STRIKING the BALANCE

Submission to the Copyright Consultations

Canadian Federation of Students

September 2009
 The Canadian Federation of Students

British Columbia
University of British Columbia Students’ Union Okanagan
Broadway Campus Students’ Union of Vancouver Community College
Camosun College Student Society
Capilano Students’ Union
Douglas Students’ Union
Downtown (City Centre) Students’ Union of Vancouver Community College
Emily Carr Students’ Union
Kwantlen Student Association
College of New Caledonia Students’ Union
North Island Students’ Union
Northwest Community College Students’ Union
Okanagan College Students’ Union
College of the Rockies Students’ Union
Selkirk College Students’ Union
Simon Fraser University Student Society
Thompson Rivers University Students’ Union
Vancouver Island University Students’ Union
University of Victoria Students’ Society

Prairies
Alberta College of Art and Design Students’ Association
Brandon University Students’ Union
Graduate Students’ Association at the University of Calgary
First Nations University of Canada Students’ Association
University of Manitoba Students’ Union
University of Manitoba Graduate Students’ Association
University of Regina Students’ Union
Association étudiante du Collège universitaire de Saint-Boniface
University of Saskatchewan Students’ Union
University of Saskatchewan Graduate Students’ Association
University of Winnipeg Students’ Association

Ontario
Algoma University Students’ Union
Brock University Graduate Students’ Association
Carleton University Students’ Association
Carleton University Graduate Students’ Association
Association étudiante de La Cité collégiale
Student Association of George Brown College
Glendon College Student Union
University of Guelph Central Student Association
University of Guelph Graduate Students’ Association
Lakehead University Student Union
Laurentian Association of Mature and Part-time Students
Laurentian University Graduate Students’ Association
Laurentian University Studens’ General Association
Association des étudiantes et étudiants francophones de l’Université Laurentienne
 85 Member Students’ Unions
Over 600,000 University and College Students

McMaster University Graduate Students’ Association

Nipissing University Student Union
Ontario College of Art and Design Student Union
Student Federation of the University of Ottawa
Graduate Students’ Association des étudiant(e)s diplômé(e)s de l’Université d’Ottawa
Queen’s University Society of Graduate and Professional Students
Ryerson Students’ Union
Continuing Education Students’ Association of Ryerson
Saint Paul University Students’ Association
University of Toronto Scarborough Campus Students’ Union
University of Toronto Graduate Students’ Union
University of Toronto Students’ Union
University of Toronto at Mississauga Students’ Union
Association of Part-Time Undergraduate Students of the University of Toronto
Trent Central Student Association
Trent University Graduate Student Association
University of Western Ontario Society of Graduate Students
Wilfrid Laurier University Graduate Students’ Association
University of Windsor Students’ Alliance
University of Windsor Graduate Students’ Society
University of Windsor Organization of Part-time University Students
York Federation of Students
York University Graduate Students’ Association

Québec
Concordia Students’ Union
Concordia University Graduate Students’ Association
Dawson Students’ Union
Post-Graduate Students’ Society of McGill University

Maritimes
Cape Breton University Students’ Union
Dalhousie Association of Graduate Students
Holland College Student Union
University of King’s College Students’ Union
Mount Saint Vincent University Students’ Union
University of New Brunswick Graduate Students’ Association
Student Union of NSCAD University
University of Prince Edward Island Student Union
University of Prince Edward Island Graduate Student Association
Association générale des étudiants de l’Université Sainte-Anne

Newfoundland & Labrador

Grenfell College Student Union
Marine Institute Students’ Union
Memorial University of Newfoundland Students’ Union
Graduate Students’ Union of the Memorial University of Newfoundland
College of the North Atlantic Students’ Union
 Executive Summary
Should copyright law lock down music and literature to protect the financial interests of
rights-holders? Or, should it promote broad access to, and use of, intellectual property?
These questions are at the core of the growing public debate over the need for fair and
balanced copyright law, a debate in which college and university students have a critical
stake.
As creators and owners of copyright material (essays, articles, theses, and multimedia
productions), students need to protect their work from unjust appropriation. But to
study, research, write, and create new knowledge, students also need ready access, at a
reasonable cost, to the copyrighted works of others. This tri-part perspective—of use,
creation, and ownership of copyright—gives students special credibility in the struggle
for fair and balanced copyright law.
This brief addresses the fundamental questions that must be considered when revising
copyright legislation for the digital age in a way that will allow it to stand the test of time.
The brief answers the following questions:

Section 1. How do Canada’s copyright laws affect you? How should existing laws be
modernized?
Section 2. What sorts of copyright changes do you believe would best foster
innovation and creativity in Canada?
What sorts of copyright changes would best foster competition and
investment in Canada?
Section 3. What kinds of changes would best position Canada as a leader in the
global, digital economy?
Section 4. Based on Canadian values and interests, how should copyright changes
be made in order to withstand the test of time?

