What the Copyright Modernization Act Means for Historians

Last week the federal government tabled its long anticipated copyright reform legislation for first reading in the House of Commons. The Copyright Modernization Act or Bill C-32 attempts to overhaul many of the out-dated provisions of Canada’s copyright law that have fallen far behind major technological changes of the last thirty years. For instance, under the proposed legislation, it would now be legal for Canadians to rip a CD to an iPod. Unfortunately, as we give a sarcastic slow-clap for this long overdue “reform” to legalize what has been common (and soon to be obsolete) consumer behaviour for nearly a generation, the canonization of digital locks overrides all of the new fair dealing rights in the bill. And this may be a huge problem for history researchers and educators.

The summary statement for the proposed legislation ambitiously states that one of the eight major reforms will be to “allow educators and students to make greater use of copyright material.” It delivers on this point in some very positive ways, particularly in section 29: “Fair dealing for the purpose of research, private study, education, parody or satire does not infringe copyright.” Educators are specifically protected under section 29.4(1) which stipulates that “It is not an infringement of copyright for an educational institution or a person acting under its authority for the purposes of education or training on its premises to reproduce a work, or do any other necessary act, in order to display it.” There are even provisions to protect the use of copyright-protected content for online distance education. However, the online instructor must “destroy any fixation of the lesson within 30 days after the day on which the students who are enrolled in the course to which the lesson relates have received their final course evaluations.”

Researchers, librarians, and archivists can breathe a little easier whenever they operate a photocopier or digital camera thanks to a number of amendments in Bill C-32. Libraries and archives may now make copies of copyright-protected materials for researchers “to be used solely for research or private study and that any use of the copy for a purpose other than research or private study may require the authorization of the copyright owner of the work in question.” This seems obvious and should have been part of a more flexible definition of fair dealing, but for history researchers it is welcomed (if a compromise).

All of these new rights and provisions for educators and researchers, of course, are undone by a single line in the proposed legislation regarding technological protection measures and rights management information under section 41 of the bill: “No person shall circumvent a technological protection measure.” If any of the material needed for research, study, or teaching is protected by a so-called digital lock, it is illegal to copy that material. Like the US Digital Millennium Copyright Act, Canada’s Copyright Modernization Act obliterates all of the liberal reforms that Canadians asked for during last summer’s copyright consultations. At best, this is a careless oversight on the part of the responsible ministers. But with the government’s recent defence of section 41, it seems clear that this is not the case. At worst, this is simply deception to serve the interests of a powerful copyright lobby, representing major media publishing corporations.

As Dr. Michael Geist argues, this is fixable. The supremacy of digital locks or technological protection measures must be removed from this bill if it is to be of any use to history researchers and educators. To read more about this topic and have your voice heard, visit Speak Out on Copyright.

To read a PDF copy of Bill C-32, click here.

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6 Responses

  1. You can read Christopher Moore’s thoughts on the proposed bill here:

    http://christophermoorehistory.blogspot.com/2010/06/new-history-of-piracy.html

    • Chris just recently posted my reply to his comments about the Copyright Modernization Act. Here is the full text of my reply:

      “Thanks for pointing out a huge hole in my recent post about the proposed Copyright Modernization Act (Bill C-32). I had, unfortunately, not considered the impact this might have on historians who publish with commercial publishers and rely on the income from those books. I also hadn’t considered the impact this would have on custom coursepack printers and textbook publishers. I’d have to take a finer look at the details of the bill to be sure, but I suppose it might be possible for a university instructor to assign a PDF copy of 1867: How the Fathers Made a Deal or Louisbourg Portraits without having to order a class set of books for sale at the university bookstore. Or it might allow instructors to by-pass custom coursepack printers like Canadians Scholars Press Inc. by scanning digital coursepacks. In these cases the costs, as you know, are often actually absorbed by undergraduate students and not universities.

      I do, however, completely agree that this may be exploited by cash-strapped school boards under pressure from provincial education ministries to do more with less for high schools and elementary schools. This indeed could be a big loss for commercial publishers and possibly for their authors (depending on the particular royalty agreements between authors and publishers).

      While I’m not certain that this legislation would usher in a new era of piracy, it could certainly disrupt current commercial publishing business models that rely on course textbook orders or even software licensing to get a slice of that “$40 billion undertaking in this country,” we call education. I’m inclined to agree with your point that “it’s as reasonable for schools and universities to pay for the intellectual content they depend on as to pay the teachers who expound upon those texts.” However, this does raise the question of whether publicly-funded universities (or other schools) and their instructors have any obligation to support the existing business models of private commercial publishers that have been built upon the public education system.

      In the end, most of the textbooks upon which educators rely are produced by commercial publishers and universities, school boards, and ministries of education should recognize and pay for the intellectual labour put into these works. Whether we like it or not, the publicly funded school systems in Canada are integrated in the commercial education industry in a similar manner to the way public health insurance systems in this country are integrated into the commercial health industry. Unless this changes, I would have to agree with your final point that when it comes to the intellectual work of authors such as yourself educators must “deal honestly and fairly with it.”

      Thanks again for adding your commentary to what is a critical issue for history educators, researchers, and authors.”

  2. I wonder how many academics actually included their opinions on this when the government solicited ideas.

  3. In my new article, “Modernization of the Inconceivable”, at http://mincov.com/articles/index.php/fullarticle/modernization_of_the_inconceivable/ (http://bit.ly/8YQZ3r), I explain why modernization of the copyright law based on compromise and concessions, without a good understanding of the underlying principles of copyright protection, is doomed to fail.

    Copyright laws exist either for the protection of the creator, or for the benefit of the public. There is no middle ground. As long as we keep entrusting the government (any government) to find the right “balance” between the two, we are destined to keep on making up exclusions from limitations on exceptions from the rights – without even stopping for a second to question why we are doing this.

    • This sounds like an interesting article, Andrei. I’ll take a look at it and post my response shortly.

      Thanks for your contribution.

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