Meera Nair

Posts Tagged ‘exceptions’

fair dealing week 2018

In Posts on February 25, 2018 at 6:27 pm

Tomorrow marks the start of Fair Dealing Week for 2018. It is an opportunity to bring concentrated attention to this particular exception, which is practiced every day by Canadians in their pursuit of learning and  creative endeavor (i.e. see here and here).

Broadly speaking, exceptions are statutory provisions which provide the means by which one may engage in legitimate, unauthorized uses of copyright-protected material. Taken together, exceptions delineate the essential space in which the fundamental construct of the system survives—that, in order to foster creativity, the system must operate as a set of limited rights.

Fair dealing enables Canadians to continuously build the capacity for creative thought; capitalizing on that thought is managed through the rights of control found within the system of copyright. More precisely, exposure to copyrighted work facilitates creation of future work. But the elapsed time between these two stages of creative endeavor leaves fair dealing vulnerable, as the modest amounts copied under fair dealing are viewed as a threat to copyright owners’ well-being.

Worse, fair dealing is tarred by accusation that it is bringing about the demise of Canadian literature. Emotional arguments lacking logic coupled with selective data are paraded before Members of Parliament as reason to curtail the scope of fair dealing. Such arguments would have us believe that but for the collective licensing regimes imposed on captive Canadian taxpayers, students, and their families, CanLit would never have gained its prominence. Fortunately, logical argument and expansive data employed by a noted member of Canada’s writing scene tell a different story.

In Arrival: The Story of CanLit, Nick Mount’s painstaking exploration describes CanLit as an outcome of a confluence of many events: post-WWII affluence, the reaction thereto, the Centennial celebrations, some (perhaps unintentional) prodding by George Grant, and … . [You must read the book!] Not surprisingly though, the catalyst was money:

[Affluence] paid for new spaces in which its artists could perform and exhibit. It paid for new universities with departments devoted to studying and fostering music, drama, literature, and the visual arts; for new campuses with their own galleries, theatres, radio stations, magazines, publishers, and book-stores. It built new houses with new hi-fis that need playing and new bookshelves that needed filling, and it built new shopping malls in which to buy the new records and new books …. Affluence paid for the salaries that bought the homes that filled with the babies that filled the universities, both creating and conditioning the first generation for whom culture was a mass-market product (p.25).

But Mount is quick to point out that affluence did not extend to the writers and publishers themselves:

For all the new GNP, it was still tough to make a living from literature in Canada in the 1960s. The publisher of the most commercially successful writers of the period, McClelland & Stewart, flirted with bankruptcy throughout and after the CanLit boom. …. Most writers lived cheaply and at times precariously, surviving on small grants, the occasional teaching or writer-in-residence contract, sometimes even their writing (p.26-27).

To those who insist that fair dealing in educational institutions will bring about a decline in Canadian writing, Mount offers compelling evidence indicating that the problem is not unauthorized use of portions of novels but a lack of interest in entire novels to begin with:

Saskatchewan and British Columbia require students to read a novel or two, but Canadian literature is once again optional in Ontario high schools. At eleven of Canada’s largest twenty universities, English and French, you can complete a major in literature without any of it being Canadian. (At all twenty, you can complete a B.A. without ever reading a Canadian poem or novel (p.292)).

Mount’s data should invite sober reflection on the part of Canadian literary nationalists. Curtailing fair dealing seems unlikely to revive interest in adding Canadian content to Arts education in Canada; instead, curtailing fair dealing points to reducing circulation of Canadian content.

In academic degree specialties focused on Canadian literature, required reading material is likely already assigned as books. Thus, the impact of lessening fair dealing’s capacities will be on those programs that might only refer to Canadian content for supplemental purposes. In these cases, it is only too likely that a disinterested professor or teacher, coupled with risk-averse administrations, will choose to avoid using those supplemental pieces entirely.

If the damage could be confined to reducing the presence of Canadian literature in the academy; well, many of us could just sigh and say it was a self-inflicted wound. To lobby for copyright in the name of Canada without understanding Canada’s particular history in this area is simply a repetition of what has been done before. But, diminishing fair dealing entraps all disciplines, reducing that capacity to nurse creative thought essential to later creativity in all perspectives of arts and science. And what will be most painful to accept will be how unnecessary such action was. For, as Mount writes, “Canadian literature is more alive and more exciting than ever (p.292).”

