Nice News On The Fair Dealing Front

Michael Geist writes that the Federal Court of Appeal has concurred with an earlier Copyright Board decision stating that previewing songs, as allowed by online music sites such as iTunes, are permissible as a form of research under Fair Dealing. This is a relief; it negates the view that research should be confined to structured settings.

But I am worried that it will further entrench the view that Fair Dealing is a consumer right. (And I thought the term user right was bad enough.) I have said elsewhere that fair dealing is a creator’s right. And, if we are dwelling on creativity, it would be appropriate to remember that success through creativity has always been fraught with risk.

My daughter recently did a school project on Nellie McClung. (D. was very put out that no-one had heard of Nellie McClung.) NM’s autobiography was enjoyable from start to finish, but one story stood out. From “Christmas Day,” in Clearing in the West, she writes:

“We had two new pictures now, enlarged photographs of father and mother in heavy oak frames with a gilt edge, done by a traveling artist, who drove a team of mules and carried a few lines of tinware. Every family in the neighborhood had taken advantage of his easy plan to secure a lasting work of art. You paid only for the frame and received the picture entirely for free, though this offer might be withdrawn any minute for he was doing this merely to get his work known. …. When [the pictures] came, we all had a surprise. We had thought that the seven dollars and thirty-five cents paid for both frames but we were wrong. Each one cost that amount and even at that the artist was losing money.”

Early Canada had its share of talented people; on the literary side Nellie McLung, Susanna Moodie, Catherine Parr Trail all come to mind. But financial success was not assured to everyone and it wasn’t for lack of copyright. The small Canadian market, competition from established publishers in London and New York, and an unwillingness on the part of Britain to allow Canada to develop its own publishing sector made for much more hardship than was necessary.

I think it’s safe to say that we would all like to spend our lives doing something we love. Not everyone will be able to. It’s Darwin again.

World Fair Use Day

Sponsored by Public Knowledge, today marks an effort to educate people of the importance of the doctrine of Fair Use. (I wish I was in Washington DC for the gathering!)

Like many other Commonwealth jurisdictions, Canada’s copyright system operates with Fair Dealing. Like Fair Use, Fair Dealing permits unauthorized reproduction of copyrighted material for some good-faith productive purposes. As I mentioned a few months ago, fair dealing has more credence in reconciling the mutual needs amongst creators. Yet, curiously so, Fair Dealing continues to be characterized as a user’s right. With the greatest respect to our Supreme Court Justices, and many legal scholars and professional lawyers, I remain unconvinced. Fair dealing is better described as a creator’s right

Fair dealing should be seen as the modest measure that ensures the system purporting to encourage creative effort, and protect the interests of creative individuals, does not thwart creativity itself. This right of access is reconciled with an accompanying duty of reciprocation to the creative community at large. As creators have a duty to recognize past creators’ efforts, and not to abuse their right of access, so creators have a duty to share their work as necessary to foster future creators’ efforts. More succinctly, fair dealing mandates fair duty for all parties concerned.