Key Recommendations
1. Expand the definition of fair-dealing to be more flexible and inclusive.
2. Regulate the use of technological protection measures so that they do not
interfere with users’ legitimate attempts to use copyrighted works.
3. Eliminate Crown copyright.
4. Strictly limit statutory damages.
5. Enhance moral rights to protect creators.
6. Establish a “notice and notice” system of Internet copyright enforcement.

2009 Copyright Consultations PAGE 7

Creating Legislation for the 21st Century
Students, like most citizens, interact
with copyrighted works on a daily basis.
Students use textbooks and articles in
classes, quote from research papers and
publications in their essays, and often
use images, sound and video in their
projects. Copyright legislation affects
students virtually every time they walk
into a classroom, watch a video online, or
step into the library.
However, what is often overlooked is
that students are not only users, but
also creators of copyrighted material.
Students write essays, articles and theses;
develop new technologies, formulas, and
computer software; and create music,
produce videos and photographic works.
Being both users and creators of
copyrighted works, students are in a
fairly unique position when it comes
to copyright. In order to be able to
study, research, write, remix, and
regenerate existing creations for new
audiences, students need ready access,
at a reasonable cost, to the copyrighted
works of others.
At the same time, in the face of
aggressive, powerful, and, sometimes
exploitative, distributors of copyrighted
materials, students, like all creators, need
adequate protections from the unjust
appropriation of their works.
2009 Copyright Consultations
Digital technology has increased the
role of new media in popular culture,
and students are often on the cutting
edge of such advancements. With new
technology, students are becoming a
major source of new and re-mixed media,
whether it be creating films and videos,
producing music, or developing new
ways to share and transform art and
knowledge.
The central question of copyright reform
is how best to strike a balance between
the needs of users for reasonable access
and use of copyrighted works, and the
need of creators to be protected from
unjust appropriation. Good public policy
should ensure that digital technology
protects the legitimate interests of
artists, writers, musicians, researchers,
and other creators, while preventing
copyright owners from using new
technologies to restrict reasonable
access to, and use of information.
PAGE 9
Fostering Innovation and Creativity,
Competition and Investment
Innovation and creativity are best served
through a Copyright Act that balances
the rights of creators, owners, and users.
Creators require protection from unjust
appropriation and the ability to earn
from the works they produce while users
require the ability to access these works
and, when reasonable, use them for the
basis of the creation of new works.
All creators stand on the shoulders of
giants. Innovation is, by its very nature,
the result of building upon the works
of others, so blocking access stifles the
innovative process. Canadian students
cannot be saddled with an overly
complex and inefficient subsection of
rules—such as those proposed previously
within an “education exception”—that
will inevitably put them at a disadvantage
compared to countries with more
comprehensive and coherent copyright
legislation.
Some of Canada’s most innovative
research is carried out by graduate
students in universities. To be able
to properly produce knowledge
these graduate researchers and their
supervisors need reasonable access
to works published by their peers.
Any increase in cost or limits to access
resulting from restrictive copyright law
or unbreakable digital locks, will slow
down the rate of innovation and hinder
Canada’s competitiveness.
2009 Copyright Consultations
Copyright laws should establish an
incentive framework that produces an
environment where creators are able
to create new things, but does not
engender a system where the owners
and distributors of copyrighted works
maintain unnecessarily long-terms of
control over their use. Knowledge is at
the heart of a dynamic and productive
arts and research community and
must not be controlled by owners for
exceedingly long periods of time if the
potential for competition and innovation
is to be maximised. The shorter
the legally protected monopoly on
knowledge, the greater the incentive that
exists to invest in the production of new
material. However this must be balanced
with the need of the creator to make a
living. Therefore, the current length of
copyright terms should not be increased.
Without a fair balance between the
interests of creators, users, and owners
there is reduced incentive for investment
in the creation of new works and
knowledge. Investment in new products
and innovation by creators requires
that they benefit financially from their
works. However, if ownership rights are
too severe, they will greatly restrict the
ability of the Canadian public to access
and make use of these works for fair and
reasonable puposes, ones which inspire
creativity and future innovation.
PAGE 11
Positioning Canada as a
Leader in the Global Digital Economy
With the development of technologies
that facilitate the high-speed, low-cost
transfer of digital information, there
has come a massive increase in the
speed of research and innovation.
Despite the clear benefits of these
developments, some groups have
