In the Public Interest: The Future of Canadian Copyright Law

Edited by Michael Geist

From Grokster to Google, copyright has emerged as one of the Internet's most challenging legal issues. Once limited to a select group of scholars, copyright now captures front page headlines as millions of Canadians consider its impact on education, technology, communication, and culture.

As Canada embarks on a new round of digital copyright reform, this collection of 19 essays from Canada's leading copyright experts provides context and analysis of the latest reform proposals. Edited by Professor Michael Geist, an internationally regarded authority on Internet and technology law, the collection reviews international copyright norms, assesses dozens of specific Bill C-60 provisions, and identifies potential future copyright reform initiatives. Completed immediately after the introduction of Bill C-60, this timely volume provides policy makers, lawyers, judges, educators, and interested Canadians with the tools and knowledge they need to participate in a copyright debate that will shape the future of the Internet, culture, and education in Canada.

Introduction
Michael Geist
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PART ONE: CANADIAN COPYRIGHT REFORM IN CONTEXT: Chapter One

Copyright Talk: Patterns and Pitfalls in Canadian Policy Discourses

Laura J. Murray

The rhetoric of copyright discussion makes itself felt not only through the legislation it may seek to generate or influence, but directly, because it always envelops and infuses the law, and because for most Canadians it is the law. It is thus unfortunate that the predominant rhetoric, or discourse, of Canadian copyright reform can barely pretend to be tethered to credible intellectual, empirical, or legal underpinnings.

This study places government copyright discourse from 2001 to 2005 in the context of the broader debate, where a general panic about digital technology is fostered by copyright-owner groups. Repeated claims that copyright-owners have, or ought to have, the right to control not only copying but access to and use of their works are being given credence by the Canadian Heritage Department, Minister, and Committee, taking Canada down a radical path away from the historic and appropriate scope of copyright protection. The Ministry of Industry has a different approach but has not articulated it publicly. In Canada’s dominant copyright discourse, unauthorized use of copyrighted materials is vilified, copyright-owner control after the point of sale is normalized, and the principle of access has been hijacked. At the same time, the goal of "balance" is much touted. If Canada is to achieve real balance in copyright law, Members of Parliament and policy-makers will need to rearticulate "access" and "use" to discourses of democracy, citizenship, and the public interest.

About the Author:

Laura J. Murray, Ph.D. (Cornell) 1993, is Associate Professor in the English Department at Queen’s University, where she teaches American literature and literary theory. The proprietor of www.faircopyright.ca, an information and advocacy resource, she has also written “Protecting Ourselves to Death: Canada, Copyright, & the Internet” (First Monday, October 2004: www.firstmonday.org), and spoken on the history and rhetoric of copyright at many American and Canadian universities. She has published articles on exploration literature, early American literature, Aboriginal literature, and the history of the book and is the editor of To Do Good to My Indian Brethren: The Writings of Joseph Johnson, 1751–1776 (U. Massachusetts, 1998) and (with Keren Rice) Talking on the Page: Editing Aboriginal Oral Texts (U. Toronto, 1999).

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PART ONE: CANADIAN COPYRIGHT REFORM IN CONTEXT: Chapter Two

Interests in the Balance

Teresa Scassa

The starting point for any exercise in legislative reform should be a consideration of the policy underlying the legislation. After all, the reforms should further the underlying public policy objectives. In Canadian copyright law, however, not only has the public policy underlying the legislation been unclear since the law’s inception, it has become even murkier in recent years with competing and often contradictory articulations from policy makers and the courts. As we stand once again on the eve of significant copyright reform in Canada, it is useful to step back and examine the policy underlying the legislation.

Most recently, copyright law in Canada has been referred to as a balance between the interests of creators and users of works. Other iterations of the balance have made reference to a broader societal interest as well. Yet such statements are far from being an adequate articulation of the interests in the balance. Little attention has been given to defining who “creators” and “users” are or to identifying the societal interests that are at play. Further, the expression of balance between users and creators overlooks another important—if not crucial—interest: that of owners. In the commercial marketplace for copyright works, it is rare that the copyright owner in a work is actually its creator. Many of the most significant groups pressuring the government for copyright reform represent copyright industries, and thus, the interests of copyright owners are central to public policy considerations. Although their interests are often conflated with the interests of creators, it should not be assumed that they are the same.

In this chapter, I will explore the underlying purpose of Canadian copyright as a balance between a series of competing interests. I will argue that there are many different types of “users” of copyright works, just as there are many different types of “creators.” I will explore the interests of “owners,” as well as the diversity of societal interests in copyright law, including interests that compete with the private property rights created and protected by copyright law. I will centre this analysis in the context of the massive technological changes brought about by digitization and the Internet. Ultimately, I argue for a more textured view of the competing interests at play in copyright policy.

