Imagine

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.

term extension — redux

Mount Robson, by Lawren Harris (1885-1970). A recent arrival to Canada’s public domain.

The spectre of copyright term extension has returned to Canada as the Federal Government seeks to fulfill its CUSMA obligation to extend the term from life-plus-fifty years to life-plus-seventy years. Canadians have been invited to comment regarding the “[adoption of] measures to mitigate the potential implications of this longer term of protection.”

As Michael Geist writes, with only a month allotted for Canadian input (during a pandemic), this has all the appearance of “consultation theatre,” particularly as a credible and comprehensive evaluation of many proposed changes to the Copyright Act, including term extension, was carried out by the INDU Committee assembled in 2017-2018. In their words:

[The Committee] favours extending the term of copyright, but only if CUSMA is ratified. The Committee expects that rights-holders will benefit from term extension, but also notes the arguments made against it. The Committee believes that requiring rights-holders to register their copyright to enjoy its benefits after a period equal to the life of the author plus 50 years would mitigate some of the disadvantages of term extension, promote copyright registration, and thus increase the overall transparency of the copyright system. 

But as Geist also writes: “The government is not inclined to support the committee’s recommendation.” Even more disappointing is the sight of the present government denigrating the painstaking work of the former INDU Committee members and analysts by questioning the legitimacy of their recommendation. In the consultation document, this government writes: 

The approach recommended by INDU raises serious questions in the context of Canada’s international obligations, as well as the costs that would be borne by copyright owners and the duplication of administrative efforts that might result. Numerous international treaties to which Canada is a party (e.g., Berne) prohibit the imposition of any ‘formalities’ [such as registration] that would need to be satisfied for foreign works to benefit from copyright protection in Canada (p. 9).

The dire warning of “international obligations” is not a new tactic when it comes to matters of copyright; this bogey man returns each time Canada deviates from the path of copyright maximalism. But maximalism in itself is not an international obligation. As the World Intellectual Property Organization (WIPO) makes abundantly clear, while the Berne Convention sets minimum standards of protection, including a prohibition on registration for foreign copyright-owners, all protection is limited by time: “As to the duration of protection, the general rule is that protection must be granted until the expiration of the 50th year after the author’s death (emphasis in original).”

The present government takes further aim at registration: “with new pressure on copyright owners to register their works, such an approach would likely result in increased costs in the form of registration fees and associated administrative and legal costs, particularly for owners of copyright in multiple works (p. 9).” Through their analyses of all submissions to the 2017-2018 Copyright Review, librarians Jennifer Zerkee and Stephanie Savage shed some light as to whom such copyright owners might be:  

INDU received 13 briefs recommending extending term to life + 70, primarily from the music industry, film/TV, and publishing. 6/x

— Jennifer Zerkee (@jzerkee) February 12, 2021

(Savage and Zerkee showcased their research during the ABC Copyright 2020 Fall Series and provided their slides to University of Alberta’s Education and Research Archive.)

It will come as no surprise that enthusiasts for term extension hail from commercial arenas. Broadly speaking, corporate entities with large holdings of commercially successful works have the potential to gain revenue through longer periods of control. They are the epitome of “owners of copyright in multiple works.” But to suggest that such companies are ill-equipped to handle the administration and costs of registration lacks conviction. And whether the copyright owner is a corporation, or an author’s heirs, the necessity of registration will not arise for decades, allowing ample evidence to accrue as to whether registration will enhance anyone’s coffers.

Moreover, as the prior INDU committee noted, a registration system ensures transparency and, by extension, allows users a better means to gauge what is or is not in the public domain. Such a state of affairs not only provides libraries, archives, and museums with more stable ground on which to practice their public missions (a need recognized by this government), but also offers smaller independent creators and publishers security to practice their crafts as well. 

There will always be those who insist that increasing the scope and duration of copyright provides both individuals and industry with greater incentive to invest in creative activity. But Eldred v. Ashcroft (2003), the ill-fated constitutional challenge to American copyright extension at the U.S. Supreme Court, remains a salient rebuttal to this catechism.

