Meera Nair

Posts Tagged ‘CCH Canadian’

ten years later

In Posts on February 25, 2014 at 6:37 am

Next week marks a decade of post-CCH Canadian copyright dialogue in Canada. The decision addressed a number of issues including originality, and the implications of providing technology that might be used towards infringing behaviour. However, the decision has largely become known for its stance on fair dealing. It stood out on the world stage; described at the time by Michael Geist as: “one of the strongest pro-user rights decisions from any high court in the world, showing what it means to do more than pay mere lip service to balance in copyright.” And yet, looking at it now, it seems a little incredulous that a decision to uphold copyright’s structure as a set of limited rights, should garner so much attention.

March 4, 2004 began quietly enough. According to the news reports, the Supreme Court of Canada ruled that a library could make, at the request of a patron, a copy of a work of legal literature (i.e., an individual journal article, edited reasons for a judgement, a selected chapter from a treatise etc.). The library was only engaging in fair dealing. If anything felt odd, it was the implication that we needed the Supreme Court’s sanction for the modest copying that is carried out daily within libraries and among researchers. Perhaps recognizing the peculiarity of this spectacle, Chief Justice Beverley Mclachlin, writing for a unanimous court, took pains to remind us that:

Under s. 30.2(1), a library or persons acting under its authority may do anything on behalf of any person that the person may do personally under the fair dealing exceptions to copyright infringement (para. 83).

In her next breath, Mclachlin also indicated that this was superfluous to the matter at hand:

I concluded in the main appeal that the Law Society’s dealings with the publishers’ works were fair. Thus, the Law Society need not rely on the library exemption. However, were it necessary, it would be entitled to do so (para. 84).

What surrounded the decision with acclaim from public interest advocates, and loathing from some copyright owner representatives, was the recognition by the court that the system of copyright is inherently about nuance—that copyright does not support a blanket prohibition on all copying.

For most of the twentieth century, fair dealing had existed essentially in name only. In “The Changing Face of Fair Dealing” in ed. Michael Geist, In the Public Interest—the Future of Canadian Copyright Law (2006), Carys Craig writes that fair dealing was “all but redundant in the Canadian courts: rarely raised and cursorily rejected (p.438).” It has been only in the new millennium that the rights of the public began to gain attention. In this regard, CCH Canadian was not the watershed moment; that distinction was earned two years earlier in the Théberge v. Gallery d’Art du Petit Champlain decision by the Supreme Court. Even though the case had nothing to do with fair dealing, Justice Binnie, writing for the majority, decisively placed owners’ rights in service of the vitality of the public domain, and, made particular mention of the role of exceptions:

Excessive 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. This is reflected in the exceptions to copyright infringement … which seek to protect the public domain in traditional ways such as fair dealing … (para. 32).

Binnie’s remarks were later given added thrust in CCH Canadian. Reminding us that fair dealing “was always available,” Mclachlin continued with: “Research must be given a large and liberal interpretation in order to ensure that users’ rights are not unduly constrained (para. 49-51)”. And after a multi-factor examination of the copying under scrutiny (building and improving upon the four factors of American fair use) the Court declared fair dealing.

Encouraging as the decision was, it by no means assured anyone of success in the long-term pursuit of balance in copyright law. In a comment upon the case, Teresa Scassa wondered if it was “too little, too late.” The predilection of the world then (as it is now) was to adopt more expansive copyright and the Canadian government of the day showed no signs of taking a different course of action. She wrote:

… [W]hile the Canadian Supreme Court’s new balancing approach offers users greater scope under the existing copyright legislation than they have ever realistically been able to hope for, it is an approach that may be anachronistic, insufficient and ultimately against the grain of current legislative and international directions.  The Court may well be situating itself as the last champion of a much beleaguered underdog – the ordinary user, and in this respect, the effort is welcome (p.97).

Certainly, the domestic reaction against the decision was swift and brutal. I have detailed this period of fair dealing history in “Fair Dealing at a Crossroads” in ed. Michael Geist, From Radical Extremism to Balanced Copyright (2010). Alarmed by the possibility of surrendering the absolutism that had characterized copyright in Canada, rights-holders representatives lost no time in presenting CCH Canadian as nothing less than an assault on creators. The nuance of the decision, its setting, and the emphasis of the Court that every instance of fair dealing is unique and must be examined holistically, could have eased the anxiety felt among Canada’s creative set. However, rights holders sought instead to present the decision in the blackest terms possible and paint fair dealing as unwelcome to Canadian creators. The irony of such pronouncements was that, even with its limited scope, fair dealing was the only measure within the Copyright Act that gave modest support to uses of copyrighted material that are critical to fostering creativity.

