Meera Nair

Posts Tagged ‘fair dealing’

Feb 23-27, celebrating fair dealing

In Posts on February 19, 2015 at 9:23 pm

February 23-27 marks Fair Use Week in the United States, and thus by association, Fair Dealing Week for other jurisdictions. The Association of Research Libraries (ARL) is promoting a community celebration of these limits upon copyright that enable the system of copyright to live up to its mandate to promote creativity, advance knowledge and bolster innovation, and reap just rewards not only for the creators involved but for the creators yet to come as well. ARL pays particular attention to Canada: “… in Canada, fair dealing is a critical right of the user intended to facilitate balance in copyright law and accommodate freedom of expression.”

Readers may remember that user rights gained prominence in Canada in 2004, via CCH Canadian. Writing for the Supreme Court of Canada, in a decision supported with unanimity, Chief Justice Beverley McLachlin states:

The fair dealing exception, like other exceptions in the Copyright Act, is a user’s right. In order to maintain the proper balance between the rights of a copyright owner and users’ interests, it must not be interpreted restrictively (para.48).

The Supreme Court has consistently reminded Canadians that copyright is a set of limited rights, and that those limits are critical to the proper functioning of the system as a whole. Yet, even after 11 years of well-articulated, thoughtful reminders, it remains that copyright is often perceived as a measure of absolute control. Such perception is cultivated perhaps unintentionally by people/organizations who have a genuine desire to behave in a law-abiding manner and thus restrict behaviour that need not be restricted. With time, we may hope that such misunderstanding will subside. More potent and damaging is the conduct of members within the publishing community who actively promote misinformation.

For instance, consider the following notice that graces the frontmatter of far too many books:

All rights reserved. No part of this publication may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopying, recording, or any information storage and retrieval system, without permission in writing from the publisher.

If one unpacks this passage, the first sentence is correct. All the rights offered within copyright law have been reserved to the benefit of the copyright holder. At this juncture though, one should remember that extensive as those rights are, copyright holders are not permitted the right to refuse exceptions defined within the same law.  Copyright holders cannot pick the parts of the Copyright Act they wish to accept, and the parts which are to be dispensed with. But the sentence that follows in the passage tries to do exactly that; it categorically denies unauthorized use, despite the fact that fair dealing, fair use, and a host of other exceptions, can allow reproduction and transmission, by whatever means, without the consent of the publisher.


Update – February 28, 2015

Fair Dealing / Fair Use week sparked an outpouring of dialogue about our exceptions for unauthorized use. My favorite was Jonathan Band’s description of the many sightings of fair use in the daily life of a legislative assistant.

And, it was with great pleasure that I contributed the following posts to Harvard Library and the Office for Scholarly Communication, and University of Toronto Scholarly Communications and Copyright Office. My thanks to Kyle Courtney and Daniela Cancilla for the invitations to participate with their respective universities.

North of 49, posted February 24, 2015: “The proximity of the United States to Canada occasionally leads to some confusion north of the 49th parallel; in common parlance, fair use eclipses fair dealing. I cannot resist reminding others: we are Canadian; our exception is fair dealing. Yet it is only appropriate to also say that Canada has benefited greatly by American fair use. From our vantage point, we were able to appreciate the opportunity provided by flexibility in the language of exceptions, suffer the worst of fair use’s growing pains by proxy, and step ahead of such pain in our own development of exceptions.” To read more, see link or pdf.

Fair Dealing: Protector of the Public Domain, posted February 27, 2015“This past week marked Fair Dealing / Fair Use Week 2015. It was pleasing to see many Canadians within the educational community taking interest in our system of copyright. But, I confess to some disappointment that this interest should have blossomed only belatedly – after 2012. True, in that year the Copyright Act was revised with increased scope given to exceptional uses of copyrighted material. Also true, in 2012 the Supreme Court handed down two more decisions emphasizing the merits of fair dealing. But we cannot lose sight of the fact those decisions were based upon our previous Act which did not include any provision for “education.”  or can we forget our Court began speaking to the importance of fair dealing a full decade earlier, emphasizing that fair dealing is our mode of entry into the public domain.” To read more, see link or pdf.

