summer’s end

These last few months have been eventful with institutions lining up to drop their Access Copyright licenses. This does not imply that copyright-holders will not be paid for their works. It simply means that blanket-licensing has outlived its usefulness in light of the choices institutions now have regarding paid access to creative materials. Competition in the marketplace is only good for creators and consumers alike. Yet the arena of the non-market – that realm of access offered by fair dealing – may come off poorer for this experience.

As a consequence of the shift in business models, post-secondary institutions are paying more attention to copyright and fair dealing. This ought to be a positive step forward. Yet as events have come about, fair dealing has been compromised before it could root itself firmly in the post-secondary psyche. The dialogue has been predicated upon the very narrow interpretation presented by Access Copyright and supported by the Association of Universities and Colleges of Canada. Best practices are not to be confused with a set of rules – best practices are instruments of thought. They should encourage individuals to first understand the culture of fair dealing and then proceed to a multi-facetted examination of the facts surrounding any instance of copying. Instead of cultivating an atmosphere of best practices with fair dealing, current guidelines represent a ceiling on fair dealing.

Seven years ago, the Supreme Court of Canada offered an engraved invitation to the academic community to have a productive conversation on fair dealing. That was an opportunity to discuss the measure without the tensions provoked by impending copyright amendment or licensing negotiations. Unfortunately, by and large, Canadian academia sent in their regrets. That missed opportunity was costly; now post-secondary institutions are starting their fair dealing dialogue from a defensive posture, speaking more about what fair dealing is not, rather than what it is.

But, the good news is that individual members of the academic community – students, teachers and librarians – continue to educate themselves about the nuances associated to fair dealing. To that end, fair use needs more attention. CCH Canadian brought Canada very close to fair use. While we lack fair use’s flexibility in the type of use protected, we have acquired its form of inquiry.

Fair use entered American jurisprudence in 1841, in Folsom v. Marsh. The case concerned two competing biographies of George Washington. The first work was a twelve-volume compilation spanning nearly seven thousand pages. Volume One was a biography written by the editor, Jared Sparks; Washington’s letters and memoranda (augmented by the occasional editorial remark) made up the remaining eleven volumes. The offending work was written by Reverend Charles Upham. His biography was an autobiography; written in Washington’s voice with selected letters used to illustrate the life-story. Interestingly, the Upham biography is said to be largely taken from Sparks’ work – yet this did not provoke the charge of infringement. The complaint was the inclusion of Washington’s letters. Upham’s work is much smaller, less than nine hundred pages in two volumes. From the closing remarks of the presiding judge, Justice Story, the work appears to have been intended for the market of school libraries.

In his opening paragraph, Justice Story wrote: “Patents and copyrights approach … what may be called the metaphysics of the law, where the distinctions are, or at least may be, very subtle and refined, and, sometimes, almost evanescent. “ As he worked through the details of the dispute, Justice Story opined what would later become the four factors of fair use as codified in American law in 1976:

In short, we must often, in deciding questions of this sort, look to the nature and objects of the selections made, the quantity and value of the materials used, and the degree in which the use may prejudice the sale, or diminish the profits, or supersede the objects, of the original work.

At this time, in the system of copyright as a whole, fair use sits as a vital component. It allows the law to address the unknown. No government can foresee what combination of input materials, what modes of access, and how much sheer determination will be needed to foster the arts and sciences. Copyright law must remain flexible. Fair use carries that flexibility. But fair use is – truth be told – itself an artificial constraint on what previously was a more permissive creative atmosphere.

In 1998 Lyman Ray Patterson, a highly respected scholar, described the outcome of Folsom v. Marsh as “The Worst Intellectual Property Opinion Ever Written.”  He sets the stage in his introduction:

If one of the characteristics of a bad legal decision is that it gives rise to a myth as to what the court in fact ruled, Folsom is at the top of the list. The myth is twofold. The first myth is that Folsom created fair use, when in fact it merely redefined infringement. The second myth is that Folsom diminished, and therefore fair use diminishes, the rights of the copyright owner. In fact, the case enlarged those rights beyond what arguably Congress could do in light of the limitations on its copyright power and, indeed, fair use today continues to be an engine for expanding the copyright monopoly.