proposed to use technology to prevent
some communications and lock down
knowledge in its digital form in order to
maximize their ability to control and to
profit from copyrighted works.
Copyright law was initially developed in
response to technological advancements
in the mass production of intellectual
and creative work—a strikingly similar
situation to the one we face today.
Copyright law was created to restore a
balance (disrupted by the development
of printing press monopolies) between
the economic interests of creators and
mass distributors so that the public
would have access to new cultural works.
These monopolies still exist today and
continue to demand that copyright laws
be skewed in their favour. However,
these opponents of balanced copyright
law have not articulated a satisfactory
rationale as to why Canada should make
a historical deviation from the principles
of balanced copyright.
Federal policy-makers should not over-
react by developing restrictive copyright
legislation that will inevitably hinder
2009 Copyright Consultations
the development of new and innovative
products and works.
Canada needs to ensure that creators
can be remunerated for the work they
produce as an incentive to create further
works, while at the same time ensuring
the public has the ability to enjoy these
works and create new ideas by building
upon the ideas of others. Only with
such a copyright framework will Canada
remain competitive in the global digital
economy.
Incentives created by a coherent
copyright framework can only go so far
in spurring on the production of new and
innovative works. The government must
also increase support for students and
other creators through adequate public
funding for post-secondary education
and the arts. Truly innovative ideas
develop in an environment that fosters
creativity and allows citizens to build on
the creations of those that came before
them. However, it is also important to
note that ideas are only turned into great
works when the economic environment is
supportive of creators so that they may
transform those ideas into something
real.
PAGE 13
Building on Canadian Values: Creating
Legislation to Withstand the Test of Time
Policy must be written in broad terms
in order to remain relevant and useful
for years to come. This is especially
true when considering policy that deals
with rapidly evolving technologies.
Three decades ago the ability to rapidly
transfer files from one side of the world
to the other had barely been imagined,
and the music industry was just starting
to explore digital methods for recording
and releasing music. Now, less than a
lifetime later, it is hard to imagine a world
where these technologies do not exist.
Copyright legislation must represent
Canadian values and beliefs, and should
do so in broad terms, articulating shared
values and principles. During the last two
rounds of copyright reform debates the
government spent significant amounts
of time developing a narrowly defined
series of exemptions that would allow for
the use of copyrighted works in a handful
of circumstances, employing specific
technologies. This approach was, and is,
fundamentally flawed. Law-makers today
cannot hope to accurately predict how
citizens five, ten, or fifteen years down
the road will be creating, accessing, and
using works. As such, lawmakers should
consider how to ensure that balance is
maintained no matter what technological
innovations come about that may limit
or expand users’ abilities to access
materials.
2009 Copyright Consultations
In consideration of the foregoing, the
Federation recommends the following:
Fair dealing
The most important step the government
can take in ensuring that copyright
remains fair and balanced is to adopt a
more flexible and open-ended definition
of fair dealing within the Copyright
Act. Such a definition would reflect the
principles the Supreme Court has already
set out in its decision in CCH Canadian
Ltd. v. Law Society of Upper Canada. In
that case, the court rejected the view that
fair dealing was simply a limited defense
to infringement, instead finding that fair
dealing needs to be given a broad and
liberal interpretation with a focus on
users’ rights.
The Supreme Court’s recognition of
a new copyright doctrine based on
users’ rights and a need for the careful
balancing of interests between the
rights of owners and users now needs
to be enshrined in the Copyright Act.
This open-ended approach reflects
the meaning of the CCH case, and also
serves the interests of students, teachers,
librarians, and administrators; as well
as other life-long learners who aren’t
affiliated with an institution. This general
approach would avoid having to ask
for special exceptions for educational
institutions that are not available to the
general public.
PAGE 15
DRM and TPM
In recent years many owners of
copyrighted works have sought to
circumvent users’ rights through the use
of Digital Rights Management (DRM)
and Technological Protection Measures
(TPMs). It is claimed that these measures
are needed to “shield” digital works from
unauthorised access and monitor their
use, when in fact they deny users’ rights
detailed in the Copyright Act and allow
corporate copyright owners to ignore
Canadian copyright laws and make their
own rules.
However, technically savvy individuals are
often able to bypass these TPMs which
has led copyright owners to fall back
upon the very laws they’ve attempted
to circumvent, and demand that
governments make it illegal to bypass,
or purchase products that bypass, TPMs.