good news

In Posts on July 12, 2012 at 10:34 am

The Supreme Court of Canada continues to probe the nuance of fair dealing with good judgement.  Michael Geist provides a detailed synopsis of today’s announcements; beginning with these remarks:

Led by Justice Abella, the court has reaffirmed that fair dealing is a user’s right that must be interpreted in a broad and liberal manner. In fact, the court provides further guidance on interpreting fair dealing with an emphasis on the need for a flexible, technology-neutral approach. In reading the decisions in the Access Copyright and song previews cases, it is hard to imagine a bigger victory for education, Internet users, and innovative companies…

Via the Toronto Star, Laura Murray (co-author of Canadian Copyright — A Citizen’s Guide) emphasized that the court’s ruling, “restores a measure of common sense to copyright debate.”

More to follow another day.

Nice News On The Fair Dealing Front

In Posts on May 15, 2010 at 10:24 am

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

In Posts on January 12, 2010 at 3:31 pm

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.

As you wish Mr. Zukofsky,

In Posts on October 24, 2009 at 9:15 pm

Dear Mr. Zukofsky,

I read with interest your copyright notice of 17 September 2009, concerning the works of your father. A doctoral student brought it to my attention, asking for more information regarding copyright law. Please be assured that I will do my utmost to discourage students from exploring your father’s work. As you point out, they would do better to find a topic where a lawsuit or invoice does not appear imminent at every turn. Unless students have adequate resources, and a commitment of support from their institution, it would be unconscionable to send them into harm’s way.

However, I am concerned that students may interpret your position as an accurate reading of the law. It is not. For their benefit I would like to clarify some general points.

I must start by saying I am a citizen and resident of Canada. Within our Copyright Act, we have an exception called “Fair Dealing” which is similar to Fair Use, but not the same. So, I will frame my remarks along the general idea of exceptions to copyright, as well as specific Canadian cases.

1) Copyright is not, nor has it ever been, a grant of absolute control. There has always remained a space for some good-faith productive uses of a work, while that same work is still protected through the term of copyright. These uses are facilitated through statutory exceptions to copyright, i.e. Fair Use and Fair Dealing.

2) Fair Use in the United States allows for some uses such as criticism, comment, research, etc. Encoded into the law is the requirement that an assessment of Fair Use take into consideration the following factors: the purpose and character of the use, the nature of the copyrighted work, the amount copied, and the effect upon the potential market. On some occasions, strong consideration has been given to the last element, the effect upon a potential market. This is troubling; if by virtue of using an extract of a work, it is inferred that a market could have existed, fair use becomes fairly useless.

Professor Giusepina D’Agostino of Osgoode Hall Law School gives a thorough comparison of Canadian Fair Dealing to the corresponding U.S. and U.K. exceptions to copyright, see “Healing Fair Dealing: A Comparative Copyright Analysis of Canadian Fair Dealing to UK Fair Dealing and US Fair use.” McGill Law Journal 53 (2).

3) As mentioned, Canada operates with Fair Dealing, which is narrower than Fair Use. Our list of permissible uses is explicitly confined to: private study, research, criticism, review and news reporting, with some requirements of citation. For myself, I prefer fair dealing in part because its more modest allowance gives it credence in mediating between creators’ needs. By “creators” I mean both the original creator and the new creator. While Fair Dealing did not do well in Canadian courts through much of the 20th century, a more nuanced interpretation appeared in 1997 in Allen v. Toronto Star Newspapers Ltd. And, within a series of notable decisions, in 2004 a unanimous Canadian Supreme Court supported the merits of fair dealing.

In this decision, known as CCH Canadian, the Court stated that determining fair dealing is always a matter of context. And while emphasizing that fair dealing was not permission to copy at will and without restriction, they instructed that “Research should be given a large and liberal interpretation.” Emulating U.S. law, the Court laid out a framework for determining if a dealing is fair, with an important distinction: “The availability of license is not relevant to deciding whether a dealing has been fair.”

