Meera Nair

persistence

In Posts on February 24, 2020 at 7:16 am

As Fair Dealing Week falls just prior to the anniversary of the Supreme Court’s CCH decision of 2004, the feting of fair dealing invariably provokes reflection about that case. While the decision itself drew its strength from the earlier Théberge decision of 2002, CCH is deservedly known as a watershed moment in Canada’s judicial treatment of exceptions within the system of copyright.

Given the global tendency then to increase the depth and breadth of the scope of control afforded to copyright owners, with individual copying increasingly under scrutiny, the Canadian High Court was impelled to swim against the tide of copyright maximalism. Undeterred, the Court brought a broader perspective to the system of copyright – its rights and responsibilities, its demands and concessions. With unanimity, fair dealing was recognized as integral to achieving the system’s goal of fostering creativity.

Important as this new chapter was, it arrived wrapped in a modest dust jacket: that librarians could do for library patrons, what they could legitimately do for themselves. Looking back, that hardly seems reason for anxiety or uproar.

And yet, as observed before, the initial reaction was one of outrage from copyright owners, publishers, authors, and various Members of Parliament. The details of the Court’s decision were obscured by hyperbole and hand-wringing; that said, those doomsday predictions remain unrealized. Yet, misrepresentation persists.

Among my copies of copyright-protected work are two pages from The 2019 Annotated Copyright Act, written by Normand Tamaro and published under Carswell/Thomson Reuters Canada, containing this passage: “In CCH, the Court relied on general assumption which led it to state that it was permissible for the entire legal community to broadly reproduce a legal monograph owing to the fact that general practice established by the Great Library allowed the photocopying for research purposes (p.766).”

In connection to CCH, Tamaro also writes: “Any author of a legal monograph knows very well his work will be used for research purposes. However, if, on this ground, photocopying is permitted without any form of authorization, where are we headed? If it is not useful to buy a monograph since it is legitimate to reproduce it, and if the commercial market for this kind of work is already scarce to begin with, one need not be a fortune-teller to imagine that works created by legal authorities will all but disappear, at least in book format.”

To readers who are not familiar with the case, or perhaps have never read the decision, such synopsis and commentary looks more than a little scandalous. The inference is that entire books were copied and distributed to (at least) all the members of the Law Society of Upper Canada, all because the Library allowed works to be photocopied. Whereas, the truth is far less provocative. The behaviour under question was creation of single copies of requested material (headnotes, reported judicial decisions, case summaries, a topical index, monographs) in part, or whole (depending on the item in question), issued in response to an individual request.

The Supreme Court did not specify in detail all that was copied; that information was provided in the trial decision. Regarding the monographs:

The copying from Forensic Evidence in Canada amounted to the copying of the whole of a 32-page monograph within a 713-page textbook, which amounted to 13 percent of the whole of the textbook. In the case of the textbook Economic Negligence, which is 306 pages in length, 69 pages were copied amounting to 93 percent of one chapter and 21 percent of the pages of the textbook (para 42).

This degree of copying bears no resemblance to the spectre of entire books being copied and distributed to readers en masse, to the detriment of the creation of such works.

Tamaro’s wording is present in each edition of the Annotated Copyright Act, published from 2012-2020. (It might also be present in earlier editions since 2004, but I do not have access to those volumes to confirm it.) That he does not approve of the Supreme Court’s decision is evident; which is his prerogative. But one must ask: is it appropriate for a publication marketed expressly to assist in interpretation and understanding of the law, to be guided by opinion over accuracy?

Myths about fair dealing persist, aided and abetted by authorities of note. An equal and persistent airing of fact might be the only antidote. I shall be speaking about fair dealing’s post-truth existence on February 26 at the Fair Dealing Symposium hosted by the  University of Alberta.

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