Canada Calling: Fizbin and Canadian Copyright

The Canadian thriller writer Pamela Callow was scheduled to be our guest this month, but life intervened at the last minute. Pamela will be with us the weekend of March 19-20.

Even people with only a passing acquaintance of Star Trek recognize two words: tribbles — cuddly fluff balls with an inconvenient trait of being born pregnant — and Fizbin — the mind-boggling card game that Captain Kirk invented to escape from mob boss Bela Oxmyx on Sigma Iotia Two.

Bill C-32, currently before the Canadian Parliament, if passed, will restructure Canadian Copyright law. Many Canadian writers and artists are yelling, “Fizbin.”

There is general agreement on two principles: creators and users both have rights, and any copyright legislation should strike a balance for both groups. This is where agreement ends.

The current situation started in 1997, when the Canadian Copyright Act was last amended. A provision fostered the development of collective groups, which could negotiate package deals for their members. Initially, collective groups (representing creators) and institutions such as school boards, libraries, museums and archives (representing users) negotiated voluntary agreements. Some collective groups felt that they were at a disadvantage and took user groups to the Copyright Board of Canada. Mandatory board decisions replaced negotiated agreements. Many of the Board’s decisions favored the creators over the users.

At the same time the Internet and a variety of electronic access devices multiplied like tribbles. Many countries realized that, in the face of the electronic onslaught, their copyright laws were outdated and becoming more so each week.

At the end of December 1996, a few months before before the Canadian Copyright Act passed, Canada was a signatory to two international treaties — the World Intellectual Property Organization (WIPO) Copyright Treaty and the WIPO Performance and Phonograms Treaty (WPPT). Because of the short time period between those treaties and the Copyright Act, terms of those treaties were not included, though the Canadian government promised to add them in a future bill.

In 2005 and 2008 bills were introduced in Parliament to revise Canadian Copyright law, but both bills died on the table, meaning they did not get through the entire approval process before that session of Parliament ended.

Bill C-32 was introduced in June 2010. Some parts of this bill, like finally adding WIPO and WPPT terminology, including photographs as copyrighted material, and increasing formats available to disabled users, are straightforward. Two other provisions are driving people crazy.

Fizbin Rule #1: Electronic locking devices beat everything else laid down in the game.

Actually, that’s not much of a Fizbin rule. Simply stated it means that if a fixation has a locking device on it, it is illegal to copy it every time. Fixation means the physical thing used to hold the content. It might be an electronic book, a DVD, a YouTube video, a record, an MP3 file and on and on. If that thing comes with a digital lock, you have no right to it. End of story.

Arguing the digital lock provision is pretty straight-forward. Are you in favor of digital locks, yes or no? Why or why not? You probably won’t convince any opponent who takes the opposite view, but at least you’re down to arguing one concept and have some hope of getting home in time for supper.

Fizbin rule #2: “Fair dealing for the purpose of research, private study, education, parody or satire does not infringe copyright.” (Section 29; BILL C-32: An Act to amend the Copyright Act/PROJET DE LOI C-32: Loi modifiant la Loi sur le droit d’auteur)

Parody or satire includes “non-commercial user-generated content.” We’re talking mash-ups here. If someone wants to collect paragraphs, or song clips, or photos to which I hold copyright, and put them together in a montage of his own creation, that’s okay as long as he’s doing it for strictly non-commercial purposes and his finished product doesn’t have an adverse financial or other affect on the original works. Some people disagree.

In that quote from Section 29, the words stirring up the most controversy are research, private study, and education.

Under the current law, if one person studies by herself, that is private study; however, if she’s part of a five-person study group working together on a class project that is public study and she may not copy materials to use in that group. Under the new law, private study will mean groups of any size, as long as they are focused on the same topic.

The term education would be expanded to include not only formal classroom instruction but life skills courses, workshops, seminars, self-study projects, and other means of informal training. It means that people teaching, leading, guiding (whatever word you want to use) can copy or use materials without permission and without paying royalties as long as certain conditions are met.

First condition—digital locks trump everything else on the table: if there is a digital lock on the material, see Fizbin Rule #1.

Second condition—it matters where you teach: the educational institution, library, archive, or museum must be run by the public sector (school board or provincial government) or be non-profit if run by the private sector. However, if the educational institution is private AND for-profit, they must pay royalties on everything.

This means that if a writer taught a writing class as an employee of the University of Calgary, he could copy/use as much as he wanted, without getting permission and without paying royalties, subject to the fair use doctrine. (See below.) But if he taught the same class through his business and made a profit teaching it, he must get written permission and pay royalties on everything he copied/used.

Third condition—fair use, as previously defined by the Canadian Supreme Court—must be considered each time an employee and/or student/user wants to copy/use something: fair use means assessing the character of the use, the size of the use, the amount of use, whether a non-copyrighted equivalent was available, if the material was published or non-published, and the effect of the use on the market of the original work. Yes, we are into prime Fizbin territory here.

Fourth condition—use it and destroy it: the employee and each student/user must destroy the copy 30 days after the final course evaluation has been completed.

Try discussing anything under Fizbin Rule #2 and there is no chance, no way, that you are going to get home in time for supper.

It’s going to be interesting to see what will happen with C-32. I don’t know which would be more trouble, for changes to the current copyright law to die on the table (for the third time) or for the bill finally to be passed.

Whatever happens, Canadian writers will keep on doing what they do best. Writing.