The problems with the e-reserve provisions in C-61 extend beyond just the fair dealing concerns.  In order to qualify for the exception, librarians are required to implement DRM-based solutions on the distribution of electronic materials.  Yesterday I pointed to the provision that expressly permits digital reproduction.  Section 30.02(3) adds two crucial requirements that must be met in order to qualify.  First, sub (b) requires libraries to:

take measures to prevent the digital reproduction from being communicated by telecommunication to any persons who are not acting under the authority of the institution;

Second, sub (c) requires libraries to:

take measures to prevent a person to whom the work has been communicated under paragraph (1)(b) from printing more than one copy, and to prevent any other reproduction or communication of the digital reproduction;

In other words, to qualify for the exemption libraries must ensure that the digital copy cannot be further reproduced, communicated or copied.  The obvious way to meet this requirement is for librarians to implement DRM solutions that lock down the digital copies.  For most librarians, this is expensive and objectionable, ensuring that the new rights to distribute digital copies will be largely ignored.

Over the past two days, I've argued that the Internet exception for education is both unnecessary and potentially harmful.  It is also so easily avoided as to be almost useless.  As noted earlier, one way to avoid the exception is the use of DRM.  Another is to simply place a notice on the website.  Section 30.04 (4)(b) provides that the exception does not apply if:

a clearly visible notice - and not merely the copyright symbol - prohibiting that act is posted at the Internet site where the work or other subject-matter is posted or on the work or other subject-matter itself.

Section 30.04(6) says that the Governor in Council may make regulations prescribing what constitutes a clearly visible notice.  While we await those regulations, a clearly visible notice may be nothing more than the words "all rights reserved."  If so, CMEC and AUCC will have fought for an ill-advised exception that can be defeated with three simple words posted on the website.

One of the most controversial aspects of Bill C-61 is the inclusion of special educational exception.  The provision has split the education community, generating support from some education groups and opposition from others. The product of years of lobbying by provincial education ministers and the AUCC, the exemption at Section 30.04 (1) provides that:

Subject to subsections (2) to (5), it is not an infringement of copyright for an educational institution, or a person acting under the authority of one, to do any of the following acts for educational or training purposes in respect of a work or other subject-matter that is available through the Internet:

(a) reproduce it;
(b) communicate it to the public by telecommunication, if that public primarily consists of students of the educational institution or other persons acting under its authority;
(c) perform it in public, if that public primarily consists of students of the educational institution or other persons acting under its authority; or
(d) do any other act that is necessary for the purpose of the acts referred to in paragraphs (a) to (c).

I will discuss why the conditions render this exception virtually useless in a later post.  For the moment, I want to reiterate that I do not believe that the exception is either necessary or equitable.

The conditions attached to the lesson provisions do not end with destroying lessons that use the exemption at the conclusion of the course.  There are two provisions that would appear to encourage (or possibly even require) the use of digital rights management to control the further distribution of these lessons. Section 30(5)(b) requires teachers to:

take measures that can reasonably be expected to limit the communication by telecommunication of the lesson to the persons referred to in paragraph (3)(a);

Section 30(5)(c) requires teachers to:

take, in relation to the communication by telecommunication of the lesson in digital form, measures that can reasonably be expected to prevent the students from fixing or reproducing the lesson, or communicating it other than as they may do under this section;

In other words, Bill C-61, which already covers a limited number of educational exemptions and establishes special liability for violating the Act with respect to these distance learning lessons, now requires to teachers to limit the communication of their lessons outside the circle of students enrolled in the class and stop students from "fixing" the lesson.  How do you that?  Given that these lessons are made available in electronic format, the obvious method is to use DRM.  Whether a court would be satisfied with a warning to students to not distribute outside the class, is a risk that few educational institutions are likely to take (in fact, Section 30(5)(d) indicates that further conditions may be established by regulation).