Archive for November, 2012

New Copyright Act Now in Effect

Tuesday, November 13, 2012

Find the Okanagan College Copyright – Fair Dealing Policy here.

On November 7, 2012,  the Copyright Modernization Act brought updates to Canada’s current copyright laws.  This new legislation brings changes to the Copyright Act that are broad and far reaching for educational institutions, faculty, staff and students. Bill C-11, the Canadian Modernization Act (CMA), broadens the scope of the fair dealing exception to specifically include education, in addition to research, private study, criticism and review. All CMA provisions are now law, except for those relating to the WIPO Digital Copyright Treaties, WCT and WPPT, and the Internet service provider notice-and-notice provisions.

Dr. Michael Geist, Canada Research Chair in Internet and E-commerce law based at the University of Ottawa, has written extensively on the implications of the act. “This will have a significant positive impact on educators’ ability to use copyright material in their teaching,” said Okanagan College Library Services Director and Copyright Officer Ross Tyner.

This federal Act updates Canada’s Copyright Act for the first time since 1998.  Bill C-11 also significantly expands the educational exceptions available to Okanagan College. Significantly, it considers for the first time the copying and use of digital materials, adds education as one of the purposes for which the fair dealing exception may be applied, and expands other educational exceptions available to students and employees of Okanagan College.

Expanded educational exceptions and specific changes include:

  • an educational institution or a person acting under its authority for the purposes of education or training on its premises may reproduce a work, or do any other necessary act, in order to display it
  • an educational institution or a person acting under its authority for the purposes of education or training on its premises may reproduce, communicate by telecommunication and perform for students, works that are available on the Internet, subject to various conditions (i.e. an educator may reproduce, communicate by telecommunication and perform for students, legitimately posted works that are available through the Internet)
  • An educational institution or a person acting under its authority for the purposes of education or training may communicate lessons (including tests or exams) via telecommunication and distance learning to students enrolled in the course and record such lessons. The student can also make a copy of such telecommunicated lesson to be viewed or listened to at a later time
  • exceptions for consumers for time-shifting, format-shifting and the making of backup copies (libraries, archives and museums may digitize and make a copy of a work in its permanent collection, in alternate format if the original format is obsolete or if there is danger of the original format becoming obsolete)
  • electronic desktop delivery of library materials to its patrons (for interlibrary loan purposes) will be permitted under certain circumstances (i.e. provide interlibrary loans in a digital form)
  • fair dealing has three additional purposes – education, parody and satire. These are in addition to the current purposes for which fair dealing exceptions may be applied (research, private study, criticism, review and news reporting)
  • an educator may perform a film or other cinematographic work in the classroom, as long as such work is not an infringing copy and was legally obtained
  • a provision to protect individuals who create non-commercial user generated content
  • photographers will be the first owner of copyright in their photographs even in the case of commissioned photographs
  •  prohibitions on the removal or tampering of digital rights management on content
  • prohibitions on the removal or tampering of copyright information (also called rights management information)
  • non-commercial infringers will be subject to lower statutory damages in an infringement lawsuit
  • See below for further summary of changes

What has changed for the College?

  • The copying and use of digital learning materials are now included in both the Copyright Act and the College’s agreement with Access Copyright (previously, only print materials were covered). As a result, it is now permissible to upload copyright materials to Moodle, under certain circumstances (To check if documents or articles from a library database are permissible click on the title of the database in the Library’s electronic resource listing).
  • The showing of a video in class is now permitted by the Copyright Act, without the need to negotiate public performance rights, as long as the copy of the video has been legally obtained.
  • Education is now recognized as one of the purposes for which the fair dealing exception may be applied. This addition makes it much more likely than in the past that educational use of copyright resources will be allowed without seeking explicit permission from the copyright holder.
  • The primary benefit of the Access Copyright license will be for the creation of printed course packs.

What has not changed for the College?

  • Copyright still applies, to both print and digital materials. Any use of copyright material that goes beyond what is permitted by the Copyright Act or the Access Copyright agreement still requires the permission of the copyright holder.
  • Both the fair dealing exception in the Copyright Act and the Access Copyright license include limits to the nature and amount of copying that can be done. For more information about these limits, see the detailed description of changes.
  • Course packs are still handled by the Bookstore

Access Copyright License

As of August 1, and until at least the end of 2015, Okanagan College is party to a license with Access Copyright – a voluntary collective of publishers and other copyright holders – that permits the use of copyright materials by students and employees of the College, according to prescribed guidelines. For the first time, the license includes rights to use digital, as well as print, materials.

