CAUT Copyright Conference

The Canadian Association of University Teachers hosted a conference this past weekend (October 27-29) titled “Controlling Intellectual Property: The Academic Community and the Future of Knowledge.” Here are my notes from all three days.

Day 1

CAUT President Greg Allain introduction
•fed government is currently preparing amendments to copyright legislation

Michael Geist: Copyright and Control in the Digital Age
Cancopy law, CMEC's Copyright Matters!; Captain Copyright (Access copyright)
-these are very similar - you don't see user rights in there; it's as if SCC decisions never happened
-education needs a new vision of copyright
-The good news story: blogs, myspace, postsecret, flikr,
-knowledge sharing, wikipedia, wikinews, project Gutenberg, MIT open courseware,
-the incentive s are different from traditional copyright incentives
-CIHR policy on open access, nature peer review online trial, Alouette Canada - open digitization project
-all kinds of open source software
-SCC reshaping of view of copyright from Theberge, CCH,

The bad news:
C-60 will be revived in worse form
-tepid gains for education
-WIPO & problems for security researchers
-insufficiency of fair dealing - Telus has been talking about this
-StatsCan hadn't taken open licensing as a category in its innovation analysis bulletin
-education exception might drive a wedge between AUCC and students, librarians

What to do?
-not focus on an internet exception
-DRM - this is the main issue on which education will lose money
-open access models
-open licensing
-expanded fair dealing
-use CCH
-drop internet exception
-focus on digitization - build national digital library - do more than Alouette - Google concerned about getting involved as result of our laws
-get rid of crown copyright
-freeze copyright terms - there is already a consultation document on extending it
-focus on contractual limits - contracts must reflect principles

Questions:
A: there won't be another public consultation
A: nobody from Heritage, Access is here
-CCH was a disaster for them; they won't sue again that's for sure, but amazingly the education community still doesn't exercise its rights
-Bev Oda was specially invited
A: government has education as a priority but AUCC and CMEC has not spoken up on our side; MPs could be beholden to education community in their ridings - colleges and libraries

Panel One: Copyright Action
Convener Philippa Lawson, CIPPIC
-notes that Laura Murray will be going to NYU on a Fulbright

Paul Whitney, City Librarian Vancouver Public Library: The Library Perspective
-Oda has pledged bill before end of year
-it's unlikely that a bill will make it through the house before an election
-it's probably good that it's been so long since our last reform because we've had a chance to learn
-user rights advocacy has come a long way
-now these issues conceivably touch every man, woman and child in Canada and we've got to work at getting the message out
-user rights have to be a part of any dialogue
-we need to prioritize our concerns. For public librarians, priorities are DRM first, then contract law - both are potential trump cards - there is a real fear that libraries will be disintermediaried. Geographic coding also an issue. Term will be one of the real battles; this has a huge impact on efforts to digitize our heritage; most of those works are orphan.
In 1954 only 9% of copyright terms were renewed (after 28 yrs you renewed for another 28); this differed by medium. Film and music was renewed much more; those two are still driving the agenda. Corry Doctrow (sp? - most famous Canadian blogger and novelist) said "the fundamental threat to novels is obscurity not piracy."
We need a fair dealing right for preservation - we need to make sure that is still possible, including ability to violate DRM for that purpose. Moral rights are a difficult one - so he doesn't have enough time to talk about it - they will become more and more problematic.
Policy -makers tend to look at policy through a rear-view mirrors. Recording industry is driving the debate and they are very behind, just don't get it although they do more than they used to.
Economic might is right: this is another challenge.
Internationally, US is rolling out DMCA standard.
We need to learn from others: Bergman study - available on SSRN - found that educational obstacles and business models were detrimental to education: unclear copyright law on fair and educational use; DRM adoption; practical difficulties obtaining right to use; undue caution by gatekeepers
Canada has a unique opportunity to make a difference. We need people with profile to stand up. We need to be able to tell the story of the impact copyright has on people in the classroom.

