Film Studies Association of Canada Association Canadiennes d…

          Film Studies Association of Canada
Association Canadiennes d'Études Cinématographique
                    FSAC/ACÉC




                             Statement on Copyright
                                      Ratified June 20, 2008


                 Prepared by:                                        With assistance from:
             Dr. Marc Furstenau                                        Dr. Michael Zryd
               President, FSAC                                     Former President, FSAC
      Assistant Professor of Film Studies                      Associate Professor of Film Studies
         Carleton University, Ottawa                               York University, Toronto


                                    For further information contact:
                                          Dr. Marc Furstenau
                                     marc_furstenau@carleton.ca

Preamble

This statement has been unanimously ratified by and represents the opinions of the
membership of the Film Studies Association of Canada. It is a general statement on the
legitimate uses made by film and media scholars and educators of copyrighted material,
and it describes common practices at colleges, universities and other scholarly and
educational institutions in Canada. It is being presented now as a response to copyright
reform legislation (Bill C-61, tabled June 12, 2008), and as an expression of the dismay
of FSAC members, who are deeply concerned that the proposed bill would severely limit
our rights and freedoms as scholars and educators. We call for a truly balanced Copyright
Act, which would protect the rights of creators and copyright holders, and the legitimate
rights of users of copyrighted material, particularly the rights of scholars and educators.

1. Education, Research and Copyright

       The Film Studies Association of Canada (FSAC) represents film and media
scholars and educators in universities and colleges across the country, providing scholarly
support, organising an annual meeting, publishing an academic journal (The Canadian
Journal of Film Studies), and advocating on behalf of its members. A key issue facing
film and media scholars today is the use and presentation of copyrighted material ­ still
and moving visual imagery in particular ­ in the classroom and in our research and
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scholarship. Digital technologies have provided us with a variety of new modes of access
and engagement. However, we are restricted by copyright legislation that has not fully
acknowledged the new technological environment, and which limits users' rights in
favour of copyright owners. Given the importance of providing students with the critical
tools necessary to analyse a complex visual media culture, of fostering a vital and
dynamic field of film and media scholarship in Canadian colleges and universities, and of
promoting a vibrant, democratic culture of exchange, discussion and debate, we need
copyright legislation that strikes a fair balance between the rights of owners and the rights
of users.

         This statement is presented on behalf of FSAC members, describing the scholarly
and educational uses of copyrighted material within the fields of film and media studies,
and suggesting how copyright legislation may be changed to recognise the new
technological conditions within which film and media education is undertaken, and to
reflect new pedagogical strategies and scholarly research methods that have emerged.
There are two main issues that we face. The first is the relatively restrictive language in
present copyright legislation describing "fair dealing," which limits the legitimate use of
copyrighted material in educational and scholarly contexts. A particular issue related to
this is the obligation on the part of educational institutions to purchase classroom
screening rights from "distributors," in addition to the original cost of purchasing video
material. FSAC supports the adoption of a more expansive "fair dealing" provision in
copyright legislation, comparable to the "fair use" provision in U.S. law, which would
enlarge the scope of scholarly and educational use, and allow for less fettered access to
copyrighted material ­ publicly circulating and archival material ­ for use in teaching,
research, and scholarly publication. The second issue is the question of reproduction and
"format-shifting." Digital video technologies have made this much easier and more
effective, and have provided film and media educators and scholars with many new
possibilities for critical and creative engagement with cultural materials. We are
constrained, however, by current copyright legislation, which offers only vague and
ambiguous guidance in an era of digital reproduction. FSAC opposes further restrictions
on legitimate copying, and is particularly opposed to any blanket anti-circumvention
provisions. We support the expansion of the rights to access and fair use. These issues
will be considered in more detail below, following a brief account of the historical
context of film and media education in Canada.

2. Film and Media Education in Context

         Film study began in Canada in the late 1960s, with the increased availability of
films on the 16mm, non-theatrical format. These were typically rented for classroom
projection, and projection rights were included in the price of the rental. Universities
were willing to pay the costs necessary to make films available in an era of relatively
restricted access. Movies had historically been shown for only a brief period of time in
theaters, and were not readily available to be seen again, except perhaps on broadcast
television. The more portable format of 16mm made the "cinema" available for scholarly
analysis in the same way that printed texts had made the study of "literature" possible.
Still, 16mm projection limited the mode of engagement with film texts, which were
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typically screened once, and then only subsequently discussed. By contrast, literary texts
could be subjected to repeated reading and close analysis, given that they were in print
form. They could be easily consulted after the initial reading, and passages could be read
again, or read aloud in class. Some film programs used editing equipment, or else so-
called "analytical" projectors, which allowed viewers to "re-view" scenes and sequences.
Not every university owned such equipment, however, which was both expensive and not
especially easy to use.

