Thank you for inviting the Canadian Association of Law Libraries, L'Association canadienne des bibliothèques de droit, to present its position to this committee. My name is Mary Hemmings. I am chair of the copyright committee for CALL, or ACBD. I am adjunct professor and chief law librarian at Canada's newest law faculty, at Thompson Rivers University. I'm in a unique position for a law librarian. Not only am I teaching legal research at a time of digital change, but I am also starting a new law library when the landscape of the printed word has tilted on its axis. I still buy books. In fact, I buy a lot of books. But I also buy digital collections from many different sources, national and international.
CALL represents approximately 500 academic, private, corporate, court, law society, and government legal professionals working across Canada. We buy legislative documents, case reports, and materials that comment on the law. We provide access to these materials to such people as lawyers, judges, students, faculty, parliamentarians, and the public. And of course we help people find what they want, whether or not we have it in print or locked in a database.
CALL members support these efforts to modernize copyright legislation. We view these changes as necessary to preserving the balance of rights to copyright owners, to libraries, and to the users of legal information in a digital environment.
Today I would like to discuss three areas of concern to the law libraries: fair dealing, crown copyright, and TPMs, also known as digital locks.
Respect for fair dealing is essential to CALL's submission to this committee. Fair dealing and user rights have been discussed by other individuals and associations appearing before this committee, and CALL supports the positions taken by such advocacy groups as libraries, museums, and archives. As law librarians, CALL members are particularly concerned about the fair dealing provisions proposed by Bill C-11.
On the issue of fair dealing, I would like to draw your attention to the 2004 Supreme Court decision in CCH. The library of the Law Society of Upper Canada, whose professionals are members of CALL, is only one of a network of courthouse and law society libraries across Canada, and they were involved in that particular case. It goes without saying that our members support that decision, particularly in its six-step approach to determining fair dealing. We regard fair dealing not as an exception to copyright, but rather as a balanced means of recognizing that limited and fair reproduction is a tool in scholarly discourse. Just as I would lend a book or copy of an article to a friend working on a similar project, the process of sharing information in research and education is not a criminal activity. It is the way that ideas are communicated. We therefore commend the recognition of this principle in Bill C-11.
Having said that, there are other sections of Bill C-11 that appear to contradict the spirit of fair dealing, and in particular the role of libraries. Libraries lend materials to other libraries. This is a fundamental point in our business of meeting the information needs of our users and does not require legislative restrictions on the practice of inter-library lending. Once material has been given to a patron, I am not sure how a lending institution can reasonably comply with the proposal that it must “take measures to prevent” the user from actually making a copy, lending it to a friend, or even dropping it in a bathtub.
Bill C-11 focuses on the use of digital copies. Technically speaking, a digital copy of a book, an article, legislation, or a reported case can be made anytime, anywhere, by anyone. Libraries, archives, or museums should not be held accountable for behaviour that is not similarly policed in book stores or on the Internet.
The Copyright Act should integrate the concept of fair dealing as a user right rather than as an exception to copyright. It should be made explicit that fair dealing needs to be given a broad and liberal interpretation and that knowledge institutions such as libraries, archives, and museums serve a wide variety of institutions.
The CCH decision did not distinguish between a non-profit and a for-profit library. In fact, the CCH decision ruled in favour of the Law Society library, which directly serves the needs of the bar association. Whether or not lawyers make a profit, profit was explicitly considered immaterial in that decision.
On the issue of crown copyright, over a long period of time there have been calls for revisions of section 12 of the Copyright Act. This section relates to crown copyright, and it needs to be explicitly addressed in Bill C-11. The Reproduction of Federal Law Order allows citizens to reproduce federal legislation for personal, non-commercial uses. This is precisely the initiative law libraries want to see in this legislative language. The government has a duty to disseminate the information it produces.
CALL recognizes that producing current government information is expensive, but not as expensive as it once was. At one time, producing and distributing print legislation and parliamentary documents needed editing, typesetting, copy checking, and elaborate distribution methods to satisfy the public demand for access to legislation. Now, digital production ensures accuracy in content, speed in delivery, and a proactive approach to getting government information out to Canadians.
Missing in this equation are the historical legislative documents that are so necessary for legislators and the legal profession if they are to understand how current laws came to be. Retrospective digitization of crown documents is expensive, yet Canadians should also enjoy unrestricted access to documents that inform the present day.
We agree that Canada needs an updated copyright regime that protects creators and rights holders. However, we strongly urge the government not to restrict the public's right to access what should be in the public domain.
Legal writers have urged that crown copyright reform is long overdue, not only in light of the CCH decision, but also in recognition of today's responsive federal government practice. However, crown copyright has been overlooked by all proposed amendments, long before 2005. Our position is that these materials be maintained as free resources and that the government consider funding a program of retrospective digitization.
This finally leads me to digital locks. They have been characterized as a digital threat to fair use, primarily because TPMs cannot distinguish between lawful uses and users. I wanted to draw your attention to the nature of the relationships we have with publishers and library users. At the forefront is not the issue of what our patrons choose to do with the materials they borrow, but rather the ability of commercial or government providers to capriciously lock down legitimately purchased materials. Libraries are now dependent on digital materials. Database providers or digital publishers often have exclusive rights to sell particular content, and libraries have a mandate to meet all of the research and educational needs of their users. It's rarely possible for us to purchase the same content from a competing vendor.
Our users want to be able to transfer content to portable devices for use in courtrooms, classrooms, and in the home, and users of legal information who are not affiliated with a library, such as self-represented litigants, members of the public, and some students—including lifelong learners—are being deprived of access to the law because of licensing restrictions. Such information, previously provided in book form on an open library shelf, now lies on the other side of a digital divide.
In conclusion, we just want to say that fair dealing is a user right, crown copyright is lost in the 19th century, as we see it now, and digital locks are both evil and good.
Thank you.