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Canadian Association of Research Libraries
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Statement of Principles for the Management of Copyright in the Digital Environment

Table of Contents

Preface
Introduction
Principles

  1. Maintain the Existing Balance in Copyright Law
  2. Maintain an Equitable and Viable Economic Framework
  3. New Classes of Work are Unnecessary
  4. Keep Facts in the Public Domain
  5. Ensure a Robust Public Domain
  6. Royalty-free Access to Government Information
  7. Ensure Respect for Fundamental Rights
  8. Licensing Complements Copyright law
  9. Enforcement Measures Must be Carefully Crafted

Conclusion
Expressions of Support

Preface

This Statement of Principles has been developed by the Canadian Association of Research Libraries /Association des bibliothèques de recherche du Canada to further the debate on copyright law reform in Canada.

The Association is endeavouring to build consensus within the library and higher education communities on the critical need for Canadian intellectual property law to recognize and to reflect the following principles concerning the use of copyrighted works in the digital environment.

The Association expresses its thanks to the Committee on Libraries and Intellectual Property of the National Humanities Alliance (USA) for permission to draw upon the ideas and principles embodied in their document, Basic Principles for Managing Intellectual Property in the Digital Environment.

Introduction

Canadian economic and cultural interests

Copyright law which effectively balances and respects the needs of both the creator and the public interest in the free flow of information is essential to the economic and cultural well-being of Canada.

Phase II revision of the Copyright Act (Bill C-32) in 1997 restored in part the Canadian balance between the rights of owners of copyright works and the rights of access for the purposes of private study and research by those who create new intellectual property through the introduction of limited educational and library exceptions to our copyright law.

As the twin technologies of computing and telecommunications revolutionize the way in which knowledge and information is recorded, accessed, disseminated and stored, the modes of communication among scholars and researchers are changing rapidly. But just as these technologies can make possible the wide dissemination of copyright material that may violate the rights of the owner, so the technology can be used to prevent reasonable and necessary access to knowledge. Such access is essential to the generation of new knowledge. If access to information for research, teaching and study purposes is constrained, Canada's long-term economic and cultural growth will be hobbled.

Scholarly Communication

Communication among scholars is ubiquitous, and the advent of digital communication technologies has revolutionized the process. This process of sharing information is at the core of the mandate of institutions of learning and discovery, and is characterized by a cycle of knowledge consumption, maturation, and the articulation of new knowledge. This cycle operates on multiple levels, from communications among leading-edge scientists, through the teaching taking place in our schools, to the visits that our citizens make to their local libraries, archives and museums.

Copyright underpins the process of knowledge communication and generation. It assures reward for creativity, and protects the right of the creator to that reward. In the commercial setting, this reward is usually financial. In the not-for-profit, research environment, salaries and career advancement depend largely upon continued contributions to new knowledge. This regime lessens the need for scholars to receive direct payment from their copyrights. Indeed, it is the case that the publishing industry often requires academic creators to surrender the copyright in their works in order to have them published.

International Context

As a signatory to both the Treaty of Rome and the Berne Convention, and as a member of the World Intellectual Property Organization (WIPO), Canada must harmonize its domestic interests with its international obligations. In signing the WIPO Copyright Treaty and the Performances and Phonograms Treaty, Canada committed itself to the provisions of these international treaties that extend copyright and neighbouring rights protections to digital works. However, the Agreed Statement concerning the interpretation of Article 10 of the WIPO Copyright Treaty states:

 It is understood that the provisions of Article 10 permit Contracting Parties to carry forward and appropriately extend into the digital environment limitations and exceptions in their national laws which have been considered acceptable under the Berne Convention. 

This means that within certain prescribed conditions, Canada may legislate exceptions and limitations to the rights of the property owner in accordance with national policies and priorities.

Principles

1 Maintain the Existing Balance in Copyright Law

Copyright law must balance the ownership interests of creators and rights holders with the public interest that is served by ready access to copyright works for the purposes of private study, education, teaching and research.

Facilitation of the educational and research uses of recorded knowledge is essential to the development of Canada's intellectual and cultural identity. Libraries and educational institutions have long promoted respect for the value of intellectual property. Respect for copyright, the accurate acknowledgement and attribution of the work of others, a commitment to the preservation of the expression of ideas, the promotion of access to information and recognition of the need for a viable scholarly communication system are hallmarks of this commitment.