[Keep in mind the date of this publication: 1998.]

Professor Patterson gives a detailed explanation for his displeasure; he explains how, by the hands of the U.S. Congress and judiciary, fair use has been accepted as a natural right that protects the monopoly offered through the statutory right of copyright.  Folsom v. Marsh addressed a dispute between competing author, in the arena of professional publication. Yet. by the late twentieth century, personal use had come to be governed by those same factors. He writes:

To use a copyrighted work a person must fulfill certain requirements to avoid infringing the work. Perhaps this makes sense when a competing author is making use of another’s work; but it makes a mockery of the constitutional purpose of copyright – the promotion of learning when an individual is using a copy of the work for study, research, or scholarship.

The timing of this paper was not accidental. Professor Patterson makes reference to some key copyright decisions of that decade, including American Geophysical Union v. Texaco Inc. (1996) and Princeton University Press v. Michigan Document Services Inc. (1994). In the former, a research department had copied articles for reference purposes; in the latter, the issue was coursepacks assembled at the request of professors. In both cases fair use was denied and both analyses rested strongly on the issue of the commercial impact to the copyright holder. The courts decided that the presence of a licensing system precluded fair use. Such reasoning rendered fair use quite useless as one can always argue that a use could have been paid for. The more critical issue is should it be paid for?

Fortunately, American courts have moved beyond such circular reasoning. We are in the happy position of escaping such illogical thought; in CCH Canadian, the Supreme Court took care to ensure that future Canadian courts will not over-emphasize the element of commerciality.

As I was writing this, Jesse Hirsh commented on the issue of copyright in the post-secondary world. (See CBC’s Early Edition, August 23, 2011, at approximately 5:55am). He spoke approvingly of Access Copyright as the means to ensure payment to authors and, in his view, indicated that universities are choosing to disobey copyright in favour of the ease of access provided by technology. Frustrating as it is to hear that, one cannot be surprised. And while Mr. Hirsch may be unaware that Access Copyright has mishandled relationships not just with universities but also with their own clients (authors), and also unaware that universities are still pursuing other payment options to copyright holders, he made a critical point: students take their cues from their teachers. The attitudes to copyright displayed in the classroom will shape behaviour outside of the academy.

fair use and a would-be scrapbook

A recent post from Jesse Brown caught my eye; something about Céline Dion banning the content of a website titled Ridiculous Pictures of Céline Dion. As reported, the proprietor of the website was instructed by Ms. Dion’s lawyers to remove the pictures. Compliance followed, although the proprietor claimed that his use was fair use.

Without knowing the wording of the actual complaint, and being unable to see the content, it is difficult to assess the situation. However, since the proprietor of the site has claimed fair use, I assume that Ms. Dion’s lawyers were claiming copyright infringement. In which case, they would have to confirm (or at least assert) that Ms. Dion owned the copyright of all the content used and that she had not authorized such use.

Coverage of the story from the Guardian did not address the issue of who held the copyrights and describes the site as something parodic. But the Winnipeg Free Press gives more detail as to the source of the materials and the manner in which the website proprietor used them:

The blog had images and videos of Dion that Angiolillo found online through Google searching. The images spanned several decades of her career and highlighted everything from her fashion choices to her costumes and funny facial expressions. Angiolillo also provided commentary or edited the images for comedic effect.

This suggests that some of the copyrights under question may not have been held by Ms. Dion – some of the material may have been created by third-party sources. At best, the legal team could only request removal of Ms. Dion’s holdings. In any case, with respect to all the material, fair use may apply.

However, Mr. Angiolillo stated that he didn’t have the wherewithal to engage a lawyer to speak on his behalf. [Note: by the time I posted this entry, his remarks had been removed.]

The removal of the material may be for the best. The legal team of a pop-culture superstar could make anyone’s life miserable. However, the collection sounds like a digital-age version of a scrapbook. Collecting memorabilia is not a new practice, neither is displaying it to interested friends. That such a community could exist on a larger scale is part and parcel of our contemporary networked society. In the absence of a formal legal analysis of the applicability of fair use, and without having seen the collection, this story lends itself to a “what if” exploration.

