These last few months have been eventful with institutions lining up to drop their Access Copyright licenses. This does not imply that copyright-holders will not be paid for their works. It simply means that blanket-licensing has outlived its usefulness in light of the choices institutions now have regarding paid access to creative materials. Competition in the marketplace is only good for creators and consumers alike. Yet the arena of the non-market – that realm of access offered by fair dealing – may come off poorer for this experience.
As a consequence of the shift in business models, post-secondary institutions are paying more attention to copyright and fair dealing. This ought to be a positive step forward. Yet as events have come about, fair dealing has been compromised before it could root itself firmly in the post-secondary psyche. The dialogue has been predicated upon the very narrow interpretation presented by Access Copyright and supported by the Association of Universities and Colleges of Canada. Best practices are not to be confused with a set of rules – best practices are instruments of thought. They should encourage individuals to first understand the culture of fair dealing and then proceed to a multi-facetted examination of the facts surrounding any instance of copying. Instead of cultivating an atmosphere of best practices with fair dealing, current guidelines represent a ceiling on fair dealing.
Seven years ago, the Supreme Court of Canada offered an engraved invitation to the academic community to have a productive conversation on fair dealing. That was an opportunity to discuss the measure without the tensions provoked by impending copyright amendment or licensing negotiations. Unfortunately, by and large, Canadian academia sent in their regrets. That missed opportunity was costly; now post-secondary institutions are starting their fair dealing dialogue from a defensive posture, speaking more about what fair dealing is not, rather than what it is.
But, the good news is that individual members of the academic community – students, teachers and librarians – continue to educate themselves about the nuances associated to fair dealing. To that end, fair use needs more attention. CCH Canadian brought Canada very close to fair use. While we lack fair use’s flexibility in the type of use protected, we have acquired its form of inquiry.
Fair use entered American jurisprudence in 1841, in Folsom v. Marsh. The case concerned two competing biographies of George Washington. The first work was a twelve-volume compilation spanning nearly seven thousand pages. Volume One was a biography written by the editor, Jared Sparks; Washington’s letters and memoranda (augmented by the occasional editorial remark) made up the remaining eleven volumes. The offending work was written by Reverend Charles Upham. His biography was an autobiography; written in Washington’s voice with selected letters used to illustrate the life-story. Interestingly, the Upham biography is said to be largely taken from Sparks’ work – yet this did not provoke the charge of infringement. The complaint was the inclusion of Washington’s letters. Upham’s work is much smaller, less than nine hundred pages in two volumes. From the closing remarks of the presiding judge, Justice Story, the work appears to have been intended for the market of school libraries.
In his opening paragraph, Justice Story wrote: “Patents and copyrights approach … what may be called the metaphysics of the law, where the distinctions are, or at least may be, very subtle and refined, and, sometimes, almost evanescent. ” As he worked through the details of the dispute, Justice Story opined what would later become the four factors of fair use as codified in American law in 1976:
In short, we must often, in deciding questions of this sort, look to the nature and objects of the selections made, the quantity and value of the materials used, and the degree in which the use may prejudice the sale, or diminish the profits, or supersede the objects, of the original work.
At this time, in the system of copyright as a whole, fair use sits as a vital component. It allows the law to address the unknown. No government can foresee what combination of input materials, what modes of access, and how much sheer determination will be needed to foster the arts and sciences. Copyright law must remain flexible. Fair use carries that flexibility. But fair use is – truth be told – itself an artificial constraint on what previously was a more permissive creative atmosphere.
In 1998 Lyman Ray Patterson, a highly respected scholar, described the outcome of Folsom v. Marsh as “The Worst Intellectual Property Opinion Ever Written.” He sets the stage in his introduction:
If one of the characteristics of a bad legal decision is that it gives rise to a myth as to what the court in fact ruled, Folsom is at the top of the list. The myth is twofold. The first myth is that Folsom created fair use, when in fact it merely redefined infringement. The second myth is that Folsom diminished, and therefore fair use diminishes, the rights of the copyright owner. In fact, the case enlarged those rights beyond what arguably Congress could do in light of the limitations on its copyright power and, indeed, fair use today continues to be an engine for expanding the copyright monopoly.
[Keep in mind the date of this publication: 1998.]
Professor Patterson gives a detailed explanation for his displeasure; he explains how, by the hands of the U.S. Congress and judiciary, fair use has been accepted as a natural right that protects the monopoly offered through the statutory right of copyright. Folsom v. Marsh addressed a dispute between competing authors, in the arena of professional publication. Yet. by the late twentieth century, personal use had come to be governed by those same factors. He writes:
To use a copyrighted work a person must fulfill certain requirements to avoid infringing the work. Perhaps this makes sense when a competing author is making use of another’s work; but it makes a mockery of the constitutional purpose of copyright – the promotion of learning when an individual is using a copy of the work for study, research, or scholarship.
The timing of this paper was not accidental. Professor Patterson makes reference to some key copyright decisions of that decade, including American Geophysical Union v. Texaco Inc. (1996) and Princeton University Press v. Michigan Document Services Inc. (1994). In the former, a research department had copied articles for reference purposes; in the latter, the issue was coursepacks assembled at the request of professors. In both cases fair use was denied and both analyses rested strongly on the issue of the commercial impact to the copyright holder. The courts decided that the presence of a licensing system precluded fair use. Such reasoning rendered fair use quite useless as one can always argue that a use could have been paid for. The more critical issue is should it be paid for?
Fortunately, American courts have moved beyond such circular reasoning. We are in the happy position of escaping such illogical thought; in CCH Canadian, the Supreme Court took care to ensure that future Canadian courts will not over-emphasize the element of commerciality.
As I was writing this, Jesse Hirsh commented on the issue of copyright in the post-secondary world. (See CBC’s Early Edition, August 23, 2011, at approximately 5:55am). He spoke approvingly of Access Copyright as the means to ensure payment to authors and, in his view, indicated that universities are choosing to disobey copyright in favour of the ease of access provided by technology. Frustrating as it is to hear that, one cannot be surprised. And while Mr. Hirsch may be unaware that Access Copyright has mishandled relationships not just with universities but also with their own clients (authors), and also unaware that universities are still pursuing other payment options to copyright holders, he made a critical point: students take their cues from their teachers. The attitudes to copyright displayed in the classroom will shape behaviour outside of the academy.