How WIPO Treaty Ratification - and not Bill C-32 - would Double the blank media levies ("taxes") in Canada

Michael Geist has a blog today about the potential political debate concerning an “iPod tax” and how Bill C-32 would have supposedly doubled the "iPod tax"  due to the national treatment requirements of the 1996 WIPO WPPT treaty. I've been writing about this for years and have testified about it to a Parliamentary Committee, and its gratifying to see some of these points being repeated in the government document that Michael exposes and in his own blog.

However, it is incorrect to suggest that “... it is worth noting that Bill C-32, the Conservatives own copyright bill, would likely have doubled the fees that Canadians pay on blank CDs.”

Bill C-32 itself would not have resulted in the doubling the dwindling levy proceeds, which now effectively come only from blank CDs. The “doubling” would only result from a subsequent separate decision to actually ratify the WPPT and the then inevitable issuance of a statement by the Minister pursuant to s. 85 of the Copyright Act that would cause foreign “makers” and “performers” to be considered “eligible” for reciprocal payments. This would require recognition in turn by the Copyright Board in a new tariff, which the Board would doubtless not hesitate to provide - assuming that that blank CDs would still be considered to be an “audio recording medium” - which is probably not the case, but would need to be vigorously contested, given the Board’s past decisions.

Indeed, it is well understood that, while this and the previous Governments both wished their bills to be “WIPO Ready”, any decision to actually ratify the 1996 treaties might need to await the demise or significant reworking of the levy scheme precisely in order to avoid the “doubling” aspect and the arithmetically inevitable major royalty outflow, which could serve no useful purpose whatsoever for Canadian interests and would thus potentially be an acute embarrassment to whatever government were to be in power at the time. 

HK

Access Copyright's Election 2011 Toolkit - About Repealing Fair Dealing

Access Copyright is entering the election fray.

Unfortunately, most of what is being said is quite misleading and/or troubling. For example, here is part of what Access Copyright has to say:

By favouring exceptions without compensation over collective licensing, the Bill [C-32] foreclosed any meaningful opportunity for rightsholders to participate in shaping emerging markets for access to content with fair compensation. Its net effect would have been to undermine existing licensing infrastructures and foreclose new revenue streams, forcing rightsholders to hold on ever more tightly to what little control over their works they would have had left instead of promoting increased access
through innovative models of licensing and distribution.

Meanwhile, Canada’s creative and information sectors would have been impoverished as creators and publishers would have been forced out of business, unable to earn a living from their craft and businesses. With Canadian voices silenced, educational institutions would have been forced to rely on American and other foreign sources for teaching materials.

 

While exceptions may be warranted for certain users in certain circumstances, (when reasonable access is otherwise unavailable), there is no need for an uncompensated exception when a work is available at a reasonable price and can be obtained with reasonable effort. In other words, exceptions should be unavailable whenever a licence for the use is available from a collective society.

(emphasis added)
 

That is a very inaccurate description of what Bill C-32 would have done.

But the corollary and conclusion are really remarkable.

Access Copyright apparently believes that we as Canadians should give up on the notion of exceptions for fair dealing for research, private study,  criticism, review, news reporting etc. - never mind satire and parody - if there is a friendly collective lurking out there that is willing to provide a license. Say - for example - for $45 per university student student per year.

Some of the questions posed by certain committee members at the C-32 hearings suggest that Access Copyright is getting through to them on such points. The response from key parts of the educational community was typically tepid.

I have to say that as a member of Access Copyright and as a copyright lawyer, it is embarrassing to see such a position being asserted when it flies in the face of what goes on in other comparable countries and what is good policy for Canada, not to mention about two centuries of common law jurisprudence and common sense.

It does not seem sensible for Canada to consider repealing fair dealing.

