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CAUT Bulletin Archives

February 1997

Ambushed by the Heritage Committee

Copyright Legislation

Angst, combat, defeat and endurance — rather than terms to describe warring nations or Olympic competition these have been the hallmarks of the proposed Canadian copyright legislation known as Bill C-32.

For those who are just "tuning in" to the copyright saga, "angst" refers to the cumulative efforts of CAUT, the Association of Universities and Colleges of Canada (AUCC), the Canadian Association of Research Libraries (CARL), the Association of Canadian Community Colleges (ACCC), the Canadian School Boards Association (CSBA), and the Canadian Teachers’ Federation (CTF).

This informal consortium presented oral and written briefs before the Standing Committee on Canadian Heritage on Oct. 30, 1996. These presentations were the response of Canadian educators to the second phase of Bill C-32 as tabled by Sheila Copps in April of 1996.

Since phase one of the bill had clearly favoured the interests of the creators of works subject to copyright, phase two was promised to facilitate a balance between the interests of creators and the needs of users.

As the representative of both creators and users, CAUT entered the arena to assure this balance was indeed achieved and that the necessary exemptions from copyright infringement for educational institutions would be firmly entrenched in the new legislation.

CAUT was in combat with the strong lobby of the creator voice; but more importantly, Cancopy, the licensing monopoly, fought long and hard to exclude libraries, educators and students from copyright immunity.

CAUT local and provincial associations, committees and executives mobilized to provide support, and resolutions were passed by university senates. On Nov. 18, 1996, a joint letter signed by CAUT, AUCC, ACCC, CSBA, and CTF was sent to Clifford Lincoln, chair of the Standing Committee.

The letter requested amendments to protect CAUT members from liability for statutory damages in the absence of fraudulent intent and irrespective of whether the institution had a licensing agreement with Cancopy.

In addition, CAUT sent a letter addressing the need for the educational exceptions, inter-library loan provisions, the expansion of the exceptions for the visually impaired to include all who are perceptually disabled and a complete overhaul of the criminal and civil remedies.

Attached to that letter and in direct response to the request for additional information from Heritage Committee member Mauril Bélanger, CAUT provided the committee with a detailed legal analysis of the potential Charter of Rights challenges attracted by the bill’s draconian criminal sanctions.

CAUT also wrote in support of the position of the Canadian Historical Society urging amendments to the bill to provide increased access to unpublished archival documents as well as archival records created by deceased authors.

On Nov. 24, 1996, CAUT Council passed a motion resolving to continue its efforts to urge the federal government to honour its commitments to the educational and library community.

On Dec. 11, 1996, the Canadian public received a holiday package of some 70 amendments to the proposals of April 1996 from the Heritage Committee. On balance, these modifications can only be described as a "defeat" for public educational institutions. Sheila Copps congratulated the Heritage Committee on its work.

The manner in which the amendments were pushed through the committee in just a few hours, many without prior consent from representatives of the jointly-responsible Industry Canada left onlookers aghast.

Reform committee member Jim Abbott withdrew from the clause-by-clause amendments stating the haste was unconscionable and could only result in a poorer bill. He added "...there are still amendments the government is going to push forward to this legislation that have not been available to the opposition members. Indeed, to the best of my knowledge, they have not been available to the government members."

The scene at the committee was one of utter confusion with legislative drafting taking place at the same time as the amendments were being produced.

CAUT and its copyright partners spent the holiday season analyzing and drafting in preparation for what has come to be known as "operation endurance." While the December amendments included some of CAUT’s suggested improvements to the bill, clearly Cancopy was the big winner with a new definition of "commercially available" which rendered impotent the educational exceptions formerly contained in sections 29.4(1)(b), 29.4(2), 30.1(2)(1)(a) to (c) and 32(1). (see Copyright Analysis for more detailed information.)

On Jan. 16, 1997 CAUT and its partners met to develop a joint statement expressing strong opposition to the December amendments and reiterating those items submitted in October which were completely ignored by the committee report. The final draft was jointly signed by CAUT, AUCC, CARL, CSBA, CTF and the Canadian Library Association and sent on Jan. 23 to both Sheila Copps and John Manley. (See, What’s New, for a copy of this letter.)

While the exceptions for educational institutions were in place, CAUT was able to support Bill C-32 and to strive for its improvement. Operation endurance has now reached a critical stage. Certainly without sufficient pressure to combat Cancopy and the creator’s lobby, the educational institutions cannot hope to reverse these amendments or to have any influence over the government, the Reform Party (which has by their withdrawal retained their right to move further amendments), or perhaps the Senate.

As tedious as the process may prove to be, the outcome of Bill C-32 will have far-reaching ramifications on all sectors of Canadian research, study and teaching.

The government is expected to proceed with the legislation when the Commons reconvenes in February.