Approved by the Executive
February 19, 1996

In 1989 the Canadian Association of Law Libraries formulated a position on copyright. [Published as "Brief on Stage II Amendments to the Copyright Act (October 1989)" (1990) 15 Canadian Law Libraries 24-26.] Since that time CALL and other library associations have continued to reassess their positions in the light of developments such as the proliferation of electronic media (where licenses have often proved to be more restrictive than for parallel print products), the work of the Information Highway Advisory Council and its subcommittees, recent initiatives by Canada's major law publishers, and the setting up of a CALL Joint Committee with the major law publishers.

The issues which most concern CALL are clarification of the fair dealing provision and crown copyright.

The Association agrees that users and creators need to inform themselves about the rights of creators and responsibilities of users. The Association is working with Canadian legal publishers to draft guidelines which will include public education.

I. CROWN COPYRIGHT

The prime concern of the Association is that there should be quick and easy access to legal information, especially legislation and case law. The Association supports the Information Highway Advisory Council's views on Crown Copyright aimed at ensuring universal and easy access to public information. We urge that all governments adopt a more liberal approach to making works of the Crown available to the public including making more public information available on the Information Highway without requiring payment or prior authorization.

The Association supports the following Information Highway Advisory Council recommendations:

• Crown copyright should be maintained.
• The Crown in Right of Canada should, as a rule, place federal government information and data in the public domain.
• Where Crown copyright is asserted for generating revenue, licensing should be based on the principles of nonexclusivity and on the recovery of no more than the marginal costs incurred in the reproduction of the information or data.

The Association also asks that as far as statutes, regulations, judicial decisions and decisions of administrative boards are concerned

• there be no licensing fees for use of this material.
• subject to the enforcement of moral rights to protect the accuracy and integrity of statutes, regulations, judicial decisions, and decisions of administrative boards, the Crown should not refuse to permit this information to be used in any publication, reproduction, adaptation, performance in public, or communication to the public.
• both federal and provincial governments shall be bound by these provisions
• where the text of this material is used in any derivative work, copyright in that derivative work shall not extend to the actual text of the statute, regulation, judicial decision, or administrative tribunal decision
• the federal and provincial Crowns have an obligation to enforce the Crown's moral rights to protect the accuracy and integrity of the information and the Crown should not waive its moral rights over this material
• there should be an exemption for the use of copyrighted material in legislative, judicial or administrative proceedings or in reports of such proceedings

II. FAIR DEALING

Along with other user groups, including the Information Highway Advisory Council, the Association supports clarification of the fair dealing provision. The existing provision, as an equitable guideline, is unworkable in practice. The fair dealing provision needs specific criteria along the lines of the U.S. fair use provision: criteria such as the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; the nature of the copyrighted work; the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and the effect of the use upon the potential market for or value of the copyrighted work. U.S. jurisprudence has successfully used these criteria as a balancing mechanism between the rights of the creator and the need to provide access to works.

The fair dealing provision should also expressly state

• that fair dealing applies to the making of an electronic copy of a work
  
• that a single copy of a work may be fair dealing in certain circumstances
  
• that provided a copy made by a patron would amount to fair dealing, library staff may rely on fair dealing to make the copy on behalf of a patron

III. LIBRARY SINGLE COPY EXEMPTION

The Association urges that specific exemptions for photocopying of materials held in libraries be added to the Copyrights Act. The problem is a particular concern for law libraries. Collective administration is unacceptable because crown copyright material is not covered by collectives and because legal publishers have refused to join CANCOPY, the existing collective.

CALL supports the principle of specific library exemptions discussed on November 14, 1994 and supports the Canadian Library Association Copyright Position statement of November 5, 1995.

Single Copy for Library Patrons or Inter-Library Loan

Except for commercial document delivery, a library may reproduce a single copy of a work requested by a patron, requested by another library, or for preservation purposes. This copy would include an entire article, statute, regulation, or report of a case, but in the case of other works this copy would not exceed 20% of the work.

Libraries may charge an amount for an Interlibrary Loan transaction provided the amount does not exceed the cost of making the copy.

A library in a profit institution is not precluded from relying on this single copy provision.

Library Not Authorizing Infringement

A library does not authorize copyright infringement by furnishing equipment capable of producing infringing copies provided that the library posts adequate notices warning against using the equipment for copyright infringement.

IV. ELECTRONIC ACCESS

The Association agrees with an underlying policy objective in the Final Report of the Information Highway Advisory Council -- ensuring universal access at a reasonable cost.

The Information Highway Advisory Council set out five principles for reforming copyright laws for a digitized environment. These include maintaining a balance between the rights of creators and the needs of users (including the education and learning community) to access and use those works on reasonable terms; creating an easily understood administrative and regulatory framework that is not seen as a barrier to access or use of content on the Information Highway: and facilitating the exchange of information.

Browsing

The Association agrees with the proposed definition of browsing. A copyright owner cannot reasonably refuse permission to browse if the work is otherwise publicly available.

Fair Dealing

The Assocation strongly supports the Information Highway Advisory Council recommendation that fair dealing be clarified by providing specific criteria and guidelines and by stating that fair dealing applies to the making of an electronic copy of a work and to the storage and transmission of that copy by electronic means.

Bulletin Board System Operator Liability

The Association supports the view that no owner or operator of a bulletin system should be liable for copyright infringement if they did not have actual or constructive knowledge that the material infringed copyright and that they acted reasonably to limit potential abuses.