Meera Nair

Posts Tagged ‘Berne Conventon’

domestic dispute and international obligation

In Posts on December 7, 2011 at 7:14 pm

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.


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

In Posts on May 6, 2011 at 7:28 am

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.

International Standards

In Posts on June 3, 2010 at 9:11 pm

The details of Bill C-32 are posted; reviewing the changes will take both time and patience. The Summary details what purpose these amendments should serve, with the first order of business being to:

Update the rights and protections of copyright owners to better address the challenges and opportunities of the Internet, so as to be in line with international standards;

Meaning to say, fulfill the WIPO Treaties.

Last year’s consultation indicated that, by and large, Canadians support the principles of international cooperation as expressed by these treaties. Yet the representation of the WIPO Treaties has been one-sided; to a casual observer it would seem that the WIPO Treaties were only about the rights of the copyright holder (And even in that area, the flexibility permitted in approach has not received due attention.) The Preamble of the WIPO Copyright Treaty provides the full scope of the international standard we should aspire to:

The Contracting Parties,
Desiring to develop and maintain the protection of the rights of authors in their literary and artistic works in a manner as effective and uniform as possible,
Recognizing the need to introduce new international rules and clarify the interpretation of certain existing rules in order to provide adequate solutions to the questions raised by new economic, social, cultural and technological developments,
Recognizing the profound impact of the development and convergence of information and communication technologies on the creation and use of literary and artistic works,
Emphasizing the outstanding significance of copyright protection as an incentive for literary and artistic creation,

[and my favourite]

Recognizing the need to maintain a balance between the rights of authors and the larger public interest, particularly education, research and access to information, as reflected in the Berne Convention.

Well, what about the Berne Convention? This international agreement established minimal standards not only for copyright protection but also for permitting free uses of copyrighted work. For instance, legal texts and legal materials may be removed from the ambit of copyright. One non-negotiable permitted use is that of quotation, provided the source is given and the overall use is fair. Member nations enjoy discretionary powers for setting the uses of works as they relate to “current events.” And there’s more … Throughout, discretionary free uses are governed by the overarching principle of Article 9(2) which states that such uses should not conflict with the normal exploitation of a work.

This raises a critical question – how far is Canada going to expand the purview of what is considered “normal exploitation?”