  • Copying done under the Access Copyright license must fall within prescribed guidelines.
  • Access Copyright’s repertoire is now defined by a look-up tool, rather than by the previous exclusions list
  • Digital files must be uploaded to a secure server, not to the public Internet (such as Moodle).
  • Most day-to-day copying will now be considered fair dealing, and the Access Copyright license’s primary benefit will be for the creation of printed course packs. Please refer questions about course packs to the College Bookstore.

Supreme Court of Canada decision

In July, the Supreme Court of Canada ruled on five copyright-related cases, including one that is of particular importance to education.

In a nutshell, the decision affirms that the copying of short excerpts of copyright material by teachers for their students may be considered fair dealing, even under the current Copyright Act, which does not explicitly include education as one of the purposes for which fair dealing may apply. The Court did not define “short excerpt” but the Association of Canadian Community Colleges (ACCC) has substantially revised its fair dealing policy and guidelines as a consequence of the decision.

Further Information

For more information, refer to the Library’s Copyright FAQ, which has been updated to reflect the changes described above, or email Ross Tyner, Okanagan College’s Director of Library Services and Copyright Officer. He can also be reached at Local 4665.

Summary of Changes (Courtesy of UBC)

(a) Fair Dealing Exception

The fair dealing exception includes three new purposes: education, parody or satire. This expands the existing exceptions: research and private study, criticism, review and news reporting. Copying under the fair dealing exception may still be restricted by the College’s Access Copyright License.

Copies of works may be made for backup purposes, in cases where the legally obtained source copy is lost, damaged or otherwise rendered unusable. This exception does not apply to works protected by “digital locks” (see discussion below), and the backup copy may not be given away.

(b) Expanded Educational Exceptions

(i) An educational institution or a person acting under its authority, for education or training purposes on its premises, can:

  • reproduce a work, or do any other necessary act, in order to display it (unless the work is commercially available in the Canadian market within a reasonable time and for a reasonable price and may be located with reasonable effort, in a medium that is appropriate for education or training purposes);
  • perform a film or other cinematographic work in the classroom, as long as such work is not an infringing copy and was legally obtained; and
    • reproduce, communicate by telecommunication and perform for students, legitimately posted works that are available through the Internet, provided that the source and author are attributed, unless:
    • the works are protected by “digital locks”;
    • a clearly visible notice (and not merely the copyright symbol alone) prohibiting such act is posted on the website or on the work itself; or
    • the educational institution knows or should have known that the works are available on the Internet in violation of the copyright owner’s rights.

(ii) Educational institutions using news and commentary under the educational exception do not have to pay royalties, destroy copies of news or commentary programs after one year, or keep records of the copies made of news or commentary programs.

(c) Lessons by Telecommunications

An educational institution or a person acting under its authority for the purposes of education or training may communicate lessons (including tests or exams) via telecommunication and distance learning to students enrolled in the course and record such lessons. The student can also make a copy of such telecommunicated lesson to be viewed or listened to at a later time, provided that:

  • the student and the institution must destroy the recording or copy within 30 days after receipt by students of their final course evaluations;
  • the institution must take measures (e.g. installing digital locks) to limit the audience to students only, and to protect the lesson itself
  • It is important to note that the recordings cannot be sold or distributed widely (beyond the audience of students enrolled in the class).

(d) Expanded Exceptions for Libraries, Archives and Museums

Libraries, archives and museums are able to:

  • make a copy of a work in its permanent collection in an alternative format if the original is in a format that is obsolete or the technology required to use the original is unavailable or is becoming unavailable.
  • distribute materials digitally; provided that they take measures to ensure that the patron print one copy only of the digital form, does not communicate the copy to another person and does not use the digital copy for more than 5 business days of first using it. There is a similar allowance for unpublished works deposited in archives.

(e) Reduced Statutory Damages for Non-Commercial Infringements

Statutory damages for copyright infringements with non-commercial purposes have been reduced from the current $500 to $20,000 per work infringed, to $100 to $5,000 for all infringements in a single proceeding for all works (not for each work infringed). The current range continues to apply to cases of infringement for commercial purposes only.

(f) Digital Locks

“Technological protection measure” (also known as “digital locks”) are defined under two categories:

  • any effective technology, device or component that controls access to a work (“access control”), and
  • any effective technology, device or component that restricts one from exercising the exclusive rights of a copyright owner or remuneration rights, i.e. that control the reproduction or copying of a work (“copying control”).

Bill C-11 prohibits the circumvention of any access control installed on a work, performer’s performance fixed in a sound recording or a sound recording, even if the work subject to the digital lock is legally acquired.