About the Author:

Teresa Scassa, B.A. (Conc.) 1984, LL.B, B.C.L. (McGill) 1988, LL.M. (U. of Mich.) 1990, S.J.D. (U. of Mich.) 1996, is an Associate Professor of Law at Dalhousie Law School and the Director of the Law and Technology Institute at Dalhousie. She is a member of the Nova Scotia Barristers’ Society. Professor Scassa is co-editor of the Canadian Journal of Law and Technology, published by CCH Canadian Ltd. She is also a co-author of the bi-weekly IT.Can newsletter. She teaches and conducts research in the areas of intellectual property law, property law, and law and technology. She is the author of numerous articles on topics ranging from intellectual property law to personal information protection. Recent publications include a book co-authored with Michael Deturbide titledElectronic Commerce and Internet Law in Canada, (CCH Canadian Ltd, 2004) and the following recent articles: “Recalibrating Copyright Law?: A Comment on the Supreme Court of Canada’s Decision in CCH Canadian Ltd. v. Law Society of Upper Canada” (2004) 3 Canadian Journal of Law and Technology 89; “Originality and Utilitarian Works: The Uneasy Relationship between Copyright Law and Unfair Competition” (2004) 1 Ottawa Technology Law Journal 51.

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PART ONE: CANADIAN COPYRIGHT REFORM IN CONTEXT: Chapter Three

International Copyright Law: W[h]ither User Rights?

Myra Tawfik

This paper examines international copyright law in relation to permitted uses of copyright works. It takes issue with the assumption that the international system is designed to promote copyright holders’ interests above all others and criticizes Canadian policy-makers for adopting a superficial reading of the international context in order to advance objectives that are, in reality, largely domestically driven.

About the Author:

Myra Tawfik is a Professor of Law at the Faculty of Law, University of Windsor and a former Associate Dean of that Faculty. She is a graduate of McGill University (B.A (Hons.) 1981; B.C.L, LL.B 1985) and the University of London (LL.M -Queen Mary College 1989). Professor Tawfik is a member of the Law Society of Upper Canada and was a member of the Bar of Quebec from 1986–2000. She teaches copyright law, the law of confidential commercial and personal information, trademark law, and comparative legal traditions. Her research interests lie in the area of intellectual property law, particularly copyright law, and trade-related aspects of intellectual property rights. Her most recent publications include International Copyright Law and Fair Dealing as a User Right, (April–June 2005) UNESCO Copyright Bulletin and Follow the Lego Brick Road: The Doctrine of Functionality Under Canadian Trademark Law (2005) 15 Molengrafica Series 71 (forthcoming, Intersentia Publishers, Antwerp). She has recently completed a Report on the impact of WTO/TRIPS on public-sector libraries for the Canadian Library Association and is currently at work on a monograph on early Canadian copyright law history (1824–1924) for which she obtained a grant from the Osgoode Society for Canadian Legal History.

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PART TWO: BILL C-60: A CLOSER ANALYSIS: Chapter Four

Constitutional Jurisdiction Over Paracopyright Laws

Jeremy F. deBeer

This paper considers whether the Government of Canada’s proposed legislation addressing technological protection measures and rights management information would be constitutionally-valid federal law and examines the provinces’ role in the debate over these copyright reforms. The Constitution allocates exclusive legislative responsibility for various matters to either the federal or provincial governments. The constitutionality of the proposed provisions turns on their pith and substance, which seems to involve technological and contractual controls over terms of distribution of digital materials. For a list of reasons, qualifications on the legal effects, intended to tether the legislation to existing copyright doctrine, may not be sufficient to resolve the constitutional issues. The key point is not whether the provisions trace the scope of the existing Copyright Act, but whether they are in the nature of "Copyrights" laws for the purpose of the Constitution Act, 1867. In this context, one must consider not only the provisions’ strict legal operation, but also their purpose and practical effects. A thorough study of the proposed provisions shows them to be “paracopyright” laws, the true character of which is quite different from traditional copyright legislation.

Consequently, there are some doubts whether the provisions can be sustained as a matter within federal authority over Copyrights, Trade and Commerce, Criminal Law, or laws for the Peace, Order, and good Government of Canada. An argument can be made that this issue falls under the provinces’ authority in respect of Property and Civil Rights. Certainly, the broader the provisions, the further they trench into the provinces’ domain, and the more vulnerable they become. The federal Government should be reluctant to test the limits of the Copyrights clause by widening the proposed legislation before it is enacted, and courts ought to be wary of the constitutional concerns when interpreting the law once it is passed. The best way to avoid constitutional problems is to resolve current ambiguities so as to narrow the scope of the proposed provisions.

