The Copyright Act of Canada came into force in 1924. A major revision to The Act (commonly referred to as Phase I of copyright reform) was passed in 1988. This legislation addressed creator concerns, primarily through the creation of collectives, for reprography licensing. At the time of writing in early 1997, the Phase II amendments to The Act are being considered by the House of Commons. This long promised piece of legislation was to address consumer interests. The chaos (to use the Financial Posts term) surrounding the latest round of copyright legislation underlines both the complexity of the legislation and its loss of legal credibility resulting from the bundling of disparate issues under the heading of copyright, with no bearing upon two centuries historical judicial practices.1. To further complicate matters, the Phase II amendments fail to address issues arising from copyright in a digital environment, meaning that uncertainties relating to the dissemination of copyrighted works via the Internet remain unresolved. Canadian legislators, and by extension Canadian citizens, may have lost the ability to develop a consistent, consensual approach to copyright and the Internet, since international treaties are being developed which may constrain the individuals rights to on-line access to data and creative works.
Following Phase I amendments to The Act, a copyright collective, Cancopy, was formed to act on behalf of Canadian English language copyright owners to license the right to copy protected works. LUNEQ (LUnion des crivaines et crivains qubois) is the collective which licenses French language Canadian works. Cancopy has negotiated licenses in the education, government, library and corporate sectors which permit the signatories to photocopy works in return for payment. With the exception of the Federal Government agreement, license fees are set by use of a proxy and are not directly linked to photocopying activity. The education sector licenses levy charges based on full-time student population. A portion of license fees collected by Cancopy are distributed to its members of authors, publishers and distributors. Cancopy licenses set out precise limits on copying published works, including up to 10% of a work, an entire chapter which is no more than 20% of a book, and an entire article from a periodical issue. At the time of writing Cancopy is finalizing negotiations of a model agreement for public library licensing.
The main objective of copyright legislation is to benefit authors by insuring that they have control over the use of their creative work. The law also acknowledges that authors, and society at large, benefit from the free flow of ideas and, therefore, introduces balance to the authors rights through exceptions such as permitting a portion of work to be copied without the permission of the author.
The most important exception is fair dealing, which permits a portion of a work to be copied for the purpose of research or private study, criticism, review, news reporting or news summary. Fair Dealing has not been clearly delineated either by legislation or case law. While there is no precise definition of fair dealing in legislation, Phase II amendments to the Copyright Act provide an oblique indication of how fair dealing might be interpreted in the courts, by precisely defining what a library archive or museum (hereafter referred to as library) may do for a person laying claim to the fair dealing defense. The assumption is that it makes no sense for the law to permit a library to do a specific thing for a person which the person could not do for him or herself. Indeed, it would appear that the amendments have been drafted to place constraints on a library acting on behalf of a person which would not apply to the person acting on his or her own behalf. Phase II amendments state that a copy may be made by a library of an article for an individual for the purpose of research or private study:
The only issue, which appears to have been resolved here, is that the legislators have accepted the argument that a periodical or newspaper article is not a whole work (the magazine or newspaper issue is the whole work) and, therefore, may be copied under fair dealing.
With this one example to draw on, is it little wonder that a Quebec Superior Court Judge stated that The Act appears to be difficult to decipher.2. Indeed this statement is optimistic. The author of the annotated statute more realistically acknowledges the most recent changes to the legislation are only accessible to the experts.3.
One of the most controversial concepts in Phase II amendments to The Act is neighbouring rights which has nothing to do with geography, but rather refers to the rights of other creators, involved in the production of non- print media. Neighbouring rights means that, in the case of recorded music, the musicians and the company which issued the product, would also receive licensing revenue for radio air play along with the composer and lyricist who are currently compensated.
In the case of film and CD-ROM, there can be multiple copyright owners involved in the same product. This can make licensing for certain uses of these media extremely complex. To cite one example, the studio owning the rights to the film The Last Picture Show had to negotiate separate agreements with the copyright owners of the 28 songs used in the film prior to being able to issue it on video.
An especially contentious issue at present is the refusal of many of the major on-line providers of newspaper and periodical texts to pay royalties to freelance journalists who have not authorized this secondary use of their work.
The distribution of copyrighted text, image and sound via the Internet raises issues which are more complex than those which arise through their traditional methods of dissemination. Does the temporary downloading of a text displayed on a computer screen constitute making a copy? If the answer is yes, the concept of browsing, as it exists in the print on paper world, may be jeopardized, and vast quantities of written work may only be available for consultation on a pay per use basis. On the other hand, how can copyright owners control distribution of their text in a digital environment when users can easily make and distribute an unlimited number of perfect copies? Creators and disseminators have adopted the position that it is inappropriate to use the same rules for fair dealing in the digital environment as applied to print publishing. The Internet is a global medium, and copyright law is territorial, with significant differences in law even between countries which share common legal practice. The challenge is to establish international protocols which encourage copyright owners to make their work available in digital form in a manner which does not undermine the basic principles, such as fair dealing as they exist in present copyright law. The tension created between international treaties and national law will intensify as organizations, such as the World Intellectual Property Organization (WIPO) aggressively push for ratification of restrictive regulations which are biased toward creator/distributor interests at the expense of the free flow of information.