Second Reading – the day after

Bill C-32 had its second reading yesterday; Michael Geist gives the details. The campaign of misinformation concerning the inclusion of “education” to fair dealing is leaving its mark. This is disappointing, but not surprising given the deficit position fair dealing sat in before Bill C-32 was unveiled. Despite the viability of fair dealing as a measured response to the perennial calls for balance in copyright, and the lessons that can be drawn from the lengthy history of American experiences with fair use (see my chapter in From “Radical Extremism” to “Balanced Copyright”, free download available), the mere mention of education as fair dealing brings out the worst fears of Canadian writers.

Where fear may be understandable is if a change to the status quo introduced greater uncertainty. This is not the case with Bill C-32; the degree of uncertainty remains the same. That is probably not very comforting to some quarters. However, as I have noted earlier, a decision issued by the Federal Court of Appeal this past summer should reassure people that fair dealing is not a thinly disguised vehicle for theft. In that dispute concerning fair dealing and photocopying in the K-12 sector, the majority of photocopying conducted was held as subject to fees. Those in charge of copyright collectives could have alleviated the fears of their members by emphasizing this decision.

Interestingly so, that case proceeded upon the existing categories of fair dealing – confined as they are to private study, research, criticism, review and news reporting. Thus even without “education” the question of educational use as fair dealing can still arise. Which might induce the question: why bother then? If legitimate fair dealing occurs in educational institutions, then defend it under its existing language.

The challenge is that fair dealing is not actively used. And this is to the detriment of Canadian creators. Not merely for the access that fair dealing can support, but for the heightened awareness it imposes for responsible copying. When educational institutions favour stock-license agreements, there is little impetus for individual players to understand the issues at hand.

The merit of including education in fair dealing will ultimately be a better understanding of copyright throughout Canada. The necessary first step is to bring teachers closer to the discussion. That cannot happen when teachers are obliged to sit passively within the arcane strictures of institutional exceptions and the narrow repertoire available through copyright collectives. Whereas if teachers are given greater freedom in their choice of resources, presented with the Supreme Court CCH Canadian framework, and encouraged to probe the decision of fair or unfair, they become conduits of informed copyright decision making.

In the long term this benefits Canadians who aspire to be writers, musicians, artists and want to prosper in the world of the information commodity. Will it be easy? Probably not; achieving anything worthwhile is rarely easy. But encouraging Canadian teachers and students to understand the law – that copyright is a system of rights and duties – facilitates better observance of the law.

No doubt some people (including creators, teachers, students and administrators) will long for a neat-and-tidy, easy-to-follow rule. But creativity is not neat and tidy, and so deliberate thought upon every decision to copy is the duty that civil society demands of its citizens. Moreover, the duty of deliberate thought is not unique to copyright, and our Supreme Court continues to remind us of that.

Two weeks ago, our High Court spoke to the issue of confidentiality within investigative journalism in Globe and Mail v. Canada (Attorney General), 2010 SCC 41. The case is well worth reading; briefly, the judgment made clear that there can be no set rule defining when confidentiality reigns or can be broached. Decisions must proceed on a case-by-case basis. However, writing for the court, Justice LeBel laid out four questions to be addressed before a journalist is compelled to reveal his or her source. As the four questions have their roots in common law (the Wigmore factors), Justice LeBel took care to ensure that the framework is feasible to Canada’s bijural legal regime. The message was clear, that the framework should accommodate disputes as of yet unknown: “It is also sufficiently flexible to take into account the variety of interests that may arise in any particular case.”

The Supreme Court Justices recognize that the non-uniformity of life requires flexibility in law; one can only hope that the Federal Government does the same.