My name is Kim Nayyer. I'm here on behalf of the Canadian Association of Law Libraries, or CALL. I want to thank the committee for your careful and thorough work in this statutory review process. I do appreciate the opportunity to speak here in Vancouver, and I thank you for undertaking these regional hearings.
Our association has 370 individual legal information professional members representing 210 organizations from various sectors of the legal environment. About 25% of our membership work in law firms; 22% are in courthouse and law society libraries; 21% are in the academic sector, mostly, but not only, in law school libraries; and another 10% work in government libraries. Publishers represent about 5% of our membership, and 12% of our members indicate other affiliations. Many of our members are also authors. I myself am in the academic sector. I'm the director of the law library at the University of Victoria and the associate university librarian for law.
This review is of great interest to CALL and our committee. In fact, our committee was established some decades ago to address copyright amendments of that day. Our members work daily with material that's protected by copyright law and with licensed copyright-protected material.
Today I'm going to address four points: interlibrary loans, fair dealing, overriding licence provisions, and crown copyright.
First, on interlibrary loans, I'll draw your attention to subsection 30.2(5.02) and the requirement that a library, as defined by the act, take “measures” to prevent an interlibrary loan borrower from taking certain actions set out in that section. In practice, we don't find our members to be in a position to meet a positive obligation to enforce loan terms compliance by interlibrary loan borrowers. Some libraries have the technological capability to limit use of interlibrary loaned materials, but many do not. We really aren't practically capable of meeting an onus of accountability for the actions of interlibrary loan borrowers who are in other locations, yet a core function of law libraries is to share resources when they are needed and as law permits. We see this as an important element of access to legal information and therefore access to justice. We suggest that perhaps the addition of “reasonable” before “measures” would meet the policy and legal goal of that section.
Next is fair dealing. I'll just speak briefly on this point. As noted, in the Canadian Association of Law Libraries we have a large range of members, just like Canadian society itself, and in our experience, fair dealing as it stands now generally works well. The current provisions are flexible and responsive. Our view is that the interpretation of what constitutes a dealing that is fair should continue to be left to the context.
With regard to overriding provisions in licences, we suggest that the act stipulate that licence terms not override activities otherwise established by the act as permissible. Occasionally, some of us are able to negotiate out of particular provisions in licences that would override activities made permissible by statutes, such as some aspects of fair dealing or interlibrary loans, but not all of our members are in that position. Licences are often opaque, click-through, or otherwise presented as non-negotiable, or they may be presented to someone less connected with the daily use of the licensed material. The result is often that our members are inadvertently or inappropriately contractually limited from doing what Parliament otherwise granted them the right to do.
Finally, I would like to speak about crown copyright. Last fall an e-petition presented to the House of Commons requested the addition of a section 12.1 that would provide that works covered by section 12 be no longer protected under that section upon being made available to the public. Many of our members support that view. I have to say, though, the question has not been formally presented to my association, so I can't speak in support of it or not in support of it on behalf of the association. Today, however, I'd like to bring to your attention another idea related to section 12. Our view is that public access to the law of all the jurisdictions of the country is central to access to justice.
Our study of section 12, crown copyright and the royal prerogatives, and the origins and purposes of the Copyright Act, suggest that a fair and modern interpretation of Canadian law is that the act in section 12, or in any other section, should not be seen to govern primary law. It may be time for the act to state, whether in section 12 or elsewhere, that primary law, and particularly case law, is not a proper subject matter of the Copyright Act.
The trial court and the Supreme Court of Canada in the CCH v. Law Society of Upper Canada decision touched on this point tangentially, although the particular question was not an issue in that case. Paragraph 35 of the Supreme Court decision is worth noting.
In practice we do treat this as a given, as copying of primary law is necessarily done in the course of our members' work and indeed in the daily lives of Canadians. We reproduce primary law to file in court. Courts reproduce it for carrying out their business. Law libraries and law teachers must reproduce law for the purposes of legal education. Clarity on this would enable other useful activities, and furtherance of access by Canadians to the laws that govern us. Our members and others would then be unhindered in creating tools and resources to enable Canadians to access our own laws.
An example from the U.S., where as I understand it primary law is expressly within the public domain, is the Harvard Law School library's recent digitization of the entirety of published U.S. case law, removing proprietary content from their source books. They've made this content freely available to the public, and they're working with that digitized case law as data to make new and useful presentations of legal information.
My association, CALL, suggests an addition to section 12 to confirm that case law, and perhaps legislation, are not works within the meaning of the act, and so aren't subject to its provisions, or Parliament may simply provide that legislation and case law of the jurisdictions of Canada are in the public domain.
Thank you very much for your consideration of my submissions. I'll do my best to answer any questions you have.
