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					Copyright Legislation &
      Ereserves
      _________
RobTiessen/University of
    Calgary Library
          Part One

• What the Canadian Library
Association has been asking for?

• The Conservative Government’s
response to copyright legislation
since changes to cabinet in August
2007
      Four Key Points

• Fair dealing

• Technical Protection Measures

• Crown Copyright

• Perceptually disabled

In the resolution at CLA in St. John’s:
http://www.cla.ca/resources/resolutions2007.htm


And in the letter to the new
ministers:
http://www.cla.ca/top/whatsnew/wnSept25-
07.html
            Fair Dealing
We don’t want to see any erosion of fair
dealing as established in the 2004 CCH
Supreme Court Judgment:

•"Research" must be given a large and
liberal interpretation in order to ensure that
users' rights are not unduly constrained.
…. Lawyers carrying on the business of
law for profit are conducting research
within the meaning of s. 29 of the
Copyright Act. Para 51
CCH vs. the Law Society
  of Upper Canada
Great Library of the Law Society of
Upper Canada sued by legal
publishers for:
•Providing a photocopy service for
patrons
•Providing self-service
photocopiers in the library
•Faxing photocopy requests to
patrons
  Problems with TPM’s

Lynne Brindley, CEO of the British
Library:
It can't be circumvented for disabled
access or preservation, and the
technology doesn't expire (as
traditional copyright does). In effect,
it's overriding exceptions to copyright
law.
    Technical Protection
        Measures
•   Libraries need to be able to bypass
    TPMs for the preservation and
    maintenance of our collections.
•   Libraries and users need to be
    able to bypass TPMs for fair
    dealing.
•   Increasingly library collections are
    migrating from print to digital
    formats. CARL statistics show that
    in 05/06, the average member
    spent 46% of its collection budget
    on digital collections.
      Crown Copyright
•   Canadian taxpayers pay for
    government information.

•   Canadians should be able to freely
    use crown copyrighted material
    without permission from the
    government.

•   Unnecessary cost for other levels
    of government.
Perceptually Disabled and
         TPM’s
 •   The perceptually disabled need to
     be able to bypass TPMs or they
     are blocked from using digital
     material.

 •   We don’t want the needs of the
     perceptually disabled sideswiped
     by an attempt to punish pirates and
     counterfeiters.
We didn’t ask for desktop
     delivery of ILL
•   The CCH decision gives libraries
    the ability to do desktop delivery
    as long as the copy is a fair
    dealing.
•   It is only if a library were unable to
    make out the fair dealing exception
    under s. 29 that it would need to
    turn to s. 30.2 of the Copyright
    Act… Para 49
•   The Liberal Bill C-60 was highly
    restrictive and part of the Access
    Copyright Licence rather than fair
    dealing.
    Relief from Statutory
          Damages
•   Fear of statutory damages has kept many
    institutions from taking advantage of
    CCH. For example only 20-25% of
    Canadian university libraries have taken
    advantage of desktop delivery.
•   US law protects non profit educational
    institutions, libraries and individuals from
    a claim of statutory damages where a
    person making a copy had a reasonable
    belief that it was a fair use.
•   We would like similar provisions in
    Canada for fair dealing.
    Internet Education
         Exception
•   The Canadian Library Association
    has chosen to stay neutral.
•   The practical argument for
    neutrality is that it would only
    benefit some libraries.
•   There has been a back and forth
    philosophical argument as to
    whether or not the IEE would
    damage fair dealing.
WIPO Copyright Treaties

 WCT - WIPO Copyright Treaty
 WPPT – WIPO Performances and
 Phonograms Treaty
 Canada signed both treaties in 1997
 but has not ratified either treaty.
 Canada is under intense pressure to
 ratify the treaties from the US.
TPM’s and Ratification

