Universities Canada

Submission to the consultation on a modern copyright framework for online intermediaries

May 2021

Purpose

This submission was prepared by Universities Canada on behalf of our 96 member institutions in response to the federal consultations on a modern copyright framework for online intermediaries. Universities Canada applauds the government’s initiative in consulting stakeholders on this matter. We hope the Government of Canada continues to consult the postsecondary education sector as they move forward with any proposed changes to the Copyright Act.

Universities Canada

Universities Canada is the voice of Canada’s universities at home and abroad. As a membership organization, we represent 96 public and private not-for-profit Canadian universities from across Canada.

Universities have a unique understanding of copyright. They are home to copyright owners, creators, buyers, sellers and users. University academics and researchers are the creators of most of the content used on campus by students. Universities understand the importance of a balanced approach to copyright.

Recommendations

Having consulted members and following careful review of the federal discussion paper entitled A Consultation on a Modern Copyright Framework for Online Intermediaries, Universities Canada presents the following recommendation:

Recommendation 1

That the government exempt "educational institutions" from the proposed changes to the online intermediaries framework, including proposals such as:

• The creation of statutory provisions for de-indexing or website blocking;
• Amendments that weaken or restrict the existing safe harbour provisions;
• Changes to the Notice and Notice regime (e.g. Notice and Takedown); and,
• Compelled participation in a collective licensing scheme.

Overview and Concerns

In June 2012, C-11 the Copyright Modernization Act received royal assent, establishing many of the elements of the current online intermediaries regime. Since this modernization nearly 10 years ago, the internet and how users express themselves on it has changed dramatically. However, the nature of these changes varies significantly among categories of online intermediaries.

Many Canadian universities are considered intermediaries for the purposes of the Copyright Act by virtue of their role in offering services such as in-residence broadband, and on-campus Wi-Fi. In the last decade, the growth of social media platforms and the proliferation of streaming options has changed the nature of how users access and share copyright-protected content. In practical terms, this has meant that universities have seen a decline in copyright infringement on their networks as evidenced by metrics such as notices issued under the Notice and Notice Regime (NNR). Figure 1 illustrates how the number of notices issued under the NNR has declined precipitously at one of Canada’s largest universities since 2016.^{Footnote 1} While this data does not substantiate a broader trend around copyright infringement, it is meant to establish that universities, in their role as intermediaries, are seeing a rapid decline. As such, policies intended to respond to a shift in user behavior should be tailored to intermediaries of concern rather than applied to the entire spectrum of intermediaries.

For the purposes of the Copyright Act "intermediary" is very broadly defined. As noted in the federal consultation paper, it serves as an umbrella term that encompasses a wide range of entities such as internet service providers (ISPs), cloud services, web hosting services and messaging services. Universities and other educational institutions are distinct among intermediaries, both for their educational function and for being non- commercial in nature.^{Footnote 2} The federal government has already recognized the public interest argument for exempting educational institutions from certain provisions of the Copyright Act in its present construction, which defines educational institutions for the purposes of several exemptions. Under the Act, educational institutions are characterized as:

1. a non-profit institution licensed or recognized by or under an Act of Parliament or the legislature of a province to provide pre-school, elementary, secondary or post-secondary education,
2. a non-profit institution that is directed or controlled by a board of education regulated by or under an Act of the legislature of a province and that provides continuing, professional or vocational education or training,
3. a department or agency of any order of government, or any non-profit body, that controls or supervises education or training referred to in paragraph (a) or (b), or (d) any other non- profit institution prescribed by regulation;

Therefore, Universities Canada believes that, as educational institutions, universities should be exempted from proposed changes to the modern framework for online intermediaries for two primary reasons:

• An evidenced decline in university networks as areas of concern for copyright infringement; and,
• Universities and educational institutions occupy a unique public interest role and therefore should be exempted from proposed changes that may adversely impact their educational missions and operations.

In consulting our membership, we identified a number of concerns about the proposed changes to the online intermediaries framework:

Blocking Research and Stifling Academic Freedom

Options proposed in the consultation paper, such as strengthening rights holders’ enforcement tools against intermediaries (i.e. website blocking and de-indexing) have different implications and consequences in an educational setting. Under a revised regime, compelling universities to block websites would be asking them to erect barriers that stifle research and academic freedom. This would narrow the landscape for learning, obstruct students’ education, and impede researchers from creating new knowledge.

Options like blocking and de-indexing also raises concerns of ongoing access to digital resources that archive or aggregate large amounts of information. For instance, public resources like the Internet Archive,^{Footnote 3} may be at risk from de- indexing and blocking under a revised intermediaries regime.

Interference with Learning Management Systems (LMSs)

LMSs are very important elements of universities’ in-class and remote-learning digital infrastructure. Generally accessible only to students and staff, they are critical, non-public, institutional resources. In amending the online intermediaries regime, the government should ensure it does not extend provisions and obligations to include LMSs. Universities take copyright compliance within LMSs seriously with established copyright offices on campus – usually in libraries – that exist to advise and promote compliance among faculty, students and staff on copyright law including how to interpret and apply fair dealing.

Increased Technical and Administrative Burden

The information technology (IT) services at universities have a broad range of responsibilities including responding to phishing, malware attacks/incursions, denial of service attacks, server exploits and breaches, security information and event management (SIEM), and advanced data analytics. One of the strengths of the Notice and Notice Regime was that it did not place significant additional burden on IT personnel.

In the federal paper section 4.1.1 entitled Recalibrate the Knowledge Standard for Eligibility, there is discussion of tightening the eligibility criteria for safe harbour protections. Suggestions in section 4.1.1 such as limiting safe harbours if “facts or circumstances from which the infringement would be apparent” would considerably raise the legal risk for institutions and create new responsibilities for IT personnel. Measures that raise risk and legal liability are particularly problematic for universities as publicly funded institutions facing budgetary constraints.

Collective Licensing

Creating new collective licensing schemes is inadvisable, particularly while the Supreme Court of Canada weighs the mandatory nature of collective licenses in York University, et al. v. Canadian Copyright Licensing Agency ("Access Copyright"). Further, representation before the Copyright Board is a costly and time-consuming process. We prefer allowing institutions autonomy and choice in their decision-making, allowing them to clear copyright on materials in the manner of their choosing.

The Capacity Gap

If the federal government sees large platforms as the primary source of infringement concerns, they consider regulating them separately from entities such as universities and correspondingly, the definition of intermediaries provided for in the Copyright Act may need reconsideration. Large platforms also have technical advantages over smaller entities in creating and deploying automated copyright enforcement tools that reduce their compliance burden relative to how similar regulations may be implemented in an institutional setting.^{Footnote 4} Even should comparable tools become commercially available for educational institutions, they introduce concerns of transparency and bad-faith exploitation of automated decision-making processes.^{Footnote 5}