizations would take, yes. Default position is rights reserved. Our point is that there are rights reserved in general in copyright terms. There are exceptions in the act created despite the fact that rights are reserved to promote certain public policy objectives…These works are being put out there with no expectation of payment. There is very little damage to be done and significant benefit to be gained by allowing educational materials - what is the problem with the fact of amending the law to permit that activity?" Asked, given Ottawa’s current quick timetable for copyright reform, if there is time to push the proposed exception into the act, Wills responds: "We’ve made submissions and are encouraging the government to go in a particular direction. The government, of course, hasn’t made that decision and hasn’t drafted the bill. We were very concerned, though, that the Heritage committee took what we believe is a very one-sided view of the matter, looked to licensing, ignored the idea of exceptions. Essentially, their approach amounts to eliminating exceptions in the digital environment, which we think is unnecessary and unproductive. That at the present time is our biggest concern. "We’ve had some positive feedback in discussions with some officials. But, where the government eventually goes on a draft bill I think is probably going to be a matter of some negotiation, perhaps, between the departments, and some, perhaps, political decisions by the relevant ministers and the government as a whole. So, where this all comes out we’ll wait and see, but, an event like today’s is meant to try to provide some sort of public awareness of the issue and try to encourage the government to adopt the policy that we think is fair and balanced."

Hands off educational materials, academics tell Heritage committee

Broadcast | October 6, 2004

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