These ethics and principles embrace all media for the expression of knowledge. The Copyright Act provides a  Fair Dealing  exception (§29, §29.1, and §29.2). Further specific exceptions are provided appropriate to the print context. Notwithstanding the different modes and mechanisms used to store, distribute and use information in the digital environment, it is essential that legislation extend fair dealing and the current statutory exceptions from the print context to the digital environment, thus ensuring that the cycle of learning and contribution to knowledge is not compromised.

The Association of Universities and Colleges of Canada estimates that the total dynamic impact of university research amounts to more that $15 billion annually, and corresponds to more than 150,000 jobs in Canada's workforce. If the necessary balance in copyright law is tipped further away from the user, the research and educational functions so vital to Canada's future prosperity will be weakened.

2   Maintain an Equitable and Viable Economic Framework

The government's Information Highway Advisory Council (IHAC) identified three strategic objectives for the development of a strategy for building a Canadian Information Highway:

  • creating jobs through innovation and investment in Canada;
  • reinforcing Canadian sovereignty and cultural identity, and,
  • ensuring reasonable access [to the Information Highway] at reasonable cost.

The achievement of these objectives depends in large measure on vibrant educational systems, the encouragement of life-long learning, and productive basic and applied research. This is possible only through the gestation and use of information that is available in a convenient and affordable form. Libraries and educational institutions support effective means to ensure fair remuneration and adequate protection of the rights of creators from unauthorized use. However they oppose legislative measures that may lead to the suppression of competition, or would encourage de facto monopolies to prevent users from accessing or using information through oppressive pricing or marketing practices.

In the marketplace of ideas, an equitable and viable economic framework is not the only feature that must be maintained to encourage further creativity and new knowledge. The moral rights attaching to intellectual property are extremely important to both creators and users of information. Issues such as piracy, plagiarism, authentication, and the integrity of material to be archived are of great concern. In the digital environment, these issues assume increased importance.

3  New Classes of Work are Unnecessary

Copyright law should be technologically neutral with respect to the medium of materialization of a copyright work. The extension of copyright protection to new classes of work should be avoided. This principle agrees with IHAC Recommendation (6.2), which states:

 The current categories of works contained in the Copyright Act sufficiently identify works produced and used in a digital environment and should not be amended or eliminated. 

The same law should apply to copyright materials regardless of whether the format of the work is print, microform, audio-visual, multimedia, CD-ROM, computer file, or any other digital format.

4  Keep Facts in the Public Domain

Effective education is dependent upon the unfettered ability to examine and analyse facts. Facts and factual information are not capable of copyright protection under Canadian law. While the expression or the format of presentation of facts may qualify for copyright protection, facts themselves must remain in the public domain.

As noted by the Library Association (UK),  ...much information generated in the future is likely to be collected into a database and be controlled digitally. What was once a fact, not capable of copyright protection will become an item of data, and may be contained in a database---and hence potentially capable of protection under copyright. What was once a literary work in the public domain could be harvested by an enterprising publisher and given extended copyright life by becoming part of a multimedia product. Access to what was once government information---collected at public expense---might be severely restricted by placement of the information in a database .¹

The granting of sui generis rights to databases must be strongly resisted. The curtailment of statutory rights respecting copyright works, whether in digital or other form, would unbalance the legislation, and would limit access to information to those Canadians who could afford it. As a  net importer  of information, Canada will continue to need statutory rights of access to the cultural products and research activities of other countries, in whatever format they are made available.

5  Ensure a Robust Public Domain

A robust public domain of information is an essential foundation for an informed and participatory society. The present developments in some jurisdictions extending the term of copyright beyond the life of the author plus fifty years---which may provide the creator with more than a hundred years of protection---grant property rights far beyond those which are necessary to reward creativity and investment, and have the pernicious effect of weakening the public domain. Furthermore, the rapid pace of technological change and the corresponding rate of technological obsolescence pose a serious risk to the long-term preservation of information. The digital format in which a work is first fixed is far more likely to become obsolete before the copyright expires. Until the development of a permanent preservation medium that will ensure that all aspects of the information continue to be readable and accessible, significant resources will have to be found for the systematic and repeated migration of information to current technology platforms in order to ensure the preservation of knowledge for access by future generations.