Literature on fair use abounds but for this speculative exercise I turn to a work by internationally renowned legal scholar, Pamela Samuelson. In Unbundling Fair Uses, Professor Samuelson conducted a qualitative examination of fair use caselaw, organizing her analyses by way “policy-relevant clusters.” She writes:

Policy-relevant clustering is not a substitute for appropriate consideration of the statutory fair use factors, but it provides another dimension to fair use analysis that complements the four-factor analysis and sharpens awareness about how the statutory factors, sometimes supplemented by other factors, should be analyzed in particular contexts.

While fan-based work is not a defined cluster within the article, Section II deals with “Authorship-Promoting Fair Uses”. It includes social and critical commentary, and provides some insight as to this situation. And the article in its entirety offers much reassurance as to the viability of fair use.

In any event, analysis of fair use has a pattern.

First, establish the language of fair use as it exists today and include the factors listed for determining fair use. Section 107 of Title 17 of the United States Code states:

Notwithstanding the provisions of sections 106 and 106A the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.

In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include:

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for non-profit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the copyrighted work.

The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.

Then proceed with the four-factor analysis. The first task is to consider the purpose and character of the work. The site in question (as I understand it) was a noncommercial, personal undertaking. The content included many representations of Ms. Dion’s public persona and chronicles her rise to stardom. The site can ascribe to itself the persona of a scrapbook — created by a fan and to be enjoyed with other fans.

The compilation could carry historical value; it serves as a repository of imagery of a popular cultural phenomenon. And, the compilation maintains a creative value;  it perpetuates the practice of scrapbooking beyond the confines of any particular media.

Moreover, the compilation was not just a passive reproduction of prior works. As reported by the Winnipeg Free Press: “Angiolillo also provided commentary or edited the images for comedic effect. He said he started the blog several months ago because he loves Dion.”

This suggests a modestly transformative effort; commentary places the imagery in context and better serves the historical record. Transformative works have often been looked upon with greater favour in disputes of fair use.  And while the comedic elements may not resonate with everyone, in the genre of scrapbooking such additions carry a playful mood that is very much a part of the custom.

As Professor Samuelson writes:

It was common to take custom into account in fair use cases prior to the 1976 Act; there is nothing in the legislative history of this Act that repudiates custom as a factor. Its resurrection as part of purpose analysis would be a sound development since copyright law should accommodate practices that contribute to the availability of new works of authorship.

[Note: Prof. Samuelson is indicating that this would be a positive development on the part of the Courts, not necessarily as Courts in the United States function today. Interestingly though, the Supreme Court of Canada has already placed custom as a point of exploration in analysis of fair dealing.]

A challenge for Mr. Angiolillo to overcome is the very name of his site – it could be construed as having malicious intent. The article by the Guardian supports that interpretation.  This will not help in the claim of fairness; however, Mr. Angiolillo explained his intention to the Winnipeg Free Press:

There were some sour people who thought it was made to mock her, but I and most of the fans never saw it that way. If you’ve seen Celine’s documentary ‘Celine: Through the Eyes of the World’ you would know she has a great sense of humor and is always the first one to laugh at herself. The blog never once slandered or implied anything negative about Celine.

Of course, without comment from Ms. Dion herself, it remains an open question if she was comfortable with the collection. At this stage, we can only assume that the collection lived up to Mr. Angiolillo’s description.

Continuing with the four-factor analysis, consider the nature of the copyrighted work. As the material was derived from Google, it seems evident that the images and videos were already present in publicly available sites. If those sites were created as part of Ms. Dion’s publicity effort, it can be argued that Ms. Dion’ s legal team had implicitly authorized the works for use in a manner consistent with the expected behaviour that accompanies Internet access. Meaning to say, people will copy, edit, and save the material.

