Meera Nair

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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