At that time, a bevy of noted economists placed the monetary gain of term extension as negligible: “Because the additional compensation occurs many decades in the future, its present value is small, very likely an improvement of less than 1%.” While the majority of the Justices allowed the term extension, dissenting Justice Breyer offered this memorable riposte: “What potential Shakespeare, Wharton, or Hemingway would be moved by such [a gain]? What monetarily motivated Melville would not realize that he could do better for his grandchildren by putting a few dollars into an interest-bearing bank account?” (Further details here.)

As Zerkee notes, one “creator/rights-holder” (Broadview Press) argued against term extension during the Copyright Review. Broadview Press is an independent Canadian publisher; their work is highly acclaimed, particularly their value-added editions of public domain works. In this regard, they exemplify what is too often glossed over by copyright maximalists: that the public domain can, and does, provides fodder for creative, commercial activity. Not only did Broadview Press argue against term extension, they recommended “that Canada protect or reduce the length of copyright term to be no more than ‘life of the author plus 50 years’.” 

The government is accepting submissions on the topic of copyright term extension until March 12, 2021.

Update March 30, 2021

The government agreed to extend the deadline for submissions to this consultation. My submission is here.

Update December 11, 2021

The government has posted all submissions. (Mine in its official capacity is here.)

Sir John Thompson

Sir John Sparrow David Thompson, c. 1895
Painting by Bonne de Bock
Courtesy of Library and Archives Canada Blog

We are told he is the best Prime Minister Canada never had. Sir John Sparrow David Thompson served only two years in that capacity; an untimely death on 12 December 1894 cut short his stewardship. But his contributions to Canada spanned much longer than those two years would suggest.

Under Sir John A. Macdonald, Thompson held the position of Justice Minister (sworn in on 26 September 1885), a responsibility he maintained to his death. While deeply respected by his Conservative colleagues, Thompson’s sterling character did not always meet with approval from all; one party stalwart moaned: “He won’t even consider whether a thing is good for the party until he is quite sure it is good for the country.”[1]

As Justice Minister, Thompson undertook the monumental task of giving Canada its own Criminal Code. Working closely with a bi-partisan committee, the result was a statute that reflected Thompson’s skills as jurist, and dedication as a Canadian. His first biographer, J. Castell Hopkins, would argue that the Code was far more deserving to be named for its maker than the Code Napoleon. Thompson also served as an arbiter in the Bering Straits dispute between Canada and the United States, and he staunchly supported the position that Canada should set its own copyright course—that indeed Canada had the right to do so as a self-governing Dominion.

Thompson’s commitment to the rule of law, fairness and justice were unparalleled, earning him praise from both sides of the aisle. He was, in a word, a statesman. Throughout though, he was confronted by the internecine Catholic/Protestant mistrust, a challenge that has largely faded from Canadian memory but was as potent in its time as the misplaced-hostility over multiculturalism is today. Thompson, a Methodist turned Catholic, initially turned down Governor General Lord Stanley’s request to assume the helm following Prime Minister Macdonald’s death—Thompson felt that his Catholicism would provoke trouble for the government. But when MacDonald’s successor John Abbot resigned on account of poor health, Thompson agreed to lead the Conservative Party and thus too the Government of Canada.

My interest in Thompson was sparked during my doctoral exploration of Canadian copyright history.[2] In 1889, under Thompson’s guidance, the Canadian Copyright Act was amended as necessary to address the complexities of Canada’s geographic and political position, caught as the country was between American capitalism and British imperialism. Passed with unanimity by Canadian parliamentarians, the Act encouraged the development of a national publishing industry by ensuring the legitimate reprinting of works of foreign authors, through a compulsory royalty. This measure applied only if the copyright holder did not seek publication in Canada within one month of publication elsewhere. Canadian readers and all authors would have benefited.

But the passage of the 1889 Act required disengagement from Imperial copyright law, as also from the blanket pronouncements of the recently-formed Berne Convention. Thompson argued, not for Canadian autonomy, but for recognition of the autonomy as it already existed in the British North America Act of 1867 and had further developed in the decades following Confederation. Unfortunately, although Thompson held the better argument, the political clout of British and American publishing industries ensured that such recognition was withheld.

