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“Why Are You Recommending Notice and Takedown?”: The Canadian Bar Association’s Puzzling Position at the Copyright Review

Michael Geist Law RSS Feed - Thu, 2018/12/06 - 10:02

The Canadian Bar Association appeared before the Standing Committee on Industry, Science and Technology earlier this week as part of the nearly-concluded copyright review. The CBA submitted an odd brief that focused on a mix of issues, including anti-counterfeiting, notice-and-notice, and artists’ resale rights. The notice-and-notice comments captured the attention of at least one MP, who was left puzzled by the position.

The CBA’s brief contains no evidence on the efficacy of either notice-and-notice or notice-and-takedown, limiting its analysis to how the systems are “viewed.” In doing so, it ignores evidence that notice-and-notice has been effective in educating the public on copyright. More notably, it acknowledges that “a notice-and-takedown regime can result in internet service providers removing content following an allegation, without evidence or warning to the alleged infringer.” While that might sound like a good reason to reject the system – removing content without warning or evidence ought to be considered problematic by the bar association – it recommends adopting the approach primarily on the grounds that it is available in the United States.

That did not strike Liberal MP Celina Caesar-Chavannes as a particularly compelling reason and the CBA, represented by Steven Seiferling, responded with questions of his own:

Mrs. Celina Caesar-Chavannes: To the Canadian Bar Association, your recommendation is to
consider implementation of the notice and takedown system, if I’m reading this correctly.
In the written statement you’ve provided—you say that neither system—notice and notice or notice
and takedown—is perfect. You go on to say that a notice and takedown regime can result in Internet
service providers removing content following an allegation without evidence or warning to the
alleged infringer. Why are you recommending notice and takedown, and not to improve the effectiveness of notice and notice to redress online infringement?

Mr. Steven Seiferling: That’s an interesting question. I would turn it back to you and say what do
you mean by improving the effectiveness of notice and notice? So, are you proposing something like I heard a comment earlier saying, the international treaties govern what we can do with people who are posting or infringing copyright from overseas. I don’t know of an international treaty that lets me enforce against somebody who is overseas. I don’t know where you’re going with improving the notice and notice –

Mrs. Celina Caesar-Chavannes: I’m just asking a question.

Mr. Steven Seiferling: It’s an interesting question, but I think when it comes to…. Yes, we
acknowledge that neither system is perfect. You’re never going to find a perfect system. You’re
always striving for perfection. The more effective system of the two is going to be notice and takedown, because it gives the rights holders the strongest protection they can have against the use of infringing content online, and potentially problematic infringing content online.

While it seems very unlikely the committee will recommend adoption of a notice-and-takedown approach given the government’s commitment to notice-and-notice in Bill C-86 (which addresses some of the abuses) and the CUSMA, the CBA missed a valuable opportunity to raise important copyright reform issues by instead providing an evidence-free recommendation for a system that it plainly admitted raised policy concerns.

The post “Why Are You Recommending Notice and Takedown?”: The Canadian Bar Association’s Puzzling Position at the Copyright Review appeared first on Michael Geist.

Boycott: What If The CRTC Launched a Consumer Internet Code and Consumer Groups Refused to Participate in its Development?

Michael Geist Law RSS Feed - Tue, 2018/12/04 - 10:16

Last month, the CRTC announced plans to create an Internet Code of Conduct. The CRTC promised that the code would establish “consumer friendly business practices, provide consumers with easy-to-understand contracts, ensure consumers have tools to avoid bill shock, and make it easier for consumers to switch providers.” The code attracted some initial criticism due to the wide range of exclusions – everything from net neutrality to privacy to broadband speeds falls outside its scope – but in recent days an even bigger concern has emerged with several leading Canadian consumer groups actively boycotting the proceeding.

Soon after the launch of the proceeding, groups filed a request with the CRTC for an extension in the deadline for comments. The Commission announced the plan on November 8th and said that all comments were due by December 19th. The tight timeline would be challenging under any circumstances, but when coupled with the current Broadcasting and Telecom Legislative Review (original deadline of December 10th, extended to January 11, 2019) and the CRTC inquiry into misleading or aggressive telecom practices, consumer groups feared that they could not effectively participate in the proceeding.

The Public Interest Advocacy Centre wrote to the CRTC immediately after the announcement to request that the Commission delay the proceeding until after completion of the sales practices inquiry. In practice, that would mean moving the comment period to April 2019. The PIAC request was supported by several groups, including the Forum for Research and Policy in Communications, Union des consommateurs, CNOC, the Consumers’ Association of Canada – Manitoba Branch, and the Canadian Association of the Deaf. The CRTC denied the request, concluding that 40 days (which includes weekends) was sufficient time to provide comments regardless of other activities.