Ratification appears to require legal
protection for TPMs. Canada could
follow two paths:
• Massive criminal penalties like the US
and Japan. No exceptions for non-
copyright infringing purposes.
• Exceptions for non-infringing
purposes like Bill C-60, like Denmark,
like New Zealand.
         US DMCA

DMCA = Digital Millenium Copyright
Act.
•Not allowed to circumvent TPMs…
•Not allowed to manufacture, import, provide or
traffic in any technology that circumvents
TPMS…
•The US Registrar of Copyrights has the power
to make temporary regulations that allow
circumvention for fair use and preservation
among other issues.
•Very severe criminal penalties and civil
remedies
Australia & South Korea

Both countries have negotiated free
trade agreements with the US. A
condition of those negotiations has
been the following changes to their
copyright laws:
• Notice and Take Down for ISP’s
• Legal protection of TPM’s including
prohibitions of devices
•Increase of term of copyright to 70
years.
US Pressure on Canada

 What we know
 • The Industry and Heritage
 Ministers have had long meetings
 with the US Ambassador about
 copyright, but not with library,
 educational and other user lobby
 groups.
 The rumours
 • The draft legislation was rumoured
 to closely copy the US DMCA,
 similar to what has happened in
 Australia and South Korea.
Lobbying the Government

 CLA Lobbying
 Sent letters to both ministers in
 September trying to set up meetings.
 I did meet with an aide to the
 Industry Minister in November.
 The Christmas Party & Facebook
 Fair Copyright Canada organized by
 Michael Geist.
 The Copyright Advocacy Kit
 http://www.cla.ca/AM/Template.cfm?Section=
 Copyright_Information&Template=/CM/Conte
 ntDisplay.cfm&ContentID=4507
Will there be copyright
 legislation in 2008?
• The government seems reluctant
to push ahead given the reaction
in December and January.
• The pressure from the US and
certain industry lobby groups
remain.
• The government appears to want
to avoid legislation before an
election, but if there isn’t an
election?
Part 2: The New E-Reserve
 Policy and its Impact on
          Teaching
       _________
 RobTiessen/University of
     Calgary Library
The Development of E-
  Reserve at U of C
•Since 1999, the Library has been
offering E-reserve with our Allectra
software.
•It was initially developed in
response to a request from the
University of Calgary at Red Deer
distance program.
•The software was developed in
close consultation with Access
Copyright.
    Rights Clearance

We required every reading put on
Allectra to receive copyright
clearance.
We didn’t require clearance for:
•Material that we could link to on
the web, this included ejournals
with persistent URLs.
•Or for material where the
instructor owned copyright.
The Rights Clearance
      Process
The Copyright Office started by
using Access Copyright, but it
would often take Access Copyright
three months or longer to get
permission.
So we switched to:
•Getting permission ourselves.
Often 2 months or less.
•Using the US Copyright
Clearance Centre, until they
signed an agreement with Access
Copyright.
  …in the recent past

E-Reserve was heavily in demand
but…
•The deadline for clearing
copyright was 2 ½ months before
it was used.
•Not unusual for instructors to find
out they are teaching a class two
weeks before it starts.
•The deadlines were frustrating for
all involved.
Rethinking E-Reserves

 •The trend especially in the US is
 away from standalone E-Reserves
 software and integrating E-
 Reserves with courseware such
 as BlackBoard.
 •The CCH Supreme Court
 Judgment and its six factors for
 fair dealing.
        Fair Dealing

What is Fair Dealing?


Fair Dealing is for the purposes of
research, private study, review,
criticism and news reporting.
   What is Fair Use?

Fair Use is American and historically
has been more liberal than fair
dealing in British Commonwealth
Countries.