Providing mere beer money to most writer members and millions a year to a collective's managers, consultants and lawyers by limiting and/or charging excess rates for access to teachers and students at all levels does not strike one as brilliant policy in a competitive world concerned with innovation in the digital economy. Access Copyright's expenses exceed 25% of its revenues, which is a much higher ratio than collectives such as SOCAN.

Any government that is serious about education in Canada will ensure that copyright exceptions and users' rights in Canada are at least as generous and specific as those in the USA. Since the Copyright Board and the Federal Court of Appeal (at least in the CMEC K-12 decision) are arguably not following either the letter or the spirit the Supreme Court of Canada's landmark CCH v. LSUC decision, we do need Parliament to act - but in the very opposite way to what Access Copyright is suggesting.

So - here is Access Copyright's Election 2011 Toolkit. 

In the great democratic tradition, use it early, wisely and often.  

And as you wish.

HK

Imagine All the Freedom - From Excessive Copyright Claims - PM Harper's Performance Pulled from YouTube

Prime Miniister Harper's video with the wonderful young lady Ms. Maria Aragon has been mostly taken down from YouTube.

Imagine - it included a few bars from "Imagine" by John Lennon.

The copyright lawyers are not amused.

Above  is was a quite delightful duet with the PM and the young lady.. Watch it while you can You can't watch it anymore because the music industry lawyers are doing what they do best - which is to take good things down and/or kill them off.

Whatever one's political stripe - this is really touching and delightful. It won't hurt anyone or any corporation in the music industry. If this can't be on YouTube or similar sites, then copyright law is seriously sick.

"You may say that I'm a dreamer - but I'm not the only one" who thinks it would be a real shame if people can't see and hear things like this in the future.

Imagine -  a world without excessively greedy corporate copyright owners, collectives, and their excessively zealous  copyright lawyers. 

Imagine that  - whoever is the next Prime Minster - will lead a government that will amend Canada's copyright laws to "let it be" for things like this.  

Imagine all the people - who would be happy about this - and maybe even vote for it.

This could yet be the copyright election...

HK

PS - as of Friday, April 8, 2011, the above video is no longer available "due to a copyright claim by Lenono Music." Although the DMCA doesn't apply in Canada, it has effectively reached out to Canada in this and countless other instances. 

"Education" as the "E" Word in Bill C-32

(Access Copyright)

There were many good comments at today’s hearing today on educational issues from those in the educational, library, museum and book seller communities.

The Committee was particularly focussed on the word “education”, which Bill C-32 proposes to include in a revised s. 29. It seems that “education” has become something of an “E” word in Bill C-32.

Despite the orchestrated and inaccurate histrionics and hysteria of Access Copyright et al (e.g. see above for today's latest installment),  the inclusion of the word “education” in and of itself will clearly cause no harm to anyone, since any dealing for the purpose of “education” (whatever that may mean) must also pass the Supreme Court of Canada’s six part fairness test.  In fact, given the recent CMEC K-12 ruling by the Copyright Board as upheld by the Federal Court of Appeal, any dealing involving multiple copies in a classroom is not “fair” and any copies made when “a student is instructed to read the material” are ipso facto “likely” not “fair”. With all respect, I believe that these rulings are incorrect and I hope that the Supreme Court of Canada grants leave to appeal in this case and that the decisions are reversed. CMEC is to be commended for pursuing this matter. (I should disclose that I acted for an intervener,  CAUT, in this case, but these views, as always on this blog, are my own).

Indeed, as some on the Access Copyright side have pointed out, the inclusion of the word “education” by itself may lead to much uncertainty and litigation. The irony is that their side has the resources and presumably the will to litigate, whereas the other side lacks one or the other or both. For example, AUCC, a prominent organization representing universities in the current Access Copyright proposed $45 per student tariff hearing at the Copyright Board, clearly has the means to litigate. However, it has backed away from seeking judicial review of AC’s controversial interim tariff - even though it was “vigorously” opposed to it.