The CRTC denial has sparked a groundswell of opposition from consumer groups with many announcing that they will boycott or not participate in the CRTC proceeding (PIAC, FRPC, Concordia University’s ACT, and the Consumers’ Association of Canada – Manitoba Branch, CIPPIC, Open Media). In addition, I am advised that others will speaking out against the Commission approach in the coming days. The boycott has resulted in an odd dynamic in which the CRTC professes to establish a consumer-oriented Internet code yet it simultaneously effectively excludes consumers from actively participating in its development.

The message from consumer groups is clear. Despite a near-overwhelming power imbalance and scarce resources, the groups keep coming back to CRTC proceedings in the hope of injecting missing perspectives, data, and analysis. But those efforts take time and the Commission’s determination to place the Internet code on a rocket docket without reference to other initiatives is incompatible with developing high quality submissions. Unfortunately, the CRTC’s message seems equally clear. For the current Commission, the consultation process is little more than theatre, a box-ticking exercise in which the importance of a diversity of voices takes a back seat to a desire to justify decisions by claiming that “everyone had their chance” to participate.

The public interest community frustration with CRTC Chair Ian Scott has been mounting over the past year with delays in cost awards, the denial of new wireless competition through mandated MVNOs, doubts about net neutrality, disappointing Internet service targets, and Commission calls for new Internet taxes. However, the rush to establish a consumer Internet code that will not include many notable consumer voices sends a signal of a Commission badly out-of-touch with consumer concerns and out-of-step with Innovation, Science and Economic Development Minister Navdeep Bains’ priorities for the sector.

The post Boycott: What If The CRTC Launched a Consumer Internet Code and Consumer Groups Refused to Participate in its Development? appeared first on Michael Geist.

Misleading on Fair Dealing, Part 10: Rejecting Access Copyright’s Demand to Force Its Licence on Canadian Education

Michael Geist Law RSS Feed - Mon, 2018/12/03 - 11:19

My series on misleading on fair dealing concludes today with a post on Access Copyright’s demands for copyright reform. The copyright collective’s strategy is simply to force educational institutions to pay for its licence. It seeks to do so through two legal reforms: (i) restrict the use of fair dealing for education and (ii) massively increase the risk of liability through the imposition of statutory damages. The proposed reforms run directly counter to Canada’s longstanding commitment to balanced copyright, would reduce choice and innovation in licensing content online, and leave students and taxpayers facing risks of multi-million dollar liability that far exceeds the value of any copying.

This ten part series has addressed many of the misleading claims that have surfaced in recent months about fair dealing and copying practices in Canada:

  • Noting that claims that the 2012 reforms are to “blame” for educational copying are directly contradicted by Access Copyright’s own statements to the Copyright Board of Canada (when asked last week about the issue before the Heritage committee, Access Copyright switched the subject).
  • Unpacking the attention-grabbing claim that there are 600 million uncompensated copies annually, demonstrating that the number is the result of outdated guesswork using decades-old data and deeply suspect assumptions.
  • Conclusively showing how the market for educational copying has changed in recent years as education shifts from the print-based Access Copyright photocopy model toward the abandonment of print coursepacks, reduced usage of books within course materials, and the massive investment in site licensing
  • Explaining why site licences offer far better value than the Access Copyright licence, particularly given the ability to pay for both access and reproduction in a single licence, whereas Access Copyright only provides rights of reproduction for materials that have already been acquired.
  • Discussing how Access Copyright has steadfastly opposed transactional licensing, despite a ready market and multi-million dollar spending every year by educational institutions.
  • Highlighting the emergence of free and open alternatives that now constitute a quarter or more of course materials, including public domain works, open educational resources, open access, and hyperlinking to third party content.

Faced with this reality – a competitive, innovative market for licensing that offers more choice to educational institutions grappling with limited funding and demands for digital access – Access Copyright’s proposed response is legal reform designed to force educational institutions to pay for its photocopy licence. Everyone agrees that education has increased spending on licensing since 2012. However, since institutions are not spending it on this particular licence, the copyright collective demands two legal reforms to force them to do so.