Further study and consultation with the provinces is warranted before these provisions become law. Regardless of the federal Government’s intentions, the provinces’ might be able to take jurisdiction over certain aspects of to technological protection measures (TPMs) and rights management information (RMI). Provincial Attorney Generals must, therefore, contribute to this discussion. Doing so will facilitate democratic involvement in the law reform process and maximize opportunities for effective citizen participation. These are among the foremost goals, not only of copyright law, but also of the entire Canadian federal system.

About the Author:

Jeremy F. deBeer is a law professor at the University of Ottawa, specializing in intellectual and classic property law. He holds a BCL (First Class) from the University of Oxford, and a LL.B (Silver Medallist with Great Distinction) and B.Comm (Great Distinction) from the University of Saskatchewan. Professor deBeer is a member of the Law Society of Upper Canada, and was previously employed as legal counsel to the Copyright Board of Canada. His most recent research addresses the constitutional implications of copyrights, the role of levies in the music industry, and the notion of balance in copyright and patent law. He is online at www.jeremydebeer.ca.

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PART TWO: BILL C-60: A CLOSER ANALYSIS: Chapter Five

Deflating the Michelin Man: Protecting Users’ Rights in the Canadian Copyright Reform Process

Jane Bailey

The Canadian government’s proposal to extend further protection to technological protection measures (TPMs) raises serious constitutional concerns in terms of freedom of expression. The constitutionality of the currentCopyright Act is already legitimately subject to question. Expanding the Act’s incursion on freedom of expression by broadening its scope to prohibit circumvention of TPMs can only serve to heighten constitutional concerns. If the Act is to be amended to extend legislative protection to these private and non-transparent forms of censorship and surveillance, constitutional contouring will be necessary to ensure explicit protection of users' rights. Otherwise, the legislation risks trenching too deeply on rights of access to and use of information that are essential to a healthy and innovative expression marketplace. The Canadian government has the opportunity, and the obligation, to chart a course that compromises public commitments to freedom of expression in favour of the economic interests of copyright holders only insofar as is necessary to serve the public interest in a robust marketplace of ideas.

About the Author:

Jane Bailey is an assistant professor of law at the University of Ottawa Faculty of Law, Common Law Section. She obtained her B.A.S. with honours from Trent University, an M.I.R. and LL.B. from Queen’s University in Kingston, Ontario, and an LL.M. from the University of Toronto. Her research focuses on the impact of evolving technology and inter-jurisdictional pressures relating to copyright, online hate, and pornography on Canada’s commitments to equality, freedom of expression, privacy, and multiculturalism. Her TPM-related work includes “Chief Treasures of the World: What Happens When Law is Used to Protect the Technology that Protects Copyright” (presented together with Ian Kerr) at the 2004 ETHICOMP Conference in Syros, Greece, and “The Implications of Digital Rights Management for Privacy and Freedom of Expression” (2004) 1 Journal of Information, Communication & Ethics in Society (jointly authored with Ian Kerr).

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PART TWO: BILL C-60: A CLOSER ANALYSIS: Chapter Six

If Left to Their Own Devices…: How DRM and Anti-Circumvention Laws Can Be Used to Hack Privacy

Ian R. Kerr
About the Author:

Ian R. Kerr holds the Canada Research Chair in Ethics, Law, and Technology at the University of Ottawa, Faculty of Law, with cross appointments to the Faculty of Medicine and the Department of Philosophy. Dr. Kerr has published books and articles on numerous topics at the intersection of ethics, law, and technology and is currently engaged in two large research projects: (i) On the Identity Trail, supported by one of the largest ever grants from the Social Sciences and Humanities Research Council, examining the impact of information and authentication technologies on our identity and our ability to be anonymous; and (ii) An Examination of Digital Copyright, supported by a large grant from Bell Canada and the Ontario Research Network in Electronic Commerce, examining various aspects of the current effort to reform Canadian copyright legislation. His devotion to teaching has earned him six awards and citations, including the Bank of Nova Scotia Award of Excellence in Undergraduate Teaching, the University of Western Ontario’s Faculty of Graduate Studies’ Award of Teaching Excellence, and the University of Ottawa’s AEECLSS Teaching Excellence Award. Dr. Kerr sits as a member on numerous editorial and advisory boards and is co-author of Managing the Law: The Legal Aspects of Doing Business, a business law text published by Prentice Hall and used by thousands of students each year at universities across Canada.

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PART TWO: BILL C-60: A CLOSER ANALYSIS: Chapter Seven

Anti-circumvention Legislation and Competition Policy: Defining a Canadian Way?