Moreover, if the bill is passed, some will try to submit that the inclusion of the word “education” by itself could suggest - as Access Copyright has already prematurely tried to argue in the Federal Court of Appeal - that “educational” purposes are not part of the present law. Unfortunately, the Court took the then days old first reading bill into consideration and pronounced, by way of obiter dicta, that “ this amendment serves only to create additional allowable purposes”.

All in all, it would seem in everyone’s interest to have more rather than less clarity here - so that the word “education” has some meaning and is still clearly subject to a “fairness” analysis. There is also a need, on many fronts, to ensure that the K-12 decision of the Copyright Board is reversed as soon as possible, since this Bill could become law before the Supreme Court of Canada even hears the K-12 case - assuming that it grants leave. The earliest that the Court might hear this case would be in the late part of this year - and normally there is a six month or so period after the hearing before judgment is rendered.

The Canadian Civil Liberties Association - who I had the privilege of helping as counsel on at the Committee - had a good suggestion for the Committee that takes all of the above into effect. Here is what CCLA has put before the Committee for its consideration on the subject of fair dealing, including the “education” issue (footnotes omitted):

1.    Ensuring an expressive society: Meaningful and flexible protection for fair dealing user rights

a.    In its current form, the Copyright Act (the "Act") recognizes some critical user rights that allow individuals and institutions to access, reproduce and distribute otherwise copyrighted work. The 'fair dealing' exceptions found under s. 29 of the Act state that using works fairly for research or private study do not violate copyright, and neither does criticism, review or news reporting so long as the work is properly cited. There are also additional exemptions for educational institutions,  libraries, archives and museums.  These fair dealing rights are essential to maintaining a healthy balance between an author's interests in compensation, and the public interest in maintaining an open, expressive and informed society. In order to maintain the delicate balance between expressive freedom and author compensation, any future amendments to the Copyright Act should fully respect user rights, and recognition of these rights should be incorporated into all aspects of copyright protection.

As the Supreme Court of Canada eloquently stated in the CCH decision in 2004, ""Research" must be given a large and liberal interpretation in order to ensure that users' rights are not unduly constrained, and is not limited to non-commercial or private contexts."  The Court thus confirmed that fair dealing is a users' right and should not be interpreted restrictively against the purpose for which it was clearly intended.

Indeed, the very first copyright law in the world, the legendary English Statute of Anne of 1709 had, as a full title "An Act for the Encouragement of Learning, by vesting the Copies of Printed Books in the Authors or purchasers of such Copies, during the Times therein mentioned".  This title confirms that the very origin of copyright law was not so much for the purpose of the protection of publishers but rather for the purpose of education. This purpose is now under attack in at the Copyright Board and in the Courts by those who would prefer, in effect, to "tax" education in the name of copyright and to impose high costs, rigid restrictions and even privacy invasive record keeping obligations on Canada's educational institutions at all levels - especially at the post-secondary level.

The Canadian Civil Liberties Association is concerned that, notwithstanding the CCH decision, the Copyright Board and the Federal Court of Appeal, operating under the current legislation, have been interpreted the "fair dealing" provisions in a fixed and restrictive manner thereby preventing a meaningful balancing that can take into account a rapidly changing field. The Copyright Board has recently held, in the context of K-12 education, that multiple copies in a classroom and anything prescribed by a teacher cannot be fair dealing. This ruling has been upheld by the Federal Court of Appeal.   While the CCLA is hopeful that the decision will be reversed in the Supreme Court of Canada, at the date of submissions of this brief, we do not even know if the Supreme Court of Canada will grant leave to appeal.

In order to make 'fair dealing' more responsive to the purposes of the legislation, the CCLA joins with others in calling for the addition of the words "such as," to make the current list of fair dealing purposes suggestive rather than exhaustive.

b.    CCLA also supports the inclusion of the word "education" in section 29. However, in view of the current jurisprudence from the Federal Court of Appeal, this word by itself may not be sufficient since that Court has confirmed the Copyright Board's interpretation that the use of multiple copies in a class room will not pass the "fairness" analysis. CCLA suggests the inclusion of explicit language such as is found in the §107 of the US Copyright Act confirming that fair dealing for the purpose of education can include multiple copies for class room use and copies prescribed by a teacher.