First, Access Copyright wants to eliminate fair dealing for education where its licence is available. From its brief to the Industry committee:

Access Copyright submits that the Copyright Act be amended such that the fair dealing exception for the purposes of research, private study and education not apply to educational institutions in respect of works that are commercially available. Such amendment would stipulate that a work is “commercially available” if it is available to the user from a collective society or by the rightsholder within a reasonable time and for a reasonable price and may be located with reasonable effort.

It is difficult to conceive of a more anti-innovation, anti-education proposal. While Canada’s trading partners are debating how to support innovation and education through expanding the purposes of fair dealing or adopting fair use, Access Copyright’s proposal would create one of the most restrictive systems in the world. Indeed, some of the most innovative countries, including the United States, Singapore, South Korea, and Israel, have all adopted full fair use provisions. Others, including Australia and South Africa, are considering a fair use provision. Yet despite the moves elsewhere toward fair use, Access Copyright proposes a reform that would greatly restrict user rights, increase litigation and educational costs, decrease competition, and create disincentives for investment in new access to materials. The proposal should be rejected.

Second, Access Copyright wants statutory damages of up to ten times applicable royalties added to the Copyright Act. The copyright collective argues that the massive escalation in potential damage awards are needed for three reasons: deterrence, promotion of settlement negotiations, and efficient use of court resources. Yet none of the arguments ring true. Deterrence is used in the context of small establishments that might use music without paying the appropriate licence. But that is far different from the current situation with educational institutions that have not paid the Access Copyright licence because of a good faith analysis of the scope of fair dealing under Canadian copyright law coupled with huge investments in alternative licensing. For Access Copyright to argue that non-payment of its licence is a function of low risk of penalties rather than a different view of copyright law and the market badly (and knowingly) mischaracterizes the situation.

Further, the so-called public policy benefit of promoting settlement negotiations amounts to little more than the hope that increasing liability risk will convince educational institutions – and by extension students and taxpayers – to cave to Access Copyright’s shaky legal claims. The litigation costs sparked by the Access Copyright lawsuit are significant. To accept Access Copyright’s argument, it would be beneficial to encourage the collective to file lawsuits against educational institutions with the added threat that failure to settle could lead to hundreds of millions in liability beyond what even Access Copyright would argue are the applicable royalties.

The reality is that Canadian copyright law features two different approaches to the use of tariffs determined by the Copyright Board. Some tariffs, such as those for music collective SOCAN, are mandatory owing to concerns over competitive practices. This means the collective must file tariffs with the board, which determines the appropriate rate. Since the filing with the board is mandatory, the law provides for the possibility of a statutory damages multiplier, meaning that users that fail to pay the prevailing tariff may owe several times more than the actual licence fee.  This helps foster compliance, sets a cap on statutory damages, and represents a quid pro quo for the mandated filing approach.

Alternatively, for some tariffs, such as those involving Access Copyright, the use of the board is optional. This leaves it to rights holders to determine if they want to privately negotiate their rates or have the board establish a rate for the market. Since the process is optional, there are no statutory damages multipliers in effect. Statutory damages are rarely used around the world and should be rejected as a reform as part of this review process.

The educational copying debate is painted by Access Copyright and its supporters as a matter of refusal to pay for use. Yet the evidence tells a far different story, demonstrating increased spending and misleading claims about copying. The reality is that the issue was never about whether education pays for materials. It clearly does, now more than ever. Rather, it is about whether education gets to choose which licences best meet its needs and whether the market will continue to innovate to provide creators and publishers with more options for how their works can be licensed.

The post Misleading on Fair Dealing, Part 10: Rejecting Access Copyright’s Demand to Force Its Licence on Canadian Education appeared first on Michael Geist.

Misleading on Fair Dealing, Part 9: The Remarkable Growth of Free and Open Materials

Michael Geist Law RSS Feed - Fri, 2018/11/30 - 10:06

“Free” materials for educational purposes are sometimes derided as sub-standard works based on the premise that you get what you pay for. Inherent in the argument is that value is associated with cost and that turning to materials without cost means relying on materials without value. Yet the reality is that free materials are free as in “freely available” with the costs of production or business models that support those works rivalling conventional publication approaches. Free or openly available materials are not outliers. For example, the University of Guelph told the Industry committee that 24 per cent of materials in their course management systems consisted of open or free online content.

The series on misleading on fair dealing continues with an examination of freely available materials, including four sources: public domain works, open educational resources, open access publishing, and hyperlinking to third party content (prior posts in the series include the legal effect of the 2012 reforms, the wildly exaggerated suggestion of 600 million uncompensated copies each year, the decline of books in coursepacks, the gradual abandonment of print coursepacks, the huge growth of e-book licensing, why site licences offer better value than the Access Copyright licence, my opening remarks to the Standing Committee on Canadian Heritage, and transactional licensing).