Laura Murray: Copyright: An Evolving Academic Staff Response
-in the materials: a users' rights kit - 6 -part test from CCH, fair dealing exceptions
-presuppositions about law:
-is accountable to and depends for legitimacy on what communities of people do
-law exists in the interpretations we make - we are making law - most of us will never go to court
-citation systems are different from copyright, is based on attribution not permission, which is what copyright is based on. Citation involves reputation economies (buzz), hypertext practices, creative commons arrangements, protocols for tracing oral and traditional cultures. Citation is a subspecies of ordinary conversation. Janet Giltrow (sp?) started her on this. This bestows cultural capital but not money directly. You can build without the risks of actual permission. She shies away from 'gift economies' which sounds nicer than it is. Usually, complete copying of work is not accepted in gift economy because it isn't seen as adding value.
Copyright law offers space for attribution due to limited term, fair dealing, moral rights. Unauthorized use is seen as an exception. In attribution, it is the rule.
These are therefore based on opposite foundations, although we often view them as linked.
We have rulebooks for citation, systems for dealing with infractions - these systems might not work very well - what works is inducting people through practice into how the system works.
Rod McDonald - Lessons of Everyday Law (book) - law is most successful as a set of guidelines and structure, although sometimes it is also seen as a way of in detail controlling people's actions.
-we shouldn't assume we are being given orders or should give orders
-we already have a quasi-legal mode of citation
-when we evaluate whether we
-we should keep in mind the SCC decision - we should go about our business
-fair dealing is pretty good for us - not so good for authors - if we cringe we are limiting the future for other academics
-we have bad habits of asking to do things for which we have the right
-SFU has a manual on copyright that doesn't mention fair dealing
Questions we should ask:
Can I do it (something I want to do with a DVD for example or other digital materials) with a book?
If not, can we renegotiate the contract for price?
Will this get in the way of the citation system?
Does it allow a human to make a decision? Can the author, for example, make a decision?
Suggestions for action:
-we should memorize test in CCH and not ask lawyers - run it for ourselves
-we shouldn't get hung up on asking for specific exceptions in legislation, we should have broader principles that allow us to make decisions. Also, then educators aren't asking for specific exceptions but principles. It's a rhetorically stronger position.
-the intervention of individuals can be powerful - a letter about your experience to an MP, for example. It's individuals that are voters, not the corporation.
-We have to let students know what their rights are
-Faculty associations should add user rights to their universe
-CFS, CAUT could send a best practices for fair dealing across the country; a fair use checklist that allows people to do it themselves
-library policies, software licenses need to measure themselves against user rights - libraries have come a long way but maybe not the info-tech people.
-talk about whether it's worth reassessing the role of the Access agreement
-it has not been the Canadian way to push the limits
-we should not leave brave individuals to do that for themselves

Angela Reginer, Canadian Federation of Students: Students Join the Fray
-after Bulte report approached by CAUT to come together on the issue to combat aggressive content lobby
-it affects students' everyday lives - has influence on tuition, access to information, infringement on privacy rights
-does research, lobbying, membership mobilization
-challenges:
-increasing user fees, less funding
-portrayal of students as plagiarizers, down loaders, consumers of education
-they hosted speakers, encouraged unions to do so too, have fact sheets, articles, adopted policy in Nov 2004 calling for a fair and balanced copyright act identifying fair dealing, anti-circumvention, ISP liability, etc
-key issues for students are tuition fees, access to the Internet, privacy
-has done lobbying - MPs haven't heard the voice of the education community as much as from content industry
-creating coalitions with educational community, privacy community, creators, musicians

Questions:
Laura Murray confirms that we may be paying for things that would be free under fair dealing
AUCC negotiates on behalf of universities
Access Copyright’s market share is shrinking because they can only license for print



Day 2

Panel Two: Trade and Treaty Obligations
Elizabeth Tosti, panel convener makes remarks on IP in Denmark and Norway

