Correspondence April 21, 2005

The Honourable Liza Frulla

The Honourable David L. Emerson

Dear Minister Frulla and Minister Emerson,

I am writing as President of the Canadian Library Association (CLA) to comment on your recent announcement regarding proposed amendments to the Copyright Act.

The Canadian Library Association (CLA) is Canada's major national library association, representing the concerns of some 57,000 individuals who work in library and information services in Canada. CLA encompasses all types of libraries - public, school, post-secondary academic and special (private- and public-sector) - from coast-to-coast-to-coast.

CLA's immediate response to your March announcement is cautiously optimistic, especially given the consternation felt by the Canadian library community following last year's release of the Standing Committee on Canadian Heritage Interim Report. The statement of intent regarding pending legislation demonstrates that several of the key concerns of the users of copyrighted content have been heard. As presented, the framework for copyright reform stands as a reasonable attempt to balance the competing interests in this complex and contentious area.

However, as other commentators have already pointed out, "the devil is in the details" and we continue to have several very serious concerns. Past experience with copyright reform has taught us that initial intent can be substantially altered as legislation moves through the political process in the House of Commons and Senate. The potential for unintended and intended negative consequences introduced in the details of legislative language cannot be ignored in areas as complex as digital copyright and regulation of the Internet. CLA is committed to working with your Government to ensure that changes to the Copyright Act recognize both legitimate user rights the reasonable economic interests of the holders of copyright in intellectual content.

With respect to your announcement, CLA applauds the proposed means of addressing the circumvention of technological protection measures, altering rights management information and Internet service provider liability. The broad statements of intent in these areas are reasonable and balanced, and will have the support of CLA if the intent is realized in legislative language.

The full implications of several of the new areas of copyright law prompted by WIPO treaty implementation are unclear to the library community at this time. The areas of your announcement falling into this category include the exclusive communication right, the first distribution right and reproduction and moral rights for performers. CLA will defer from directly commenting on these areas until draft legislation language is available.

While having sympathy for the rights of photographers as creators in some circumstances, CLA cautions the proposed changes to term of protection for photography have the potential to become very contentious with a number of broadly based groups. Much like the aborted attempt to change the term of protection for some unpublished works (the "Lucy Maud Montgomery provisions"), the photography changes are likely to become a lightening rod for discontent over shrinking the public domain, given the implications for citizens, researchers, archivists, museums and libraries.

CLA regrets that the Government has chosen to defer addressing issues relating to Kindergarten to Grade 12 and post-secondary classroom uses of copyrighted Internet-based content. We are puzzled that the Government feels that further consultation is required on this issue, as this specific area has been consulted upon more than any other in the past three years. Some content providers have described educational use of the Internet as the single most contentious issue in the current copyright reform process. It is unclear to CLA how more consultation will do anything other than further entrench stakeholder positions. The Government should move forward with legislation which provides Canadian students and educators with reasonable access to copyrighted Internet based content for uses likely to fall outside fair dealing.

With respect to print on paper and audio-visual content, current Canadian legislation places our teachers and students at a significant disadvantage to their counterparts in other developed countries, especially the U.S.A. The introduction of significant costs on the use of Internet content by schools and teachers through licensing will widen this gap and will be unacceptable to Canadians.

CLA is pleased to see recognition in your announcement that the desk top delivery of copyrighted content by libraries should be permitted by legislation. It is recognized that the use of effective safeguards to limit subsequent dissemination may be required. There will be resistance to attempts to unduly limit what content may be provided in this way. If a library or individual can lawfully make a copy for research or private study, the library should be permitted to provide this content electronically. This right should not be limited to "certain copyright material, notably academic articles." Why should constraints be placed on how a library provides a copy of a 50-year-old obituary from a local newspaper to a genealogist when the same constraints are not placed on providing an article from a history journal to the same user? This makes no sense and will lead to significant conflict between libraries and their users. It is inappropriate for legislation to hinder the application of technology in this arbitrary manner.

CLA regrets that the Government statement is silent on the issue of standard form contracts (shrink-wrap or click-through agreements); i.e. contracts which are imposed on users of intellectual content without the user having the opportunity to negotiate terms and conditions, some of which may unilaterally override the users' lawful rights. Without legislative recognition of a user's right to "circumvent" a standard form contract for non-infringing purposes, as is proposed for technological protection measures, any user right in legislation can be overridden. New legislation must ensure that basic user rights such as fair dealing and reproducing public domain content are always available.

CLA wishes you success as your Government moves forward with copyright legislation. The Association and its members are committed to working with you and your staff to ensure that the rights of Canadians and the libraries which serve them are properly reflected in the new Act.

Yours sincerely,

Canadian Library Association

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The Right Honourable Paul Martin, Prime Minister of Canada