The Canadian Copyright Act (the "Act") is currently in the midst of a parliamentary review and reform process. The outcome of the review will be a retooled Copyright Act that will in large measure address issues of digital works and other digital subject matter falling under the protection of the Act. The website chronicling the reform process is: http://strategis.ic.gc.ca/epic/internet/incrp-prda.nsf/vwGeneratedInterE/h_rp00002e.html.

The modernization of the Act is due, in part, to Canada’s need to fulfill its obligations as a ratifying signatory to two international treaties crafted under the auspices of the World Intellectual Property Organization. The treaties extend copyright protection to various forms of digital and non-digital literary and artistic works, performers’ performances, broadcasting and sound recordings. An array of digital technologies have accelerated ease of reproduction, performance and transmission of copyright works and other subject matter resulting in loss of revenues for copyright owners.

Additionally, modernization of the Act is required as it is a byzantine piece of legislation in desperate need of updating. The Act has been described as being more complex and incomprehensible than the federal Income Tax Act. Clearly reform is long overdue. Since it was proclaimed in force in 1924, the Act has bolted on a wide variety of works and other subject matter with an ever increasing bundle of rights which have provided Fort Knox-like protection to copyright owners. Unfortunately such changes to the Act have severely impacted academic and basic research and limited the dissemination of knowledge (subject to the generally non-negotiable payment of license, user and rental fees).

The issues for educational institutions moving forward in the age of copyright reform, however, fall into two quite contradictory camps. In one camp are the owners (not necessarily the creators) and disseminators (broadcasters, sound recording and visual production companies) of copyright protected works and other subject matter. In the other camp are the users, that is the teachers, students, researchers, the aural and performing artists and the public. The balance of rights in Canada is almost entirely in favour of the copyright owner. With the advent of works and other subject matter migrating exclusively to the online digital environment, an even further skewing of rights in favour of copyright owners is perpetuated. The potential is enormous for being found guilty of a quasi-criminal offence under the Copyright Act for illegal reproduction of protected works and other subject matter. No other area of intellectual property law (which includes the law of patents, trade-marks, industrial design and confidential information) may result in placing a person in jail for up to 5 years with a fine of $1 million, which is what is spelled out in the Act.

While this article may read like a rant, the comments above are all a mere echoing of teachers and researchers in institutions of higher learning and research around the globe. The optimum in a copyright legislative reform process is to achieve a balance between competing users of copyright materials on the one hand and rights holders on the other. Certainly technology transfer and commercialization offices need the legal protection of copyright to advance applied research initiatives, and university presses require copyright protection for their publishing activities; however, the core services of teaching and basic research of educational institutions are hampered by the current state of copyright legislation.

For more information on the Canadian (and international) copyright reform process, please contact Tony Fogarassy at 604.643.3130 or by email at txf@cwilson.com.

PROVINCE OF BRITISH COLUMBIA STIPULATED PRICE CONSTRUCTION CONTRACT DOCUMENTS - WHAT’S NEXT?

The Province of BC no longer mandates the use of the Province of British Columbia Stipulated Price Construction Contract Documents and no longer updates and maintains these documents. The decision as to what documents to use has been left to universities, colleges, school districts and other agencies. At our April 3, 2003 "Understanding the CCDC 2 Stipulated Price Contract" Seminar, Roy Nieuwenburg described a "soup to nuts" set of construction tender documents that he has developed. This set of documents encompasses everything from the invitation to tender, instructions to bidders, articles of agreement, general conditions and special conditions and a set of dovetailed contract administration forms (including applications for payment cross referenced to the GC’s, and related certificates). They are "stand-alone" documents (not dependent on CCDC), and represent an "owner friendly" approach.

Clark Wilson LLP will be sponsoring a workshop on this topic on June 19, 2003. One of the objectives for the workshop is to get input from interested parties - the workshop will provide an opportunity for participants to interact with their counterparts at other institutions, and draw on their experiences and compare practices. This will allow us to refine and improve the documents. This set of documents might serve as a standard resource for universities and colleges. If the set of documents are recognized as "owner friendly, but at the same time reasonable for contractors", this will help to ensure that they are readily accepted by contractors and bidders.

Complete details on the workshop, agenda, speakers and registration information are available on the "Seminars" page of our website at www.cwilson.com. Or, please contact Laura Simonen at 604.891.7706 or lhs@cwilson.com.

  

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