Michael Geist

While competition policy in the 1980s and the early 1990s embraced intellectual property as pro-competitive, the past ten years have seen a shift that requires a different framework for analysis. The shift has been toward digital content, the ability to use technological protection measures to limit access and the use of that content, as well as the creation of additional legal protections for such technology (rather than the underlying content). This essay examines the competitive impact of anti-circumvention legislation in light of the introduction of Bill C-60, which would reform Canada’s Copyright Act to prepare for potential implementation of the WIPO Internet treaties. If Bill C-60 is enacted, the Canadian Competition Bureau, which has previously indicated that it will consider intervening in the policy discussions surrounding intellectual property rights, will have an important role to play: the experience in other jurisdictions, most notably the United States, suggests that overbroad implementing legislation can have a damaging impact on innovation and marketplace competition.

The assessment of Bill C-60’s anti-circumvention provisions concludes that the Canadian approach to anti-circumvention has the potential to serve as a model for many other countries around the world. The decision to link anti-circumvention to copyright infringement and the presumed exclusion of legislating against devices is a welcome change from a U.S. approach that has repeatedly resulted in lawsuits and chilled innovation. While the Canadian bill is better than most, there remains room for improvement. The most urgent amendments include the following: explicit protection for the Competition Bureau to act against abusive conduct arising from the exercise of a technological measure; the establishment of a positive, user right to circumvent in appropriate circumstances; and clarification of the meaning and effect of Bill C-60’s service provider provision.

About the Author:

Michael Geist is a law professor at the University of Ottawa, where he holds the Canada Research Chair of Internet and E-commerce Law. He has obtained a Bachelor of Laws (LL.B.) degree from Osgoode Hall Law School in Toronto, Master of Laws (LL.M.) degrees from Cambridge University in the UK and Columbia Law School in New York, and a Doctorate in Law (J.S.D.) from Columbia Law School.

Dr. Geist has written numerous academic articles and government reports on the Internet and law, is a nationally syndicated columnist on technology law issues for the and Ottawa Citizen, is the editor of Internet and E-commerce Law in Canada and the Canadian Privacy Law Review (Butterworths) and is the author of the textbookInternet Law in Canada (Captus Press) which is now in its third edition. He is the author of BNA’s Internet Law News, a daily Internet law e-mail service, and maintains a popular blog on Internet and intellectual property law issues.

Dr. Geist is actively involved in national Internet policy development and was a member of Canada’s National Task Force on Spam. He has received numerous awards for his work including Canarie’s IWAY Public Leadership Award for his contribution to the development of the Internet in Canada and he was named one of Canada’s Top 40 Under 40 in 2003. More information can be obtained at www.michaelgeist.ca.

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PART TWO: BILL C-60: A CLOSER ANALYSIS: Chapter Eight

Rights Management Information

Mark Perry

This paper looks at the background and issues surrounding Rights Management Information, particularly in light of the recent WIPO Internet Treaties that specifically address the protection of such information. Rights Management Information in the digital age has the capacity to offer all stakeholders in creative works—from creator, to copyright holders and users—additional control and flexibility over the use of a work’s content and the dissemination of data about the rights in the work.

This paper proposes that the technology available today for increased levels of Rights Management Information be utilized to do more than simply give additional protection for works from illicit exploitation; rather, it should also address the protection of transparency, completeness, privacy, and freshness in the information that is attached to works. The opportunity to amend the Canadian Copyright Act to facilitate the development of the content market should not be missed, but the current Bill C-60 is merely compliant with the basic requirements of the World Intellectual Property Organization Treaties.

About the Author:

Mark Perry is a professor in both the Faculty of Law and the Faculty of Science (Department of Computer Science) at the University of Western Ontario and is currently a Visiting Fellow at Queensland University of Technology, Brisbane. He is a Barrister and Solicitor of the Law Society of Upper Canada, a Faculty Fellow at IBM’s Center for Advanced Studies, a correspondent for the Computer Law and Security Report, and a member of the International Association for the Advancement of Teaching and Research in Intellectual Property, the Institute of Electrical and Electronics Engineers, the Intellectual Property Institute of Canada, and the Association of Computer Machinery. He is a reviewer for multiple granting societies and professional associations.

Professor Perry’s research is focused on the nexus of law and science, both digital and biological, and in the area of autonomic computing system development. He holds grants from SSHRC and NSERC to pursue his research in law and science and has supervised numerous graduate and undergraduate theses. He has been invited by law schools in Australia, India, New Zealand, the United Kingdom, the United States, and Canada to speak at research-intensive colloquia and to classes, and he has been interviewed by national and local media. He lives in London, Ontario, with his sweetheart.