Looking back now, Scassa’s concerns may well have been borne out if, at the time, Canada had enjoyed federal governance of our usual variety. But two consecutive minority governments were not conducive to moving forward with copyright change. By the time of the third minority government, public consultation began and amendments were proposed and later accepted in the name of Bill C32/C11. The passage of time was critical; it allowed all parties to gain some perspective concerning the rise of digital technology and world-wide networks. Although, political pressures being what they are, Canada could not avoid the unwelcome addition of protection for technological protection measures (even when a use is non-infringing.) Nevertheless, fair dealing was given a modest nod of approval through the addition of parody, satire and education as legitimate purposes of fair dealing.  As readers likely know, the purpose is only the first step.  The fairness analysis, using later words of our Supreme Court, does the heavy-hitting.

Returning to Scassa’s comment, she drew particular attention to Mclachlin’s instruction that the availability of a license is not relevant to a decision of fair dealing. Scassa wrote: “This is an extremely important statement for libraries and universities which have  struggled with the costs of reprography licenses to protect them against copyright infringement actions (p.95).”

Many scholars across Canada saw the decision as the impetus for Canada’s post-secondary institutions to engage with fair dealing; to educate their communities about the importance of the exception and offer guidance of how to best use the exception. Regrettably, this did not happen. When I took stock of fair dealing in 2010, I wrote: “In the years following CCH Canadian, Canadian educational institutions remained disquietly silent on the decision … CCH Canadian has not, to any appreciably degree, taken root in the Canadian university landscape (p.100-101).” Fortunately, Canadian educational institutions are showing more engagement now. (Lisa di Valentino offers some data upon this subject; see here.) Further reassurance came from the Supreme Court of Canada in 2012 concerning fair dealing’s legitimacy and application within K-12 schools (see Education v. Access in Notable Supreme Court Decisions). It must be emphasized that the decision of 2012 was based upon the earlier language of fair dealing, meaning before the inclusion of “education” as an allowable purpose within the law.

The impetus for this blog entry, though largely to indulge in reflection, is also to take the opportunity to identify what, if anything, is the legacy of CCH Canadian. With respect to procedure, it set a new standard for examination of fair dealing; effectively, all roads now begin with a multi-factor enquiry, with no particular factor taking precedence over any other. Policy-wise, the “long-term interests of society as a whole” cannot now be easily set aside. Both elements are valuable and contribute to stability for creators and users alike. But perhaps a legacy less visible is an affirmation through what did not happen. The complaints following the decision included dire warnings that the conduct of the Supreme Court of Canada was not in compliance with international norms, namely the three-step test devised through the Berne Convention, with later variations adopted in the TRIPs agreement and the WIPO Internet Treaties. But the independent action of our Supreme Court to operate in Canada’s best interests has not met with any challenge outside of Canada. The affirmation that international cooperation does not preclude independence on matters of domestic exceptions is something to celebrate.

Standing in the shoes of library patrons

In Posts on March 5, 2011 at 3:05 pm

Yesterday marked the seventh anniversary of the CCH Canadian decision. In this blog I have tended to focus on the fairness test that took form from the ruling and its implication for the importance of a multi-facetted inquiry into every act of copying. The anniversary date is a good time to remember that the case covered much more.

Tucked into my books is an old newspaper clipping titled “Photocopying not an automatic infringement of copyright laws.” In a space of 12 cm x 15 cm, reporter Janice Tibbetts succinctly captured and conveyed the main issues: (1) that copying in itself can be permissible within the mandate of copyright; (2) a library can provide copying services (subject to careful consideration) for its patrons; (3) the mere provision of equipment that could be used for copyright infringement is not authorization of infringement (emphasis added); and (4) a higher standard on the meaning of “originality” in terms of what qualifies for copyright protection.

The case offered much to Canadians. Fair dealing emerged as a robust principle instead of merely a defense against infringement. Institutions were provided instruction in how to shape their practices to be in accordance with the law. Yet a curious byproduct of the ruling seems to be more confusion over when and how to apply fair dealing. And forgotten is a tangential remark: Canadian libraries already had the right to stand in the shoes of their patrons for acts of fair dealing.

As some readers may recall the principle complaint in the case was the practice of the library of the Law Society of Upper Canada making copies of copyrighted material at the request of patrons. Key to the favourable outcome was the library’s clearly defined policy governing the requests for copies. Writing for the court, Chief Justice Beverly Mclaughlin noted:

Here, the Law Society’s dealings with the publishers’ works through its custom photocopy service were research-based and fair. The access policy places appropriate limits on the type of copying that the Law Society will do. If a request does not appear to be for the purpose of research, criticism, review or private study, the copy will not be made. If a question arises as to whether the stated purpose is legitimate, the reference librarian will review the matter. The access policy limits the amount of work that will be copied, and the reference librarian reviews requests that exceed what might typically be considered reasonable and has the right to refuse to fulfill a request.

