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In 2006, square-jawed super hero
Captain Copyright arrived in Canada, vowing "to protect
the rights of artists, writers, musicians, photographers,
filmmakers . . . and everyone in between."
Captain Copyright was the brainchild of
Access Copyright, a Canadian non-profit organization that
serves as a licensing conduit between the authors of copyrighted
materials and those who use that material in education, business
and government. The idea, apparently, was to inculcate the
nation's youth with an innate respect for copyright law.
About two months after he appeared, however, Captain Copyright
turned around and disappeared amid
jeers and
stinging parodies. Without him, Canada's teens and tweens
were left unprotected from the temptations of digital downloading
at the dawn of the
Bit Torrent era, just when they needed it the most.
Six years later, those teens and tweens have reached college
just in time for another Access Copyright controversy. On April 16,
2012, Access Copyright
announced that it had successfully negotiated a model license
agreement with the Association of Universities and Colleges of
Canada. Under the
model license agreement, Canadian universities would have to
pay a flat fee of CA$26 per student per year (the previous deal was
CA$3.58 per student, plus 10 cents per page) for a license that
allows the schools to make copies of Access Copyright's
considerable academic text repertoire for use in course packets and
other academic pursuits.
While many of Canada's large universities have announced
that they will sign the deal, others, such as the
University of Winnipeg, have described the model license as a
"money grab" by Access Copyright and refused to sign on.
The University of British Columbia, for its part, has announced
plans to set up an in-house copyright licensing office to replace
Access Copyright's services.
The non-monetary terms of the deal are even more controversial
than the cost. Organizations like the
Canadian Association of University Teachers and the
Society of Graduate Professional Students have issued
statements outlining what they see as the most offensive terms.
These include definitions of copying that would preclude mere
hyper-linking to copyrighted material, and reporting requirements
that have been criticized as amounting to a
"surveillance" program on academia.
But what is really striking from the U.S. perspective is that,
for all that money, the license only allows copying of up to about
10-20% of each text, or one full chapter. Some critics argue that
such a license is unnecessary, because educators are already
permitted to copy approximately that amount without a license under
existing Canadian law, or at least they will be upon the passage of
Bill C-11, which is currently pending before Parliament. That
legislation would expand Canada's
fair dealing exception to include education, parody and satire
as non-infringing uses, aligning it more closely to fair use under
U.S. copyright law.
Those critics might be right. Coincidentally (or maybe under the
direction of Captain Copyright's arch nemesis,
Private Infringer), the Canadian new model license was
announced only a few weeks before the Northern District of Georgia
issued its opinion in the
closely-watched Georgia State University copyright case. In
that case, Judge Orinda Evans held, among other things, that
copying up to one chapter or 10% of an entire work for educational
purposes is fair use. If Judge Evans' view of fair use is
widely adopted as an acceptable standard, and if the new law
resulting from Bill C-11 is interpreted to bring Canadian fair
dealing on par with U.S. fair use, then the Access Copyright model
license would be requiring universities to pay for a right they
already have for free. In that case, Captain Copyright may be
making another graceless exit.
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