Delays in drafting several regulations in the new copyright act have provided creator and user communities an unexpected opportunity to voice their concerns.

The legislation, entitled An Act to Amend the Copyright Act, passed third reading on April 26 and was to have been in full force by Sept. 1.

University faculty and librarians will undoubtedly welcome the delay since the regulations in question impact directly on university libraries and the way they access and use copyright materials.

Phase II Regulations

On Oct. 2, 1997 a meeting was called by representatives from Canadian Heritage and Industry Canada concerning the drafting of regulations pursuant to sections 30.1, 30.2, 30.21 and 30.3 of the Copyright Act.

CAUT, along with representatives from the writer, editor, newspaper, educator, archival, publisher, museum and library groups were invited to attend. There were no representatives from unlicenced institutions nor student associations at that meeting.

Andrew Martin of the licencing collective CANCOPY was present in the afternoon to speak to a possible side agreement.

CAUT made the argument that libraries are better left to regulate themselves and that the imposition of legal sanctions through onerous regulation would only add to professional workload and administrative costs in an era of fiscal restraint.

Despite the fact that all Canadian universities are members of CANCOPY, CAUT took the position that the entrenchment of CANCOPY's hegemony by way of the regulation was ill-advised.

An alliance of CANCOPY, CARL and AUCC proposed a two-tiered system whereby those organizations which were licensed would not be subject to the regulations. This would increase CANCOPY's monopoly and thereby decrease the negotiating power of an educational or library organization, as well as place an undue burden on those smaller libraries or educational institutions which have not licenced for a number of reasons.

CAUT did not support this recommendation. Readers are encouraged to examine the CAUT response to the proposed side agreement through the Internet at www.caut.ca.

CAUT also presented its concern that liability for copyright infringement should not fall on the shoulders of member librarians and faculty. In particular CAUT provided strong opposition to a regulation concerning the posting of copyright warnings above self-serve photocopiers which would have shifted the liability to library staff.

The language defining scholarly, scientific and technical periodicals for the purpose of section 30.2 was of specific interest to Canadian faculty and librarians. CAUT presented a position which would strike a balance between access, and protection for those members who gain income as writers of periodicals.

CAUT suggested the definition of scholarly, scientific or technical periodical should include but not be limited to articles which are either reviewed by peers or by referee, and any article whose subject matter is of a scholarly, scientific or technical periodical nature.

It became clear that it is important for CAUT to attend all meetings where draft language is created, to continue to protect its members from increased liability and to promote its specific interests. While Jan. 1, 1998 is the date when sections 67 and subsections 67.1(1) and (2) of the act are scheduled to come into force, the final result of the consultations concerning the regulations along with any side agreement have yet to be published by Canadian Heritage and Industry Canada.

Phase II Review

When Sheila Copps was deputy prime minister she promised the review of phase II would take place in three years rather than five. As some bureaucrats clearly intend to ignore this promise and to follow the five-year schedule outlined in the act, CAUT will have a role to play in the enforcement of the "Copps promise."

In the coming months faculty and librarians can create a wish list of amendments as they live with the new act and discover its pitfalls. For example, the issue of criminal sanctions for any infringment looms large as a potential pitfall.

Phase III

Phase III of the act will deal with databases, the information highway and other technological issues. Of particular concern are issues surrounding caching (making a temporary internal electronic copy) and browsing (viewing on a video screen or other similar device but not making a permanent copy by downloading to a hard drive or other permanent record or copy).

Throughout the debate which will surely ensue, CAUT will support a balance between the rights of the copyright holder and the rights of the user to access to information. CAUT takes the position that copying in an electronic environment is the same as in the print environment: permanent and tangible.

For additional information see the final report of the Information Highway Advisory Council at http://strategis.ic.gc.ca/IHAC.

The phase III discussion is taking place within the cadre of the World Intellectual Property Organization (WIPO) International Database Treaty. WIPO held an information meeting in September in Geneva to share information and develop an agenda for the drafting of this treaty.

Internet Liability

Included in the electronic debate is the issue of Internet and e-mail liability. This subject was broached by Canadian Heritage and Industry Canada on Sept. 3, 1997 at a Montreal conference.

Since then, the Federal Court of Appeal has rendered the important decision of Tele-Direct v. American Business Information (Oct. 1997, A-553-96 per Décary J.A.) upholding the lower court finding that there is no copyright on the Yellow Pages of telephone books.

This is good news for users including libraries, researchers and others who may depend on databases of essentially factual information.

"Sweat of the brow" is no longer determinative and Canadian and American law regarding database protection are essentially the same. Copyright aficionados are watching to see if this decision will be appealed to the Supreme Court of Canada.

The issue of Internet and e-mail liability for Canadian faculty and librarians has recently been referred by CAUT to legal expert Pierre Trudel of Université de Montréal. His analysis is expected in the new year.

While the general principle that legal liability is determined by the extent to which the service provider is informed of the content of the material and the extent to which control is exercised over the "illicit" material, the specific application to CAUT members is unclear.

Jurisprudence is still developing in this area of law and the issues surrounding the publication of materials which are contrary to the criminal code, infringe copyright, or are defamatory in nature remain of concern to all Internet and e-mail providers.

This month's copyright feature was provided by Cynthia Westaway of CAUT.