Meera Nair

Not so light reading

In Posts on June 26, 2010 at 2:32 pm

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.

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