Fair use for purposes such as
criticism, comment, news reporting,
teaching (including multiple copies
for classroom use), scholarship, or
research, is not an infringement of
copyright.
  The Six Factors and
      EReserve
•Is copyright clearance required
everytime that we put something
on eReserve? Specifically
clearance for digitizing print
materials?
•Or can the six factors be used to
define boundaries around which
print materials can be digitized as
a fair dealing?
            Factor 1

The purpose of the dealing will
   be fair if it is for one of the
   allowable purposes under the
   Copyright Act, namely
   research, private study,
   criticism, review or news
   reporting…(P45)
•   Ereserves would need to be
    for one of the five purposes
    above. For example for the
    research & private study of the
    students in your class.
               Factor 2

The character of the dealing:
    If multiple copies of works are being
    widely distributed, this will tend to be
    unfair...It may be relevant to consider
    the custom or practice in a particular
    trade or industry to determine
    whether or not the character of the
    dealing is fair. (P55)
Wide distribution is not fair dealing.
   Readings should never be posted to
   a publicly accessible website. Only
   the students in the class should have
   access.
              Factor 3

The amount of the dealing
    …for the purpose of research or
    private study, it may be essential to
    copy an entire academic article or an
    entire judicial decision..(p56)
If you need to use more than one article
     from an issue of a journal or more
     than one chapter of a book, that may
     not be a fair dealing. You should
     consult with the library or the
     copyright office. You may need
     copyright clearance, which takes a
     long time.
             Factor 4

Alternatives to the dealing
      Alternatives to dealing with
    the infringed work may affect
    the determination of fairness.
   (P57)

If there is a reasonable alternative
     to making a copy it isn’t a fair
     dealing. If you can provide a
     URL for your students rather
     than putting a copy of a work
     on a website, you should be
     doing that.
            Factor 5

The Nature of the work
If, however, the work in question
     was confidential, this may tip
     the scales towards finding that
     the dealing was unfair. (P58)

Published material should meet
   factor 5. In the CCH ruling,
   the Supreme Court praised
   clear and limited copyright
   policies.
            Factor 6

Effect of the dealing on the
    work
    If the reproduced work is likely
    to compete with the market of
    the original work, this may
    suggest that the dealing is not
    fair. (P59)

Another reason for not posting
   readings to publicly accessible
   websites.
             The Policy
Copyright Policy for Ereserves
EReserves may be made available on any
   software product that restricts access to
   members of a class and its
   instructor(s). This would include
   products such as BlackBoard and other
   courseware products, as well as
   EReserve software such as Allectra.
         The Policy:
        Digital Material
The University Library will provide access on
    eReserve to any reading that is already
    digital if it meets any of the following
    three criteria:

•   The library has a licence to the material
    and can create a persistent url to the
    reading.
•   The library has a licence to the material
    and the licence allows the library to make
    a copy for eReserves.
•   The material is available on the open
    Web, and the Library can provide a link
    to it.
            The Policy:
           Print Material
Discretion must be used in deciding what
     amount of a work can be copied as a fair
     dealing.

•    Ordinarily requests to use one article
    from an issue of a journal; one chapter
    from a book; or no more than 10% of a
    collective work such as an anthology will
    be recognized as a fair dealing.

Requests for putting material on reserve in
    excess of the guidelines above will be
    referred to the Head of Access
    Services. Depending upon the nature of
    the request, such requests may be
    approved as a fair dealing; may require
    copyright clearance by the Copyright
    Office; or may be refused.
       Why is the policy
        noteworthy?
•   Not very many institutions have used fair
    dealing to develop a policy on ereserves.

There tend to be two responses to ereserves
    at most Canadian universities:

•   Require clearance for everything.
•   Not allow ereserves and depend upon
    the Access Copyright licence for
    coursepacks instead.
           Resources

Copyright Act:
http://laws.justice.gc.ca/en/C-42/
CCH vs. LSUC Decision:
http://www.canlii.org/ca/cas/scc/20
04/2004scc13.html
U of C Ereserve Policy:
http://library.ucalgary.ca/services/r
eserves/placeitemsonereservefor
myclass.php#copyright

				
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posted:9/6/2011
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