Public domain

Despite efforts by some to dismiss its value, the widespread use of public domain works within Canadian classrooms underscores its continued relevance. The Ontario Book Publishers Organization published a study last year funded by Ontario Creates on the use of Canadian books in English classes in Ontario Public and Catholic schools from Grades 7 to 12. The study surveyed teachers and school boards on which books (including novels, short story collections, creative non-fiction, poetry and plays but not textbooks) are taught in English classes. The goal was to see whether Canadian books were included in class lists. The survey generated hundreds of responses (27 from school board participants and 280 from the Ontario Teachers Federation) resulting references to 695 books by 539 authors.

Working with Sydney Elliott, one of my research assistants, we reviewed the OBPO data to identify the presence of public domain works in Ontario classrooms (ie. the use of works for which the term of copyright has expired). The results were striking as the data confirms that public domain books are an essential part of the English curriculum. Of the top 20 titles, half are in the public domain today or will enter the public domain within the next few years. William Shakespeare is unsurprisingly responsible for many of these titles, but he is not alone. Other very popular public domain works include books by F. Scott Fitzgerald and George Orwell along with books by John Wyndham and John Steinbeck that will enter the public domain in Canada by the end of the decade.

The importance of the public domain within the classroom extends far beyond the most popular works, however. The survey identified 99 books that received at least four separate mentions from respondents. Of those 99 books, 20 are in the public domain and two more will enter the public domain shortly. This covers a wide range of additional authors including Huxley, Conrad, Shelley, Bronte, and McNamee. These books are widely used as they represent 35% of the total mentions. Expanding even further to the entire list of 695 books, 96 are in the public domain or about to enter it.

It should be noted that there was another large category of works currently used in Canadian classrooms beyond the nearly 100 public domain titles. Our review identified another 27 titles that are scheduled to enter the public domain within the next 20-25 years including works from authors and poets such as Agatha Christie, J.R.R. Tolkein, and W.H. Auden. These works – which appear regularly on class lists – would be directly affected by copyright term extension agreement in the new NAFTA that will lock down works from the public domain for decades. The copyright term extension represents a significant shift in Canadian copyright that requires a re-balancing as part of the current reform process.

Open Educational Resources

The BC government became the first Canadian province to launch an open textbook initiative in 2012, committing to 40 new online, open textbooks for 40 popular post-secondary courses. The initiative has since grown and been emulated in other provinces. For example, the Ontario government launched a new Open Textbook Library for Ontario in 2016 that will feature hundreds of openly licensed, professionally created textbooks providing students with access to free digital texts in dozens of university and college courses.

As governments increasingly recognize the importance of investing in open education to support learners at all stages of their lives, publishers have taken note of the changing market dynamics. A 2017 report prepared for the Association of Canadian Publishers acknowledged:

The OER movement continues to grow and is becoming a cornerstone of the Canadian K–12 educational system. The proliferation of OER content is evident across the country and there are numerous initiatives that support the development, access, and distribution of content.

Described in the Access Copyright commissioned report from PWC as a “threat”, the open textbook model provides a cost-effective alternative to expensive textbooks and licences. Indeed, internationally, SPARC estimates there has been more than $1 billion saved through open educational resources. The works are paid for, but once created, can be freely used and modified without the need for further licences, payments or permissions. This also provides a strong rebuttal to those who suggest that open textbooks may be inferior to the pricey, publisher versions. The open textbooks are written by teaching professionals, peer reviewed, and professionally developed in the same manner as commercial textbooks. The difference is that once created, they can be freely used, reused, and modified.

The impact of open educational resources is being felt at universities across the country.  For example, UBC reports:

Since 2011, at least 155 UBC courses have been identified as using open textbooks, OERs, or freely accessible resources instead of traditional textbooks. And if we look across those past six years, 47,423 UBC students were enrolled in those courses using open resources. The estimated cost savings for students has also increased over the past few years. The replacement of traditional textbooks with open resources has potentially saved UBC students between $4.7 to $6.7 million since 2011.

The province-wide estimates from the BC Campus are even higher, with student savings of nearly $10 million, almost 100,000 B.C. students using open textbooks, and nearly 500 faculty adopting the open textbooks.  Other studies provide similar numbers. The University of Saskatchewan says it use of open textbooks has saved 2,750 students a total of $275,00 in the 2016-2017 academic year, and more than $400,000 since it first launched in 2014. A study by David Annand and Tilly Jensen projected cost savings of $217,500 per year for the University of Athabasca, based on using an open textbook for an introductory financial accounting class (of 1,500 student enrollment) alone.