        The academic study of film and other visual media expanded considerably in the
1980s, when video was introduced. This first of all allowed film educators to record films
off of broadcast television, but very soon studios and distributors had made large portions
of their film collections available on VHS, and film departments could begin to build
extensive video libraries. This made films readily available for classroom screening, but
also for relatively effortless re-viewing and close analysis, given the ease with which one
could pause, rewind and fast-forward. Films had, practically speaking, become as
"analysable" as literary texts. The effect of this new technology on the discipline of film
studies cannot be underestimated, and in the last two decades the number of film studies
departments and programs in Canadian universities and colleges has increased
dramatically, and the discipline has become firmly established within academia.

        New digital video and computer technologies have further increased the modes of
engagement, and offered new possibilities for film and media teaching and research. New
video formats, specifically DVD, have made the viewing and re-viewing of film texts
even easier, and have made an even larger number of films available, often in far higher
quality versions. Digital projectors have provided teachers and researchers with more
opportunities to subject such material to critical analysis, and offered more pedagogical
possibilities, allowing for the creative engagement with high quality images presented on
classroom screens. With computers, it has become relatively easy to "shift" digital
material from one format to another, to make copies, clips and excerpts from original
sources for the purpose of study, analysis, and critique, and for re-presentation in
classrooms and other teaching and scholarly contexts. We are able to move quickly from
one image to another, allowing for effective comparisons and contrasts to be made,
encouraging students to become even more discerning in their critical analyses of visual
material.

        The history of film and media studies is intimately tied to developments in video
and information technologies. Our discipline is a necessarily "technological" one, and we
have, as a result, a great stake in new copyright legislation, which will have a significant
effect on our ability to critically engage with and effectively use new digital media. As
film and media scholars are deploying new technologies, new pedagogical practices and
research methods are being developed in universities and colleges across the country.
Copyright legislation must reflect these new conditions and practices. FSAC is
specifically concerned with two basic issues: the concepts of "users' rights" and "fair
dealing"; and the questions of reproduction and format-shifting.
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3. The Rights of Users: `Fair Dealing' or `Fair Use'?

         The use of copyrighted material in educational contexts in Canada is governed by
the "Fair Dealing" provision of the Copyright Act, where it is listed as one of the basic
"exceptions" to copyright infringement. Section 29 states that, "Fair dealing for the
purpose of research or private study does not infringe copyright," and, in Sub-sections
29.1 and 29.2, the further categories of "criticism," "review," and "news reporting" are
added to "research" and "private study." Many commentators on the Copyright Act have
noted that this is a restrictive list, and contrast this section with the provisions for "Fair
Use" in U.S. legislation, which states in Section 107, in more suggestive or open-ended
terms, that fair use is not an infringement of copyright when works are used "for purposes
such as criticism, comment, news reporting, teaching (including multiple copies for
classroom use), scholarship, or research" (emphasis added). By including the phrase
"such as," U.S. legislation does not limit the realm of fair use, but instead provides
illustrative examples of the sorts of areas where fair use provisions should apply,
providing a stronger basis for the idea that there is a broad and dynamic range of
legitimate uses of copyrighted material, and for the concomitant notion of "users' rights."

        Recent judicial decisions by the Supreme Court of Canada have emphasised the
importance of the fair dealing exception, which the court has defined precisely as "a
user's right." In a 2004 decision (CCH v. Law Society of Upper Canada), the court stated
that: "In order to maintain the proper balance between the rights of a copyright owner and
users' interests [the `fair dealing' exception] must not be interpreted restrictively." FSAC
supports changes to the present legislation that would encourage just such non-restrictive
interpretations, bringing it into line with current judicial thinking, which acknowledges
the cultural and intellectual benefits of new technologies of reproduction and
dissemination.

