Meera Nair


In Posts on February 23, 2021 at 8:51 am

Fair Dealing Week (Fair Use Week for others) is upon us – that one week among 52 where exceptions to copyright are afforded some spotlight. As maximalism dominates copyright’s public persona, reminding Canadians and others of the importance of exceptions within the system of copyright becomes increasingly important. 

My last post highlights how easy it is to cast aspersions on efforts to mitigate the costs that a maximalist approach to copyright imposes on a country. Uttering the words “Berne Convention” often chills, and can silence, debate. Such is the power of that first international treaty regarding protection of authorial works across nations. Against this reality, a recent article by T. Prashant Reddy and Vishal Rakhecha invites imagination and execution: “[India] must push for amendments to the Berne Convention that allow member states to introduce a registration requirement for publishers under their laws.” The authors explain their quest as critical towards achieving affordability for scientific and educational publications.

Amending the Berne Convention is no small task. But perhaps India and her 1.4 billion people, including an attractive commercial market larger than the populations of many so-called developed nations, might just have the clout to do so.

To be sure, it will be an uphill battle. The Berne Convention never aspired to be a means of encouraging learning or advancement of arts and sciences. Those early motivations, invoked in the Statute of Anne (1709) and the American Constitution (1789), sought to create systems of copyright that acknowledged the interaction and importance of both public wellbeing and individual benefit. But calls for international observance of foreign copyrights (the Imperial Copyright Act (1842), the Berne Convention (1886), and, modern IP treaties and bilateral agreements), focused on individual gain and market dominance.

Nineteenth century arguments for global uniformity of ever-increasing protection endure; dominant nations alternate between scolding others for a lack of civility and enticing them with unsubstantiated claims of future success for domestic authors and publishers operating in the weaker market. When those arguments did not succeed on their own merits in the nineteenth century, Imperial strong-arming followed, to the detriment of developing nations (Canada included, see here and here). Later, in twentieth century, a new version of the same story emerged as the United States wielded its Special 301 lists.

In International Copyright and Access to Knowledge (2016), Sara Bannerman shuns the popular narrative of copyright as a 300 year progressive expansion of authors’ rights; instead, she writes:

The history of international copyright can be seen, in some cases, as the erosion of the principles of access to knowledge. … The Berne Convention embeds and reinforces the substantive inequalities of the international system, enshrining rich countries and corporations, the primary producers of copyright works, as the main beneficiaries of international copyright … with few mechanisms to ensure that local public policy goals [of poorer countries] are met (p.3-5).

Bannerman shows the consistent narrowing of provisions meant to facilitate a freer flow of educational, scientific, and news content. And as the twentieth century unfolded, trepidation over exceptions and limitations defined within the Berne Convention, cast further doubts on nations’ abilities to exercise what are now recognized as user rights. With Canada at the brink of adding twenty years to its copyright term, those user rights—principle among them, fair dealing—become all the more vital.

To that end, Tanya Aplin and Lionel Bentley offer a more positive view of limitations as being supported by the Berne Convention—a view that encourages robust application of fair dealing or other domestic statutory exceptions. In Global Mandatory Fair Use (2020) they begin with an enticing prospect: “Imagine an international instrument that does not merely oblige [conferring] rights on copyright holders… but also mandates limitations. Imagine, too, that such an instrument requires parties to permit use of material that has been taken from from existing works, irrespective of the purpose of so doing, but only on the condition that the use is in accordance with fair practice (p.1).”

Aplin and Bentley then reveal that imagination is not required, as the instrument already exists—it is none other than Article 10 (1) of the Berne Convention: Certain Free Uses of Works.

With exceptional detail, the authors excavate the deeper history, meaning, and application of Article 10 (1). Their scholarship may well blunt the ease with which the Berne Convention is currently thrown up as an obstacle to reliance on exceptions. Interested readers may also enjoy Aplin and Bentley’s presentation and discussion, offered through the auspices of the Program for information Justice and Intellectual Property in late January. As to how their work may be supported and operationalized, with a nod to Emily Hudson, Aplin suggests that cultural institutions might be a place to start.

Hudson’s work, Drafting Copyright Exceptions (2020) details her exploration of environments of practice of exceptions in Australia, Canada, the United Kingdom and the United States during the early 2000s. Her Canadian focus begins in the years following our landmark decision CCH Canadian v. Law Society of Upper Canada (2004) and it’s re-introduction of the language of “rights” with respect to use in Canada. (It is worth remembering that in Canada’s first fair dealing case, Zamacois v. Douville (1943), the presiding judge emphasized the presence of user rights within the system of copyright, namely the right to quote. See here for some details.)

Noting the “muted” impact of CCH on Canadian institutions, a fact Hudson situates on our judicial and legislative histories, aided and abetted by the past dominance of collective management, she also draws attention to the uneven distribution of copyright knowledge and expertise across Canadian institutions. More than ten years after Hudson’s fieldwork, capacity building in Canada should remain a priority, particularly in light of the standards, guidelines and purported customs which permeate evaluation of use of copyright-protected work.

As stated at the outset, “fair practice” is the cornerstone on which fair dealing or other exceptions rest. Comprising, as Aplin and Bentley describe, “a plurality of considerations,” it is telling that the authors mention “custom and trade” among elements of fair practice but do so with some reservations. Referencing the work of both Kenneth Crews and Jennifer Rothman, Aplin and Bentley write:

… [Thus Crews is] highly dubious about the role of fair use guidelines and observes that the guidelines are not law, reflect a minimalistic view of fair use and risk fixing understandings of fair use and undermining its flexibility. [Similarly, Rothman] views using custom to evaluate ‘fairness’ as disadvantageous because of its tendency to be treated as a ceiling rather than a floor, in effect narrowing fair use. In Professor Rothman’s view, there can be a role for custom to play but it must be measured against a framework of factors: ‘the certainty of the custom, the motivation for the custom, the representativeness of the custom, how the custom is applied (both against whom and for what proposition), and the implications of the custom’s adoption’ (p.171-173).

Aplin and Bentley then suggest: “Customs that are ‘uniformly recognised and supported’, formulated as an ‘aspirational set of practices’ rather than as litigation avoidance techniques, are developed ‘with a diverse representation of interests’ and applied to those who participated in the custom generation or were represented in that process, should be given more weight.”

Imagine that.

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