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PART TWO: BILL C-60: A CLOSER ANALYSIS: Chapter Nine

Making Available: Existential Inquiries

David Fewer

One of the more unusual aspects of the 1996 WIPO Internet Treaties is their requirement that signatories implement an exclusive “making available” right in domestic legislation. Bill C-60, Canada’s proposed legislative implementation of this right, proposes to provide an uneasy home for this right amidst rights-holders’ communications rights. For authors, this simply carves out an exclusive making available right amidst an already exclusive communications right. For performers and sound recording makers, Bill C-60 carves an exclusive making available right out of a communication right that offers only a right to remuneration, not an exclusive right. Clearly, questions of rights administration arise, and the danger to user groups of having to compensate rights holders under multiple heads for a single dealing is apparent. The Bill raises other important questions, with little guidance to the answers. Who "makes available"? When is content made available? How does the right interact with the authorization right, and how does it combine with other rights? What are the implications for Canada’s private copying regime and for artists’ right to compensation for private copies made through peer-to-peer music file sharing? In the end, Bill C-60 leaves many questions about the nature of the making available right unanswered.

About the Author:

David Fewer is Staff Counsel to CIPPIC, the Canadian Internet Policy and Public Interest Clinic, Canada’s only technology law clinic. Mr. Fewer leads CIPPIC’s advocacy on intellectual property-related matters. Mr. Fewer has practised intellectual property and technology law since 1997, first with national law firms, and later with his own firm, Fewer & Company. Prior to entering private practice, Mr. Fewer completed an LL.M. at the University of Toronto, where he wrote on intellectual property policy and the application of the Charter to copyright law. Mr. Fewer clerked with the Federal Court of Canada, where he had the opportunity to work with a number of judges at both the Court of Appeal and Trial Division on intellectual property matters and related issues. He has taught and written extensively on intellectual property and technology law and frequently comments in the media on such matters.

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PART TWO: BILL C-60: A CLOSER ANALYSIS: Chapter Ten

Made in Canada: A Unique Approach to Internet Service Provider Liability and Copyright Infringement

Sheryl N. Hamilton

In this chapter, the author considers the proposed “Notice and Notice” provisions in Bill C-60 against the backdrop of the broader question of Internet Service Provider (ISP) liability. Two particularly relevant models of ISP liability are considered: total immunity with voluntary regulation by ISPs and limited liability with an administrative regime to handle copyright complaints. Most other Western nations have opted for the approach of limited liability combined with a “Notice and Takedown” (NTD) regime.

NTD has several weaknesses: it leads to limitations on users freedom of expression; it is inconsistent with other Internet content legislation in Canada; the remedy can be significantly out of proportion with the offence; it is ineffective to curb current music file-sharing practices; and it is unnecessary in Canada. It is unnecessary because ISPs and the music industry in Canada have voluntarily developed a Notice and Notice system which avoids the shortcomings of NTD and is more consistent with a balanced approach to copyright for Canada. It is this original and creative approach that is being proposed in Bill C-60.

About the Author:

Sheryl N. Hamilton is the Canada Research Chair in Communication, Law, and Governance at Carleton University. She is Associate Professor and is cross-appointed to the School of Journalism and Communication, the Department of Law, and the Department of English Language and Literature. She has published in such journals as Communication Theory, Canadian Review of American Studies, Convergence: The Journal of Research into New Media Technologies, Journal of Communication Inquiry, and Science Fiction Studies. She is currently finalizing a co-authored manuscript for University of Toronto Press, entitled Becoming Biosubjects: Public Cultures of Biotechnology in Canada. Her current research interests include intellectual property law, particularly biopatenting; law and culture; technology studies; and governance issues.

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PART TWO: BILL C-60: A CLOSER ANALYSIS: Chapter Eleven

The “New Listener” and the Virtual Performer: The Need for a New Approach to Performers’ Rights

Mira Sundara Rajan
About the Author:

Mira T. Sundara Rajan holds degrees from Canada and France in law, economics, and politics. She completed her doctorate in Copyright Law at the Oxford Intellectual Property Research Centre, St Peter’s College, Oxford University, in 2003. She has taught at the Universities of Oxford and London and consulted on copyright matters in the United Kingdom, the United States, the European Union, Russia, and India. She is currently an Assistant Professor in the Faculty of Law at the University of British Columbia.

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PART TWO: BILL C-60: A CLOSER ANALYSIS: Chapter Twelve

Filtering the Flow from the Fountains of Knowledge: Access and Copyright in Education and Libraries

Margaret Ann Wilkinson

The Government Statement on Proposals for Copyright Reform declares that "[t]he Government supports the use of leading-edge technologies in education and research” and, therefore, that the proposed federal bill introducing copyright change “will propose certain measures that will facilitate the use of the Internet for these purposes.” This paper examines the background of the copyright reform process, the indicated directions of reform in the Statement, and the current state of the law; in doing so, it demonstrates that Bill C-60’s proposed amendments in the areas of interlibrary loan and education are ill-conceived—particularly in light of the attitude of the Supreme Court of Canada toward users’ rights—and either unnecessary or ill-timed.