The shift toward open educational resources represents a win-win-win-win scenario: free textbooks for students, reduced long-term costs for education and government, financial support and compensation for creators of the texts, and high quality, Canadian materials freely available for use by teachers across the province.

Open Access

As open access publishing grows in popularity – the European Union has announced plans to ensure that all publicly-funded scientific papers will be freely available by 2020 and Canada now has a similar open access policy in place for government-funded research – the majority of new research publications will soon be freely online and accessible to all. This should be celebrated as it creates equality of access and better ensures that the work of researchers is made available to everyone, including teachers and students.

The role of open access licensing is particularly important, since the public has effectively already paid for many of the publications by funding research and researchers. Further, the continued growth of open access reflects a desire of the authors/researchers to ensure their work is widely disseminated. In many disciplines – the sciences, health, engineering, and law to name several – open access is increasingly the standard, meaning that Access Copyright’s demands for licence payments would require hundreds of thousands of students to pay for copying that does not require a licence.

The emergence of open access publishing has enabled free access (as desired by the author) to millions of articles. According to a report by Montreal-based Science-Metrix, more than half of all research publications in some countries and fields of study are now freely available online. The shift toward open access becoming the default form of disseminating research in many fields is a remarkable change given that conventional publishing in expensive subscription-based journals was the standard in many areas of research as recently as ten years ago. The move toward open access means that global research is far more accessible to everyone—scientists, researchers, and the general public. It also means that courses that rely on the latest research found in journal articles will increasingly be able to access and distribute those articles to students at no cost.

Hyperlinking to Third Party Materials

Another notable source of materials on digital CMS are hyperlinks to third party websites that may feature content that a teacher or professor wishes to incorporate into the curriculum. The works are not copied by the educational institution, but rather merely referenced by way of a hyperlink. The government explicitly supported educational use of Internet-based materials in the 2012 reforms with the following provision at 30.04(1):

it is not an infringement of copyright for an educational institution, or a person acting under the authority of one, to do any of the following acts for educational or training purposes in respect of a work or other subject-matter that is available through the Internet:
(a) reproduce it;

(b) communicate it to the public by telecommunication, if that public primarily consists of students of the educational institution or other persons acting under its authority;

(c) perform it in public, if that public primarily consists of students of the educational institution or other persons acting under its authority; or

(d) do any other act that is necessary for the purpose of the acts referred to in paragraphs (a) to (c).

The Act does contain several conditions, but it permits widespread use of Internet-based materials by education.

Moreover, the Supreme Court of Canada considered the legal status of a hyperlink in the 2011 decision of Crookes v. Newton. The court concluded:

Hyperlinks thus share the same relationship with the content to which they refer as do references.  Both communicate that something exists, but do not, by themselves, communicate its content.  And they both require some act on the part of a third party before he or she gains access to the content.  The fact that access to that content is far easier with hyperlinks than with footnotes does not change the reality that a hyperlink, by itself, is content neutral – it expresses no opinion, nor does it have any control over, the content to which it refers.

Given the state of the law, some may find it odd to even include hyperlinks within a discussion on freely available materials since it does not appear to trigger a copy or copyright issue. Yet Access Copyright proposed including hyperlinks within its educational tariff.  When the Copyright Board called them on it by asking for a legal justification in light of the Supreme Court jurisprudence, the copyright collective admitted (Document AC-21):

Access Copyright has not introduced any evidence about the prevalence of the use of links and the extent to which they point to unauthorized uses. Given the lack of evidence, Access Copyright is not claiming any specific or additional value in the tariff for the right to post a link or a hyperlink in this proceeding.

It then folded on the issue altogether: “Access Copyright has no objection to the Board removing this permitted use from the certified tariff.”

The initial inclusion of compensation for linking is part of a broader trend of overreach, however, with Access Copyright seeking compensation for uses that are already covered by other sources, including site licences, fair dealing, or transactional licences. There are many other materials that are freely available for use, including works for which the term of copyright has expired, open educational resources, open access for journals, and third party content posted online that may be incorporated through a hyperlink.

The post Misleading on Fair Dealing, Part 9: The Remarkable Growth of Free and Open Materials appeared first on Michael Geist.