David Robinson, Associate Exe Director CAUT: Trading IP: a new global agenda?
Globalization is reshaping government policy. There is deepening economic integration based on re-regulation not deregulation. Knowledge and education is increasingly seen as a commodity. Research is tied increasingly to commercial outcomes. Examples: recruitment of fee-paying overseas students, PPP, branch campuses overseas, brand licensing, e-learning and distance ed., There are trade agreements with IP stuff like NAFTA Ch 17 which extended patents to 20 years and got rid of compulsory licensing regime, WTO agreements TRIPS and GATS, which includes education services, R&D services, domestic regulation.
TRIPs: sets minimum IP standards, extends IPRs to computer programs, integrated circuits, plant varieties, pharmaceuticals; creates a ratcheting up. TRIPs hot buttons: access to affordable medicines - the flexibilities have never been fully implemented; traditional knowledge - bio-piracy education and research - access to knowledge and research
GATS: covers all modes of supplying services across borders; it locks in and intensifies pressure to commercialize
WTO Training Package, 1998 says there are advantages to agreements including overcoming domestic resistance
General obligations:
-transparency
-MFN
-Specific obligations: national treatment (ruling against local hiring preferences, public funding to domestic institutions), market access (quotas on institutions allowed, restrictions on imported educational materials, accreditation of institutions, measures favoring non-profit all violate this)
-Domestic regulation
•Canada has no GATS commitments on education services, some commitments on research & development (social sciences), will not make or seek commitments on "public" education
Jamaica and south Africa made agreements on education that did not work, shady education institutions came in.
GATS negotiations were suspended in July; high level meetings and informal talks are continuing; this makes it even less transparent. Developing countries are coming under a lot of pressure to make significant commitments on education.
What is to be done?
•We do need rules governing international education and research, but those rules should be based on educational not commercial objectives. There should be a moratorium on TRIPs and TRIPs-plus agreements. We should take education and research out of GATS and other trade agreements. Too many universities have allowed themselves to be caught up in commercialization, establishing for-profit subsidiaries etc.

Myra Tawfik: Canada and the WIPO Internet Treaties
Canada bound to Berne since inception in 1886. Berne set minimum standards of copyright. It has been revised a number of times for new technological development. The last major revision was 1971 - Paris text.
It's harder to get hundreds of countries to sit down, so they work on specific issues - like WIPO Internet treaties. Next Canadian reform is designed to bring Canada into line with WIPO treaties. These treaties have brought to light a fierce battle of ideologies about what copyright is supposed to do. "Our hands are tied" is an attitude often taken by MPs. That is disingenuous.
There were three treaties: WCT, WPPT, a database treaties. 160 countries were at the conference, including Canada. Outcome: two were adopted. 1996.
Concerns arose before that in 80s. Studies looked at new technologies. we had IHAC in Canada. It was the result of the US study that resulted in a 1995 white paper setting out US digital agenda which it seeks to import via international treaties. US is only net exporter of copyright works in the world. It sets a maximalist agenda. WIPO had meetings from late 80s to 1996.
We have walked away from treaty obligations; we walked away from Kyoto after ratifying; we can also walk away from WIPO which we have not ratified. Doomsday warnings about not singing emanate largely from the outside - the US.
We need to watch US bilateral agreements such as the US-AUS treaty which set out how US digital agenda is to be implemented. Here they can implement what they failed to do in WIPO treaties.
Canada's agonized relationship with int'l treaties:
Keys 1993: the interests of Canada lie in minimizing outflow of copyright royalties. Copyright being used to pursue other undisclosed policy goals - US plays dominant role.
•we are a net importer, but time and time again we have been swayed to meet the needs of others
•Myra is compiling a list of favorite quotes from Valentini: re pirates, protecting the human race, terrorists
•Canadians are more muted. CRIA said if we wish to remain competitive marketplace it won't be by creating widgets, but by creating works of the mind.
-but those who we are protecting are not really us - Canada is not a strong copyright producing country
•we are driven by outside agendas, we debate, we are not entirely convinced these treaties server our interests but we find reasons and sign on; usually we don't get results we hoped for
-in past, Britain prohibited Canadian publishers from producing cheaper copies of British works, Canadians had to buy books direct from Britain; this created tension within colonies. Canada pleaded with Britain, arguing it was the responsibility of governments to provide access to info at low prices, that access to info is a social good. At that time industry, authors, users were united about what strong copyright meant for Canadians but Downing St. had right to refuse any Canadian copyright act. Canada argued that great countries have strong literature but saw its own literature in a state of decay. (William Kirby in 1883) Richard Lansfield 1896: interests of Canada have been cruelly sacrificed for the past __ years.
•now interests of Canada have been sacrificed for 150 years.
•we are still very much guided by EU and US in international copyright treaties
•doubt as to whether these are doing anything for our own interests, which are improving meaningful access to knowledge and information
•we twice tried to remove ourselves from Berne which we were signed on to by Britain; we were told that it was uncivilized to do so - even while US did not become part of Berne until 1989
•when Britain finally cut us loose we remained part of Berne on faith that we would one day become major players in the international exchange of copyright works
-we were satisfied for a long time with Rome revision. Government report after report said it is not in Canada's best interest to strengthen copyright any more
-but we did implement 1971 Paris text in 1998 - US international trade agenda brought us on - in order to be part of NAFTA and WTO
•What if we broke our pattern and said no to WIPO treaties or adopted
a minimal approach to WIPO treaties?
-treaties started out as US agenda, but strong voices from developing countries and public interest groups led to a compromise
•anti-circumvention leads to new level of protection, elimination of fair dealing, chilling effect on R&D in computer research, development of 3rd party technologies, invades privacy
•there are other approaches: limiting to civil liability, could provide redress for rights holders abusing their monopoly and stopping permitted uses
•if Canada implements DMCA-style provisions, it's because policy makers choose to do so, because American interests play a dominant, if not always visible role.

