FIGHT FOR COPYRIGHTS

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By Terence Schonberger

The battle of the millennium is raging right now. You won’t know about it though because it’s top secret – happening behind closed doors in our nation’s capital.

But instead of debating same-sex marriage and missile defense policy, these members of parliament are rolling up their sleeves to get really down and dirty.

They’re talking copyright law. It’s top secret because there’s a lot at stake. Teaching federations are fighting against legislators, internet creators, and licensing collectives who want to impose fees to access content on the internet for classroom use. But before your eyes glaze over, consider this: if a series of new licensing fees are brought into play to access on-line photos, articles, audio and video clips, it could limit students’ access to content.

And these changes could cost the 900,000 post-secondary students across Canada $79 million – almost $100 per student. The future of education will be digitally based on the internet.

The majority of Canadian students have access to a computer and many will rely on the internet for information more frequently. So, this is a time to be very careful in the formulation of policy and copyright changes. As Ryerson university looks to the future, we welcome president Sheldon Levy, who begins his term in the fall.

He is an outspoken advocate for freedom of information and feels anything that counters students’ access is harmful to the learning process. “To deny access to the web is to deny education, to deny communication,” he says. “I think students should have unlimited free access. If a student can’t google something, what is that saying?

The web is a way of learning and to put up any type of barrier is a problem.” For students, the net provides a feast of free knowledge, a valuable research source. For educators, it is a crucial demonstration tool that substitutes for the lack of texts in classrooms. But for website creators, free access to information poses two dilemmas:

First, with evolving ways to manipulate net content, the integrity of work is threatened and creators may lose control over their work to digital copying. There are no watchdogs effectively regulating the exchange without compromising user privacy. The government has no control and sites such as turnitin.com barely deter students from pirating information.

Secondly, without economic compensation for their efforts, the incentive for web creators to create and share information decreases. Where is new thinking going to come from? Many believe the innovators will inevitably disappear.

It’s a tricky situation because Canadian students and educators have accessed internet content for free for so long, and they view free access to information as an expectation, a moral right. But business is business and some site owners, or rights holders as they are called by collective licensing organizations, recognize there is a market in the electronic environment.

So is it time for users to “show owners the money?”

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The last time anyone tinkered with copyright laws was in 1998 and it took over five years to get done. Much of the Canadian digital content on the internet, be it photographs or print media, is not protected by copyright in the same way as textbooks. So property on the net without password or forced method of payment has been treated as free for all. Enter the tap dancers.

When Paul Martin was elected, he promised to satisfy a 1996 treaty with the 75 World Intellectual Property Organizations (WIPO/WPPT) that aim to reduce pirating and pay site owners for their work.

The government snapped into action in May 2004 with an interim report issued by the standing committee on Canadian heritage. Committee chair and MP Sarmite Bulte, is now walking a thin line because she knows Canada is lagging behind the other 53 countries that have already succeeded in protecting intellectual property.

“We ratified the WIPO treaty but, no, it hasn’t been implemented yet… we don’t protect copy rights as it applies to the digital medium,” Bulte says. Well, at least they’re trying. In the 2004 report, the committee made a recommendation for use of internet material for educational purposes.

The proposal tried to meet site owners and educators half way. If owners want to post content for free, they have that right and therefore it becomes publicly available – no passwords, no subscriptions, no permission, no fees required for students and teachers. However, the committee recognized the 100,000 authors had the right to be appropriately compensated if they want.

The kicker is that the “fair dealing” exemption in the current copyright law – which exempts users from paying a licensing fee if net use is for research, private study, criticism and news reporting – does not include the educational sector.

So, if fees were to be introduced, schools would have to pay. A licensing fee could shape up three ways: With a “voluntary licensing” system, website creators and users interact directly to exchange money for services.

“Extended licensing” allows a collective to own a repertoire or database of web pages. It then divides the fees to authors, but authors could opt out if they want.”Compulsory licensing” forces owners to cede the rights to their sites to a collective as per statute legislation, but they would still get paid.

The report recommended an extended licensing agreement because authors could still sell services on their sites independently while being looked after by the collecting body. “Schools pay for desks and chairs and books and heating. Why shouldn’t they also pay for copyright?” Bulte asks. “They want something for nothing. What about our creators?” Schools have also spent millions of dollars on IT hardware for classrooms but are not willing to pay for internet content. Maureen Cavan, executive director of Access Copyright, works closely with Bulte on the project.

She agrees that a licensing fee would be beneficial to creators but also to students and teachers who spend more than their share on photocopying and book costs. “Look at it this way. It will cost less than a latte for the entire year for each student,” Cavan says. “And students will be able to take advantage of all the licensed and free sites, without having to worry whether or not it’s copyright.”

In other words, the user doesn’t need to go to millions of rights holders for permission each time they access. Authors in the print world already make profits through licensing at $2.30 per student per year in K-12, and $3.30 for post-secondary students.

