Last week a colleague forwarded to me a query from an artist who had concerns about an intended work; he wished to reproduce images of other artists’ works and combine them in a novel manner. His initial exploration of copyright law had taken him into the language of fair use and he seemed hopeful that his work would be on safe ground.
Much as I would like to tell all artists to simply go about their artistic business, it remains that Canadian law does not offer them a comfortable shelter. Unfortunately, fair dealing is not the same as fair use; fair dealing is more restricted in its application. Unless one’s artistic instincts can be pigeonholed as research, private study, criticism, review or news-reporting, fair dealing cannot even begin to help. (And please remember, fulfilling the category is only the first step, the second step is to satisfy the fairness test laid out in CCH Canadian.)
It seems lacking in national imagination that we devise laws such that Canadian art must be predetermined to serve a set social purpose. Sometimes art is just art. An individual has a vision and brings it to expression so that the rest of us can see it as well. End of story, or so it ought to be.
Fortunately, a solution is at hand.
Rather than continue to rely on an enumerated list of specific purposes for fair dealing, it would be more useful to recast the language in terms of an illustrative set of purposes. Let Fair Dealing read as “for purposes such as…” or, “for purposes including…”, or some variant thereof. This could alleviate the tension of what the category name seems to imply (and bring some relief to the writers who fear the explicit inclusion of education), and focus instead on what actually happens – what was copied, for what reason etc. As Appropriation Art noted in their submission to the public consultation in 2009:
“The works of art we speak of here do not compete with the appropriated material, nor does the value of the work of art derive from the value of its subject.” It is entirely plausible that works which rely on appropriation could pass the fairness test, all they need is shelter among the purposes of fair dealing.