Questions:
•note that WTO has three-step test. Treaties administered by trade lawyers not a court.
•there were studies as to whether fair use fit within international standards; US argues that fair use complies with 3-step test if interpreted by courts as it is. Fair dealing conforms more with international obligations. WTO panel decision did verify nation's ability to form its own exceptions. Some discouragement about fair use interpretation in US on market impact item.



Panel Three: Intellectual Property Ownership on Campus: Part One: The Current Context
Paul Jones, organizer of this conference, Professional Officer, CAUT: News from the Collective Bargaining Front
•the terms of ownership of IP on campus are set by common law, institutional policy, collective agreements
•collective agreements are legally enforceable through grievance arbitration, not civil courts
•Stats Canada study evaluates the status of ownership – by individual, employer, joint
•collective agreements waive Employer rights in IP
-but these rights are being chipped away
-patent rights
-copyright in the case of distance ed
•Fortier Report:
-recommended requiring commercialization of IP, assignment of IP to university in order to maximize benefits to Canada, recognizing commercialization in tenure
•AUCC seeks to triple IP commercialization by 2010
•Flaws in this idea:
-there is actually very little revenue from IP commercialization
-most academic work has no direct commercial application – so those that are out of luck
-IP imposes secrecy, stifling innovation
-this goes against goals of education
•problems with co-funding (getting a private partner for research)
•Academic staff should oppose commercialization


Paul Kniest, Policy & Research Officer, National Tertiary Education Union – Lessons from Australia – Controlling the IP created by university staff
www.nteu.org.au
•gave a primer of IP and copyright
•looked at the IP situation at various Australian universities and who owns IP there

Sam Trosow: Intellectual Property, Commercialization, and the Future of Academic Work
•IP primer
- IP does not protect ideas, must be fixed
-we are creating copyright works in our notes, but a verbatim transcript belongs to Sam
•the amount of protection involved in patents is not appropriate in a university institution
•review of section 13 of copyright regarding ownership by employer

Panel Four: Intellectual Property Ownership on Campus Part Two: Forms of Resistance
Paul Jones reading on behalf of Claire Polster: Alternatives to private ownership
•on why university involvement in commercialization and IP is bad
-it would make sense to prohibit the privatization of knowledge and requiring its placement in the public domain

Martin Phillipson: The Collective Bargaining Options
•the talk of open source and new models of IP very utopic and completely unrealistic
•collective agreements include items about university's control over IP and the university is not going to give that up. This is the reality of how it works - collective bargaining is about shoring up what you have.
-scientists want to commercialize through the university, some want to make money and more power to them.
•the goal of collective bargaining is about giving members autonomy over what they created - either ownership or input
•some specific advice about negotiating collective agreements
-about using general language
-about using a lawyer and not doing it yourself, dealing with specifics in side agreements, keeping language up to date to cover multimedia stuff for example specifically, keep in mind that staff and grad students might also have claims, as might funding agencies, scrutinizing reports of inventions

Day 3

Panel Five: Intellectual Property Ownership on Campus: Part Three: Alternatives in Practice
Andy Kaplan-Myrth: Building the Creative Commons
•primer on creative commons

Kathleen Shearer: The Open Access Movement
•Sherpa Romeo monitors publishers' self-archiving rules
•Canadian Institutional Repository Projects list at CARL - Canadian Assoc of Research Libraries
-U of T has one called T-Space
•Federal Research Public Access Act of 2006 - a bill tabled that would require all research published by 11 US funding agencies be made open access in 6 months of publication
-the UK RCUK has a policy called a Welcome Trust
-in Canada SSHRC endorsed open access in principle Oct 2004, but then they had consultations - but backtracked
•CIHR is consulting: Draft Policy on Access to CIHR-funded Research Outputs