About the Author:

Margaret Ann Wilkinson, LL.B. (U. of Toronto) 1978 was called to the Ontario bar in 1980. She practiced law in Toronto for several years and was subsequently educated as a professional librarian: BA (U. of Toronto) 1983, MLS (U. of Toronto) 1985. Her doctoral studies at the University of Western Ontario were supported, inter alia, by a Social Science and Humanities Research Council fellowship, and her thesis, “The Impact of the Ontario Freedom of Information and Protection of Privacy Act, 1987 upon Affected Organizations,” won the 1992 American Society for Information Science Doctoral Dissertation Award. She teaches and writes in the areas of information law, intellectual property, information policy, information ownership and governance, and international protection of intellectual property. She has also done teaching, research, and writing in the areas of management, professionalism, and professional ethics.

Dr. Wilkinson is a full professor jointly appointed to the Faculty of Law and the Faculty of Information and Media Studies at the University of Western Ontario. She is Director of the Area of Concentration in Intellectual Property, Information, and Technology Law at the Faculty of Law. One aspect of her research includes employing empirical methodologies to look at the process of information policy-making. Another directly examines the legal responses which are shaping and have shaped information policy. These two elements, the empirical and the doctrinal, are currently combined in an initiative funded by the Social Science and Humanities Research Council of Canada in the Initiatives in the New Economy program. She has given many professional workshops in copyright to librarians and academics.

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PART TWO: BILL C-60: A CLOSER ANALYSIS: Chapter Thirteen

The Changing Landscape of Academic Libraries and Copyright Policy: Interlibrary Loans, Electronic-Reserves, and Distance Education

Samuel E. Trosow

This paper examines the changing nature of academic libraries in the digital era and the accompanying developments in copyright law and policy. Much recent attention has been paid to music file sharing on campuses across Canada, but there are other pressing copyright issues facing educational institutions and their libraries. Interlibrary loan, document delivery, electronic reserves, and distance education programs are all affected by current and proposed copyright legislation.

Widespread misunderstanding of the nature and scope of the Act's fair dealing provision, and its relationship to the special exceptions for libraries and educational institutions, has resulted in a confusing and contradictory set of amendments to the current Act. These proposals, contained in Bill C-60, suggest restrictive new policies for distance education, interlibrary loan, and electronic reserves that conflict with existing fair dealing rights and are counterproductive and stifling to academic research and study.

This paper traces the development of these issues through the current copyright reform consultation process, with reference to specific sections of Bill C-60 and the corresponding documentation from various Parliamentary and government reports.

About the Author:

Samuel E. Trosow is an Assistant Professor at the University of Western Ontario, holding a joint appointment with the Faculty of Law and the Faculty of Information & Media Studies (FIMS). In the law school, he has taught courses in intellectual property, advanced copyright, information law, and legal theory. At FIMS he has taught on information policy, legal issues for information professionals, legal information sources and services, international documents, and the political economy of information. His recent publications include “Sui Generis Database Legislation: A Critical Analysis” in the Yale Journal of Law & Technology, and “Copyright Protection for Federally Funded Research: Necessary Incentive or Double Subsidy?” in the Cardozo Arts and Entertainment Law Journal. Professor Trosow was the recipient of the 2004 Dissertation Award in the field of Library and Information Science from the Association for Library and Information Science Education for his Ph.D. dissertation entitled “Information for Society: Towards a Critical Theory of Intellectual Property Policy.” His doctoral work at UCLA focused on information policy issues. He is an active participant in the policy and advocacy work of several library and educational associations in the United States and Canada.

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PART TWO: BILL C-60: A CLOSER ANALYSIS: Chapter Fourteen

Lights, camera,… harmonize: Photography issues in copyright reform

Alex Cameron

This paper provides an exploration and analysis of photography issues in proposed amendments to the Copyright Act. Three areas are covered: authorship of photographs, term of protection of photographs, and ownership of commissioned photographs. The author suggests that, in the name of "harmonization," the proposed amendments fail to adequately address important issues of balance and consumer protection, particularly in relation to ownership of commissioned works. The author offers alternative solutions to address these issues.

About the Author:

Alex Cameron is currently pursuing a Doctor of Laws degree and teaching at the University of Ottawa, on leave from Fasken Martineau DuMoulin LLP, where he practices in a wide variety of areas including privacy, domain names, trade-marks, copyright, trade secrets, and confidential information. He has earned a B.A. and LL.B. from the University of British Columbia and an LL.M. from the University of Ottawa and is a member of the Bar of British Columbia.