Misleading on Fair Dealing, Part 8: The Access Copyright Fight Against Transactional Licensing

Michael Geist Law RSS Feed - Thu, 2018/11/29 - 10:57

The series on misleading on fair dealing continues with a post on transactional licensing and Access Copyright’s inexplicable opposition to a licensing system that currently generates millions of dollars in revenue for publishers and authors. Transactional licensing, which involves pay-per-use licences for specific uses not otherwise covered by institutional site licences, collective licences, or fair dealing, is widely used to ensure universities and colleges are compliant with copyright law (prior posts in the series include the legal effect of the 2012 reforms, the wildly exaggerated suggestion of 600 million uncompensated copies each year, the decline of books in coursepacks, the gradual abandonment of print coursepacks, the huge growth of e-book licensing, why site licences offer better value than the Access Copyright licence, my opening remarks to the Standing Committee on Canadian Heritage).

The Industry committee has heard convincing evidence that expenditures by Canadian education on transactional licences collectively runs into the millions of dollars each year. For example:

  • the University of Toronto said it paid more than $285,000 on transactional licences in the last academic year
  • Ryerson University said it spends more than $150,000 on transactional licences annually
  • the University of Guelph spent $100,000 on transactional licences in 2017-18. Transactional licences are responsible for 6 per cent of course materials at the university. Site licensing covers 54 per cent of the content, free and open Internet content constitutes 24 per cent, and fair dealing 16 per cent.
  • Concordia University, which pays the Copibec collective licence, still spends an additional $120,000 in transactional licensing costs
  • the University of Calgary spent $96,149 on transactional licences, of which $45,123 went toward materials in printed coursepacks and $51,026 for materials posted to a CMS.
  • UBC spent $113,409 on transactional licences for access and use of 780 items

The significant expenditures on transactional licences is notable for several reasons. First, they provide compelling evidence that claims educational institutions treat fair dealing as free dealing is simply false. Universities spend millions of dollars on these licences each year precisely because there are reasonable limits to fair dealing. Contrary to the claims, universities regularly turn to licences for materials where fair dealing does not apply.

Second, additional transactional licences may be needed even where a collective licence is operational. While Access Copyright and Copibec leave the impression that their licences provide a one-stop solution for educational copying, their licences do not permit unlimited copying. Given their commitment to abiding by the law, universities subject to collective licences still find themselves investing in transactional licences to cover their copying needs.

Third, transactional licences are more effective than collective licences in directly compensating creators and publishers for the use of their work. Unlike the Access Copyright licence, which involve considerable guesswork on usage and a Payback system that excludes digital materials as well as works older than 20 years, transactional licences are paid for use of a specific work regardless of the format or age. The costs currently reflect market rates and feature a link between copyright compensation and creativity not found in a collective licence.

Fourth, Access Copyright has astonishingly opposed transactional licences for years, arguing that only its licence is an effective means of compensation. In 2016, the Copyright Board raised several questions about the possibility of establishing a tariff for transactional licensing, effectively creating a standard per page fee for transactional usage. Despite widespread usage by educational institutions and adoption by publishers, Access Copyright responded (Document AC-18):

Transactional licences for secondary uses of works fail to deal with the realities presented by digital copying in the educational sector and do not ensure that rightsholders are compensated when required.

Oddly, Access Copyright told the Copyright Board that transactional licences simply can’t be used for CMS:

Whereas students buy paper coursepacks from their institutions, bookstores, and copyshops, which can charge and recoup the per-page royalty fee at the point of sale, there is no point of sale when a digital copy is made by a professor and placed on a CMS or accessed by a student. There is nowhere for the royalty to be charged and collected.

In fact, Canadian universities are already using transactional licences for these purposes, supported by publishers and others granting licences in the market. For example, the U.S.-based Copyright Clearance Center (CCC), Access Copyright’s U.S. counterpart, offers transactional licences and has been used by Canadian universities. The CCC has then remitted the royalties it collects to Access Copyright. Yet despite its success in the market and the millions being spent annually, Access Copyright remains opposed, suggesting that its primary interest is preserving its licence approach, not adapting to emerging opportunities in support of all stakeholders.

The post Misleading on Fair Dealing, Part 8: The Access Copyright Fight Against Transactional Licensing appeared first on Michael Geist.

an open letter to MP Randy Boissonnault

Fair Duty by Meera Nair - Tue, 2018/11/27 - 22:35

Dear Mr. Boissonnault:

I write in connection to remarks you made on November 22, during a meeting of the Standing Committee on Canadian Heritage (beginning at 11:49 here). There appears to be a misunderstanding on matters relating to legitimate, unauthorized copying of copyright-protected materials. As this misunderstanding could be widespread, a few words publicly offered may alleviate such anxiety.