Mount does not stint on detail: Canadian writers are increasing in number, their work is being published at home and internationally, new Canadian presses are blossoming, the quality of work is constantly ascending, and the depth and breadth of literature produced reflects both the diversity within the country and its coming-of-age on the world scene. Mount’s conclusion bodes well for Canadian literature now and Canadian creativity to come: “Quite simply, there has never been a better time to be a Canadian reader (p.293).”

Mount’s words complement those of Justice Barnes, who presided over Blacklocks v. Canada (A.G), 2016. That dispute revolved around limited sharing, for the purpose of research, of two proprietary articles legitimately obtained through a subscription; see here for my coverage.  The following lines seem particularly apropos at this time of year:

What occurred here was no more than the simple act of reading by persons with an immediate interest in the material. The act of reading, by itself, is an exercise that will almost always constitute fair dealing even when it is carried out solely for personal enlightenment or entertainment (para. 36).

Happy Fair Dealing Week.

adjudication by algorithm

In Posts on January 3, 2018 at 8:33 am

Monday’s issue of The Globe and Mail describes new initiatives to secure better returns for the music industry when musical content is used via radio or internet. Under a joint initiative between the University of Toronto and The Society of Composers, Authors and Music Publishers of Canada (SOCAN), students are investigating how technology “… can parse through audio and video to find media using SOCAN member songs that should be paying royalties to creators and publishers.”

If a reader parses that sentence, the word “should” stands out. Merely using a SOCAN member’s song, or anyone’s song, does not automatically indicate that payment is required. While it is plausible that artificial intelligence can develop a capacity to engage in the contextual analysis required to determine whether a use is legitimate or an infringement, much will depend on the human input.

(As I write this, I recall undergraduate days and a computer science professor who was fond of saying, “garbage in, garbage out.”)

In her remarks about the article Carys Craig draws on the work of Niva Elkin-Koren, who has written at length about the perils of copyright adjudication by algorithm. For instance, in Fair Use by Design (2017), Elkin-Koren argues that: “… for fair use to serve its role in the twenty-first century, the checks that it intends to create on the rights of authors must also be embedded in the design of online systems.” She reveals some disturbing findings following analysis of 10,000 removal requests sent to Google, to the conclusion that “an algorithmic regime, which is neither overseen by the public nor by any judicial entity, is extremely vulnerable to misuse.”

Misuse may be deliberate, but misuse also occurs through confusion with respect to the very nature of copyright. Too many people believe that copyright means an absolute right of control; which it never has been, nor has it ever functioned in this manner. From its implementation into statutory law (1710), copyright has been structured as a set of limited rights. But despite this 300+ year ancestry, contemporary articles rarely provide any explanation of where control begins or where control ends.

That story is told through the Copyright ActSection 3.1 states:

For the purposes of this Act, copyright, in relation to a work, means the sole right to produce or reproduce the work or any substantial part thereof in any material form whatever, to perform the work or any substantial part thereof in public …

From 3.1 we see that copyright exists only when a substantial amount of work is being reproduced. Any algorithm that deems infringement by only identifying use, has vastly overstepped its bounds. Copyright may not even have arisen, let alone finding infringement. (For more about substantial/insubstantial, see here and here.)

If a substantial reproduction has occurred, copyright owners (which may include the writers, musicians, artists, etc. that created the work) are entitled to control the use of the work, through the measures enumerated in the Copyright Act. But that control is not absolute. It is limited, not only by time (Canada maintains the life+50 copyright duration mandated by international treaty) but also by many statutory exceptions. That list begins with fair dealing:

Section 29, fair dealing “Fair dealing for the purpose of research, private study, education, parody or satire does not infringe copyright.”

Sections 29.1 and 29.2 – which provide fair dealing for “criticism or review” and “news reporting” under conditions of attribution. Writers and publishers (perhaps those associated to national newspapers) might appreciate this exception.

(Over the last fifteen years Canada’s treatment of fair dealing has evolved into a measured, progressive exception and ensures that the system of copyright remains balanced and does not devolve purely into a means of rent-seeking. For instance, see here, here, and here.)