Alex has regularly published papers and given presentations at conferences in many of his areas of practice and research. His current research and writing focuses on privacy, intellectual property, digital rights management technology, and Internet service providers. Alex has testified regarding copyright reform on behalf of the Canadian Internet Policy and Public Interest Clinic (CIPPIC) before committees of the House of Commons and the Senate. Most recently, Alex acted as co-counsel for the CIPPIC before the Federal Court and the Federal Court of Appeal in Canada’s first case regarding P2P file-sharing, privacy, ISPs, and copyright: BMG Canada Inc. v. John Doe.

Alex is an Associate at CIPPIC, a researcher on the On the Identity Trail project at the University of Ottawa, and a past guest-lecturer at the University of British Columbia. He can be reached at acameron@uottawa.ca.

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PART THREE: THE FUTURE OF CANADIAN COPYRIGHT REFORM: Chapter Fifteen

The Changing Face of Fair Dealing in Canadian Copyright Law: A Proposal for Legislative Reform

Carys Craig

The fair dealing defence has an integral role to play in furthering the purposes of copyright and maintaining the proper balance between the interests of owners and users of protected material. In Canada, it has never had the strength to fulfil this role. In CCH Canadian Ltd. v. Law Society of Upper Canada, the Supreme Court of Canada finally rejected the unduly restrictive construction of fair dealing that had characterized judicial consideration of the defence and acknowledged the centrality of fair dealing in copyright policy. The author argues that it is time for the legislature to follow suit.

The rigid confines of the Copyright Act’s fair dealing provisions continue to reflect a vision of fair dealing as a marginal exception that must be strictly construed and rarely enjoyed. This sits uneasily with the public policy balance expounded by the Supreme Court. These provisions should be replaced with an open-ended defence similar in form to the United States’ equivalent of “fair use.” Such statutory revision is necessary to cement the significance of CCH in the development of a robust fair dealing defence; it is therefore an essential step towards furthering the public purposes of the copyright system.

About the Author:

Carys Craig is an assistant professor of law at Osgoode Hall Law School where she teaches courses on copyright, trademarks, and international intellectual property. She obtained a First Class LL.B. Honours degree from the University of Edinburgh, during which spent one year on exchange at McGill University, and received an LL.M. from Queen’s University in Kingston, Ontario. She is currently completing her S.J.D. at the University of Toronto, where she has been a graduate fellow of the Centre for Innovation Law and Policy. Her doctoral thesis, Copyright, Communication & Culture: Re-imagining the Copyright Model, explores the underlying philosophical assumptions of Canada’s copyright system and the role that they play in shaping copyright doctrine.

She was the recipient of the David Watson Annual Memorial Award for her article “Locke, Labour, and Limiting the Author’s Right: A Warning Against a Lockean Approach to Copyright Law,” published in the Queen’s Law Journal. Her forthcoming publications include “The Evolution of Originality in Canadian Copyright Law: Authorship, Reward and the Public Interest” in the University of Ottawa Law & Technology Journal, and “Putting the Community in Communication: Dissolving the Conflict Between Freedom of Expression and Copyright Law” in the University of Toronto Law Journal.

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PART THREE: THE FUTURE OF CANADIAN COPYRIGHT REFORM: Chapter Sixteen

Taking User Rights Seriously

Abraham Drassinower

This paper provides an understanding of the centrality of the public domain in Canadian copyright jurisprudence. The paper develops this understanding along four distinct yet related axes. First, it discusses the role of the public domain in the very formation of the author’s right by way of the “originality” requirement. Second, it examines the role of the public domain in the limitation of the scope of the author’s right by way of the “fair dealing” defence. Third, it sketches the ways in which the concept of user rights catalyzes a deepening of our conception of the wrong at stake in copyright law – that is, of the mischief that the Copyright Act targets. This conception supports a view of the legitimacy of incidental reproductions in the course of Internet “browsing” as a user right. And fourth, by way of conclusion, the paper briefly describes a vision of the purpose of copyright law in which the centrality of user rights is absolutely non-negotiable.

About the Author:

Abraham Drassinower teaches property, intellectual property, legal theory, and political theory at the University of Toronto Faculty of Law. He is currently working on a book providing a rights-based account of the public domain in copyright law. His recent publications include “A Rights-Based View of the Idea/Expression Dichotomy in Copyright Law” (2003) 16 Can. J. L. & Jur. 1; “Sweat of the Brow, Creativity, and Authorship: On Originality in Canadian Copyright Law” (2004) 1 UOLTJ 105; “Notes on the Public Domain,” in Intellectual Property Law, Volume 15 Molengrafica Series, (forthcoming 2005), Intersentia Publishers, Antwerpen; and Freud’s Theory of Culture: Eros, Loss and Politics (Lanham, Maryland: Rowman & Littlefield, 2003).

