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CMEC has released the 5th installment in its ongoing Copyright Bulletin. Entitled Educational Use of the Internet: Is there an Implied License?, this entry stresses the need for greater certainty. While there is a certain appeal to the idea of eliminating uncertainty, past history shows that attempts to reduce uncertainty can come at a great price.
CMEC poses the problem:
The problem with the existing copyright law is that it may not protect schools, teachers, or students, even when they are making routine educational uses of this publicly available Internet material. Educational users are seeking a change in the Copyright Act to make it perfectly clear that they can legally engage in routine classroom activities involving the use of text, images, or videos that are publicly available on the Internet.
But why the need for perfect clarity?
The million-dollar question is, “What will an implied licence permit?” It is possible that an implied licence may cover personal use but not cover institutional use involving the making of many copies. It is also possible that an implied licence may cover individual students sharing an Internet work with one another by e-mail but may not cover the posting of that work on a course Web site. The possibilities are too many to even try to list them all.
The Bulletin concludes with a request that nothing be left to a court’s interpretation…
Parliament can clarify the law and, thereby, leave nothing to a court’s interpretation. A majority of the education community wants certainty with respect to the educational use of publicly available Internet works — and the education amendment provides the clarity that the notion of an implied licence does not.
Just how detailed would a measure be in order to provide this level of absolute certainty, and is such clarity necessarily good policy?
The big problem CMEC is trying to address of course is uncertainty. Everyone faces uncertainty in many things, inded uncertainty is a fact of life in an increasingly complex and litigious society. And in the realm of legal risk, everyone must face a certain level of uncertainty as a matter of course.
The proponents of this special exception apparently have zero toleration for risk.
But it is still unclear where the uncertainty is.
Where is the uncertainty with a website that includes explicit logos telling the world to “print-me” or “e-mail me to a friend”? In these cases, there’s not even the need to resort to the doctrine of implied license because the consent couldn’t possibly be more express. And beyond websites which include these increasingly common-place logos, everyone who posts to the Internet is well aware of the contents of the File and Edit pull down menus, which include such infringement-friendly features as <Save>, <Save As>, <Send To>, <Copy>, <Paste>, and the favorite of those about to copy an entire entry, <Select All>.
Everyone who posts content to the Internet is also well aware that whatever can appear on an individual display can easily be projected to a screen. Educational technology has certainly come a long way since the last round of special educational exemptions in 1997 when dry eraser boards and flip charts and the like were so graciously included in the exceptions (subject of course to the commercially available counter-exception in section 29.4(3). Do we really want Parliament to pass more legislation that is so precise and technical that nothing is left to interpretation? Anyone who thinks this level of particularity is better than open-ended, fluid and flexible provisions should read further into the special exemptions that resulted from the last round of copyright amendments in 1997.
In addition to the commercially available counter-exceptions in section 29.4 , 30.1(2) ,
and 32.3 , and record-keeping requirements (i.e sec. 29.9) any new special exemption will no doubt come complete with an enabling clause permitting additional regulations. (i.e., sections 29.9.(2), 30.1(4) , 30.2(6) , 30.21(4),and 30.3(5))
Jeremy DeBeer points to similar legislation enacted in Hong Kong as an example of unnecessary minutiae and says, “[i]nstead of government intervention to spell out the details, let educators and industry come up with best practices for themselves.”
Looking at the results of the minutiae of the 1997 educational and library amendments, the Hong Kong example, as well as the texts of the proposed educational exception amendment that have previously been published by its proponents (see text cited in Howard Knopf’s CMEC’s Red Herring,but not yet acknowledged in CMEC’s Bulletins), it becomes clear that specificity and clarity often comes at a very high price in terms of counter-limitations. As Knopf points out, after taking these counter-measures into consideration, even the beneficiary of the exception is left with fewer rights than they may have started with. One way for educational institutions to manage uncertainty and risk would be to articulate clear access and usage policies that set forth the limits of what can (and can't) be done consistent with consent and fair-dealing. This approach was taken by the LSUC's Great Library, whose simple yet explicit usage policy was endorsed by the Supreme Court (CCH v LSUC, paragraph 61). Before expending any more time, effort, and political capital on this ill-conceived and divisive special exemption, the proponents should work together with others to devise common sets of best practices and usage policies appropriate for the particular institution. Such an effort should include teachers, administrators, librarians, students, parents, and representatives of creators groups, and the resulting policies will go a long way towards reducing the risks of liability for actionable infringement. It would do so in a way that teaches students about their copyright obligations and rights in a balanced manner, it would be respectful of the rights of creators who post materials to the Internet, and it would not damage the interests of other users outside of educational institutions. And to anyone who still wants precise special exemptions that will eliminate uncertainty, provide perfect clarity, and leave nothing for courts to interpret, I think it's fair to say:
Be careful what you ask for!
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