You expressed concern that Canadian literature is in peril, and you attributed this to unauthorized use of such literature in universities. That some publishers and writers are encountering difficulties is not in question, but the details are much more complex than was discussed. Today’s challenges stem from an accumulation of events preceding the 2012 amendment of the Copyright Act.

Nevertheless, CanLit is here to stay. On this topic, the work of Nick Mount (Professor, Department of English, University of Toronto) is invaluable, as he is respected on both sides of this debate. In Arrival: The Story of CanLit (2017), Mount details CanLit’s birth, midwifed as it was by profuse government spending during the booming post-WWII economy. As to CanLit’s trajectory: “Canada is producing many more writers and many more books than ever before … there has never been a better time to be a Canadian reader.”

History informs us that reading brings forth writing.

Returning to your remarks, you spoke highly of your studies at Oxford. You might be interested to know that Oxford is mentioned by name in the very first copyright statute: the Statute of Anne (1710). A condition for receiving copyright was that the libraries of Oxford, Cambridge, and other similar institutions, should receive a complimentary copy of the protected book, printed “upon the best paper,” apparently to survive the handling by many grubby hands. Since then, copyright law has undergone numerous changes, but the principle remains: certain measures of unauthorized use are legitimate as they serve larger social goals.

Despite this, universities are increasingly paying for all uses, through licenses with publishers. A multitude of briefs have been submitted to the Standing Committee on Industry, Science and Technology; expenditures are given in detail and speak to the rising trend of relying more on institution-wide licenses for journals and books. Also, Michael Geist (Canada Research Chair in Internet and E-commerce Law, University of Ottawa) has just published a series on his blog which addresses this topic; for instance, see here.

If I may, there is one aspect of your remarks that I find troubling; you suggested sitting down with student leaders to ensure Canadian writers have sufficient funding. The implication is that students are responsible for the challenges endured by some Canadian writers. Nothing could be further from the truth. When students independently engage in unauthorized copying towards completion of their homework, projects, presentations etc.—that is, when they incorporate bits and pieces of text, imagery, multi-media—such copying falls within fair dealing (the principal exception within the Copyright Act, which supports learning). When guided by their teachers, content circulated likely fell within fair dealing, or, as Geist illustrates, was already paid for through an institutional license.

Moreover, a blanket fee, charged to all students, ignores the reality that many disciplines do not engage with Canadian literature, or literature of any kind. To levy such a fee on all students is, at best, inappropriate. At worst, it is unconscionable.

We are leaving our next generations with some intractable problems including climate change, ballooning healthcare costs, the need to develop new industries, and the desperate need to diversify our markets. Fortunately, there are many bright, hardworking, dedicated students, overcoming their ever present hardships, rising to meet these challenges. But even so, the political solution to a shortfall in income among writers should not be a transfer of funds from the group that is even more impoverished.

Meera Nair, Ph.D.
Constituent and Parent

Routing Detours: Can We Avoid Nation-State Surveillance?

Freedom to Tinker - Tue, 2016/08/30 - 18:44
Since 2013, Brazil has taken significant steps to build out their networking infrastructure to thwart nation-state mass surveillance.  For example, the country is deploying a 3,500-mile fiber cable from Fortaleza, Brazil to Portugal; they’ve switched their government email system from Microsoft Outlook to a state-built system called Expresso; and they now have the largest IXP […]

Differential Privacy is Vulnerable to Correlated Data — Introducing Dependent Differential Privacy

Freedom to Tinker - Fri, 2016/08/26 - 09:57
[This post is joint work with Princeton graduate student Changchang Liu and IBM researcher Supriyo Chakraborty. See our paper for full details. — Prateek Mittal ] The tussle between data utility and data privacy Information sharing is important for realizing the vision of a data-driven customization of our environment. Data that were earlier locked up […]

Language necessarily contains human biases, and so will machines trained on language corpora

Freedom to Tinker - Wed, 2016/08/24 - 16:32
I have a new draft paper with Aylin Caliskan-Islam and Joanna Bryson titled Semantics derived automatically from language corpora necessarily contain human biases. We show empirically that natural language necessarily contains human biases, and the paradigm of training machine learning on language corpora means that AI will inevitably imbibe these biases as well. Specifically, we look at […]

Security against Election Hacking – Part 2: Cyberoffense is not the best cyberdefense!