David Bruce, Research Services, Queen's University: Just Trust Us: Moral Rights Waivers and Related Concerns in Federal Research Contracts
•explanation of moral rights: integrity, attribution,
-federal contracts sometimes require their waiver so that they can change the work or whatever
-PWGSC has a standard moral rights waiver
-most universities don't encourage researchers to waive moral rights
•for researchers, waiving moral rights creates problems
-results could be used to support opposite findings
-e.g. report on climate change in Harper's August 2005
-could lead to potential liability
-concerns about reputation - corporate reputation
•you can strike the clause, modify the clause (for example, to remove the researchers name in the case of substantial revisions), receive written assurances
•sometimes there is a delay stopping the researcher from publishing, so if government publishes info and you want to dispute its portrayal you can't right away
•researchers are coming under more pressure to waive moral rights
•government might want to ignore university concerns and rely more on commercial contractors, cutting universities out of the loop
•what is needed: a limited waiver for universities
-VPs Research have raised it at AUCC
-CAUT could also raise the issue

Questions:
•the Public Knowledge Project at UBC provides software to help people start their own open access journal

David Bollier: Closing Address: The Perils of Property Talk in the Academic Commons
•there is a myth that copyright encourages the creation of work, allows wealth to be created, that knowledge can't achieve its full value if it isn't propertized
-property talk shuts down broader conversations about how knowledge can be disseminated and circulated
-academia has to begin to take on some of this conversation, to develop a discourse
-we should develop a discourse of the commons to defend the non-market ways that academia generates knowledge
-some people have described academia as a "gift-economy"
•Bollier's book: Brand Name Bullies: The Quest to Own and Control Culture
-demystifies IP through stories
•commercial works are privileged over academic, civic, protest etc works
•academics are committed to a set of principles to do with advancing the public good and disseminating their work, building on past work; therefore property speak is a bad fit for what happens in the academic world
•Bayh-Dole Act allowed universities to patent federally funded research
-there has been a windfall but only shared by a dozen of the top universities
-there is a waning of the sense of the university as s public institution
-returns tend to go to drug companies - examples: Prozac, some HIV/AIDS drugs etc
-citizens therefore pay twice as research funding and then as consumers
-bioprospecting/biopiracy
-some of this goes back to the US Supreme Ct allowing the patenting of life forms
•the ethic around patenting in the '50s was very different - the inventor of the polio vaccine was asked who owned the patent on it and he said "the public, I guess" and asked, in response, "Who owns the patent on the sun?"
•now you can patent software; what would have happened if that had been true in the '50s and '60s? Bollier argues that the computer revolution wouldn't have happened.
•there are so many patent families for the malaria antigen, making it hard to clear the rights to do research in that area
•you can't own clothing design - this has led to a robust industry
•the implications of this for academia are clear
•there is little recognition of the importance of the commons
-it is therefore imperative for universities to engage in these controversies
-by getting beyond the mental categories of property-speak
-it needs a stronger way to assert the ethic of public sharing
-to do that we need a fresh different discourse to outmaneuver property-speak
-to show how academic work can outperform the market model
-Benkler (The Wealth of Networks) argues knowledge is more effectively pursued in an open environment than in a market
-common-speak is important for that
-that can refer to open-access stuff, creative commons, etc.
-Bollier cited a number of examples of these models in academia
•Bollier puts out a report called "the commons rising" and has a web site: onthecommons.org
•How can we establish a set of norms that goes with the principles on which academia works? -this commons-speak and these commons models

Questions:
Susan Crean brings up two positive examples: 1) Aveda's 'indigenous' line of products; Aveda eventually, in response to criticism, de-patented the product. 2) Starbucks also failed in challenging Haida-bucks coffee shop
3) Film: "Guarding the family silver" is about a woman whose name was trademarked by someone else
Bollier: there is a distinction between the public domain and the commons - with a commons there are certain limitations that can prevent free-riders or inappropriate appropriation
Question: Google is undertaking a massive public consultation on what should be digitized next
Bollier: Might Google become the next Microsoft, taking control of what now is in the public domain?
Q: What should we do about that?
B: think, read, study - it's a bit too early to know what to do
Q: how can we more actively recognize the value of the public domain?
B: the commons is a bit better concept for recognizing that because it's more managed, more situated