The US provision is as follows:

§ 107. Limitations on exclusive rights: Fair use40

Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include -

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the copyrighted work.

The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.
        (Emphasis added)

c.    The CCLA was concerned that the existing fair dealing exceptions may not be expansive enough to allow for criticism in the form of parody and satire. Canada should celebrate intelligent, creative forms of social critique and commentary. However, our Courts have put a severe chill on such activity in the form of the controversial 1996 Michelin  decision that is still on the books and has not been overruled. In this decision, the depiction by way of clear parody of the "Bibendum" Michelin character in the context of a union protest was held to infringe copyright.  This is completely at odds with the 1994 decision of the US Supreme Court that permitted a blatantly commercial transformation into a raunchy "rap" song by way of parody of the popular song "Pretty Woman" based on the American fair use doctrine.   Thus, CCLA is pleased that Bill C-32 explicitly include parody and satire as examples of 'fair dealing' and we support the inclusion of such language in Bill C-32.

d.    Therefore, CCLA suggests the amendment of section 29 of the Act  to read as follows:

29.    Fair dealing for purposes such as scholarship, research, private study, parody, satire or education does not infringe copyright. For greater clarity, education may include teaching with the use of multiple copies, and the use of single or multiple copies as prescribed by an instructor.

e.    Bill C-32 does not contain a blanket immunization against statutory minimum damages for educational institutions acting on a good faith belief that their practices involve fair dealing. There is an equivalent provision in the USA - namely §504(c)(2). The "ad terrorem" implied and even explicit threat by certain parties to invoke statutory damages against educational institutions in Canada has been instrumental in the imposition of costs and restrictions that have no counterpart in the American educational system. The result is that Canada is at a considerable disadvantage in terms of excessive costs and, even more importantly, greatly restricted freedom on the part of teachers and students at all levels. Section 46 of the Bill, which deals with section 38.1 of the Act, should be amended to include a provision implementing the foregoing principle.

f.    Finally, with respect to fair dealing and exceptions, the CCLA is concerned that the proposed educational exception for educational use of publicly available material on the internet is not only unnecessary but may actual prove to be seriously harmful. There is no reason why educators need any special exception, if principles of fair dealing and implied license are sufficient.  Moreover, such a provision risks the creation of an "a contrario" implication that anyone outside of the educational framework cannot save, store, print, communicate  or otherwise use publicly available material on the internet in the way in which such use is commonly undertaken and in respect of which certain educators seek a special exception. It is noted that this special exception is sought mainly by the K-12 sector and that there is little if any support in the post-secondary realm and, indeed, some active opposition. Therefore, proposed section 30.04 of the Bill should be eliminated.

(emphasis added)

HK

CMEC on "making multiple copies for class use"

In its most recent bulletin on Bill C-32, CMEC - which represents the K-12 system in outside of Quebec - says:

Education organizations, including the CMEC Copyright Consortium believe that Bill C‐32 should
clarify how fair dealing applies to copying by a teacher for students in his or her class. The
CMEC Copyright Consortium believes that Bill C‐32 must make it clear that "education" includes
"making multiple copies for class use."

This clarification would result in a Canadian copyright law that is similar to the "fair use"
provision in the United States Copyright Act. The "fair use" provision, like "fair dealing" in
Canada, also involves two tests to determine whether a "use" is fair. Under the first test, the
enumerated purposes are "criticism, comment, news reporting, teaching (including multiple
copies for classroom use), scholarship, or research." Education organizations want Bill C‐32 to
provide a similar provision — that the new enumerated purpose be "education (including
multiple copies for class use)," rather than simply “education.” Such an amendment would
make it clear that a Canadian teacher, like their US counterpart, can make copies for students in
his or her class under the first test. The dealing would still have to be "fair" under the second
test.

