Back to top

CAUT Bulletin Archives

February 1997

Where Has the Balance Gone?

December Amendments to Bill C-32

While the meaning and repercussions of the December amendments to Bill C-32 are vast and open to diverse interpretation, there are some highlights and indeed some "dimlights" of which we should all be aware.


Commercially Available - The original text of Bill C-32 defined "commercially available" as "available on the Canadian market within a reasonable time and for a reasonable price and that may be located with reasonable effort." The new definition includes instances where a license to reproduce, perform in public, or communicate a work to the public by telecommunication is available from a collective society. This new definition benefits CANCOPY and seriously inhibits the educational exceptions (s. 29.4(1)(b) and 29.4(2)), the library exceptions (s.30.1(2)(1)(a) to (c)), and the perceptual disability exception (s. 32(1)) because the exception is unavailable when a copy of the work is "commercially available." When is an educational exception not an exception? — when you must pay CANCOPY.

Fair Dealing - The educational community requires a broader interpretation of fair dealing (the ability to copy for research, private study, criticism or review, and news reporting). Not only was this request ignored by the Heritage Committee but the scope of the exception for educational institutions has been narrowed from news reporting or news summary to news reporting only under the authority of an institution. For the purposes of certain educational exceptions, students were initially deemed to be "acting under the authority of the institution." This wording has been replaced by the new section 29.3 which fails to specify who, and under what circumstances, a person will be deemed to be "acting under the authority of the institution." To date, the interpretation at common law has been that faculty are included in most situations. The specific request of CAUT for greater clarity in regard to research was ignored by the Heritage Committee. In addition, our students have been excluded from the scope of any common law or statutory protection for copying.

Assignments - Initially an educational exception permitted an educational institution or a person acting under its authority to reproduce, perform in public, or communicate to the public by telecommunication, a work or other subject matter for any purpose related to the giving of an assignment, test or examination. Although assignments are an integral part of the grading systems of our educational institutions, the exception has been narrowed to eliminate the word assignment from section 29.4(2).

Manual Reproduction - The exception for instructional purposes under section 29.4(1)(a) has been limited to a manual reproduction onto a dry erase board, flip chart or other similar surface intended for displaying handwritten material. Printed material, therefore, cannot be used on overheads without payment.

Off-air Taping - The original text of section 29.6 permitted off-air taping by an educational institution or person acting under its authority of a single copy of a news program or news commentary program. The amended version specifically excludes documentaries from the scope of this provision. This is a serious blow to all educators and specifically to the study of media and communications.

Self-serve Photocopiers - The original version of s. 30.3 exempted an educational institution, library, archive or museum from liability for self-serve copiers as long as the appropriate notice warning against infringement was posted. The availability of the exemption has been restricted so that only parties to a licensing agreement will be protected. It is not logical to link liability with a licensing agreement, particularly when CANCOPY is unable, and for that matter not required, to provide institutions with a full repertoire of exactly which copyright owners and works they represent (see s.67(1)).

Textbooks - The former section 45(1)(e) permitted parallel importation of any used books, but the amendments now prohibit the importation of used textbooks of a scientific or scholarly nature for use within an educational institution in the course of instruction. For those programs relying on used textbooks from the United States, and for university bookstores, this amendment will prove problematic.

Magazines - Magazines have been eliminated from the protections of fair dealing in section 30.2(2). Thus one cannot make a copy of an article from a newspaper or a periodical which is not scholarly, scientific or technical, which was published within one year of the making of the copy. This expands the type of works which are subject to restriction based on the time of publication. Moreover, the term scholarly, scientific or technical periodical remains undefined and subject to Cabinet regulation.

Perceptual Disability - The original definition of perceptual disability was limited to visual impairment. The new definition has been expanded to include any disability which prevents or inhibits a person from reading or hearing a work in its original format.

Interlibrary Loan - Section 30.2(5) and 30.2(5.1) now permit interlibrary loan — including the use of intermediate digital technologies such as Ariel.

Unpublished Archival Works - Section 30.21 now allows an archive to copy for a patron an unpublished work if the rights owner has not prohibited the copying or if the rights owner cannot be located.

Single Article from a Scholarly Journal - The modification now permits a library, archive or museum or person acting under the authority of the foregoing institutions to copy a single article from a scholarly, scientific or technical journal for a patron. (See above for newspapers and magazines)

Education groups have made requests which were not acted upon by the Committee in the following areas:

  1. section 29.5 permits some performances of copyright works in educational institutions - this section should also permit performances of audio-visual and cinematograhic works;
  2. additional language is needed in section 29.7 that would allow for a one-time preview of a copy of work before a class of students;
  3. the request to enact a threshold of $50,000.00 and a requirement of fraudulent intent before criminal sanctions would betriggered.