Canada’s jewel in the crown – S29.21 “Non-commercial user-generated content,” is more colloquially known as The MashUp Exception. With conditions (amateur creation, attribution, legitimate source material, and a consideration of market effect), creativity at its most nascent is protected as lawful activity. While the scope is vast, at the very least S29.21 seems tailor-made to protect video involving a dancing cat. (For more on 29.21, see here and here.)

Or if the musical accompaniment to the cat was unintended, the unsung heroic exception of S30.7 “Incidental Use” comes to mind:

It is not an infringement of copyright to incidentally and not deliberately (a) include a work or other subject-matter in another work or other subject-matter; or (b) do any act in relation to a work or other subject-matter that is incidentally and not deliberately included in another work or other subject-matter.

Incidental use is not limited to amateur creation, nor is it confined to any specific purpose of use. That said, it has provided Canadians with some bragging rights in a particular genre; as Howard Knopf wrote over a decade ago, “This section is the envy of American documentarians … .”

The entire list of exceptions is extensive and should be part of any algorithmic effort to pronounce judgement on use of copyrighted works. In this regard, artificial intelligence could lead to better outcomes for copyright owners and users alike, if such systems are appropriately seeded, capable of learning from existing and ongoing court decisions, and attuned to the nuance that permeates application of the law. To rephrase my former professor’s words: comprehensive information in, contextual decisions out.

setting aside a library exception

In Posts on September 20, 2015 at 6:51 am

When specific institutional exceptions entered into the Copyright Act in 1997, the ensuing challenge was to decode an array of conditions, spread over the distinctions between Educational Institutions, Libraries, Archives and Museums, the kinds of machines installed in these institutions, and such permutations and combinations thereof. The effort to determine where legitimate copying began or ended was not for the faint of heart.

Receiving Royal Assent in the Second Session of the 35th Parliament 1996-1997 (through a bill named C-32), the exception for libraries concerning interlibrary loan (ILL) was less than generous. It was restricted by genre to scientific, technical or scholarly works — fiction or poetry was strictly disallowed — with newspapers only eligible if more than a year old, and restricted by purpose to only research or private study. It also mandated that copies could not be in digital form.

The construction of the exception was intended to facilitate productive unauthorized uses of copyrighted material, but then was called upon to placate copyright owners who opposed exceptions of any kind. At the time, economist Michael Rushton observed that “[the exceptions] were heavily amended at committee stage, generally in favour of creators’ groups (p. 327).

Moving ahead to our current Act (as shaped by amendments assented to in 2012, ushered in by another Bill C-32 and finished by Bill C-11) the exception has seemingly improved. Digital copies are permitted, but under conditions. Paraphrasing from Section 30.2 (5.02), when a patron requests a resource via ILL, if that request is filled with a digital copy, the providing library must take “measures” to prevent the requestor from:

  • making further copies (other than printing one paper copy for his/her needs),
  • communicating the digital copy to anyone else,
  • using the digital copy for more than five days following first access.

Taking “measures” allows for some elasticity in application, libraries are shielded to a degree from adopting onerous surveillance practices. But it should be evident that this style of exception is woefully inadequate to the reality of past and current information flows.

A routine need is the sharing of materials among a group. This can take form in a myriad of ways: students working on a group project, researchers or writers collaborating from near and far, professional societies responding to regulatory developments, or civil servants addressing media coverage, just to name a few. Yet under Section 30, each member of a group must submit a request for necessary material, which the supplying library will fill, many times over. And this presupposes that all sources of material are known in advance and that serendipity has no role to play.

While the caveat of Section 30 is inefficient and illogical, disregarding a section of any Act leaves a feeling of unease. Fortunately, libraries need not follow Section 30 piecemeal; instead, libraries are able to rely upon the entirety of fair dealing instead.

Section 29 is concise: “Fair dealing for the purpose of research, private study, education, parody or satire does not infringe copyright.” There are no further restrictions upon the purpose, no restrictions upon genre and (as CCH Canadian taught us eleven years ago) no restrictions regarding commerciality (para. 51). Of course, the unwritten  rule since CCH Canadian is that the proposed copying must be evaluated for fairness, via a framework of context-appropriate factors.