If the sources of the material were from unauthorized sites, Ms. Dion has greater recourse to complain of their use, but this in and of itself is not sufficient to deny fair use. No further comment can be made on this point unless one is familiar with the source material. (But, generally speaking, fair use may not hold when material is fraudulently obtained, resides in a private collection, or might be considered something akin to a trade secret. )

Some may feel fair use will suffer on the third factor, that of the amount and substantiality. Typically, the less one takes of a copyrighted work the stronger the argument for fair use. But again, this condition has to be set against the context of use. Popular culture is rife with imagery and sound. Arguably, one cannot reproduce a portion of a picture or song and still convey the full meaning or effect of the entire work. A scrapbook is not a work of literature that builds upon the past, the very intention of a scrapbook is to memorialize the past. Reproduction of whole works is desirable to this objective.

The last factor, concerning the effect on the market, could be seen as a deterrent to fair use. A popular misconception of fair use is that the commercial element takes precedence over all else. (As I have written elsewhere, Prof. Samuelson’s work, and earlier work by Prof. Barton Beebe, clarifies this element.) The challenge for creators is the language of “potential market”. Some copyright holders will insist that any use is a potential market and therefore an unfair use.  (Fortunately, again, the Supreme Court of Canada has positioned Canada to avoid this circular argument.)

Attorney Fred von Lohmann, in his work Fair Use as Innovation Policy, makes a cogent point:

Copyright law has never given copyright owners complete control over their works … Copyright law strives to strike a balance between creating adequate (not maximal) incentives for the creation and distribution of expressive works, while also ensuring widespread public access to and enjoyment of such works.

It seems unlikely that Ms. Dion had created a humorous collection of her own images for sale and lost an existing market to Mr. Angiolli. But might she have wished to create such a scrapbook for commercial purposes? Did Mr. Angiolillo’s site impede her future income? Even in that scenario, is it reasonable to prioritize those potential losses against the public enjoyment of Mr. Angiolli’s site? The very popularity that gained Ms. Dion such fame and fortune lead to the creation of the  fan site. Popular culture feeds on itself; in the interests of promoting the musical industry or any pop-culture related industry, should a court intrude on the relationships that develop between artists and audiences?

Which leads to an entirely different question: Did Ms. Dion even care about the site?

Mr. Angiolillo seemed confident that he had not caused offense; he said: “… she has a great sense of humor and is always the first one to laugh at herself.” That may not be sufficient; poking fun at oneself is quite different from having others do it for you. But in any event, the opinion of the copyright holder is relevant. Was Ms. Dion aware of the action taken in her name? Did she support that action? Ms. Dion may have enjoyed the site, or, may not have wished to harass a fan. While the four-factor analysis has been coded into American law, more than four questions can be asked.

Fair use exists explicitly to allow the use of copyrighted material (under American law) in a manner that supports the constitutional purpose of copyright. Quoting from the U.S. Supreme Court, Professor Samuelson writes: Fair use “‘permits . . . courts to avoid rigid application of the copyright statute when, on occasion, it would stifle the very creativity which that law is designed to foster.’” Creativity will take many shapes and forms, each designed to appeal to audiences of differing tastes. Fair use is capable of facilitating this range of challenge.

Fair Use – the essential innovation

I usually focus on the creative development possible through fair dealing or fair use; those downstream uses of copyrighted work that facilitate research and learning, or, transformative uses that produce new works. However, there is another element of individual use that deserves attention. The arguably legitimate activities of time and format shifting carried out through private copying. We should not forget that economic prosperity, on a national scale, can be facilitated through these individual activities.

Last week I drew attention to the work of Consumers International (CI); I noted that their current IP Watchlist indicates that Malaysia, Japan, and the United Kingdom are considering implementing fair use within their domestic copyright laws. In a separate report, Access to Knowledge for Consumers – Reports of Campaigns and Research 2008-2010, is a chapter concerning Israeli copyright law and its implementation of fair use in 2007. The chapter, written by Dr. Nimrod Kozlovski, Jonathan J. Klinger, Uria Yarkoni and Nati Davidi, gives an apt summary of the history of Israeli copyright law and related ongoing activity.