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PART THREE: THE FUTURE OF CANADIAN COPYRIGHT REFORM: Chapter Seventeen

Coming to Terms with Copyright

David Lametti
About the Author:

David Lametti is an associate professor of law, and a member and past-Director of the Institute of Comparative Law. He was also a founding member of the Centre for Intellectual Property Policy at McGill. He teaches and writes in the areas of property, intellectual property, comparative law, and legal theory at McGill’s trans-systemic Faculty of Law. A graduate of the University of Toronto (B.A.), McGill (LL.B., B.C.L.), Yale (LL.M.), and Oxford (D.Phil), he was a clerk to Mr. Justice Peter Cory of the Supreme Court of Canada and is currently a member of the bars of Quebec and Ontario.

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PART THREE: THE FUTURE OF CANADIAN COPYRIGHT REFORM: Chapter Eighteen

Use of Copyright Content on the Internet: Considerations on Excludability and Collective Licensing

Daniel Gervais
About the Author:

Daniel J. Gervais, Ph.D., is the Vice-Dean (Research) and Oslers Professor of Technology and Intellectual Property Law at the Faculty of Law of the University of Ottawa (Common Law Section). Prior to his teaching career, Professor Gervais was successively Legal Officer at the GATT (now the World Trade Organization); Head of Section at the World Intellectual Property Organization (WIPO); and Vice-President, International, of Copyright Clearance Center, Inc. (CCC). He also served as consultant to the Organization for Economic Co-operation and Development (OECD) and to the Government of Canada. Dr. Gervais is the author of several articles, four books, and a number of book chapters on copyright law and management, and international intellectual property law, published in six different languages.

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PART THREE: THE FUTURE OF CANADIAN COPYRIGHT REFORM: Chapter Nineteen

Crown Copyright and Copyright Reform in Canada

Elizabeth F. Judge

This chapter seeks to call attention to Crown copyright, an area that is not included on the current copyright reform agenda but is slated for review as a “medium-term” issue. It recommends that Canada should engage in a comprehensive review of Crown copyright in the short term and suggests changes to the Crown copyright system. Crown copyright, or government copyright, refers generally to copyright in materials produced by the government. The tension with Crown copyright has been between, on the one hand, the acknowledged need to provide wide access to government information, particularly laws, in a free and democratic society and, on the other hand, the inclination to exercise government control over the printing of government materials. Canada’s conclusion thus far has been that Crown copyright must be retained in order to ensure accuracy and integrity of government materials. The exercise of Crown copyright is sometimes combined with permissive licensing to reproduce materials, as is the situation with federal law.

In support of the joint objective of review and reform, this chapter provides a summary of other jurisdictions’ approaches to government ownership of government-produced works. The chapter recommends that Crown copyright in Canada should not apply to public legal information because those works are produced with the obligation to make them available for the purposes of public access and notice of the law. Accuracy and integrity of those materials are important objectives, and copyright may have been an appropriate legal mechanism at one time to achieve those ends; however, other legal and technological mechanisms are better suited now to ensure accuracy and integrity, while at the same time facilitating the public’s access to those materials. The chapter also recommends that the royal prerogative should be eliminated so that the scope of Crown copyright is clearly ascertainable from the statutory provisions.

With respect to government-produced works other than public legal information, the article recommends that the Crown copyright statute should be re-drafted to clarify (and narrow) the category of works to which it applies and to specify reciprocal obligations by government to publish these materials in publicly-accessible formats and media using appropriate updated technologies. These recommendations comply with international copyright obligations and are consistent with other jurisdictions’ approaches and with movements to facilitate public access.

About the Author:

Elizabeth F. Judge, Ph.D., is an assistant professor at the University of Ottawa, Faculty of Law, Common Law Section, where she specializes in intellectual property and privacy law and is a member of the law and technology group. She holds a Bachelor of Arts from Brown University, a Juris Doctorate from Harvard Law School, a Master of Arts from the University of Toronto, and a Master of Laws and a Doctor of Philosophy in English Literature from Dalhousie University. She served as a law clerk to the Honourable Mr. Justice Ian Binnie at the Supreme Court of Canada. Professor Judge is co-author with Daniel Gervais of Intellectual Property: The Law in Canada and several publications on law and literature. She is Editor-in-Chief and Faculty Advisor for the University of Ottawa Law & Technology Journal and Associate Editor of the Canadian Patent Reporter. Professor Judge is a member of the Law Society of Upper Canada and is admitted to the Bars of the State of California and the District of Columbia.

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