Consider the following: A person submits an ILL request and further distributes the material to a group. If all involved in that group are each entitled to make that ILL request, it is difficult to see how a single request on behalf of a group of entitled individuals could be construed as unfair. If anything, that single request should be lauded as it eliminates duplication of effort for both lending and receiving libraries. The fairness analysis then shifts largely to due care when proceeding with the group distribution. Meaning, posting the material to a publicly available website would be frowned upon. Instead, a secure server comes to mind. A library might make that suggestion if it so wishes. Regardless though, CCH Canadian also made it plain that libraries are not responsible for the actions of their members (para. 45).

To those who might argue that libraries must rely on library exceptions, I leave the last words to Chief Justice Beverley McLachlin, again via CCH Canadian:

As an integral part of the scheme of copyright law, the Section 29 fair dealing exception is always available. Simply put, a library can always attempt to prove that its dealings with a copyrighted work are fair under s. 29 of the Copyright Act. It is only if a library were unable to make out the fair dealing exception under s. 29 that it would need to turn to s. 30.2 of the Copyright Act to prove that it qualified for the library exemption (para 49).

Though this be method, there is madness in’t…

In Posts on October 10, 2014 at 9:38 am

This past week, news broke concerning the Harper Government’s consideration of a new exception to Canada’s Copyright Act. A benefit solely for those involved in the  creation and distribution of political advertisements, the proposal can only undermine three hundred years of statutory design on copyright law, which has progressively ensured broad language with flexibility to anonymous creators and users alike.

Reports began on October 8 from CTV and the Globe & Mail, with the CBC providing further details on October 9 (including posting the undated Cabinet presentation document). Michael Geist posted commentary on both the 8th and 9th, and copyright enthusiasts around the country are shaking their heads in disbelief and dismay.

Briefly, Prime Minister Harper and his cabinet are entertaining the thought of an exception to copyright that is only applicable to the political establishment. From the Cabinet document came this:

The exception means greater certainty for the political actors who want to use copyright content in their advertisements:
– E.g. clips from radio and television broadcast news, footage capturing a political debate or events, a newspaper or magazine article, etc.
– Could be used by all politicians and registered political parties at any level of government.

The rationale offered by the government is that politicians should be held accountable for their statements and actions, and this exception would ensure that the public is kept informed. The opposition parties see it as a thinly veiled attempt to facilitate the use of attack ads. While our Government is content to claim method, their behaviour is madness of Shakespearean proportions.

First, we already have an exception to address the use of copyrighted material; fair dealing protects unauthorized use for the purposes of research, private study, criticism, review, news reporting, parody, satire and education, provided the use is fair. Political parties should apply the law under the same constraints as all Canadians (if anything, in a more edifying manner).

Second, using published material to report or contradict political opinion is part and parcel of civil society as it exists. If a member of the political realm gives a speech, a reporter may quote from the speech. An opponent may choose to quote out of context. The audience may find such a tactic repugnant, but it is hardly new.

Third, in the copyright amendments of 2012, this same Government introduced a new exception, unofficially titled the YouTube exception which supports the creation of user-generated content. Section 29.21 is suited to the creation of both commentary and fantasy. While I find attack ads loathsome, they are creative expression and may draw upon the exception.

Fourth, the issue of moral rights is given short-shrift by this Government’s proposal. It claims that moral rights of creators would not be affected, via the logic that creators have likely waived those rights. Moral rights protect the integrity and reputation of a work and its creator respectively. Canadian law forbids allying a work to a cause if the creator objects. To blithely indicate that the Government will not suffer for misusing a work is further evidence that this government only cares about legal liability, not ethical conduct.

Fifth, this desire to embed a copyright change in an omnibus budget bill flies in the face of this Government’s own stipulation of a five year, comprehensive review cycle of the Copyright Act. If musicians and students, librarians and broadcasters must wait to plead their case until 2017, this Government must abide by the same rule.

Finally, the Government’s proposal makes curious distinctions that undermine the universality of the grant of copyright and the use of exceptions. That it is designed for a small segment of Canadians is reprehensible. So too is the manner in which genre and medium are parceled out. For instance, news articles may be used but not photographs or music. Documentaries are not eligible for mining (even though documentarians are among the greatest users of exceptions to copyright, making reciprocation only appropriate). Fictional works are also not eligible, despite fiction being a rich resource for modern commentary. Presumably though, fiction that has passed into the public domain may be drawn upon—I await the invocations of Caesar, Macbeth and Hamlet.

