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Monday, June 14, 2010

My Take on Bill C-32 (Part 5)

Hey all! Back again and... yeah, still more to go.

I think I had a nightmare about this bill last night, mostly involving being chased down a flight of stairs by a giant rolling scroll of this danged bill.

Let's get to it, shall we?

Reminder: You can read the new, proposed Bill C-32 here and the original Copyright Act here. Also: All links provided below are for comparison purposes, so you can see what used to be side by side with what's being proposed.

One of the interesting things I found out by reading section 30.02 (a new addition to the Copyright Bill) -- even though it deals with education more than anything -- is the idea that I, as a copyright holder can decide who gets access to the work I put out there (and they have to listen to me if I say 'no'!?).

I learned this in Subsection 30.02(5):

"(5) If the owner of the copyright in a work informs the collective society that is authorized to enter into reprographic agreements with respect to the work that the owner refuses to authorize it to enter into digital reproduction agreements with respect to the work, the collective society shall inform the educational institutions with which it has entered into reprographic reproduction agreements with respect to the work that they are not permitted to make digital reproductions under subsection (1)."

Now, I'm sure there's a whole whack of other documentation to limit this or something, but essentially we -- should we actually still own our copyrights by that point (the point we're selling to an 'education institution) -- can say we don't want our work digitally reproduced and they have to abide by that.

Unless I'm reading this wrong...? (Hint: It's entirely possible -- please feel free to correct me).

Better yet, if you are one of these people who've had your work used by an educational institution without your consent you have a right to expect 'recovery' as laid out in 30.02(7).

What I find interesting is that when it comes to trying to decipher how much money you're owed as a copyright holder, the language here seems to get more strict and even more confusing.

I apologize but rather than trying to decipher this and screw it up I'm just going to post it verbatim. If you can sort it out, please feel free to sum it up fairly and I'll post it here.

Warning: The language provided below may cause your brain to roll in your skull:

"(7) In proceedings against an educational institution for making a digital reproduction of a paper form of a work, or for communicating such a reproduction by telecommunication for an educational or training purpose to persons acting under the authority of the institution, the owner of the copyright in the work may not recover an amount more than

(a) in the case where there is a digital reproduction licence that meets the conditions described in paragraph (4)(a) in respect of the work — or, if none exists in respect of the work, in respect of a work of the same category — the amount of royalties that would be payable under that licence in respect of those acts or, if there is more than one applicable licence, the greatest amount of royalties payable under any of those licences; and

(b) in the case where there is no licence described in paragraph (a) but there is a reprographic reproduction licence in respect of the work — or, if none exists in respect of the work, in respect of a work of the same category — the amount of royalties that would be payable under that licence in respect of those acts or, if there is more than one applicable licence, the greatest amount of royalties payable under any of those licences."

I THINK it means they have to pay you. Though, again, I may be wrong here.

That's mostly justified by subsection (8), lovingly entitled 'No damages':

"(8) The owner of the copyright in a work may not recover any damages against a person acting under the authority of the educational institution who, in respect of a digital reproduction of the work that is communicated to the person by telecommunication, prints one copy of the work if, at the time of the printing, it was reasonable for the person to believe that the communication was made in accordance with paragraph (1)(b)."

Which, if I'm reading this right means that as long as it was 'reasonable' for a person to believe they were acting in the right -- (1)(b) basically means 'communicating a digital reproduction for educational or training purposes' -- then they're okay and you can't go after them for damages.


Ummm... okay.

Moving on, there's a whole new subsection -- actually a whole lot of new subsections -- called 30.03(1) (again, not in the original Copyright Act). It appears to be called 'Royalties - digital reproduction agreement'.

Again, this is very 'education-based' and so far it's basically about how if you're an educational institution and you've paid royalties before for a work but then enter into a 'digital reproduction agreement' (in the nature described in 30.02(4)(a)) with any 'collective society' then you get some love in this bill.

If you'd end up having to pay more royalties to the 'collective' under the digital reproduction agreement then you actually only have to pay the difference between your original royalty (how much you'd have to pay for a digital reproduction of the work if it had been entered into on the institution's first digital copy was made) and the increase laid out in the digital reproduction agreement.