(emphasis added)

I agree with this. In fact, I've repeatedly called for this myself.

Such a clarification would avoid years of uncertainty and litigation. While further tweaks to s. 29 may be required or desirable, this one is a good one.
 
Unless the Supreme Court of Canada grants leave to CMEC in its attempt to appeal the decision of the Federal Court of Appeal from last summer that upheld the Copyright Board's K-12 decision and  unless the Supreme Court of Canada ultimately overturns the decisions below, the Canadian educational system will be at a profound disadvantage compared to our American counterparts.

It is difficult to understand why anyone would argue that the Canadian educational system should provide less access at  greater cost than in the USA. Any suggestion that such an amendment would violate the Berne three step test is simply nonsense. If it does, we'd be in good company with the USA.

The state of copyright law as it now applies in Canadian classrooms is very unsatisfactory as a result of the recent Copyright Board and Federal Court of Appeal decisions. It is simply unacceptable and, with respect, quite incorrect that any copying done because a teacher requires or suggests that a student read something cannot be fair dealing. It is the purpose of the student - the researcher - that matters, as the Federal Court of Appeal correctly acknowledged in another earlier decision this year involving iTunes.

Hopefully the Supreme Court of Canada will hear both these cases and clarify the law in Canada.  That, however, is likely to be at least another 18 months away. And there is no guarantee that the Court will grant leave or that, if it does, that it will reverse the FCA on the K-12 decision.Only about one in ten leave applications are granted.

Given what Access Copyright is trying to do to the post-secondary system now at the Copyright Board, and the warp speed treatment that the Board is providing to AC, we need sufficient certainty, clarity and correction from the result of the Board and the FCA and we need it ASAP from Parliament.

CMEC's suggestion in this instance is very helpful and timely..

HK

On Canadian Facts, Fiction, Lobbyists and Levies

Ministers Clement and Moore did the right thing yesterday by saying that no means no.

The levy lobbyists did the wrong thing by denying the incontrovertible truth.

It is absolutely false - as ACTRA boldly states that:

“The $75 dollar figure is pure fiction. The CPCC has not put a price on the levy.”

Do facts not matter any more?

The levy lobbyists are in deep denial about their own collective’ recent demand for a “tax”of $75 per iPod.

Has ACTRA lost its ability to read? Does the truth not matter any more?

The fact is that the Canadian Private Copyright Collective asked the Copyright Board for a tariff of $75.00 per iPod in 2007 for the period 2008-2009. Here’s the precise request from the proposed tariff published in the Canada Gazette:

(e) for digital audio recorders, $5 for each recorder with no more than 1 Gigabyte (GB) of memory, $25 for each recorder with more than 1 GB and no more than 10 GB of memory, $50 for each recorder with more than 10 GB and no more than 30 GB of memory, and $75 for each recorder with more than 30 GB of memory. (emphasis added)

Now, if you think that’s bad, go back only five years to 2002 for the proposed 2003-2004 tariff that would have imposed $21 per GB. Here’s the exact proposal from the Canada Gazette:

(g) $21 for each gigabyte of memory in each non-removable hard drive incorporated into each MP3 player or into each similar device with an internal hard drive that is intended for use primarily to record and play music.

Now, for those who can’t or won’t do simple arithmetic, I’ll do it for you.

A $21 per GB tariff (“tax”) on a 160 GB iPod “Classic” that now sells for about $270 would be - get ready for this - $3,360.00.

On a one Terabyte eternal hard drive that sells for as low as $69 in Canada, the “tax” would be $$21,000.00.

On a three Terabyte terabyte eternal hard drive that now sells for about $220 in Canada, the tariff (“tax”) would now be $63,000.00. This is NOT a misprint.