6  Royalty-free Access to Government Information

The federal Cabinet's decision to permit the reproduction without charge or permission of  enactments and consolidations of enactments of the Government of Canada... ² was a welcome development to increase access to federal legal materials in a fully democratic society. This action is a small step towards liberating information created or assembled at public expense to facilitate access by all Canadians. Correspondingly improved access to other federal and court materials and to provincial and territorial legislative and court materials and publications is needed.

Crown copyright should be maintained, but federal government information and data should be placed in the public domain to the fullest extent possible; material to which the Crown holds copyright should be available on a royalty-free basis, for the purpose of private study, education, teaching and research. This principle reflects the recommendation (6.7) made by IHAC:

That

 Crown copyright should be maintained;

The Crown in Right of Canada should, as a rule, place federal government information in the public domain, and,

Where Crown copyright is asserted for generating revenue, licensing should be based on the principles of non-exclusivity, and the recovery of no more than the marginal costs incurred in the reproduction of the information or data. 

7  Ensure Respect for Fundamental Rights

The Canadian Charter of Rights and Freedoms guarantees freedom of thought, belief, opinion and expression, and association to every Canadian. Academic freedom is the cornerstone of the university, and a prerequisite for productive research. Public policy which obstructs free and full discussion in the universe of ideas vitally threatens the integrity of the University, and cannot be tolerated.

The issue of privacy must be upheld in the exercise of fundamental rights. Individuals are presently free to consult print materials without hindrance and without any record of that consultation. Legislation dealing with access to digital information must give special attention to the need to provide for similar anonymity. However, the excessive and inappropriate use of  privacy  as a reason to deny access to materials in libraries and archives must be resisted, and clearly distinguished from the proper anonymity of the consultation itself.

8  Licensing Complements Copyright law

As authorized under the Copyright Act, many libraries and educational institutions have signed licences with collective societies to allow for the copying of printed copyright works not covered by fair dealing or statutory exceptions. Such contractual and other licensing arrangements complement but can neither replace nor achieve the public policy objectives of copyright law. The principles of access to information should be clearly articulated within the legislation, and legislated rights should not be conditional upon any kind of licensing arrangement.

9   Enforcement Measures Must be Carefully Crafted

While legislation must provide appropriate sanctions against acts of piracy and infringement, caution must be used to ensure that the legitimate preservation and archival functions carried out by Canadian public institutions are not compromised. Decryption and similar access technologies will be needed to ensure access to works under fair dealing, or under the provision of statutory exceptions, for archival purposes, or to provide access in the public domain following the expiration of the term of copyright. Penalties for the possession or use of such technology should be limited to activities undertaken to violate or defeat the law.

Legislated liability for copyright infringement should rest with the infringing individual, or party. Based on this principle, Internet Service Providers, including educational institutions and libraries, should not be required to act as censors and should be exempted from liability for copyright infringements by their patrons, staff, teachers or students acting on their own initiative, even though they might be using institutional or common carrier facilities, such ans Internet network connections.

Canadian research libraries have been at the forefront of educating the higher education community in the rights and responsibilities that are embodied in copyright law. University researchers are well aware of their roles as both owners and users of copyright material. Institutional policies and practices should reflect this respect for intellectual property, and continued education will strengthen the copyright regime in Canada.

Conclusion

The Canadian Association of Research Libraries /Association des bibliothèques de recherche du Canada anticipates the next phase of copyright law reform in Canada with the clear conviction that in the interests of the full and productive participation of all Canadians in the information society, the legal environment must properly balance between the individual rights of creators and copyright owners with the collective interest of all the citizens of Canada.

Expressions of Support

Expressions of support for this Statement have been received from the following:

Addendum

¹ Library Association (UK).  UK copyright Rights in Databases Implementation (September, 1997)
(Return to document)

² Registration SI/97 (January 8, 1997).   Canada Gazette (II) 131:1 (Return to document)

CARL/ABRC Committee on Copyright

Richard H. Ellis   Frances Groen   Timothy Mark    Frank Winter

Graham R. Hill, Chair

Tel: 613/562-5800 ext. 3652  Internet: carl@uottawa.ca

2000-01-01 : 4.1

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