        A non-restrictive fair use exception would also resolve a specific issue faced by
film and media studies departments across this country. By allowing educators to show
legitimately purchased, commercially available videos in classrooms and other
educational contexts, according to a more expansive notion of fair use, departments and
universities would be freed from the financial burden of having to continuously pay fees
to the "rights holders" of these films ­ distribution companies that had, in the past,
provided films and performance right, but who now only provide the rights. The two
main companies, Audio Cine and Criterion, were and are in the business of acquiring
Canadian rights to classroom rentals of major U.S. distributors' releases. They used to
provide 16mm prints in exchange for rental monies. Now, they simply sell the rights that
they have acquired and do not supply the actual print or video copy. Audio-Cine's and
Criterion's catalogues consist mainly of Hollywood feature films, and some other
independent narrative and documentary works, largely from the U.S., films for which the
actual DVDs (the dominant medium used in classrooms) are commercially available.

       These companies no longer provide a service; rather, because copyright law in
Canada does not allow for educational fair use, they sell blanket site licenses to Canadian
universities, basically making money through a provision in the law. This creates an
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unnecessary financial expense for universities. It is also a time waster for A-V libraries,
which have to compile reports on films screened in classes for the two companies.
Finally, this vestige of the pre-video era has driven many educators `underground,' as
instructors show DVDs or clips from DVDs that they own for educational purposes but
do not declare the screening. New copyright legislation should acknowledge and reflect
current conditions, practices and educational needs, and provide educators and scholars
with less fettered access to copyrighted material, recognising the right to screen
legitimately procured material within educational contexts without having to pay
additional fees for each use.

         A broader, and more expansive fair use exception would also strengthen and
enlarge the basic scholarly freedom to access and use audio-visual material, either in
public circulation or housed in archives, and to publish excerpts (film stills, "frame
grabs," publicity photos, and promotional material, for example) for the purposes of
critique and analysis. The publication of an image alongside a scholarly article is
equivalent to the use of quotation in other fields (e.g. literature, philosophy, classics,
etc.), as support for a claim in an argument or as the actual object of analysis, and
scholars need the freedom to do so. Film and media scholarship is also hampered by
overly restrictive copyright requirements which prevent ready access to the archives of
the CBC and the Library and Archives of Canada, the biggest repositories of Canadian
audio-visual material. An effective fair use provision would safeguard rights of public
access to film and television productions funded by the public purse, and allow scholars
and students to engage more effectively with vital cultural material. The concept of fair
use or fair dealing is the basis upon which a thriving research culture will be maintained
and developed in Canada. FSAC supports the inclusion of a clear, and expansive fair use
or fair dealing provision, with a broad and unambiguous scholarly and educational
exception, in any reformed version of the Copyright Act.

4. Teaching and Technology: Reproduction and Format-Shifting

        Most classrooms in Canadian universities and colleges are now equipped with a
full range of video and computer technologies, allowing for very dynamic presentations
of audio-visual material. Educators in all disciplines, but especially film and media
educators, depend more and more on such presentations, and on the ability to gather,
organise and re-organise material in order to teach and analyse media, and to provide
students with opportunities for critical and creative engagement. Digital media allow for
the integration of illustrative and exemplary material in presentations (such as
"Powerpoint" slideshows), which can fulfill important analytical and critical purposes.
Such presentations depend upon the ability to copy excerpts or capture stills from films or
television programs, to alter and rearrange sounds and images, and to edit and re-edit
audio-visual material which may now be easily "shifted" from one format to another.
Such practices are only possible, however, if digital content is not "locked-up" ­ if it is
not controlled by so-called "digital rights management" technologies, or copy protection
systems, or if the circumvention of such controls under certain, legitimate circumstances
is allowed according to the provisions of fair use or fair dealing. The fact that such
control technologies exist, and that digital content is technically amenable to such
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control, should not be the basis for the extension of the rights of copyright holders. New
copyright legislation should recognise that such practices fall within a broadly conceived
realm of fair use or fair dealing. The entrenchment of the right of fair use would place
Canadian educators on par with standards adopted by sister scholarly organizations like
the Society for Cinema and Media Studies, an international association based in the U.S.

         The Copyright Act currently provides exceptions for Educational Institutions,
which allow for reproduction for the purposes of education and training and for the
administration of tests and examinations, but the language is vague and ambiguous. Sub-
section 29.4 (1) states that, "It is not an infringement of copyright for an educational
institution or a person acting under its authority to make a copy of a work ... (b) as an
image projected using an overhead projector or similar device for the purposes of
education." Sub-section 29.4 (2) states, that, "It is not an infringement of copyright for an
educational institution or a person acting under its authority to reproduce, perform in
public or communicate to the public by telecommunication a work for any purpose
related to the giving of an assignment, test or examination." These provisions are
rendered superfluous, though, in the case of digital media which are "locked-up" by copy
protection systems, and if circumvention is broadly prohibited. New copyright legislation
should reflect current educational and scholarly practice, and should follow recent
judicial decisions, such as that of the Supreme Court of Canada in Théberge v. Galerie
d'art du Petit Champlain inc., which states that, "[o]nce an authorized copy of a work is
sold to a member of the public, it is generally for the purchaser, not the author, to
determine what happens to it." The court went on to observe that, "[e]xcessive control by
holders of copyrights and other forms of intellectual property may unduly limit the ability
of the public domain to incorporate and embellish creative innovation in the long-term
interests of society as a whole, or create practical obstacles to proper utilization."

