As readers of the Bulletin will know, phase II of Bill C-32 was "hijacked" by the Heritage Committee when a large number of amendments were rammed through the committee in December of 1996 without any significant debate.
The result unfairly favoured the interests of publishing and creator groups and read as though drafted by one of the licensing agents.
Late in the day on Mar. 20, despite the lobbying efforts of education and library groups, Bill C-32 passed third reading just prior to the parliamentary Easter break. Only the Reform Party spoke out in opposition.
Phase II of the copyright legislation was to balance the interests of users and creators. It was to follow up phase I legeslation, which addressed the needs of creators.
In its present form, the legislation requires that licensing fees be paid to the monopoly CANCOPY, when any copyrighted material which is "comercially available" is copied for educational purposes.
The Bill was referred to the Senate Standing Committee on Transport and Communications in early April. In a press conference on Mar. 25 CAUT joined 12 other organizations representing educators, students, librarians, booksellers and broadcasters asking the Senate to hear their concerns and to amend the Copyright Bill. The coalition was united on the need for reasonable exceptions.
The coalition emphasized that the restrictions which were put in place by the December amendments ignored the rights of students and educators.
The Coalition called upon the Senate to provide "sober second thoughts" and to make the necessary amendments to restore balance and to protect the public interest.
In addition to the press conference, CAUT and its coalition members lobbied the Committee on Transport and Communications. CAUT urged the senators to remember that the phase II legislation was originally designed to protect educators and libraries.
On Apr. 14 CAUT, the Association of Universities and Colleges of Canada, the Association of Canadian Community Colleges, the Canadian School Boards Association and the Canadian Teachers’ Federation made a two-hour presentation before the Standing Committee.
CAUT presented a detailed brief reiterating its request for specific amendments as well as emphasizing the need to limit the applicability of the criminal provisions in cases of minor infractions.
While Senators Kinsella, Forrestall, Spivak and Johnson asked several questions, the government members of the Committee made no specific inquiries of the witnesses.
The Committee submitted its report on Apr. 21 and while the Committee made few concrete recommendations there were two of interest to Canadian professors and librarians: "that the used textbooks not be made subject to the import restrictions unless there is compelling evidence that their sale in Canada is adversely affecting exclusive Canadian distributors and that there is an overriding public interest that the importation of such books should be restricted" and given the divergent views expressed before the Committee "that the review of the implementation of the Act be within three years of the Act's coming into force in order to monitor developments under revised legislation and to assess progress on the phase III revisions." This would replace the five year period required by the Bill.
In a letter tabled with the Committee, the Minister of Canadian Heritage, Sheila Copps, made the following commitment "I undertake, therefore, that within three years after the coming into force of section 92 (1), I shall cause to be laid before both Houses of Parliament a report on the provisions and operation of this Act. This will allow sufficient time to assess the impact of the renewed Act, including any recommendations for amendments to this Act. This will allow sufficient time to assess the impact of the renewed Act and to bring about any changes that may be required in the new communications environment."
The minister also stated to the committee that she would not invoke the provisions of the legislation concerning used university textbooks.
The motion to read the Bill a third time took place on Apr. 26.
During the debate Senator Spivak (Progressive Conservative) addressed many of the outstanding concerns of both user and creator groups and lamented the haste with which this Bill was pushed through the House.
Senator Kinsella (Progressive Conservative) spoke about the frustration of the entire Canadian educational community. He spoke eloquently concerning the issues raised by both CAUT and the Association of Universities and Colleges of Canada in their presentations before the Committee.
At the end of his address, Senator Kinsella moved three amendments which dealt with the time limits for review of the Bill, the definition of commercially available, and the restrictions on used textbooks.
While certain members of the majority seemed to support the amendments on the floor they were voted down by resounding "nays" in order to pass the Bill before the election was called. Third reading was passed on division on Apr. 26.
The push is now on for the revision and amendment of this Bill within three years in accordance with the letter of Minister Copps to the Committee. In addition, phase III will be shortly upon us and continued participation in areas such as databases and the information highway will be imperative.
However, in the brief intermission between phase II and phase III, we should pause to celebrate the following gains for higher education: the definition of perceptual disability has been broadened to include the hearing impaired; interlibrary loan is now permitted loan -- including the use of intermediate digital technologies such as Ariel (s. 30.2 (5) and 30.2 (5.1)); an archive may now copy for a patron an unpublished work if the rights owner consents or cannot be located (s. 30.21); and a library, archive or museum or person acting under the authority of the foregoing institutions may copy a single article from a scholarly, scientific or technical journal for a patron.
This legislation is inconsistent with copyright law in other industrialized nations and clearly favours, in the restrictions in educational exemptions, the interests of creators over the interests of public educational institutions. The legislation also allows for criminal sanctions for those who violate copyright law, regardless of their intent or how trivial the amount of money involved.
Interlibrary loan and access for the disabled were granted exemptions from copyright legislation but were limited be the definition of "commercially available." In addition, provisions were made for a person acting under the authority of a library, archive or museum to copy a single article from a scholarly, scientific or technical journal for a patron. An archivist may also make a single copy of an archival record for a patron for research or private study purposes.
Background: February 1997, April 1997, CAUT web site www.caut.ca. The report of the Senate Committee can be found on the web site www.parl.gc.ca/english/senate/deb-e/deb-e.htm