What these corporate copyright owners
are actually asking, is for governments to
make it illegal for users to exercise their
own rights when it comes to copyrighted
works.
The dangers of these measures should
be obvious. They often prevent lawful
activities such as fair dealing, accessing
works in the public domain, archival
preservation, time and format shifting,
device interoperability, and library
lending. To achieve balance in the
Copyright Act, Canada must reject
these types of amendments. Any effort
to address these issues must not limit
the ability of users to bypass TPMs that
undermine personal privacy or statutory
rights of access.
PAGE 16
Crown Copyright
Crown Copyright is the means by which
the government is granted copyright in
all work created under its direction. One
of Canada’s most basic values is public
ownership and access to a collective
commons. Government work is paid
for by tax dollars and the property of
the government is, by its very nature,
public. Given that work produced by
the government is paid for through tax
dollars, the public should not have to pay
twice in order to access and make use of
that work.
Under United States copyright law, works
produced by the U.S. federal government
are not entitled to any kind of protection
under copyright law. In essence these
worked, viewed to be the property of
the people, become part of the public
domain as soon as they are produced.
Rather than lock up knowledge and
work that the public has paid to create
with restrictive copyright licences, the
Copyright Act should be amended to
reflect the laws in the United States,
where all works produced by the
government are released into the public
domain.
Statutory Damages
If a person is found liable for copyright
infringement, the owner of the infringed
work is entitled to “actual” or “statutory”
damages. Actual damages are based
either on the losses suffered by the
owner, or the gains obtained by the
infringer. Statutory damages, on the
other hand, are set out in legislation and
Canadian Federation of Students
can result in substantially larger payments
for each infringement.
Because of their punitive nature, the
very availability of statutory damages
often acts as a constraint against users
exercising their legitimate rights to use
copyrighted works, such as fair dealing.
For user rights to be meaningful,
statutory damages need to be limited.
If an individual acts with a good-faith
belief that their use of a work is justified
by fair dealing or another legitimate use,
they should not be liable for statutory
damages even if their use is found to be
infringing.
moral rights
Section 14.1 (1) of Canada’s Copyright
Act says:
The author of a work has…the right to alleging infringement in order to legally
the integrity of the work and…the right,
where
reasonable in the circumstances, to be
associated with the work as its author by
name or
under a pseudonym and the right to remain
anonymous.
These rights, characterised as moral
rights to distinguish them from the
economic rights (to publish, reproduce,
exhibit or perform a work) contained in
the Copyright Act, protect an author’s
honour and reputation and cannot be
sold or otherwise transferred. They can,
however, be waived and creators often
find themselves under enormous pressure
from commercial publishers to do so.
If a student is hired to write a report,
for example, the contracting agency
may wish to change the conclusion but
2009 Copyright Consultations
still attach the student’s name to the
document. With moral rights intact, a
student can prevent this from happening.
If moral rights are waived, the student
has no such power.
To avoid these situations, the Copyright
Act should be amended to state that
moral rights being waived cannot be
required as part of any publishing or
distribution agreement. This would help
protect students who find that they are
being pressured to waive these rights in
order to have their works published.
Notice regulations
Under the U.S. Digital Millennium
Copyright Act, Internet Service Providers
(ISPs) must comply with “Notice and Take
Down” provisions. There, a copyright
owner need only send a notice to an ISP
require them to remove the identified
work. Such rules circumvent the courts,
assume guilt, and deny the individual
who posted the work a chance to
respond to the allegations and defend
themselves before the work is removed.
The alternative is “Notice and Notice”,
in which the ISP only has the legal
responsibility to pass a notice of
infringement on to the alleged infringer.
This is a reasonable compromise. The
idea that materials could be unilaterally
removed from a website based on
unproven allegations of infringement is
offensive not only to academic freedom,
but to everyone’s rights to expression.
PAGE 17
This document has a Creative Commons Attribution-
Noncommercial-No Derivative Works license. This
licence allows users to freely view, copy and distribute
the work, as long as it is not for commercial gain.
Creative Commons is a non-profit organization
devoted to expanding the range of creative works
available for others to build upon legally and to share.
[1] The organization has released several copyright-
licenses known as Creative Commons licenses.
These licenses allow creators to communicate which
rights they reserve, and which rights they waive for
the benefit of recipients or other creators.
Photo credits:
Page 1: Canadian Federation of Students
Page 4, 10, 12: UBC Library
Page 6: Flickr ID vlasta2
Page 8: Jeongyoon Kim