On Thursday, March 7th, Michael Geist described a new copyright policy at the National Post – that if a reader highlighted a portion of text with a presumed intention to copy and paste it, a pop-up window requesting payment of $150 appeared. That this pop-up was encountered while reading the work of Chris Selley, who routinely excerpts material from other news organizations in order to provide readers with a comprehensive view of Canada’s leading editorials, made this doubly perplexing. Geist noted that the National Post uses the services of iCopyright, which extols a very restrictive interpretation of fair use and fair dealing.
On Friday, Leigh Beadon, a former freelance journalist for the National Post now writing for Tech Dirt, gave further analysis of the hypocrisy of an institution whose raison d’etre (news reporting) is shielded via fair dealing, and yet presumably denies that fair dealing is available to all Canadians. Beadon later updated the post to indicate that the pop-up activity has ceased (for now).
Beadon describes iCopyright’s interpretation of fair use/fair dealing as “a masterpiece of menacing disingenuousness.” In no uncertain terms, Geist and Beadon debunk iCopyright’s efforts to minimize the applicability of fair dealing; I would add but one more peculiarity about iCopyright’s interpretation. In its checklist of factors which affect the legitimacy of fair dealing is this astounding condition: “Is the work that was excerpted highly creative?”
It needs no mention that creativity is a term fraught with uncertainty; I doubt lawyers or judges would come to agreement on what it means, let alone individual Canadians. But it hardly matters, as questions of creativity are irrelevant. Fair dealing is an exception to copyright. If the material in question is from copyrighted work, fair dealing is an option. If the originating material is not under copyright, then we may all do what we please with the work in its entirety—no exceptions of any kind required. Fair dealing is resolved on issues such as how the work was used, to what purpose and in what setting. Whether the originating material came from a masterpiece of artistic interpretation or a banal and insipid advertisement has no bearing on fair dealing.