Lawyer Roanie Levy says creators in the internet realm should also receive reasonable and fair compensation and claims Access Copyright would only raise the fee for post-secondary students to $4.10.

“I can tell you, the number will never break the bank,” Levy says. “They’re trying to get rights holders to subsidize education just because it’s education. In Quebec, there is a respect for the creator. You use someone else’s work, you pay for it. I don’t know why they’re making a big deal of it. It truly baffles me because (the amount) is ridiculously low.”

Still, the Canadian teaching sectors banded together and collectively told MPs Levy’s figure was an underestimated fee they did not want students and teachers to have to regretfully pay for later. “What the hell kind of business plan is that?” says Bob Schad, Chair of the digital copyright committee the council of ministers of education Canada (CMEC).

“That’s not the way the internet works. It’ll hurt students and disenfranchise them economically. It means we’ll have to cut down on the internet in schools. So, only kids with computers at home have the internet. And who does it hurt? The poor kids.”

Wanda Noel, lawyer for CMEC, explains why: school boards would not only pay one collective group but several licensing contracts for access to digital and analog music, images, and print media. It could cost the 900,000 full-time post-secondary students $93.98 each more in levies for an estimated total of $79 million.

If only three per cent of internet content is Canadian, collectives are sure to be the ones to benefit from an extended licensing model.

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In September 2004, a news release was made available to the public by six of Canada’s education sectors. All are fundamentally opposed (except Quebec representatives) because the proposed changes would represent a step backward for the education system.

The Association of Canadian Community Colleges (ACCC), the Association of Universities and Colleges of Canada (AUCC), the Canadian Association of University Teachers (CAUT), the Canadian Teachers’ Federation (CTF), the Canadian School Boards Association (CSBA), and CMEC became a powerful opposition to site owners and collective licensing agencies, such as Access Copyright.

The fighters in this contest are urging the federal government to choose a more balanced approach when making reforms to the copyright law, which could accommodate site owners, students and teachers and uphold the sanctity of the learning process. Chris George, CGA Communications consultant, is an outspoken voice for CMEC.

He’s pushing the message that the standing proposal could be potentially very detrimental to learning institutions.

“We put material on the internet with no expectation of payment,” George says. “Students won’t be able to pay, and essentially, we’ll be pulling the plug on the internet.” Sheldon Levy agrees. “You don’t have any assurance on the long term price,” he says. “The web is a way of learning and to put up any type of barriers is a problem.”

George also questions the relevance of the amendment in a Canadian context. Less than three per cent of the content on the internet is Canadian. And he says based on polls conducted by his firm, less than ten per cent of Canadian authors would even want to claim royalties from people accessing their work.

“I don’t know how much would flow back to the rights holders,” says Steve Wills, lawyer for AUCC. “There may be significant markup by the Canadian distributors and the money flows out of Canada.”

So, just as they did with Napster five years ago, students could find another way to access the material, possibly illegally. Cavan counters that there is nothing stopping students from stealing material from the internet except the law, which as it stands is not enforceable. “It gets done, so people assume it’s a right,” Cavan says. “But in music, you see people starting to pay. Why? Because there is an ease of access to good quality content at a reasonable affordable price.”

Noel disagrees with Cavan. “It’s such backward logic. In order to get something free, you have to buy something you don’t want first. To get water, you have to buy champagne.” There is one point both sides can agree on: we need a made for Canada solution. And the solution will be about striking the right balance between creators and users.

In the United States there is a fair dealing clause in the copyright act and an additional teaching act that allows students and teachers to access online materials in the classroom without being subject to a fee.

If such a model is to be followed, legislators must agree that the need to provide students with quality education resources via the internet, overcompensates the need to generate profit through selling off the internet.

In the United Kingdom, a voluntary system is used for digital print and in other parts of Europe a tariff is set for the use of photos. Australia is operating under a statutory licensing user fee. Both users and site owners are unsatisfied with the arrangement because it is too restrictive a model. It’s like a cartel holding a monopoly over information.

Generally, officials have been working in a vacuum on this issue. There was never a referendum put out to students, and the proposal was secretly crafted in Ottawa. When copyright laws are talked about, eyes roll and people tend to look past a potentially bad situation. And students won’t understand the implications of the decision until it’s too late – when the government puts another hand in students’ pockets. It’s a tricky situation so no wonder everyone is afraid to say anything.

But bureaucrats are running out of time. The Spring deadline is rapidly approaching and the government is facing immense pressure from museums, archivists, researchers, librarians, independent schools and organizations training people for trades. Sources in Ottawa now say the bill to amend Canada’s copyright act – which addresses other copyright issues – may be presented without the internet education clause and stayed to a later date.

Meanwhile, back in Ottawa, the battle over the future of education rumbles on.

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