(Yes, I know it is July 5. And many boxes are yet to be unpacked.)
Building a better understanding of fairness
Posted to InfoJustice.org, Jonathan Band and Deborah Goldman remind us that there is a sizeable body of case law concerning fair dealing and fair use for all to draw on. They write: “One of the arguments used by rights holders opposed to the adoption of open-ended fair use or fair dealing provisions outside of the United States is that those jurisdictions would lack a body of case law to guide judges, and it would take decades for such a body of case law to develop.” Band and Goldman contradict with a listing of the number of opinions available through online databases in many countries. To skeptics who scoff at the idea of global opinion gathering, I offer the reminder that even in the United States (the quantitative leader in case law), even when precedent seems to exist, a shift in context requires renewed thought. (The recent decision by the U.S. Supreme Court in Kirtsaeng v. Wiley stands out in this regard; my three-part coverage begins here.) It is unwise to limit possibilities solely by what exists as domestic precedent when more information is at hand.
That said, each country may very well apply its own cultural flavour and interpretation in its rulings. Law is as much a reflection of culture as art, music, language, food, etc. Each country has a history that shapes its own future. It is to everyone’s advantage to investigate how others confront the issue of fairness and then use the best that knowledge has to offer towards an independent decision. Canada’s progression to flexible, fair dealing has been a series of modest steps spanning a decade. (Some might say it is quintessentially Canadian). Moreover, when our Supreme Court passed its famed CCH Canadian decision, the court emulated some of the American framework for fair use but also saw fit to bring in safeguards to protect the viability of fair dealing against the then-American tendency to deny fair use when commercial considerations existed. (Detailed coverage of CCH Canadian coupled with American events can be found in my last two publications.)
In essence, a wider exploration only facilitates the understanding of fairness.
Better prospects ahead for Google Books
Also on July 1, the United States Second Circuit Court of Appeal expanded the scope of fairness by extending it to the proceedings itself. In the ongoing saga of Authors Guild et al v. Google Inc, the case was returned to the district court with an instruction: do the fair use analysis.
Google has long argued that its practice of scanning books and making limited portions available online is fair use. At its last court room appearance in May 2013, Google appealed a district court decision of June 2012 which had stipulated that the Authors Guild could carry the case as a class action suit. In their ruling on July 1, Circuit Judges Pierre Leval, Jose Cabranes and Barrington Parker stated:
[Google intends] to assert a “fair use defense”, which might moot the litigation. Google also claims that plaintiffs are unable to “fairly and adequately protect the interests of the class,” because many members of the class, perhaps even a majority, benefit from the Library Project and oppose plaintiffs efforts. … Putting aside the merits of Google’s claim that plaintiffs are not representative of the certified class—an argument which, in our view, may carry some force—we believe that the resolution of Google’s fair use defense in the first instance will necessarily inform and perhaps moot our analysis of many class certification issues…
Kevin Smith, writing for Duke University, explains how vital it is that the class action status be set aside:
The process of litigating a class action is so complex and expensive that class action certification is often a signal to the defendant to settle the case. The result is that, if a class is certified, there is much less chance that a full determination about fair use will ever be made … . It would be very unfortunate if the Google case never got to that stage. By fighting off the class certification, Google has won for itself a better opportunity to make that argument. And the precedent set by this decision is important, since it tells trial courts to consider fair use before they make the potentially destructive decision about class certification. In many cases, and the Second Circuit suggests that this may be one of them, the complexity and cost of a class action might be entirely avoided because fair use would lead to a lawsuit being dismissed before it got that far.
[Smith favourably compares Google Books to HathiTrust and provides more information about the role of the Authors Guild. It is especially helpful for those of us unfamiliar with the players in the United States.]
With the road ahead cleared to argue the case on the merits and applicability of fair use, this case is poised as a definitive force in fair use dialogue. Mike Masnick’s coverage for Techdirt (the July 1 ruling, preceded by the May 8 oral arguments) encourage optimism.
As an aside, copyright enthusiasts may have honed in on the name “Leval.” Judge Leval is the author of the famed “Towards a Fair Use Standard” written in 1990 for Harvard Law Review. A telling point in his paper is:
I believe the answer to the question of justification turns primarily on whether, and to what extent, the challenged use is transformative. The use must be productive and must employ the quoted matter in a different manner or for a different purpose from the original.
While fair use continues to mature in its application, Leval offers a comfortable starting point for any analysis of fair use/fair dealing.
A befitting release date
Sara Bannerman announced the publication of her book The Struggle for Canadian Copyright. The paperback version was released on July 1 – Canada Day – a befitting date. Congratulations Sara!