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Frédérique Vézina as Ofglen and Stephanie Marshall as Offred in the Canadian Opera Company's production of The Handmaid's Tale

Michael Cooper

One of the more contentious pieces of legislation currently wending its way toward adoption in Parliament is Bill C-11, the Copyright Modernization Act. The bill's formidable goal of jointly protecting the rights of creators and those of consumers in the digital age has led to a polarized debate, and those who enter it are often characterized in unflattering terms by their opponents. There is one disputed clause, though, which has less to do with ideology than with good law-making.

The issue is fair dealing, i.e., the free use of copyrighted materials such as books, music, film and, yes, newspapers, for activities such as research, education, creating so-called mash-ups, satire and parody. Bill C-11 as currently written makes an explicit exemption for these uses: "Fair dealing for the purpose of research, private study, education, parody or satire does not infringe copyright." It is the catch-all term "education" that is problematic. Book publishers in Canada and the United States have been the most vociferous in pointing this out, and they are right to do so.

The problem for publishers is that they make a considerable amount of money selling textbooks and novels to schools and to university students, and they also do good business licensing their content so that teachers can produce course packages that include bits and pieces from various works. But if education falls under the fair dealing provision, then what's to stop a university from refusing to pay licensing fees? Why, in fact, should an English lit student ever have to pay for another copy of To Kill a Mockingbird or The Handmaid's Tale?

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Furthermore, what is the definition of an educational purpose? Is it a training manual put together by a corporation? A government pamphlet? An English as a Second Language course offered in a suburban strip mall by an uncertified, for-profit outfit of dubious repute?

Canadian publishers have repeatedly asked for the bill to be clarified on this issue; their alternative recourse, should the unamended law lead to uses of their copyrighted content that for any reasonable person would be an obvious violation of their rights, would be through the courts. Better, then, for Ottawa's lawmakers to clarify the wording now and forestall what is otherwise destined to be a period of uncertainty and expensive litigation after Bill C-11 is passed.

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