So much for the forward thinking capacity of the Canadian Private Copying Collective.


This shows the fallacy of taxing technology. And why Minister Moore was right to call the proposed iPod tax "really toxic and, frankly, really dumb".

QED.

Thank goodness we shot these proposals down. (I acted for the Retail Council of Canada - which really does stand up for consumers).

Bravo, Ministers Clement and Moore for yeseterday’s announcement.

The CPCC should start planning for winding up. It should distribute its many remaining millions to artists - and not to lawyers, lobbyists and consultants. They have had their day on this file.

HK

Some Common Sense at Bill C-32 Committee Hearings

Sarah Schmidt is reporting that the C-32 Legislative Committee will meet only for four hours a week, not the 16 hours suggested by the Government members. This means that that the Bill cannot get through the House of Commons until well into next year.

The reports that the Government intended to wrap this up in the House of Commons Committee by Christmas were quite disconcerting. There is no way that the dozens of interested parties who have essential viewpoints to contribute could have been heard and been fully and fairly considered in less than a month. Even the first Bill C-32, which was a bad (though much less complex and controversial) bill and which was made worse in Committee under a strong majority government received far more lengthy attention in 1996-1997. Ramming the current Bill C-32 through Committee in less than one month would have been seen to lack any credibility or even legitimacy.

HK

Querulous Quote of the Day re Bill C-32 re "capacity of the Conservative party to hate people who make art"

The querulous quote of the day re Bill C-32 goes to David Basskin, a Director of the CPCC and CEO of CMRRA. Here it is from itbusiness.ca:

"The way the bill is written, we could never again be compensated for these copies, we don't think that's fair," says David Basskin, a director with the CPCC. "We're really at a loss to understand the capacity of the Conservative party to hate people who make art."

(emphasis added)

Recall, as I pointed out on March 16, 2010, based upon CPCC's own figures, with respect to this "nonsensical" "tax", as the Government calls it:

By the way, the CPCC’s average payout to the ultimate beneficiaries has been at most about $160 per year for those who actually receive cheques and likely much less in the case of actual individual artists. The cost of running the collective, most of which goes to lawyers, consultants and employees of this comparatively small organization, has been about $25,000,000 to date.

So who exactly is denying artists their due? The point is that there is resistance to inefficient collectives that do little or nothing for "people who make art", yet do a lot to the extent of millions a year to to benefit a small number of managers, consultants and lawyers who are associated with the collective. In this instance, the Government is speaking for a very large number of people - including the countless artists who have received very little if anything from a costly and very inefficient levy regime that made little sense in the age of the analogue cassette and makes no sense in the digital iTunes age. Not to mention millions of individual, corporate and institutional consumers who have never copied music but have paid hundreds of millions of dollars in the form of "levies' which are regarded by this Government and most Canadians as "taxes".

A $75 "tax" on iPods, smart phones, etc. - which is the latest amount officially sought by the CPCC - would simply perpetuate a bad business model that will cause massive problems in the Canadian electronics, retail and wireless sectors (for starters), and do less than nothing for most working artists. True, it would work out very well for a small group of managers, consultants, lawyers and lobbyists who strive to keep the levy alive.

True, some publishers and record companies do get more than beer money out of this regime. However, member collectives of CPCC, such as SOCAN and CMRRA, also deduct their own administrative costs or overhead charges on whatever eventually flows from CPCC through them to the "people who make art." We don't know how much gets through to individual "people who make art" because there is very little transparency concerning this system. The Copyright Board leaves such issues to the internal workings of the collectives, which is to say, once again, that there is very little transparency as to how the distribution mechanism works overall - and virtually none at the level of individual "people who make art."