The digital lock prohibitions in the Act could potentially “trump” or prevail over various exceptions in the Copyright Act, e.g. the fair dealing or educational exceptions.

(g) Internet Service Provider Liability

Providers of Internet or network services are not liable for copyright infringement, to the extent that they are only acting as intermediaries with respect to communication, caching, hosting activities. This does not apply if:

  • it is the provider (via the Internet or other digital network) of a service that a person knows or should have known is designed primarily to enable acts of copyright infringement, if actual infringement results (intended to target illegal peer to peer file – sharing or music sharing sites); or
  • if a web host knows from a court decision that the stored material infringes copyright.

2. Other Changes

(a) New Exclusive Rights

The following new exclusive rights have been added for the benefit of copyright owners:

  • A copyright owner now has explicit “first distribution rights”, i.e. for a tangible work, the exclusive rights to sell or otherwise transfer ownership of the work, as long as that ownership has never previously been transferred in or outside Canada, with the authorization of the copyright owner. This extends to performers and makers of sound recordings, in the case of first sale or distribution of a tangible CD or DVD.
  • performers and makers of sound recordings also have the exclusive right to control the online transmission of sound recordings, i.e. to make a sound recording available to the public over the Internet in a way that allows a member of the public to have access to such sound recording from a place and time individually chosen by the member of the public.

(b) New Personal Use / Fair Dealing Exceptions

(i) Non-commercial User-generated Content (also known as the ‘mash-up exception’)

Section 29.21 creates a new exception for content generated by non-commercial uses to allow a consumer the right to use, for non-commercial purposes, a published work to create a new work. This exception is subject to conditions (e.g. identification of the source and author, legality of the original work or the copy used, absence of a substantial adverse effect on the exploitation of the original work). For example, a consumer could splice scenes from videos and movie trailers to create a fan-made trailer or video.

(ii) Reproduction for Private Purpose (aka the “format-shifting exception”)

Section 29.22 allows a consumer the right to reproduce, for a private purpose, any work or protected subject matter if the source copy was legally obtained (but not onto an “audio-recording medium”). For example, a consumer could copy a song purchased from iTunes from his or her computer to his or her iPod.

This exception does not apply to the copy of a musical work made onto an “audio recording medium” as defined in section 79 of the Act or to works protected by digital locks. Section 79 defines “audio recording medium as a recording medium, regardless of its material form, onto which a sound recording may be reproduced and that is of a kind ordinarily used by individual consumers for that purpose, excluding any prescribed kind of recording medium.” Therefore, Bill C-11 does not allow reproductions for private use on CD-Rs and Mini-Discs.

(iii) Fixing Signals and Recording Programs for Later Listening or viewing (aka the “time-shifting exception”)

Section 29.23 allows an individual to make a fixation of a communication signal or reproduce a work, sound recording or performance being broadcast for the purpose of privately viewing the work at a later time, provided that the signal is received legally, only one recording is made, it is used for private purposes, and is not given away. For example, an individual would record a show on his or her PVR to watch at a later time. This exception does not apply to works or sound recordings accessed through an on-demand service, or to works protected by digital locks.

(c) New Computer Program Exceptions

There are some new exceptions to copyright infringement for developing interoperable computer programs, encryption research, security testing and technological processes. These are aimed at the software industry to allow software reproduction for compatibility issues, software testing, security flaws and other uses common in the industry.

3. Sections of C-11 not yet in force

A limited number of provisions of C-11 are not yet in force, most of which relate to reciprocity of copyright protection in World Intellectual Property Organization (WIPO) treaty countries, which will not come into force until each of the WIPO Copyright Treaty and WIPO Performances and Phonograms Treaty come into force in Canada.

The “notice and notice” system described below for internet service providers will also not be brought into force, likely until the regulations referenced in those sections are drafted.

Once these provisions of C-11 are in force, a “notice-and-notice” system will be established to clarify the role of network or internet service providers (ISPs) and information location tools (search engines) in preventing copyright infringement, by requiring them to inform suspected copyright infringers of a copyright owner’s desire to enforce the owner’s rights.

A copyright holder would send notification to the ISP or search engine in a prescribed format identifying an electronic location to which a claimed infringement relates.
The ISP would forward this notification to the subscriber (person at the electronic location).
The ISP or search engine must store the subscriber’s IP information for 6 months, or a year if a court action results from the infringement.
The ISP may be liable to statutory damages of $5,000 to $10,000 if it fails to comply with these provisions.

Courtesy of University of British Columbia


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