The authors position fair use as part and parcel of Israel’s innovative potential. The advantage of protecting consumer rights is that individuals have the certainty to engage in business with others with productive gain for all:

We can see that in a series of cases, the Israeli courts favoured the free markets and competition over property rights, with the understanding that as innovation comes, there will be more welfare (p.177).

In terms of Israel’s progress, fair use is considered essential to achieve free markets and free competition.

This is a perspective that Ireland is now willing to consider. As was reported by John Kennedy on May 9, 2011, the Department of Enterprise, Trade and Innovation is seeking submissions concerning copyright. According to the department’s website:

There is a perception in certain industries that national copyright legislation does not cater well for the digital environment and actually creates barriers to innovation and the development of new business models.

The terms of reference for this review of copyright include, “Examine the US style ‘fair use’ doctrine to see if it would be appropriate in an Irish/EU context.” Interestingly enough, the terms also state that if suitable changes are not possible under the current constraints of EU copyright directives, Ireland will make recommendations for changes to those EU directives.

The United States is the foremost example of the creative development that can be fostered by maintaining flexible limits on copyright’s mandate. A point exemplified and emphasized by Google; two years ago the company called on the U.K. government to adopt fair use, and, two months ago followed it up by giving that same government a submission detailing the importance of fair use:

[Fair Use’s] flexibility has enabled it to protect both creative cultural output, such as parody or news commentary, and technological innovation built on digital copying. … Fair use is regularly referred to as the key tool by which the US fosters innovation … And the proof is in the pudding: no country in the world can compete with the U.S. for the most innovative search technologies, social networks, video and music hosting platform, and for the sheer generation of the most jobs and wealth in the Internet domain. If one is looking for evidence of how innovation succeeds, the best way is to look at those places where innovation has succeeded (see Section 4.2).

A more in-depth analysis of fair use as a catalyst for American innovation can be found in Fair Use As Innovation Policy (2008), by Fred von Lohmann (Senior Intellectual Property Attorney with the Electronic Frontier Foundation (EFF) and Lecturer at Stanford Law School.) He observes that the more noble aspects of unauthorized use of copyrighted material are easily and often defended – i.e., fair use preserves freedom of expression and fair use upholds the time-honoured process of creating something new by building on something old. But Lohmann focuses on the act of private copying with the reminder that until 1998 the U.S. followed a mantra of “innovate broadly first, regulate narrowly later (p.25)”. Those innovations took form in popular consumer technologies which depended on the legitimacy of allowing individuals to engage in private copying. Lohmann concludes: “From this observation grows the corollary that the fair use doctrine may well be playing an increasingly critical role in U.S. innovation policy (p.36).”

(And to naysayers who will complain that fair use is thus a subsidy to the high-tech sector paid for by content providers, Lohmann gives an extensive four-part rebuttal.)

It seems likely that the Federal Government of Canada will reintroduce Bill C-32 in the near future. Much has been made of the fact that Canadian copyright law has not been significantly altered since 1997. Rather than implementing measures deemed suitable for 1998, perhaps the government will look forward and position Canada as an early adopter of a proven digital economy catalyst. All that is needed is a little unshackled, innovative thinking.

A better list

Earlier this week Michael Geist reported that Canada continues its residency on the Special 301 Priority Watch List. This annual report issued by the Office of the United States Trade Representative (USTR) is an assessment of trading partners whose approach to intellectual property rights do not mirror those of vested American interests.**

Mercifully, a better list recently appeared from Consumers International. This global alliance of 220 consumer groups takes as its lodestar “to put the rights of consumers at the heart of decision making.” Founded in 1960, Consumers International expands its ambit to meet the changing face of consumer industries. The IP Watchlist, “assesses the fairness of the world’s intellectual property laws and enforcement practices from an important yet under-represented perspective: that of the ordinary consumer.” The first IP Watchlist was published in 2009. All yearly reports, and the 2011 individual surveys of participating countries, are freely available from the Access To Knowledge network of Consumers International.