        Once purchased, the uses to which copyrighted material may be put should be
governed by legislation that takes into account the context of use, as the law already
acknowledges. This important qualification should not be superseded by the blanket
application of content-control systems. The rights of copyright holders are not universal ­
they are subject to specific exceptions in order to balance the rights of users ­ but the
effect of copy protection technology and blanket anti-circumvention prohibitions is to
enlarge the rights of owners while severely limiting legitimate use. As it stands, the rights
of users within educational contexts are unduly constrained by copy protection systems,
which prevent the legitimate production of clips, excerpts and stills, and the
reorganisation of such material for presentation in classrooms and other scholarly
settings. FSAC calls for the explicit acknowledgement of the right of educators and
students to produce copies of legitimately procured audio-visual materials for the
purposes of study, analysis and critique, and the right to re-organise and re-present such
material in educational and academic contexts and in scholarly publications. Such activity
is already an integral element of film and media research and education, and is
undertaken according to already existing academic protocols of quotation and
acknowledgement. FSAC believes that new copyright legislation should not contain any
elements comparable to the "anti-circumvention" provisions of U.S. 1998 Digital
Millennium Copyright Act, which would limit the right to make legitimate copies of
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copyrighted material within educational contexts, or which would force educators to
illegally bypass copy protection systems in order to assert their legitimate rights to
reproduce material for educational and scholarly purposes.

5. Copyright Legislation: The Balance of Rights

        The primary goal of copyright legislation is to provide for the free but orderly
circulation of ideas in order to foster creativity and innovation, and to foster the
democratic right of critical engagement with cultural material. Copyright, as the Supreme
Court has said, should function to "incorporate and embellish innovation in the long-term
interests of society as a whole." Canadian copyright legislation has historically struck a
balance between the rights of owners and users, understood as a necessary balance to
ensure such circulation and to serve broader societal interests by protecting the rights of
creators. In the era of digital media, the balance appears to have been upset, as owners are
discovering that new technologies provide the means for the far-reaching control of
content, and as users are discovering that content may be easily copied and reproduced.
FSAC is concerned that, in this context, the tendency is to legitimise greater technical
control over copyrighted material, at the expense of the legitimate rights and interests of
users. As an association representing film and media scholars and educators, for whom
the freedom to engage critically and analytically with copyrighted material is a
fundamental interest, we feel it is important to insist on the need to maintain a fair
balance of rights. The free, open exchange of ideas, and the circulation of texts,
documents, images and sounds that is necessary for such an exchange, is a basic social
good that copyright legislation has historically been designed to support and protect.
Educational and scholarly institutions play an essential role in fostering a dynamic culture
of exchange and debate, and have traditionally been offered specific protections and
exceptions in copyright legislation. As new technological innovations offer educators and
researchers more pedagogical and scholarly opportunities, these protections and
exceptions should not be eroded, but should be revised to reflect the current practices and
methods being developed through creative and critical scholarly engagement with new
digital media.

Works Consulted During the Preparation of this Statement:

Geist, Michael, ed. In the Public Interest: The Future of Canadian Copyright Law.
   Toronto: Irwin Law, 2005.
Harris, Lesley Ellen. Canadian Copyright Law, 3rd Edition. Toronto: McGraw Hill
   Ryerson, 2001.
Murray, Laura J. and Samuel E. Trosow. Canadian Copyright: A Citizen's Guide.
   Toronto: Between the Lines, 2007.
Petrie, Graham. "Brief concerning the proposed new Canadian copyright legislation, Bill
   C-32." Released 1996. www.filmstudies.ca/ARCH_copyright.htm
Society For Cinema and Media Studies (U.S.). "Statement of Best Practices for Fair Use
   in Teaching for Film and Media Educators." Released 2006. www.cmstudies.org
Tamaro, Normand. The 2006 Annotated Copyright Act. Toronto: Thomson Carswell,
   2005.