(The complete access policy is quoted in the ruling; see paragraph 61.)

The High Court took pains to stipulate that fair dealing embodies not only individual behaviour but a system:

This comports with the purpose of the fair dealing exception, which is to ensure that users are not unduly restricted in their ability to use and disseminate copyrighted works. Persons or institutions relying on the s. 29 fair dealing exception need only prove that their own dealings with copyrighted works were for the purpose of research or private study and were fair. They may do this either by showing that their own practices and policies were research-based and fair, or by showing that all individual dealings with the materials were in fact research-based and fair (emphasis added, para. 63).

Notably, while the library’s clientele included commercial law firms this was not a bar to the finding of fair dealing.

But the hidden gem in the ruling was the reminder that, with regard to fair dealing, libraries could act on behalf of their patrons:

In 1999, amendments to the Copyright Act came into force allowing libraries, archives and museums to qualify for exemptions against copyright infringement: S.C. 1997, c. 24. Under s. 30.2(1), a library or persons acting under its authority may do anything on behalf of any person that the person may do personally under the fair dealing exceptions to copyright infringement (para.83).

Section 30.2.(1) reads as: “It is not an infringement of copyright for a library, archive or museum or a person acting under its authority to do anything on behalf of any person that the person may do personally under section 29 or 29.1.”

Section 29 and 29.1 of the Copyright Act apply to research or private study, and, criticism and review, with the attendant conditions. Libraries et al. should take note of section 30.2(2); it is very specific to the purpose of research and private study; it allows reproduction of complete, single copies of articles taken from scholarly, scientific or technical periodicals. To qualify for Section 30.2 the library must be a nonprofit entity.

This exception was not relied upon in CCH Canadian: “The Law Society’s dealings with the publishers’ works were fair. Thus, the Law Society need not rely on the library exemption. However, were it necessary, it would be entitled to do so (para. 84).” But Section 30.2 should not be forgotten.

Our Chief Justice

In Posts on June 1, 2010 at 9:37 pm

Today was an eventful day. Ministers Clement and Moore set the stage for amendment to the Copyright Act with their op/ed in the National Post. The Ministers emphasized the importance of facilitating creative effort in Canada. To that end, the Parliamentary process for amending the Act has begun with the Notice Paper.

But something more significant was happening elsewhere. The Canadian Club of Toronto honoured Chief Justice Beverley McLachlin as the 2010 Canadian of the Year. The award is presented to individuals who have, “improved the lives of others and benefited us as a nation.” The Chief Justice oversaw some landmark moments in Canadian copyright history, the most critical being the CCH Canadian case of 2004. CCH Canadian confirmed the individuality of every instance of fair dealing, provided a framework of exploration for each dealing, and emphasized that fair dealing was an integral part of copyright law. However, the case also addressed originality. At issue was whether the headnotes summarizing court cases were sufficiently original to quality for copyright.

Writing for the Court, the Chief Justice’s explanation of original pierces through to the reality of intellectual endeavor and she is quite explicit as to where such endeavor arises from:

When courts adopt a standard of originality requiring only that something be more than a mere copy or that someone simply show industriousness to ground copyright in a work, they tip the scale in favour of the author’s or creator’s rights, at the loss of society’s interest in maintaining a robust public domain that could help foster future creative innovation. … By way of contrast, when an author must exercise skill and judgment to ground originality in a work, there is a safeguard against the author being overcompensated for his or her work. This helps ensure that there is room for the public domain to flourish as others are able to produce new works by building on the ideas and information contained in the works of others [Para. 23].

The term public domain is also not defined in our Act. Connotation of the phrase ranges from the benign (that which is freely available to the public) to an aura of degradation (to fall into the public domain implies a loss of stature). Common to both interpretations is the belief that material in the public domain is absent copyright, either through expiry or ineligibility. As I have noted the World Intellectual Property Organization defines the public domain as, “… the realm of works which can be exploited by everybody without any authorization.” This includes work lacking copyright protection, however, it also includes currently copyrighted material accessed in accordance with exceptions detailed in our Act. Including fair dealing.

Librarians and Mothers

In Posts on May 9, 2010 at 8:35 am

I had the pleasure of chatting with librarians on Friday, yet I always leave such events with the same guilty feeling I have after spending time with my mother. Librarians and mothers look after us, even when we don’t know that they are doing it. And on those days (many in my case) when I explicitly ask for help from either party – I get far more than I had imagined possible.