The Copyright Board also seems to think that a levy on iPods, etc. would be a good idea - and has twice tried and failed to impose such a levy. I have been involved in both successful attempts to quash such a levy. The Chairman of the Copyright Board has recently stated with respect to the first decision of the Federal Court of Appeal ruling that the Board lacked jurisdiction to impose such a levy:

Did it impede the orderly development of the private copy regime? Yes. That judgment had far reaching effects on the marketplace. It created market uncertainty, made the daily innocent activities of ordinary consumers illegal and helped to ensure that the regime would become irrelevant as new technology changes the way consumers copy music. An additional and predictable result is that in excess of $50 million in royalties have not flowed to authors, composers and performers.

In my view, an iPod levy will be a great disservice to most "people who make art". Among other reasons, it would be a policy substitute and a poor one at that for the grants, subsidies, cultural funds from collectives and other sources of funding that such people - especially emerging Canadian artists - need and deserve. Copyright collectives hate such talk because such payments are not subject to national treatment, do not benefit the foreign interests that ultimately control the major Canadian collectives, and are not subject to collectives administration overhead or administrative costs - which range from about 10% to 25%. Successive Canadian governments of all stripes fought hard and successfully to preserve Canada's cultural sovereignty with respect to grants and subsidies. It's time we asserted it

HK

The "Education" Exception: Toronto Star Editorial of August 14, 2010 re "Copyright Bill Needs Change"

The Toronto Star had an uncharacteristically ill-informed and misguided editorial on August 14, 2010 about copyright entitled Copyright Bill Needs Changes on its otherwise usually solid editorial page. One can only wonder about where The Star got its information from this time. It said:

Writers and publishers are worried that a broad interpretation of “education” could lead to rampant copying of textbooks, instructional manuals and even novels. Would a school board be allowed to buy just one copy of a new textbook and copy it for all its students? Would universities be allowed to copy bits and pieces of 20 different books to compile reading material on a certain subject for their students? Indeed, would a monthly book club be considered an “educational” activity and be allowed to copy novels on its reading list?

It concluded:

Both government and opposition should rethink and take a hard look at the fair dealing section when Parliament resumes sitting in the fall and Bill C-32 goes to committee. Legislation intended to defend copyright ought not to be used to justify rampant copying.
(emphasis added)

There is absolutely nothing in the bill that would "justify rampant copying". Indeed, as the bill now stands, it would effectively prevent all kinds of legitimate copying through its repressive and regressive digital locks provisions and its inadequate fair dealing provisions that would leave Canadian educators, students and consumers still worse off in important ways than their American counterparts.

I wrote a letter to the editor on August 16, 2010 which hasn't yet been published. Nor have I seen any other letters about this editorial, though it's hard to imagine that there were none worthy of publication. Hopefully, The Star will get around to them. In the meantime, and in any event, my letter read as follows:

Dear Sirs:

Your editorial about copyright on August 14, 2010 is inaccurate, inflammatory and seriously misleading.

Nothing in Bill C-32 would allow a school board “to buy just one copy of a new textbook and copy it for all its students”. To suggest that a monthly book club “would be considered an “educational” activity and be allowed to copy novels on its reading list” is simply absurd. As for universities being “allowed to copy bits and pieces of 20 different books to compile reading material on a certain subject for their students”, the fact is that “coursepacks” are perfectly legitimate and have been used for decades. Universities are paying estimated license costs well in excess of $10 million a year for making them. Moreover, there are often unnecessary payments because rights have already been paid for, because the material was in the public domain or the Creative Commons, the excerpt was insubstantial, or the use was clearly fair dealing. Access Copyright, the English Canadian collective that has done so much to inhibit or charge for “access”, has been eagerly collecting this money. Indeed, it now wants to increase its charges to $45 per student per year based in large measure on rights it does not have and for repertoire in which it has no legal interest.

Copyright revision is already complex and controversial enough without this kind of ill-informed and misguided opinion. Next time, please check the facts before you take sides in such an important debate.

Howard Knopf

Barrister and Solicitor

Macera & Jarzyna LLP

Ottawa, Canada

HK