Canada was first assessed in 2010 and received a C. The 2011 report shows a modest improvement; Canada is now rated as B-. Moreover, the report positioned Canada at the forefront of enhancing consumer creativity through Bill C-32:

The explosion of creativity from ordinary consumers commenting and building upon works from pop culture, and freely sharing their creations with the world, has been one of the defining cultural phenomena of this century… So, does copyright law support the participation of consumers in this new democratic art form? The answer, regrettably, is a resounding ‘no’, with only a handful of countries offering any consumers any legal protection. There are, however, early signs that this is beginning to be seen as a legal anachronism. In particular, a new provision proposed for Canadian law would legalise the creation of noncommercial derivative works that do not financially damage the original copyright owner.

Each year Consumers International identify the best and worst practices in the application of copyright laws. In the inaugural 2009 issue, technological protection measures (TPMs) were the first point of discussion:

When copyright material is protected by a TPM, no judge – in fact, no human being at all – determines whether or not the restrictions enforced by the TPM conform to copyright law. [Even if the purpose is for fair dealing] … in many countries the consumer cannot circumvent that restriction without breaking the law.

Despite being a leader in promoting TPMs, by virtue of its inclusion of fair use, the United States faired well in the first report:

The main reason why the United States is placed highly in the IP Watch List as a country that supports the interests of consumers is that its copyright law includes a broad exception for the “fair use” of copyright material. In most other jurisdictions, piecemeal exceptions exist for the use of copyright material for particular purposes such as research, criticism and reporting current news. In contrast, a broad fair use exception allows copyright material to be used for any purpose, so long as it satisfies a balancing test that includes factors such as whether the use is commercial or non-commercial, and its effect on the market for the copyrighted work.

Fair use was the first item of discussion in the 2010 best practices, with another favourable review of American law. A particular concern was addressed – does fair use comply with international law? Implicitly this means that exceptions to copyright must meet the “three-step test” laid out in the Berne Convention. Exceptions must (i) be confined to specific cases; (ii) not conflict with the normal exploitation of a work; and (iii) not unreasonably prejudice the legitimate interests of a copyright holder. CI wrote:

Most countries have implemented the three-step test by enacting … exceptions for specific purposes or specific classes of consumer, such as the educational, library and disability exceptions … But there is an alternative approach, first and most famously found in the copyright law of the United States, which stretches the three-step test almost to its limit. It allows for any use of a copyrighted work that can be described as ‘fair’, considering the purpose and character of the use, the nature of the work, the amount and substantiality of the portion used, and the effect of the use upon the potential market for or value of the work. There are many uses of copyright materials that are allowed under US law as ‘fair use’, that would not be allowed under the more specific exceptions of other countries.

In the 2011 report, CI once again speaks approvingly of fair use and suggests that more countries will follow in these (positive) American footsteps:

Malaysia, Japan and the United Kingdom are also reviewing their respective copyright laws, and considering the merits of adding broad US-style ‘fair use’ rights. This is an overdue trend that Consumers International strongly welcomes.

** Note: The curiously-named International Intellectual Property Alliance (IIPA) is a regular contributor of input to the USTR. The IIPA was not impressed with Bill C-32; their recommendation of Canada for 301 inclusion can be found here.

Special to July 4th

For the last few months I was immersed in readings about Fair Use, hence last week’s reference to William Patry’s work. Today seems a good day to describe some of the thinking that went into codifying what eventually became Section 107 (Fair Use) within American copyright law.

In 1955, Congress began preparation for general revision of their copyright law (dated to 1909). Congress authorized a set of studies (thirty five were eventually completed and circulated) to investigate the problems related to copyright revision. Patry describes Study #14: Fair Use of Copyrighted Works (1958), by Alan Latman. Latman provided a comprehensive review of the theoretical bases for fair use together with case law, and went so far as to consider relevant foreign laws. He presented various options, including whether the provision should be introduced into statutory law and if so, should the doctrine be represented in general terms, with specific criteria, or address specific situations?

