Navigating the New Copyright Waters

Articles
Introduction

Significant developments in Canadian copyright law occurred during 2012: in July, as reported in our Knowledge Bytes newsletter, the Supreme Court of Canada handed down five key copyright decisions, and in November 2012 significant amendments to the Copyright Act (the “Act”) came into force. Many of these amendments directly impact higher learning institutions, which are well-known environments for developing, fostering, and producing original written, musical, artistic, and dramatic works that are subject to copyright protection. This article details a number of the most significant changes to the Act that impact higher learning institutions. Understanding these amendments is essential for higher learning institutions as they work towards balancing competing copyright-related interests.

1. Fair Dealing Exceptions

Higher education requires that institutions teach materials which may be subject to copyright. Copyright law has long recognized that in certain limited circumstances, known as “fair dealing”, it is possible to use copyright-protected materials without obtaining the consent of the copyright owner and without constituting copyright infringement. The amendments to the Act have expanded the fair dealing exceptions. Previously, the Act recognized limited fair dealing exceptions in relation to research, private study, criticism, review and news reporting. As a result of the amendments, fair dealing now includes education, parody and satire. For higher learning institutions, the inclusion of “education” in the list of fair dealing exceptions is a step in the right direction. However, it is important to recognize that the concept of fair dealing is a fact-specific analysis that does not end with the enshrining of “education” as a statutory category for fair dealing. Rather, Canadian case law holds that for fair dealing to be operative as a defence to copyright infringement, not only must the purpose of the dealing fall within the categories enshrined in the Copyright Act, but the dealing must be found to be “fair” as determined by a number of factual factors, which include the following: (i) the character of the dealing (i.e. how were the works dealt with?); (ii) the amount of the dealing (i.e. how much of the work was used?); (iii) alternatives to the dealing (i.e. were there alternatives that were not copyright-protected that could have been used?); (iv) the nature of the work (e.g. was the work widely published or confidential in nature?); and (v) the effect of the dealing on the work (i.e. is it likely to affect the market for the work?). Accordingly, higher learning institutions need to recognize that the inclusion of “education” within the fair dealing exceptions does not give higher learning institutions carte blanche to do as they please with copyright-protected works. Rather, they need to consider all of the factual circumstances before coming to the conclusion that the fair dealing exception is available for educational use.

2. Educational Use Exceptions

The amended Act also contains a number of education-sector specific exceptions to copyright infringement that are similar to the more general fair dealing exception for education. For example, the amendments include specific exceptions for educational institutions to communicate or reproduce educational lessons by telecommunication for educational or training purposes. These exceptions are especially relevant in the context of today’s changing educational climate where an increasing number of students receive part or all of their lessons over the Internet via distance learning programs. Importantly however, for these exceptions to be operative, higher learning institutions must satisfy a number of strict conditions found in the Copyright Act including, in some circumstances, the requirement that students and the educational institution destroy any fixation (e.g. recording) of the lesson within 30 days after students receive their final course evaluations. Given that today’s higher learning institutions are likely to develop a more significant presence in distance learning programs, it is essential that they ensure that all of their online learning programs are compliant with the significant changes found in amended sections 29 and 30 of the Act.

3. Technological Protection Measures

Another central change to the amended Act is the addition of provisions regarding technological protection measures (TPM), sometimes referred to as “digital locks”. Under these provisions, in most circumstances, an individual incurs liability if he or she circumvents a digital lock, offers circumvention services to the public, or manufactures or imports devices, technologies or components whose primary function is to circumvent a TPM.

Institutions of higher learning arguably receive a certain measure of protection against liability related to TPMs in that the amended Act only allows for an injunction – and not damages – to be issued against an educational institution liable under the TPM provisions. However, such protection is conditional upon the institution satisfying the court that it was unaware and had no reasonable grounds to believe that its actions constituted a contravention of the TPM provisions. Importantly, these provisions are focused on the liability of an educational institution itself contravening the TPM provisions; they do not specifically address whether an educational institution could avoid indirect liability in the case where a student infringes the TPM provisions using resources owned and controlled by the educational institution. Due to this uncertainty, it is again incumbent on higher learning institutions to review the copyright-related policies that affect their students; further, it is important for higher learning institutions to have suitable policies in place for responding to allegations that institutional resources are being used for illicit purposes.

4. Commissioned Photographs

The Copyright Act, as amended, no longer contains distinct provisions dealing with copyright ownership of photographs. Historically, an entity that commissioned a photograph became the first owner of such photograph. For example, if a university commissioned a photographer to take photographs for use on the university website, the university would, by statute, be the first owner of those photographs. However, as a result of amendments to the Act, photographs are now to be treated like other copyright-protected works and initial ownership will vest with the photographer. Accordingly, and continuing with the above example, the university would no longer be the first owner of the photographs absent an express agreement between the university and the photographer, and subsequent use of the photographs by the university would be prohibited. As such, it is important for universities and other higher learning institutions to review their agreements with third party service providers, such as photographers, to ensure that the agreements are in line with the new changes to the Act.

Moving Forward

As with all new or amended legislation, the true test of its impact will be how the Canadian courts interpret the updated Copyright Act. As such, 2013 is expected to be another important year for Canadian copyright law as the courts will have their first opportunities to render decisions guided by this updated statute.

From a practical perspective, it is recommended that all higher learning institutions review their internal copyright policies and copyright-related agreements to ensure that they are appropriate in light of the recently enacted amendments to the Act. A review of internal copyright policies and agreements also provides an opportunity for a higher learning institution to reconsider how it wishes to deal with the protection, ownership, exploitation, and enforcement of intellectual property protection, especially in light of ever-changing technologies.

If you have any questions or wish to discuss the impact of this amended legislation, please contact the author of this article, Jeff Morton, at jdm@cwilson.com or 604.643.3166, or the Chair of Clark Wilson’s Higher Learning Practice Group, Brock Johnston, at rbj@cwilson.com or 604.643.3116.