British intransigence towards Canada stemmed in part from the desire to bring about an Anglo-American copyright treaty; Canada was a valuable bargaining chip. Even before a treaty of sorts eventually transpired, the Canadian market was offered up by savvy copyright holders who sought private arrangements with American publishing houses. If assured that no similar arrangement would be made with a Canadian printer, American publishers were willing to provide some compensation to the owner. As P. B. Waite describes, the tone was not always benign: “You will get no compensation whatever from us, if you permit any Canadian house to publish your work.”[3]

These practices were so widespread as to merit inclusion in a Royal Commission on Copyright. Aware of the gentleman’s agreement among American publishers (some might say honour among thieves), whereby the right to continued publication was reserved to the house that gained first publication, the Commissioners observed:

[S]ecured from competition … it is worth while for [American publishers] to rival each other abroad in their offers for early sheets of important works. We are assured that there are cases in which authors reap substantial results … and instances are even known in which an English author’s returns from the United States exceed the profits of his British sale …. (para. 242)..

Notably, that same Commission report supported the measures that Canada would later attempt to enact in 1889 (paras.206-207).

When the long-desired Anglo-American Treaty came into being, it provided much less benefit than what Canada had offered. The United States would not abandon its manufacturing clause—ensuring the betterment of American industry and loss to the British counterpart—meaning that foreign authors could only obtain copyright for works set and printed within the United States. Faced with that expensive proposition, English authors and publishers were left with little to show for the years of waiting. Following the passage of the American Copyright Bill, C.J. Longman (of the House of Longman) did not mince words:

The Act … offers protection—on conditions—to any British author.  There are already signs that the value of this protection may be over-estimated in this country. It is desirable therefore to point out that to those writers whose published works are before the world, … but have failed to attract the attention of pirates, the Act gives no advantage. If there had been any prospect of republishing those books profitably, the enterprising American publisher would certainly have availed himself of his chance when he could have had them for nothing.  ….
– “The American Copyright Bill,” The Economic Review 1.2 (1891).

Despite the inadequacies of the American arrangements, the British Crown continued to refuse Canada’s requests for independent action regarding copyright. Even though Sir Charles Trevelyan had emphasized for years that partnering with Canadian publishers would allow England to gain the upper-hand in the reprints market of North America as a whole. That logic, not to mention the greater benefit for English authors, fell on deaf ears. English authors and copyright holders could neither envisage altering the model of monopoly copyright, nor tolerate diversity within colonial implementation of the law.

Thompson continued to press his case with clarity, evidence, and appeals to the rule of law. Invited to serve as a member of the Queen’s Privy Council, he traveled to London in December 1894 to be sworn in. In the days prior to the ceremony, Thompson discussed the copyright issue with members of the Colonial Office, and achieved some recognition of the legitimacy of Canada’s position: “… the claim of the Canadian legislature is a good one, and the burden of proof that it is contrary to public policy rests on those who contest it.”[4] But whatever ground Thompson had gained, was never to be capitalized on. Within hours of the swearing-in ceremony Thompson collapsed at Windsor Castle and died. He was forty-nine.

Without Thompson’s leadership, Canada could not achieve meaningful independence on matters relating to copyright.

Notes:

[1] Quoted by Gordon Donaldson in The Prime Ministers of Canada (Doubleday Canada Limited, 1994) p.53

[2] I cover this period of  history in detail in “The Copyright Act of 1889–A Canadian Declaration of Independence,” Canadian Historical Review, Vol. 90, Issue 1, p.1-28.

[3] Quoted by Peter B. Waite in “Sir John Thompson and Copyright, 1889-1894: Struggling to break free of Imperial Law,” Bulletin of Canadian Studies.  Vol.6 No.2, p.36-49.

[4] Ibid.

Update: See also “The Geopolitics of Nineteenth-Century Canadian Copyright, as seen by some British Authors,” Papers of the Bibliographical Society, Special Issue — Canada 150. Bound by Three Oceans Vol. 55, No. 2 (2017). Published February 2019.

domestic dispute and international obligation

Between December 6 & 7, five copyright cases were argued at the Supreme Court of Canada. Directly relevant to fair dealing are two questions:  (1) Are music previews fair dealing by consumers? (SOCAN et al v. Bell Canada et al)  (2) Is the copying of short excerpts of material, as determined by a teacher, fair dealing by students? (Province of Alberta et al v. Canadian Copyright Licensing Agency operating as Access Copyright)

In this latter question, the educational community pointed out the inconsistency of current case law:

