Issue 3:Common Issues of Intellectual Property

The Information Highway presents an opportunity for federal institutions to make available, in digital form, information they have generated or gathered as well as materials in their cultural and scientific collections. Providing access to such information and materials in a digital format will enhance the Canadian presence on the Information Highway and will also provide opportunities to stimulate the development of Canadian content industries. It must be recognized, however, that the ability of federal institutions to use certain materials is subject to the authorization of third parties. For example, if the government does not own copyright in the material, it must seek the copyright owner’s permission.

The federal government should be a model user of the Information Highway and a catalyst for the creation of and the provision of access to Canadian content.

This section deals with rights set out in the Copyright Act. Other types of intellectual property protection such as patents, trademarks, etc., may be relevant in certain situations, but given its time constraints, the Task Force found it necessary to focus on the most important issues.

Copyright protection is critical to ensuring that rights holders benefit from their effort and investment through recognition and remuneration. It establishes the incentives that creators need to encourage them to make their works available. Without copyright protection, access to content would be seriously hampered. By the same token, the government, in addressing the challenges of the digital era, must be mindful of the practical needs of users who wish to access the works that benefit from this protection.

In addressing the reluctance of creators, it must be recognized that the copyright infringement that occurs today is carried out not only by unscrupulous profiteers; a considerable amount is carried out on a more pedestrian level by people who are simply unaware of the implications of their actions.

Furthermore, the international nature of the Information Highway adds to these difficulties. At present, the international intellectual property agreements to which Canada is now or may become a signatory do not address all of the challenges presented by the Information Highway.

The Task Force sees the challenges that will be encountered in the digital universe—by rights holders and users alike—as falling generally under four headings:

 

1. Determination of copyright interests:

• Is the material to be used protected by copyright?
• If so, what rights are involved in carrying out the intended uses?
• Have the relevant rights already been acquired or have licences already been obtained?
• If not, who owns the rights?

2. Clearance of rights:

• How can the rights holders in a given work be located?
• How is the use of a work to be valued, if licensing is required?
• What clearance mechanisms are in place to clear the rights involved (e.g., a central clearing mechanism or private negotiations with the rights holders)?
• How can copyright management be made more efficient and effective to facilitate the clearance of rights?

3. Protection of rights:

• What can be done to ensure that third parties are made aware that a particular work is protected by copyright?
• What types of technological measures (e.g., encryption, watermarking, digital signatures, copyright management information) would best assist protection and ease the management of rights?
• How can the rights in a work be protected using existing legal means (e.g., through copyright law, contractually)?
• What additional legal measures (e.g., model licensing agreements, new legislative measures, international treaties) should be adopted to better protect rights in the digital environment?

4. Lack of copyright awareness:

• How can awareness of copyright be raised both within and outside the government?

The proposed recommendations are premised on the principle that the government acts and will continue to act in a model fashion. Acting "in a model fashion" requires government to exhibit transparency and fairness in its dealings with rights holders and users involved in digitization initiatives. Whenever the government must negotiate or consult with these parties, it should strive to create a climate of trust and openness. For instance, licences concluded by the government in respect of copyright material should be very clear in specifying permissible uses.

On a practical level, the government should strive to adopt practices that are meaningful to rights holders and users outside of the government, that could be emulated or would at least be responsive to their practical concerns.

To this end, and with a view to meeting the challenges that have been identified, the following recommendations are made:

Government Policy and Guidelines in Respect of Copyright

It was evident that the most appropriate means to facilitate the determination and clearance of rights, and address issues surrounding the protection of rights, would be some form of federal administrative policy and guidelines. While not all federal institutions would be covered, the policy and guidelines could serve as the basis for any internal policies and practices that they might wish to develop.

A distinction must be drawn between ownership of a work and ownership of copyright in the work. For example, although a heritage institution may own and, therefore, control access to a painting, it may not have the right to license uses of the painting that are protected by copyright.

3.1 The government should develop an administrative policy and guidelines for dealing with copyright in a digital environment. The policy and guidelines would be flexible, but would set out the following:

a. The government as owner of copyright:

At this time, the administration of government-owned copyright is not wholly centralized. While the licensing of some published government works is administered through Public Works and Government Services Canada (PWGSC), a number of agencies and Crown corporations have the authority to administer their own copyright licensing regimes. In this situation, users of works often find it difficult to identify the government entity that has legal control over particular works, or the person or office within those entities that can legally authorize use. By the same token, government departments and agencies are often unsure about how to establish the conditions under which licences should be granted.