Freedom to Tinker - Thu, 2016/08/18 - 09:00
State and county election officials across the country employ thousands of computers in election administration, most of them are connected (from time to time) to the internet (or exchange data cartridges with machines that are connected).  In my previous post I explained how we must audit elections independently of the computers, so we can trust the […]

Security against Election Hacking – Part 1: Software Independence

Freedom to Tinker - Wed, 2016/08/17 - 09:27
There’s been a lot of discussion of whether the November 2016 U.S. election can be hacked.  Should the U.S. Government designate all the states’ and counties’ election computers as “critical cyber infrastructure” and prioritize the “cyberdefense” of these systems?  Will it make any difference to activate those buzzwords with less than 3 months until the […]

Can Facebook really make ads unblockable?

Freedom to Tinker - Thu, 2016/08/11 - 17:18
[This is a joint post with Grant Storey, a Princeton undergraduate who is working with me on a tool to help users understand Facebook’s targeted advertising.] Facebook announced two days ago that it would make its ads indistinguishable from regular posts, and hence impossible to block. But within hours, the developers of Adblock Plus released an […]

The workshop on Data and Algorithmic Transparency

Freedom to Tinker - Wed, 2016/08/10 - 09:57
From online advertising to Uber to predictive policing, algorithmic systems powered by personal data affect more and more of our lives. As our society begins to grapple with the consequences of this shift, empirical investigation of these systems has proved vital to understand the potential for discrimination, privacy breaches, and vulnerability to manipulation. This emerging […]

A response to the National Association of Secretaries of State

Freedom to Tinker - Tue, 2016/08/09 - 08:11
Election administration in the United States is largely managed state-by-state, with a small amount of Federal involvement. This generally means that each state’s chief election official is that state’s Secretary of State. Their umbrella organization, the National Association of Secretaries of State, consequently has a lot of involvement in voting issues, and recently issued a […]

Supplement for Revealing Algorithmic Rankers (Table 1)

Freedom to Tinker - Fri, 2016/08/05 - 05:35
Table 1: A ranking of Computer Science departments per csrankings.org, with additional attributes from the NRC assessment dataset. Here, the average count computes the geometric mean of the adjusted number of publications in each area by institution, faculty is the number of faculty in the department, pubs is the average number of publications per faculty […]

Revealing Algorithmic Rankers

Freedom to Tinker - Fri, 2016/08/05 - 05:35
By Julia Stoyanovich (Assistant Professor of Computer Science, Drexel University) and Ellen P. Goodman (Professor, Rutgers Law School) ProPublica’s story on “machine bias” in an algorithm used for sentencing defendants amplified calls to make algorithms more transparent and accountable. It has never been more clear that algorithms are political (Gillespie) and embody contested choices (Crawford), […]

Election security as a national security issue

Freedom to Tinker - Wed, 2016/08/03 - 13:11
We recently learned that Russian state actors may have been responsible for the DNC emails recently leaked to Wikileaks. Earlier this spring, once they became aware of the hack, the DNC hired Crowdstrike, an incident response firm. The New York Times reports: Preliminary conclusions were discussed last week at a weekly cyberintelligence meeting for senior officials. […]

Brexit Exposes Old and Deepening Data Divide between EU and UK

Freedom to Tinker - Mon, 2016/07/25 - 10:45
After the Brexit vote, politicians, businesses and citizens are all wondering what’s next. In general, legal uncertainty permeates Brexit, but in the world of bits and bytes, Brussels and London have in fact been on a collision course at least since the 90s. The new British prime minister, Theresa May, has been personally responsible for […]

Pokémon Go and The Law: Privacy, Intellectual Property, and Other Legal Concerns

Freedom to Tinker - Tue, 2016/07/19 - 10:59
Pokémon Go made 22-year-old Kyrie Tompkins fall and twist her ankle. “[The game]  vibrated to let me know there was something nearby and I looked up and just fell in a hole,” she told local news outlet WHEC 10. So far, no one has sued Niantic or The Pokémon Company for injuries suffered while playing […]

A Peek at A/B Testing in the Wild

Freedom to Tinker - Thu, 2016/05/26 - 09:40
[Dillon Reisman was previously an undergraduate at Princeton when he worked on a neat study of the surveillance implications of cookies. Now he’s working with the WebTAP project again in a research + engineering role. — Arvind Narayanan] In 2014, Facebook revealed that they had manipulated users’ news feeds for the sake of a psychology study […]
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