Nine copyright experts reviewed the Latman study with eight of the opinion that fair use should not be statutorily recognized. Patry writes:

Typical of the comments was that of Walter Derenberg: “I believe–and the Latman study seems to bear this out–that the term ‘fair use’ defies definition and that in the long run more would be accomplished if our courts would be entrusted with setting the outer limits of the doctrine as they have been under the Act of 1909.” (p.262).

Fast forwarding ahead, it was not until 1976 that the new copyright law was passed, and 1978 before it took effect. The Congressional reports of the day emphasize that the statutory recognition of of fair use was to “restate the present judicial doctrine of fair use, not to change, narrow, or enlarge it in anyway (quoted in Patry, p.414).” And the ‘judicial doctrine’ of the day, was predicated upon a multi-factor inquiry.

The final language of Section 107 emphasizes flexibility; it begins as:

Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include [the multiple factors of inquiry**]

The bolding is my own addition. Patry writes that the terms “including” and “such as” are defined within U.S. law as “illustrative and not limitative.” A legislative report of the day identifies that the flexibility was deliberate:

The bill endorses the purpose and general scope of the judicial doctrine of fair use, but there is no disposition to free the doctrine in the statute, especially during a period of rapid technological change (quoted in Patry, p.415).

What makes this period of history addedly interesting is that the deliberations about fair use were shaped by the advent of the photocopier.

** The multiple factors of inquiry have spawned legions of scholarship and debate … more to come another day.

Not so light reading

This week, the Minister of Canadian Heritage, James Moore, made some rather peculiar and disparaging remarks about copyright advocates who differ from his brand of thinking. NDP Heritage Critic Charlie Angus writes:

Moore needs to tone down the rhetoric and get down to the serious business of working with all stakeholders on amendments that will improve the legislation.

To that end, I offer up some not-so-light-but-extra-ordinarily-helpful-and-interesting reading: William Patry’s The Fair Use Privilege in Copyright Law. To say it is comprehensive is inadequate; it’s 544 pages in length. Patry takes his readers through every facet of fair use, beginning with its judicial and legislative origins.

Assuming Minister Moore allows for discussion and debate upon fair dealing, the question will arise as to the viability of making it more flexible. It has been argued that Canada is following in the footsteps of fair use. This may be true in terms of the letter of the law, but it remains that interpretation will take its form from Canadian events. Nevertheless, the two regimes share a common antecedent. Canadian policy makers could benefit from knowing where the principle behind copyright exceptions came from.

Patry’s opening sentences are as applicable to Canada as they are to the United States:

Unlike Athena, the doctrine of fair use did not spring forth full formed. Yet, while the scope of its application and contours of its features were filled in gradually, still the basic foundation and rationale were established remarkably early (p.3).

So what was the origin of the debate we are having today? Well, as I indicated here, the roots of fair dealing/use are in an early English doctrine of fair abridgment. But Patry sheds more light on the rationale of the English Court in 1740:

The right to make a fair abridgment was judicially created out of fear that the benefit from otherwise infringing works, which depended upon the use of the original work, would be lost (p.7).

If the Federal Government is committed to using fair dealing as a means of encouraging future creativity, C-32′s stance on technological protection measures defeats that commitment. But, the fact that parody, satire and education were proposed as allowable purposes for fair dealing suggests that the commitment was real. For now, I’ll dwell on that, and less on the uncomfortable sight of a Canadian cabinet minister debasing one of the fundamental tenets of civil society – the right to disagree.

World Fair Use Day

Sponsored by Public Knowledge, today marks an effort to educate people of the importance of the doctrine of Fair Use. (I wish I was in Washington DC for the gathering!)

Like many other Commonwealth jurisdictions, Canada’s copyright system operates with Fair Dealing. Like Fair Use, Fair Dealing permits unauthorized reproduction of copyrighted material for some good-faith productive purposes. As I mentioned a few months ago, fair dealing has more credence in reconciling the mutual needs amongst creators. Yet, curiously so, Fair Dealing continues to be characterized as a user’s right. With the greatest respect to our Supreme Court Justices, and many legal scholars and professional lawyers, I remain unconvinced. Fair dealing is better described as a creator’s right

Fair dealing should be seen as the modest measure that ensures the system purporting to encourage creative effort, and protect the interests of creative individuals, does not thwart creativity itself. This right of access is reconciled with an accompanying duty of reciprocation to the creative community at large. As creators have a duty to recognize past creators’ efforts, and not to abuse their right of access, so creators have a duty to share their work as necessary to foster future creators’ efforts. More succinctly, fair dealing mandates fair duty for all parties concerned.