This case is not about a commercial use of copyright works. Despite this, copying by teachers for students in Canadian elementary and secondary schools has been held to be unfair, while copying for lawyers and the streaming of music previews to consumers in an obvious commercial context has been held to be fair. … [It] is the purpose of the consumer of the copy that should be used to assess the notion of “fairness”, not the purpose of the maker of the copy. The consumer is the student in the educational environment; the online music purchaser in the electronic commerce environment; and the lawyer, law student or clerk in the legal environment. The makers of copies are, correspondingly, the teacher, the online music service, and the librarian.  (See para 10 here. )

These cases will test the famed CCH Canadian Supreme Court directives that “the fair dealing exception is a user’s right … it must not be interpreted restrictively” and “research should be given a large and liberal interpretation.” The delineation of who qualifies as a “user” and what constitutes “research” should prove interesting.

Judging by Michael Geist’s post of Day One, and tweets of Day Two, the outcome for fair dealing looks promising in the first case and less so in the second.  (More on that another day.)

What is striking about these cases is that those who seek to narrow the application of fair dealing continue to invoke the disingenuous argument that Canada’s approach to fair dealing could be in violation of international obligations, namely the three-step test of the Berne Convention. (In addition to the submissions of the principal parties as provided above, the factums of the interveners can be found here.) But although the High Court did not appear to be swayed by those arguments, such claims impede potential fair dealing among non-lawyers. Fair dealing, and applying the CCH Canadian framework, requires clarity, comprehension and some courage of conviction. Even to imply that FD+CCH is in violation of international law is enough to set back any productive effort to engage with fair dealing.

Noted scholars P. Bernt Hugenholtz and Ruth Okediji have no illusions that the focus of the three-step test is directed towards copyright protection; yet they still offer this encouragement: “the three-step test does afford [member] states significant flexibilities, and leaves them sufficient room to enter into an instrument on [limitations and exceptions] with meaningful substantive content (p.482)”.

Turning to the Berne Convention itself, the three-step test is stated in Article 9(2):

It shall be a matter for legislation in the countries of the Union to permit the reproduction of such works in certain special cases, provided that such reproduction does not conflict with a normal exploitation of the work and does not unreasonably prejudice the legitimate interests of the author.

Although the first condition of “certain special cases” is often held to discourage an individual instance of copying, one has to bear in mind that the exception as a whole must first be considered. To that end, Canada is in good stead. Fair dealing is a very precise entity – it is decreed by law to apply only to the specific purposes of research, private study, criticism, review and news reporting. These purposes have long been accepted as suitable reasons for exception to copyright’s mandate.

The second condition, that the exception should “not conflict with normal exploitation of a work”, raises the question of: what is normal exploitation? For many in the rights holders’ community, all uses should be normal exploitation, thereby eliminating exceptions in totality. But as leading attorney Fred von Lohmann reminds us: “Copyright law strives to strike a balance between creating adequate (not maximal) incentives for the creation and distribution of expressive works, while also ensuring widespread public access to and enjoyment of such works (p.10, emphasis in original).”

If, as rights holders are prone to do, analysis is confined to matters of remuneration, uses that do not contribute a substantive benefit to the rights holder are particularly well suited for protection under this condition. (In terms of the current case between Access Copyright and the educational community, the scope of the disputed copying averages to less than 5 pages per student.*)

The last condition, to “not unreasonably prejudice the legitimate interests of the author” provides considerable leeway. (1) The prohibition, “not unreasonably prejudice”, indicates that there may well be reasonable grounds to prejudice rights holders’ interests. Freedom of expression comes to mind; it would likely seek shelter under fair dealing through criticism and review. (2) The language of “legitimate interests of authors” serves as a visible reminder that legitimate operation of copyright does not extend to complete control. As the Supreme Court told us in 2004, fair dealing is always available.

References

P. Bernt Hugenholtz and Ruth L. Okediji. 2009. “The Contours of an International Instrument on Limitations and Exceptions” in The Development Agenda, ed. Neil Natanel, Oxford University Press. p.473-497.

Fred von Lohmann. 2008. “Fair Use As Innovation Policy,” Berkeley Technology Law Journal. Vol. 23 (1).

