Standing in the shoes of library patrons

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.

Librarians and Mothers

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

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.