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.


A Quick Look at Copyright: Mini-Documentary

Cory Doctorow recently posted a link to a great short documentary called “When Copyright Goes Bad”. It explores, in brief, some of the implications of modern copyright law for consumers, artists, and educators. I thought this served as a pretty good resource for explaining some of the current debates surrounding copyright reform. It also touches of many of the challenges for educators.

Canadian Historians Should Sign the Public Domain Manifesto

"Captive Tomes" by traceyp3031

Historians know that our work is entirely dependent on access to and availability of sources, especially archival primary sources. Anyone who has spent months (and sometimes years) awaiting approval of a Freedom of Information Act request in Canada knows how frustrating limited access can be. It is a barrier to the free and open exchange of knowledge of our collective past. The global trend toward more restrictive copyright law stands as one of the greatest threats to our access to resources necessary for historical scholarship. As such, the public domain — our shared knowledge, culture, and resources that can be used free of copyright restriction — plays a critical role in our work as historians and we should uphold it.

The Canadian Historical Association’s recommendations to the 2009 Canadian Copyright Consultations made an excellent case for the significance of the public domain to historical research and drew particular attention to the troubling problem of perpetual Crown copyright authority over unpublished materials. This and other barriers threaten to limit the scope of the public domain and the ability of researchers to access historical resources.

COMMUNIA, the European Thematic Network on the Digital Public Domain, recently produced The Public Domain Manifesto, an omnibus statement on the importance of the public domain for cultural production and community knowledge. The Manifesto includes several recommendations and reforms to protect and enhance the public domain. Regarding these recommendations, COMMUNIA specifically cited its “particular relevance to education, cultural heritage and scientific research.” That includes Canadian and environmental historians.

I hope that historians will read The Public Domain Manifesto and sign their name to its principles and recommendations.

Historical Knowledge Mobilization and ACTA

Over the summer, I posted a quick story about the need for historians to take part in the Canadian copyright reform consultations. The Canadian Historical Association did just this with an excellent submission to Industry Canada and the Department of Canadian Heritage that outlined many of the main concerns for Canadian historians. These included concerns over historic photographs, orphan works, Crown copyright, fair dealing, and digital locks. Historians should read the full PDF copy of the CHA submission to the copyright consultations.

The copyright consultations were an important step toward reforming copyright law in Canada in an open, transparent manner. This was a deliberate response to the government’s failed attempt to introduce new copyright legislation without any public consultation. Unfortunately, it turns out that this may have all been in vain.

The Canadian government has been involved in closed-door international negotiations over the Anti-Counterfeiting Trade Agreement (ACTA), a new intellectual property enforcement treaty. The provisions of this new treaty may override any decisions to come out of the copyright consultations.

Needless to say, we need to know more about ACTA. Copyright law can play an important role in scholarly knowledge mobilization as either an enabler or an obstacle.  If ACTA is going to introduce significant changes to domestic copyright law in Canada, then historians need to find out more about this recently leaked secret agreement.

You can find out more about the origins of the Anti-Counterfeiting Trade Agreement from Professor Michael Geist below:

Vodpod videos no longer available.

You can also listen to Professor Geist’s interview on CBC’s As It Happens.

Read more about ACTA on the Electronic Frontier Foundation website here.

Speak Out: Canadian Copyright Consultations End September 13th

I meant to write about this earlier in the summer, but there is still time. Industry Minister Tony Clement and Heritage Minister James Moore launched a public consultation process on copyright policy on July 20th. Following the government’s failed efforts to quietly revise Canadian copyright law last year through Bill C-61, Clement and Moore have opened up a broad public consultation process.

The Canadian Federation of Humanities and Social Sciences has put out a call to all scholarly researchers to take part in the online consultation process. Changes to copyright law have the potential to greatly improve or harm research and teaching at Canadian universities. If you’ve ever shown a video in your class, used an image in a lecture slide, or created a custom course reader, you have a very large stake in copyright law in this country.

To learn more about the consultation process and the state of Canadian copyright law, I encourage you to read through Professor Michael Geist’s (University of Ottawa) website, speakoutoncopyright.ca.

Visit the government’s copyright consultation page to voice your concerns and keep up with the debate.

And continue to check back on the Notes on Knowledge Mobilisation page for a continued discussion about copyright and other issues surrounding the mobilisation of research in the environmental history community in Canada.

The Place to Start: Bailey’s Open Access Bibliography

I really should have found this source sooner. Charles W. Bailey’s Open Access Bibliography: Liberating Scholarly Literature with E-Prints and Open Access Journals is the best place to start for historians (or anyone else) looking to learn about open access and scholarly publishing.

According to the description of the book, it features citations for “1,300 selected English-language books, conference papers (including some digital video presentations), debates, editorials, e-prints, journal and magazine articles, news articles, technical reports, and other printed and electronic sources that are useful in understanding the open access movement’s efforts to provide free access to and unfettered use of scholarly literature.” This impressive bibliography offers a wide array of sources on subjects ranging from major debates over web publishing to the history of E-Prints.