* In the educational copying dispute, the total copying is described as 246 million pages. Only 16.8 million pages are in dispute. These are short extracts copied to supplement textbook content. Spread across 3.8 million full-time students, this yields an average of 4.5 pages per student). See paras 6-9 of the submission of Province of Alberta et al.

A better list

Earlier this week Michael Geist reported that Canada continues its residency on the Special 301 Priority Watch List. This annual report issued by the Office of the United States Trade Representative (USTR) is an assessment of trading partners whose approach to intellectual property rights do not mirror those of vested American interests.**

Mercifully, a better list recently appeared from Consumers International. This global alliance of 220 consumer groups takes as its lodestar “to put the rights of consumers at the heart of decision making.” Founded in 1960, Consumers International expands its ambit to meet the changing face of consumer industries. The IP Watchlist, “assesses the fairness of the world’s intellectual property laws and enforcement practices from an important yet under-represented perspective: that of the ordinary consumer.” The first IP Watchlist was published in 2009. All yearly reports, and the 2011 individual surveys of participating countries, are freely available from the Access To Knowledge network of Consumers International.

Canada was first assessed in 2010 and received a C. The 2011 report shows a modest improvement; Canada is now rated as B-. Moreover, the report positioned Canada at the forefront of enhancing consumer creativity through Bill C-32:

The explosion of creativity from ordinary consumers commenting and building upon works from pop culture, and freely sharing their creations with the world, has been one of the defining cultural phenomena of this century… So, does copyright law support the participation of consumers in this new democratic art form? The answer, regrettably, is a resounding ‘no’, with only a handful of countries offering any consumers any legal protection. There are, however, early signs that this is beginning to be seen as a legal anachronism. In particular, a new provision proposed for Canadian law would legalise the creation of noncommercial derivative works that do not financially damage the original copyright owner.

Each year Consumers International identify the best and worst practices in the application of copyright laws. In the inaugural 2009 issue, technological protection measures (TPMs) were the first point of discussion:

When copyright material is protected by a TPM, no judge – in fact, no human being at all – determines whether or not the restrictions enforced by the TPM conform to copyright law. [Even if the purpose is for fair dealing] … in many countries the consumer cannot circumvent that restriction without breaking the law.

Despite being a leader in promoting TPMs, by virtue of its inclusion of fair use, the United States faired well in the first report:

The main reason why the United States is placed highly in the IP Watch List as a country that supports the interests of consumers is that its copyright law includes a broad exception for the “fair use” of copyright material. In most other jurisdictions, piecemeal exceptions exist for the use of copyright material for particular purposes such as research, criticism and reporting current news. In contrast, a broad fair use exception allows copyright material to be used for any purpose, so long as it satisfies a balancing test that includes factors such as whether the use is commercial or non-commercial, and its effect on the market for the copyrighted work.

Fair use was the first item of discussion in the 2010 best practices, with another favourable review of American law. A particular concern was addressed – does fair use comply with international law? Implicitly this means that exceptions to copyright must meet the “three-step test” laid out in the Berne Convention. Exceptions must (i) be confined to specific cases; (ii) not conflict with the normal exploitation of a work; and (iii) not unreasonably prejudice the legitimate interests of a copyright holder. CI wrote:

Most countries have implemented the three-step test by enacting … exceptions for specific purposes or specific classes of consumer, such as the educational, library and disability exceptions … But there is an alternative approach, first and most famously found in the copyright law of the United States, which stretches the three-step test almost to its limit. It allows for any use of a copyrighted work that can be described as ‘fair’, considering the purpose and character of the use, the nature of the work, the amount and substantiality of the portion used, and the effect of the use upon the potential market for or value of the work. There are many uses of copyright materials that are allowed under US law as ‘fair use’, that would not be allowed under the more specific exceptions of other countries.

In the 2011 report, CI once again speaks approvingly of fair use and suggests that more countries will follow in these (positive) American footsteps:

Malaysia, Japan and the United Kingdom are also reviewing their respective copyright laws, and considering the merits of adding broad US-style ‘fair use’ rights. This is an overdue trend that Consumers International strongly welcomes.

** Note: The curiously-named International Intellectual Property Alliance (IIPA) is a regular contributor of input to the USTR. The IIPA was not impressed with Bill C-32; their recommendation of Canada for 301 inclusion can be found here.