Roanie Levy discusses problems with C-32

The week-long, student organized TIP Group Conference on Copyright Reform kicked off today with a talk by Roanie Levy of Access Copyright on the subject of Online Learning and Related Exceptions to Infringement for Educational and Research Institutions.

Levy began by discussing the three most important pillars of international copyright, which trace their origins to the Berne Convention, which was signed in the late 19^th century. The first of these principles is the concept of national treatment, which requires that work from other jurisdictions must be treated to the same standard of protection as works produced domestically—given the same protections by signatories of the convention.

A second key concept is that copyright exists automatically as soon as the expression is fixed into tangible form. There is no need for registration, marking, nor locking of the work.

The third principle is what is sometimes known as the Berne Three Step Test, which establishes certain circumstances under which you can derogate from the minimum protections established in Bern. These protections must be provided to rights holders in all the signatory jurisdictions and include ideas such as the need for the duration of the copyright term to last for the creator’s life plus fifty years.

The circumstances under which copyright protections can be circumvented require that the specific circumvention applies only to special cases that do not conflict with the normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the rights holder.

C-32 creates additional enumerated exceptions under Canada’s fair dealing provisions, that would allow for the waiving of copyright protections for educational purposes, among others.

However, Levy argued that the exception for education is so broad that they could indeed undermine the legitimate interests of the rights holder, thus preventing the normal exploitation of the work and creating problems under Bern.

Levy further pointed out that the crux of the tension lay with the question of whether the scope of fair dealing under C-32 is oriented around payment or access—or, more specifically, whether it is about simplifying the process of accessing works for educational purposes, or allowing for broad access, but with payment required in compensation for said access. Levy argued that access with payment is a viable alternative and one that should be pursued under copyright reform provisions, going forward, instead of the broad provisions that are currently being adopted.

Access Copyright, which represents, among others, the rightsholders of educational IP, collects and administers fees for the photocopying of materials, such as are being paid by educational institutions for the creation of custom courseware.

In all, it was a fascinating talk, well-presented, which began with general principles and issues, before honing in on specific, problematic clauses that raise concerns for groups like Access Copyright and other such bodies that collect fees, as well as representing and compensating rights holders, under compulsory licensing regimes.

A last-minute cancellation due to illness prevented Margaret Ann Wilkinson of the University of Western Ontario from appearing.