So this Mother’s Day weekend began with added guilt…

But guilt is a less-than-practical emotion. Theoretically, one should use that same mental energy in a productive fashion. So the solution seems easy enough – give back a little of the wealth of help that keeps coming my way. Well, I tried that with my own mother yesterday. My daughter and I took her out for a shopping session and dinner in an Indian section of town. By the end of it, my groceries had been bought (by Mother), our dinner paid for (by Mother), and I was wearing a pretty new necklace (also courtesy of Mother.) Seriously, I didn’t plan it this way.

Which leaves the library community as my only source of guilt-alleviation. All I can really give are recitations of copyright lore. So here’s one that might be of interest. For fair dealing, librarians can stand in the shoes of their patrons.

Section 30.2 (1) of the Copyright Act / le droit d’auteur states:

30.2 (1) It is not an infringement of copyright for a library, archive or museum or a person acting under its authority to do anything on behalf of any person that the person may do personally under section 29 or 29.1.
30.2 (1) Ne constituent pas des violations du droit d’auteur les actes accomplis par une bibliothèque, un musée ou un service d’archives ou une personne agissant sous l’autorité de ceux-ci pour une personne qui peut elle-même les accomplir dans le cadre des articles 29 et 29.1.

Canadians were reminded of this in 2002 through the Court of Appeals’ iteration of CCH Canadian. In the final round of CCH Canadian, in 2004, the Supreme Court Justices also brought attention to Section 30.2 (1). Paragraph 83 of that decision states:

In 1999, amendments to the Copyright Act came into force allowing libraries, archives and museums to qualify for exemptions against copyright infringement: S.C. 1997, c. 24. Under s. 30.2(1), a library or persons acting under its authority may do anything on behalf of any person that the person may do personally under the fair dealing exceptions to copyright infringement.

Today I don’t have to cook. The leftovers from yesterday’s feast are in my fridge (along with the added treats M. bought us from the sweet shop). Must make a phone call now…

More re: Consultations

In Posts on July 31, 2009 at 9:02 pm

Laura Murray has posted her contribution to the recent Ottawa roundtable concerning revisions of the Copyright Act. (Thank you Laura.) I share her concern that fair dealing’s usefulness will be eradicated if implicated within licensing programs. As it is, the academic community tends to bestow more rights upon copyright owners than the law actually provides.

For various reasons, there is a presumption that use of copyrighted material relies on permission from the copyright holder. Past efforts to protest have been met with indignation, and academic representatives were seen as wanting everything for free. I have written on this issue before, with respect to the consultations of 2004:

…a frequent theme of discussion was that manufacturers of tables, chairs, and software are not asked to give away their work for free, so why should creators be requested to do so? Lost in the argument was the fact that no-one had asked creators to make their work available for free, instead, free work was asked to be made available—that existing free rights of access to copyrighted work should be respected and protected.

[I know, pretty shameless to cite my own paper…]

I hope the efforts of Laura and many others come to fruition, and that fair dealing receives the support of the Federal Government of Canada. But to what extent will the academic community, as a whole, utilize fair dealing? The palpable unwillingness to engage with fair dealing as it is currently available is alternately puzzling and disturbing. Particularly in light of the strong support provided to fair dealing by the Supreme Court of Canada.

In 2004, through what has come to be known as CCH Canadian , fair dealing was unanimously declared as integral to the system of copyright as a whole. This despite the fact that “It is impossible to define fair dealing.” Aware of the challenge this poses, the Supreme Court Justices provided Canadians with a cogent and astute framework to guide use of copyrighted work in a manner consistent with fair dealing. Yet in the years since, only one academic body has promoted CCH Canadian. In December 2008, the Canadian Association of University Teachers (CAUT) issued an Intellectual Property Advisory, explaining the case, its nuances, the framework, and appropriate use of the framework in academic institutions.

Apart from the broader constituency of Canadians as a whole, the academic community is the largest stakeholder in Canada which benefits by fair dealing. Students, teachers, researchers, and administrators all rely upon this modest measure of unauthorized reproduction. Given that the Supreme Court Justices also noted the “relevance of a custom or practice of a particular trade or industry” upon a decision of fair dealing, fair dealing’s legitimacy within academia rests upon academic engagement.

And, until I write a complete resource page for CCH Canadian, here are some references:
CCH Canadian Ltd. v. Law Society of Upper Canada, 2004 SCC 13.
Canadian Association of University Teachers. (December 2008) Fair Dealing. Intellectual Property Advisory, No.3.

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