Accordingly, with respect to use of government works, the policy and guidelines should:

• i. adopt a "single window" approach for streamlining rights licensing.

The "single window" should be versatile, adapting itself to the realities of individual departments or agencies. In some cases, it could help departments or agencies to establish whether and at what level they should charge royalties to users. In other cases, departments and agencies could authorize the "window" to issue licences directly to users on their behalf on the basis of a fixed tariff. At the very least, it could serve as an information centre that refers users to the authority, agency or department that has the ability to issue a licence.

b. Copyright not owned by or licensed to the government:

Copyright in much of the material in the federal heritage collections continues to be owned by private parties.

The policy and guidelines should therefore:

• i. affirm the general rule that, in accordance with law, federal institutions will clear the rights needed to use the works;
• ii. affirm that federal institutions will inform users of their responsibilities regarding copyright and, where appropriate, will take reasonable steps to ensure that users obtain the clearances they require before using federally held materials for digital projects;
• iii. encourage the recording of copyright management information to facilitate the clearance of copyright.

c. Copyright protection:

New technologies such as watermarking, encryption, and electronic copyright management information enhance a copyright owner’s ability to discourage the unauthorized use and dissemination of his or her work. The government, as a digitizer of works, should consider the use of these technologies, as appropriate, to facilitate the protection of rights and, thus, to reassure the copyright owner.

Accordingly, the policy and guidelines should include:

• i. criteria for determining when encryption would be beneficial or required;
• ii. standards for the presentation of copyright management information (e.g., copyright notices and other identifiers);
• iii. standards for the technological measures that could be used to protect works and copyright management information.

It is recognized that, currently, the technologies for encryption, watermarking, and copyright management information are evolving rapidly and will perhaps require considerable refinement before they offer the most effective means to copyright protection. The government should nonetheless implement the best technologies currently available, but should also continue to monitor technological developments with a view to continually improving its practices.

 

Model Licences

3.2 The government, in its role as a model user and catalyst, should study the feasibility of developing model licences for the use of copyright-protected works in a digital environment. These licences could be developed in consultation with interested parties and would:

a. cover government as both a user and a rights holder;

b. be clear and fair;

c. specify permissible uses and restrictions;

d. strike a mutually beneficial balance between the interests of creators and users;

e. address the possibility of downstream licensing.

Licences drafted according to these principles could encourage creators to license use of their works to the government and might also serve as models for use by the private sector. These agreements should be implemented consistently across government.

Legislative Measures

In Building the Information Society: Moving Canada into the 21st Century, the federal government indicated that "the Ministers of Industry and Canadian Heritage will work closely with stakeholders to resolve outstanding copyright issues related to the Information Highway and reach a determination as to whether there is a need to revise the present Act further".

The Federal Task Force on Digitization acknowledges that this effort represents an important element of the government’s digitization initiatives and encourages the government in this undertaking. Accordingly:

3.3 The government should continue to resolve outstanding copyright issues related to the Information Highway in consultation with stakeholders.

The Task Force notes that the government has recognized the need for "more efficient enforcement and administration measures to ensure efficient copyright protection in order to respond to creators’ legitimate fears about pirating and unauthorized reproduction of works". With this in mind:

3.4 The government should ensure that the Copyright Act provides adequate sanctions against unlawful tampering or bypassing of any kind of encryption, copyguard or copyright management information.

In this respect, the Task Force also notes that there is currently much discussion in international forums concerning the desirability of providing adequate legal remedies against persons who knowingly remove or alter any electronic rights management information without authority or who deal in works knowing that electronic rights management information has been removed or altered without authority.

The government’s collections also include information holdings, such as databases, that may not benefit from copyright protection, but that nonetheless represent an important asset. Therefore:

3.5 The government should consider whether some form of protection against unauthorized use of information holdings such as databases is required.

International Measures

Because of the transnational character of the Information Highway, the effectiveness of domestic measures designed to protect copyright will depend, to a great degree, on the willingness of foreign jurisdictions to acknowledge and deal with challenges to copyright. Accordingly:

3.6 The federal government should continue to participate in negotiations being conducted in international forums such as the World Intellectual Property Organization, the World Trade Organization and other organizations dedicated to developing multilateral and regional trade agreements, to develop harmonized approaches to dealing with these issues.

Copyright Awareness

The work of IHAC’s subcommittee on copyright suggests that many people, including both creators and users, are unclear as to whether and how copyright protection applies in the digital environment. This has an important impact on the development and success of any initiatives for the management of rights in that environment. Accordingly:

3.7 The government should strengthen existing programs and create new programs for encouraging awareness of copyright, both within and outside the government.