You could likely spend years pouring over all the different publications on open access and scholarly publishing to be found in Open Access Bibliography. I’ll be taking a peek at a handful of relevant sources for Canadian and environmental historians to review for the Notes on Knowledge Mobilization page.

Public Knowledge Project Conference 2009: Reflections

As promised, I have put together some general reflections on the recent Public Knowledge Project conference held in Vancouver from July 8th-10th.

I attended the conference as part of my work on the Notes on Knowledge Mobilization page on the NiCHE website. I went to the conference with the intention of doing a lot of listening in order to learn more about the current state of the open access movement in scholarly publishing and the development of open source software for the publication of academic journals and monographs. I listened and I learned.

I. Learning as a Different Kind of Intellectual Property

One of the key concepts that I took from the PKP conference was highlighted in John Willinsky’s opening keynote, titled “Free? What’s So Special About Learning? The Intellectual Property Argument”. He made a convincing case for thinking about the intellectual property of learning as distinct from commercial intellectual property. This, he argued, comes from a historical tradition in English law that provided a number of different exemptions in copyright law for universities and scholars.

It seems to me that this idea of a distinct status for the intellectual property of learning lies at the centre of the open access movement in scholarly publishing. If learning lies outside the commercial market (especially in the case of publicly-funded universities) then, as Rowland Lorimer argued in his talk at the conference, “Scholarly communication must escape from the copyright rubric.” Cory Doctorow makes a similar claim in the video I posted in June, arguing that educators have no obligation to uphold the interests (and sustain the business-models) of commercial publishers. Assuming then that the principal aim of scholarship is not to derive profit from research and publication, but to educate and contribute to public knowledge, it would seem that scholars should pursue the most freely accessible forms of publication possible.

I believe that it is urgent for historians, more so perhaps than other scholars, to seek out the most freely accessible forms of publication in order to more adequately fulfill our role in public history. There are often too many barriers between the public at large and historical scholarship. Canadian historians are all too familiar with this problem as some of the very best scholarly works in Canadian history rarely reach a wide audience outside of academia. Furthermore, if most of our research is supported by public funds, historians should then disseminate their research findings in a manner that is more accessible to the public.

II. The Economics of Open Access Scholarly Publishing

There were a handful of presentations at the PKP conference that touched on the touchy matter of money. What are the economics of open access scholarly publishing? This seems to be one of the greatest hurdles for journals in the humanities. How do you economically support and sustain an academic journal that is published on an open access model? Without subscriptions, where do you derive revenue to produce the journal? The PKP conference only seemed to offer a few answers.

Frederick Friend was correct when he stated in his conference presentation that academic journals are too vital to the scholarly community to collapse. But in the context of changing technologies, changing cultures of communication, and changing financial circumstances, academic journals will have to… change. Those changes, of course, will have consequences for the bottom line of commercial publishers, especially in the field of scientific, technical, and medical publications (STM). Presenters from university libraries had much to say about the steep costs of STM journal subscriptions from commerical publishers, but, unfortunately, they had little to say about subscription-based social sciences and humanities journals produced by not-for-profit publishers. This is the greatest concern for historians.

The Public Knowledge Project’s open source software, Open Journal Systems (OJS), has had a tremendous impact on the development of open access scholarly publishing. More than 3,000 journals, many in the social sciences and humanities, now use OJS, running on annual costs of between $0 and $20,000. While many of the journals using OJS publish with almost no costs, many at the conference quickly added that most of the labour involved in publishing these journals was voluntary. In fact, several participants indicated that open access scholarly publishing for journals involves a great deal of volunteerism, often aided by departments that offer teaching relief in exchange for service on a scholarly journal.

This seems to be the main challenge for social sciences and humanities journals, looking to “take the plunge,” as one conference presenter put it, into the open access model. Without subscription revenue, more of the work to produce a journal will have to be done on a voluntary basis. This raises a number of concerns for editors and editorial assistants who already carry an enormous workload to publish an academic journal.

Furthermore, as journals make this transition, they may also have to make the transition away from print copies entirely. At least this is the future, Graeme Wynn envisions for BC Studies. In the most recent issue of this long-running Canadian regional journal (Issue 161, Spring 2009), Wynn announced that BC Studies will be adopting OJS and will likely be transitioning to an open access model of some kind. This, he said, will most likely result in the “elimination of regularly produced hard-copy issues of the journal,” although he didn’t rule out the possibility of a print-on-demand option. For Canadian and environmental historians who are interested in the open access movement and scholarly publishing, I would suggest keeping a close eye on the direction of BC Studies over the next year or so.

III. Resources

The PKP conference was certainly an enriching experience for anyone interested in learning more about the state of open access scholarly publishing. I have compiled a short list of resources about the conference for those who were unable to attend.

Blog Reports:

Willinsky on the Intellectual Property of Learning

Highlights and Athabasca University Press

The Economics of Open Access Publishing for Scholarly Communications

Rowland Lorimer and a New Journal

Official PKP Conference Blog


PKP Conference Video Archive