Canada has enjoyed ten years of jurisprudence that yielded a fair dealing regime capable of addressing all situations with flexibility, to the benefit of all Canadians. To muddy up the Copyright Act with a narrowly worded, politically-minded exception places future courts in the awkward position of having one approach when adjudicating copyright for Canadians and a separate approach when adjudicating copyright for Canadian politicians. This will not facilitate the understanding or practice of the system of copyright in Canada.


Twice the fun

In Posts on July 31, 2010 at 7:57 pm

Two events to report on this week … one domestic and one international (sort of).

The U.S. Librarian of Congress relaxed some of the prohibitions upon circumventing technological protection measures (TPMs) as found in the United States Digital Millennium Copyright Act (DMCA). Included was a measure that directly benefits educational uses of copyrighted materials. When done in good faith, for the purposes of criticism and review, college and university professors are permitted to extract clips from movies encrypted on DVDs. This expands a previous allowance which was offered only to film and media studies’ professors. (I presume this measure can be enjoyed by all teaching professionals at post-secondary institutions, including those of sessional ilk.) Also mentioned by name as eligible for the provision are film and media studies students. And the provision applies to creation of documentary films and noncommercial videos, again when conducted in good faith and for the purposes of criticism and review.

Other measures will assist consumers; you can read about them here. What I find interesting is the timing and the process. The United States continues to move away from the position of absolute deference to TPMs while Canada stands ready to embrace it. Bill C-32 does not permit the circumvention of TPMs for legitimate fair dealing uses. As far as the process goes, it was refreshing to discover that the Librarian is required to periodically review the activities constrained by TPMs with a very specific purpose:

As I have noted at the conclusion of past proceedings, it is important to understand the purposes of this rulemaking, as stated in the law, and the role I have in it. This is not a broad evaluation of the successes or failures of the DMCA. The purpose of the proceeding is to determine whether current technologies that control access to copyrighted works are diminishing the ability of individuals to use works in lawful, noninfringing ways.

The review process is open; all interested parties can submit written comments on the topic. This was the fourth such review.

Now to the home front.
The Federal Court of Appeal (FCA) released its decision concerning the charges on photocopied material used in schools from Kindergarten through to Grade 12. (Cited as 2010 FCA 198, and dated to 23 July 2010, the online text is not yet available.) My thanks to FC for providing me with a copy.

The FCA reminds Canadians that in decisions of fair dealing, the category of applicable use is merely the beginning. To make a complete assessment of fair dealing, the multi-facetted inquiry set by the Supreme Court in CCH Canadian must be followed. The FCA did exactly that, via existing fair dealing categories of private study, research, criticism and review, and ruled that the majority of photocopying taking place in schools will remain as subject to compensation. This decision is significant; it recognizes that educational activity is already represented through fair dealing and simultaneously reinforces the fact that a category by itself is insufficient to claim fair dealing. Hopefully this will quell the misconception that Bill C-32’s inclusion of education within fair dealing is “expropriation”.

Update: Here’s the CanLII link for 2010 FCA 198


In Posts on June 6, 2010 at 9:43 pm

Industry Canada indicated some good news in terms of education and Bill C-32:

For educational and training purposes, teachers and students will be allowed to use material that they find on the Internet as long as it is has been legitimately posted there by copyright owners without expectation of compensation.

For years, teachers in Canada have worried as to whether they can use publicly available material from the Internet in the day-to-day operations of educating Canadian students. I truly question why this is an issue at all – publicly available material should be self-evident as to its useability. But, Bill C-32 makes it less transparent. It all comes down to “expectation of compensation.”

In a section identified as “Work Available Through Internet,” we find:

30.04 (1) Subject to subsections (2) to (5), it is not an infringement of copyright for an
educational institution, or a person acting under the authority of one, to do any of the following acts for educational or training purposes in respect of a work or other subject-matter that is available through the Internet:
(a) reproduce it;
(b) communicate it to the public by telecommunication, if that public primarily consists of students of the educational institution or other persons acting under its authority;
(c) perform it in public, if that public primarily consists of students of the educational institution or other persons acting under its authority;

There are, of course, conditions. If one doesn’t give the source, and (if present in the source) omits to name the author, performer, maker or broadcaster, the exception does not apply. And this is good. Citation is a moral right and the backbone of academic practice. Teachers should model that behaviour.