As you wish Mr. Zukofsky,

Dear Mr. Zukofsky,

I read with interest your copyright notice of 17 September 2009, concerning the works of your father. A doctoral student brought it to my attention, asking for more information regarding copyright law. Please be assured that I will do my utmost to discourage students from exploring your father’s work. As you point out, they would do better to find a topic where a lawsuit or invoice does not appear imminent at every turn. Unless students have adequate resources, and a commitment of support from their institution, it would be unconscionable to send them into harm’s way.

However, I am concerned that students may interpret your position as an accurate reading of the law. It is not. For their benefit I would like to clarify some general points.

I must start by saying I am a citizen and resident of Canada. Within our Copyright Act, we have an exception called “Fair Dealing” which is similar to Fair Use, but not the same. So, I will frame my remarks along the general idea of exceptions to copyright, as well as specific Canadian cases.

1) Copyright is not, nor has it ever been, a grant of absolute control. There has always remained a space for some good-faith productive uses of a work, while that same work is still protected through the term of copyright. These uses are facilitated through statutory exceptions to copyright, i.e. Fair Use and Fair Dealing.

2) Fair Use in the United States allows for some uses such as criticism, comment, research, etc. Encoded into the law is the requirement that an assessment of Fair Use take into consideration the following factors: the purpose and character of the use, the nature of the copyrighted work, the amount copied, and the effect upon the potential market. On some occasions, strong consideration has been given to the last element, the effect upon a potential market. This is troubling; if by virtue of using an extract of a work, it is inferred that a market could have existed, fair use becomes fairly useless.

Professor Giusepina D’Agostino of Osgoode Hall Law School gives a thorough comparison of Canadian Fair Dealing to the corresponding U.S. and U.K. exceptions to copyright, see “Healing Fair Dealing: A Comparative Copyright Analysis of Canadian Fair Dealing to UK Fair Dealing and US Fair use.” McGill Law Journal 53 (2).

3) As mentioned, Canada operates with Fair Dealing, which is narrower than Fair Use. Our list of permissible uses is explicitly confined to: private study, research, criticism, review and news reporting, with some requirements of citation. For myself, I prefer fair dealing in part because its more modest allowance gives it credence in mediating between creators’ needs. By “creators” I mean both the original creator and the new creator. While Fair Dealing did not do well in Canadian courts through much of the 20th century, a more nuanced interpretation appeared in 1997 in Allen v. Toronto Star Newspapers Ltd. And, within a series of notable decisions, in 2004 a unanimous Canadian Supreme Court supported the merits of fair dealing.

In this decision, known as CCH Canadian, the Court stated that determining fair dealing is always a matter of context. And while emphasizing that fair dealing was not permission to copy at will and without restriction, they instructed that “Research should be given a large and liberal interpretation.” Emulating U.S. law, the Court laid out a framework for determining if a dealing is fair, with an important distinction: “The availability of license is not relevant to deciding whether a dealing has been fair.”

4) As I said at the start, copyright is not a realm of absolute control. Whatever the expansion of its depth and breadth, those changes do not enter into law simply via the whim of an individual copyright holder. No-one can assume unto himself the right to enact or affect statutory law. Be it good, bad or indifferent, any change to our copyright law will occur at the behest of the Parliament of Canada.

Mr Zukofsky, I would like to say again, I will not encourage students to include material written by your father in their dissertations. It is regrettable that a body of literature cannot be explored at this time, but I will turn to Franz Kafka’s words concerning his character Josephine, “She’s merely a small episode in the never ending saga of our folk, a bit of history, and we’ll be able to rise above our loss, our folk shall continue on.”

Regards,
Meera Nair, Ph.D.