And so it begins…

In the last week, two formidable copyright holder groups have indicated their opposition to the proposed changes for fair dealing under Bill C-32. At issue is the suggestion that Section 29 will read as follows:
29. Fair dealing for the purpose of research, private study, education, parody or satire does not infringe copyright.

The Canadian Writers Union had this to say:

Canada’s book writers are outraged by the inclusion of a new provision for educational uses in Bill C-32. This new “fair dealing” for the purpose of education is a wholesale expropriation of writers’ rights and opens the door for the education sector to copy freely from books and other copyright material without paying writers.

And from Access Copyright:

“It is deeply concerning to see that instead of encouraging the use of collective management, the Government has chosen instead to restrict or remove existing uses from collective management in favour of exceptions that do not provide compensation to creators or copyright owners when their works are used,” says Access Copyright’s Executive Director, Maureen Cavan.

Fair dealing carries a meaning of its own; “wholesale expropriation” is not part of it. Tired as I am of saying this, and tired as readers of this blog must be of hearing it, fair dealing relies on careful consideration from a variety of perspectives (as was said by the Supreme Court in CCH Canadian).

Rights-holders groups have orchestrated an atmosphere of both fear and loathing for fair dealing. They present collective management as the only solution to this problem. [As a public relations exercise, they should be congratulated – I may use this as a teaching example next year.] Piercing through the misinformation is a challenge, particularly when educational bodies were slow off the mark to support fair dealing. Indeed, our flagship representative, Council of Ministers of Education (Canada) does not support it. Instead, they have signaled their pleasure with Bill C-32 because, “it allows students and educators in elementary and secondary schools, colleges, and universities to have fair and reasonable access to publicly available Internet materials in their educational pursuits.”

Which takes me right back to Bizarre.

What is most disappointing about this debate is that it pits Canadians against Canadians on baseless grounds. The largest misconception out there is that copyright alone will provide for career success. Copyright is deemed an incentive for creative effort. But what part of the copyright system actually fosters the creative effort?

[Update: Thank you to the reader who corrected the name: The Writers Union of Canada.]

Publicly Available v. Fair Dealing

As I noted in my last post, asking for an exception to the law, to cover educational institutional use of publicly available material, poses risk to other Canadians and allows institutions to abrogate their responsibilities with respect to fair dealing. Furthermore, it narrows the possibilities of what can be done with materials obtained from the Internet. There are two issues entwined here.
1) When is fair dealing an option?
2) What might publicly available look like?

With respect to (1); just as copyright holders need not indicate the © to reserve their rights, a fair dealing enthusiast need not wait for an invitation to engage with a work. In the CCH Canadian ruling of 2004, the Supreme Court of Canada said, “Fair dealing is always available.”

It is inconsistent within our law to affirm copyright in a published work and simultaneously deny the possibility of fair dealing with that same work. At least for now…

Concerning (2); it would be prudent to consider what happened the last time an exception was requested for educational institutions. On the summary page of Bill C-61, Canadians were permitted:

(c) … certain uses for educational and research purposes of Internet and other digital technologies to facilitate technology-enhanced learning, interlibrary loans, the delivery of educational material and access to publicly available material on the Internet;

Paraphrasing from the exception:

30.04 (1)… 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) To reproduce it;
(b) To 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;

But conditions were attached, and one was ingeniously crafted:

30.04 (4) Subsection (1) does not permit a person to do any act described in that subsection in respect of a work or other subject-matter if …:
a clearly visible notice … 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.

Meaning to say, all a copyright holder had to do to prohibit individuals within educational institutions from utilizing a work was to post such a notice with the work. In which case, legitimate applications of fair dealing would be voided simply because they happened in an educational institution. Mercifully, Bill C-61 did not come into being as Canadian law. If the exception had been implemented in this manner, then copyright holders would enjoy the privilege of copyright, while denying others the right of fair dealing.

Reference:
Bill C-61, An Act to Amend the Copyright Act, Second Session, Thirty-ninth Parliament, House of Commons. Canada. 2008.