Then comes the obedience to technological protection measures – the exception does not apply if the work, or the site from where it comes, is protected. This is not so good (teachers should still be able to apply fair dealing) but not surprising either.

And then:

(4) Subsection (1) does not permit a person to do any act described in that subsection in
respect of a work or other subject-matter if
… (b) a clearly visible notice — and not merely the copyright symbol — prohibiting that act is posted at the Internet site where the work or other subject-matter is posted or on the work or other subject-matter itself.

This seems to say that those who enjoy the open-ness of the Internet, can still choose to deny Canadian students from benefiting from that same open-ness. All that is needed is a notice indicating expectation of compensation. In which case, either Canadian teachers must leave the material alone or ensure compensation. Said another way, our choice is a hobbled Internet for Canadian students, or, the price of education rises.

A point that could be made is, this is the Internet – it has boundless opportunities. If some people do not wish to share, a multitude of others may fill their place. Those who choose to share should then be congratulated for their ethical stance, while Canadian school boards make payments to lesser individuals.

The more I think about this, the worse it gets. What will happen if the world realizes that there is money to be made from Canadian taxpayers, simply by labeling sites “do not use for educational purposes”? No technological protection measure is even needed. By virtue of national treatment, Canada would be obligated to render fees to foreign copyright holders, if their publicly available, non-locked, work was accessed against their wishes in a Canadian classroom.

As far as I am aware, no other nation has such a program in place, which means Canada will not enjoy any reciprocal fees when Canadian copyright holders’ works are accessed in foreign classrooms. And, even if such programs are in place, given Canada’s comparatively modest presence on the Internet, I foresee yet another deficit in cultural trade.

Was this clause deliberately included so that it could be jettisoned later as a display of compromise?

Publicly Available v. Fair Dealing

In Posts on August 25, 2009 at 8:13 pm

As I noted in my last post, asking for an exception to the law, to cover educational institutional use of publicly available material, poses risk to other Canadians and allows institutions to abrogate their responsibilities with respect to fair dealing. Furthermore, it narrows the possibilities of what can be done with materials obtained from the Internet. There are two issues entwined here.
1) When is fair dealing an option?
2) What might publicly available look like?

With respect to (1); just as copyright holders need not indicate the © to reserve their rights, a fair dealing enthusiast need not wait for an invitation to engage with a work. In the CCH Canadian ruling of 2004, the Supreme Court of Canada said, “Fair dealing is always available.”

It is inconsistent within our law to affirm copyright in a published work and simultaneously deny the possibility of fair dealing with that same work. At least for now…

Concerning (2); it would be prudent to consider what happened the last time an exception was requested for educational institutions. On the summary page of Bill C-61, Canadians were permitted:

(c) … certain uses for educational and research purposes of Internet and other digital technologies to facilitate technology-enhanced learning, interlibrary loans, the delivery of educational material and access to publicly available material on the Internet;

Paraphrasing from the exception:

30.04 (1)… it is not an infringement of copyright for an educational institution, or a person acting under the authority of one, to do any of the following acts for educational or training purposes in respect of a work or other subject-matter that is available through the Internet:
(a) To reproduce it;
(b) To communicate it to the public by telecommunication, if that public primarily consists of students of the educational institution or other persons acting under its authority;

But conditions were attached, and one was ingeniously crafted:

30.04 (4) Subsection (1) does not permit a person to do any act described in that subsection in respect of a work or other subject-matter if …:
a clearly visible notice … prohibiting that act is posted at the Internet site where the work or other subject-matter is posted or on the work or other subject-matter itself.

Meaning to say, all a copyright holder had to do to prohibit individuals within educational institutions from utilizing a work was to post such a notice with the work. In which case, legitimate applications of fair dealing would be voided simply because they happened in an educational institution. Mercifully, Bill C-61 did not come into being as Canadian law. If the exception had been implemented in this manner, then copyright holders would enjoy the privilege of copyright, while denying others the right of fair dealing.

Bill C-61, An Act to Amend the Copyright Act, Second Session, Thirty-ninth Parliament, House of Commons. Canada. 2008.