Professors generally place their heads carefully in the clouds when the subject of copyright comes up. We suspect that a lot of what we or our students do may be illegal, and that we don't think it should be, but we don't really want to know. We suspect that copyright policy is screwed up, but it's all so complicated we can't think of anything to do about it.
This is understandable, but foolish. Canada is about to embark on yet another overhaul of the Copyright Act and many of the issues on the table directly affect teachers and researchers, particularly in the humanities and social sciences. Canada's educational organizations such as CAUT, the Association of Universities and Colleges of Canada and the Canadian Teachers' Federation, are taking a narrow and unproductive approach to the reform process. Educators need to speak up.
One key question for professors is whether Internet use within an educational institution is currently legal. Some say it isn't, because the Copyright Act permits fair dealing (i.e. copying of limited portions of copyrighted material) only for research and private study, commentary, criticism and news reporting. So it might be legal for an individual at home to browse or download material freely available on a web page (think for example of tourist information, information about museum exhibits or a teacher's tips on writing essays), because it would be private study, but study in the context of an institution might not be legal.
I would argue that students' and teachers' use of the Internet is for the purposes of "commentary or criticism," and hence fair dealing. I would urge school boards or universities to take on the lawsuit in the unlikely event that it should ever come: they'd win.
But let's see what happens if we accept the fearful claim that the current law puts educational institutions in a precarious liability situation. What is the educational organizations' solution to this perceived problem? They want an "exception" for educational institutions, which would specify that it is legal for students and teachers to make normal use of material legally available on the Internet (i.e., material put on the Internet with the permission of its owner).
Such an exception implies that ordinary use by non-students is not legal. This is perverse. Educational organizations and educators should be taking the lead in clarifying that Internet use is legal for all Canadians. Education is not just something that happens at school. The Internet is an exciting new way for people from all walks of life, of all ages, in remote locations, in their own homes or at work, to learn about the world and to become more engaged and informed participants in it. Yes, browsing often involves copying. I click on a link, and the computer automatically downloads a PDF file without my intending it.
Other web sites present "print" and "download" buttons. Their proprietors want us to use their material that way; that's why they put it up. Or think of it this way: if a tourist information centre's front door is open, I'm not likely to be charged with trespassing when I enter, or theft when I pick up some maps and pamphlets. If the proprietors don't want me there, they can lock the door. They also have the right to charge money for some services or goods on their premises. Web sites are like this. To break into them, or steal things that have price tags, would be illegal, but to pick up things left for the taking is to fulfill their very purpose.
To be fair to educational organizations, this proposed educational exception is part of a typically Canadian approach to access - various organizations are lobbying for exceptions for the perceptually disabled, the justice system and so on. But the exception approach is based on a mistake - it assumes the natural state for cultural materials is private ownership.
But historically, courts and legislators have understood intellectual property as different from "real" property. Ideas have never been subject to copyright - one can only copyright a particular expression of an idea - and copyright terms unlike property rights have never been perpetual. These two facts indicate that copyright as a legal regime is built upon a compromise between the interests of individual creators or rights-holders on the one hand and the long-term public good on the other.
Copyright, its misleading name notwithstanding, is not a natural right but a tool for encouraging culture and innovation. To grant a publisher perpetual copyright would be to prevent the ongoing rejuvenation of the public domain, that fund of cultural material that belongs to all of us and nourishes artists of the present and future. Copyright can be a good incentive for creators, but at a certain point after the author's death, it serves the public better to remove all restrictions on its reproduction and alteration.
Canada's copyright tradition is founded on these principles from Anglo-American and Continental law, but we seem to have forgotten about them. Here, copyright has been understood primarily in terms of protection of the rights of copyright owners. There is a widespread belief that if we plugged all the loopholes in copyright, artists would be making a decent living. This is not true. For one thing, copyright only protects those whose work has already been rewarded by the market. The government has many initiatives - grants, Cancon regulations, subsidized education - that do help developing or noncommercial artists, but they are quite apart from copyright.
Besides, if we plugged every loophole to free access, we would jam our creative system. Imagine if a kid had to get copyright clearance or pay a fee in order to play around with the chords of a copyrighted song in his basement, or a would-be writer had to pay licensing fees in order to read the public domain poems by the likes of Rossetti, Whitman and Donne she could find on the web.
Individual copyright clearance may not involve fees, but it involves hassles. Licensing, Canada's typical solution, may not involve hassles, but it involves fees. Either way, we are impeding and de-democratizing access to our cultural heritage if we don't have some play in the system.
I suggest we look at the American copyright law for a model. The U.S. is leading the way in copyright expansionism these days, but in one respect they have a very enlightened system, in that "fair use," as they call it, is an open rather than a closed category. Whereas Canada's "fair dealing" is a very limited "exception," American "fair use" is permitted "for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship or research."
Not only does this wording explicitly give greater rights to teachers, but it leaves the door open for various artistic transformations of copyrighted material such as parody or pastiche. The American statute goes on to say that in assessing whether a use is fair or not, one should consider the "purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes," as well as "the nature of the copyrighted work, the amount and substantiality of the portion used in relation to the copyrighted work as a whole, and the effect of the use upon the potential market for or value of the copyrighted work."
In other words, owners and other rights-holders are well protected in this statute. Many Americans think the rights of owners are too well protected, but compared to the Canadian law, American law is much more balanced between owners and users.
Given Canada's tradition of attention to the collective good, I would expect us to be a world leader in the realm of copyright, making law that allows all Canadians to be educated, engaged and creative members of society. Exceptions are not the way to go. Universities should be championing an expanded vision of fair dealing instead of begging for scraps. Educational institutions are important repositories of and seed beds for our public culture, and they should not be hemmed in at every turn.
Laura Murray is associate professor of English at Queen's University.
Further information is available at www.faircopyright.ca.
The views expressed are those of the author and not necessarily those of CAUT.