However, if you'd end up having to pay less as an institution, the 'collective society' would have to pay you back the difference between what you paid out as a royalty and what's been laid out in the digital reproduction agreement.

This whole thing is apparently cut and pasted for subsection (2) "Royalties-Tariff" which basically just adds the word 'tariff' and specifies that these same above things would happen, but now in the context of a 'tariff'.

The more I read this bill the more I realize the people who wrote it must've just absolutely loved the 'Cut and paste' feature of their word processor. That's how these documents can seem so unwieldy and painful to read: the people writing them don't have to sit there and re-type each section by hand... I bet if they did the language would be a heck of a lot easier to read...

Tho', most likely, it'd just mean there'd be even more poor legal/parliamentary assistants out there with carpal tunnel.

Can we get a brief moment of love for the poor assistants that have to wade through this...? My gawd... I have to make a constant effort to keep my brain from switching off as I read this stuff. It's like every paragraph now I can almost hear an audible 'click' as my brain turns off and I have to flick it back on... I can only imagine how it must be for those who have to deal with it every day.

Respect. Much, much respect.

Okay, moving on.

More new stuff: Section 30.04(1) "Work Available Through Internet". Again, more educational stuff (sensing a theme are we??).

Long and short of it -- subject to subsections (2) and (5)... I love how they do that, it's like legal foreshadowing... -- if you're an educational institution or someone working for them/"acting under the authority of one" it's okay for you to take work that's already available on the internet and reproduce it, share it with the public, perform it in public or do any other act necessary for the purpose of the previous acts mentioned as long as it's for 'educational purposes'.

That said, I wonder how long this'd hold up if your school/government found out you were educating your students with stuff from wikileaks.com...?

Anyways, of course with that power comes all sorts of responsibility. Subsection (2) goes into a bit of detail: You gotta make sure to cite your source. If available, you should cite the appropriate author/performer/maker/broadcaster depending, of course on what it is (a work, a performance, a sound recording or a communication signal).

More fun with digital locks:

Subsection (3) says this is all null and void if the site is protected by "a technological protection measure that restricts access to the work or other subject matter or to the Internet site".

Kids: No Hacking.

Which brings me back to my Wikileaks bit from before... since THEY got it given to them (but was, for the most part, previously behind digital lock and key) are we forbidden to use it?

Ie. if someone from another country broke the lock and shared it with us... are we a-okay?

Hrmmm... maybe not?

Subsections (4) and (5) get sort of medieval on the concept.

"(4) Subsection (1) does not permit a person to do any act described in that subsection in respect of a work or other subject-matter if

(a) that work or other subject-matter — or the Internet site where it is posted — is protected by a technological protection meas- ure that restricts the doing of that act; or

(b) a clearly visible notice — and not merely the copyright symbol — prohibiting that act is posted at the Internet site where the work or other subject-matter is posted or on the work or other subject-matter itself."


"(5) Subsection (1) does not apply if the educational institution or person acting under its authority knows or should have known that the work or other subject-matter was made available through the Internet without the consent of the copyright owner."

That last bit is pretty, uh, cut and dry... especially with a title like 'wikileaks.com' you're pretty much assured that it's being made available without the consent of the copyright owner.

I wonder where the legality of a site like Wikileaks falls in Canada? Does Freedom of Speech fall down before Copyright? Or is it a case of "you can say what you want, just be prepared for the consequences?".

I'm sort of intrigued by this.

Also, just to share this bit 30.03(6) says

"(6) The Governor in Council may make regulations for the purposes of paragraph (4)(b) prescribing what constitutes a clearly visible notice."

Does this mean that the whole thing is open to interpretation?

Well, I guess everything here is open to interpretation... that's probably why they have such banal language (trying to limit interpretation... or discourage reading in the first place...).

To be honest I do find it frustrating that my actual WANT to read this document is constantly being dissuaded by the style and language it's being written in.

How can we expect our fellow citizens to take part in our government if our government provides documentation that seems designed from the ground up to discourage even the most interested lay-person?

Anyways, that's all I got for now - need to chill out my brain, see you tomorrow!


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