4) As I said at the start, copyright is not a realm of absolute control. Whatever the expansion of its depth and breadth, those changes do not enter into law simply via the whim of an individual copyright holder. No-one can assume unto himself the right to enact or affect statutory law. Be it good, bad or indifferent, any change to our copyright law will occur at the behest of the Parliament of Canada.

Mr Zukofsky, I would like to say again, I will not encourage students to include material written by your father in their dissertations. It is regrettable that a body of literature cannot be explored at this time, but I will turn to Franz Kafka’s words concerning his character Josephine, “She’s merely a small episode in the never ending saga of our folk, a bit of history, and we’ll be able to rise above our loss, our folk shall continue on.”

Meera Nair, Ph.D.

More re: Consultations

In Posts on July 31, 2009 at 9:02 pm

Laura Murray has posted her contribution to the recent Ottawa roundtable concerning revisions of the Copyright Act. (Thank you Laura.) I share her concern that fair dealing’s usefulness will be eradicated if implicated within licensing programs. As it is, the academic community tends to bestow more rights upon copyright owners than the law actually provides.

For various reasons, there is a presumption that use of copyrighted material relies on permission from the copyright holder. Past efforts to protest have been met with indignation, and academic representatives were seen as wanting everything for free. I have written on this issue before, with respect to the consultations of 2004:

…a frequent theme of discussion was that manufacturers of tables, chairs, and software are not asked to give away their work for free, so why should creators be requested to do so? Lost in the argument was the fact that no-one had asked creators to make their work available for free, instead, free work was asked to be made available—that existing free rights of access to copyrighted work should be respected and protected.

[I know, pretty shameless to cite my own paper…]

I hope the efforts of Laura and many others come to fruition, and that fair dealing receives the support of the Federal Government of Canada. But to what extent will the academic community, as a whole, utilize fair dealing? The palpable unwillingness to engage with fair dealing as it is currently available is alternately puzzling and disturbing. Particularly in light of the strong support provided to fair dealing by the Supreme Court of Canada.

In 2004, through what has come to be known as CCH Canadian , fair dealing was unanimously declared as integral to the system of copyright as a whole. This despite the fact that “It is impossible to define fair dealing.” Aware of the challenge this poses, the Supreme Court Justices provided Canadians with a cogent and astute framework to guide use of copyrighted work in a manner consistent with fair dealing. Yet in the years since, only one academic body has promoted CCH Canadian. In December 2008, the Canadian Association of University Teachers (CAUT) issued an Intellectual Property Advisory, explaining the case, its nuances, the framework, and appropriate use of the framework in academic institutions.

Apart from the broader constituency of Canadians as a whole, the academic community is the largest stakeholder in Canada which benefits by fair dealing. Students, teachers, researchers, and administrators all rely upon this modest measure of unauthorized reproduction. Given that the Supreme Court Justices also noted the “relevance of a custom or practice of a particular trade or industry” upon a decision of fair dealing, fair dealing’s legitimacy within academia rests upon academic engagement.

And, until I write a complete resource page for CCH Canadian, here are some references:
CCH Canadian Ltd. v. Law Society of Upper Canada, 2004 SCC 13.
Canadian Association of University Teachers. (December 2008) Fair Dealing. Intellectual Property Advisory, No.3.

Copyright Consultations

In Uncategorized on July 20, 2009 at 9:43 am

I have to deviate from my intentions for this blog, with a brief news update.  Once again, Canada is embarking on the road to change for our Copyright Act. Consultations begin today, in Vancouver, and will make their way across the country over the next two months. Althia Raj of the Winnipeg Sun reports that the Federal Government is looking to pass this legislation before 2010. This timetable may be a little ambitious.

Canadians are fortunate that (so far) our Copyright Act has not changed solely as a heated reaction to the phenomenon of file sharing. The last major revision of the Act occurred in 1997. With a combination of luck and reticence, the digital environment was left alone to take shape through both market and non-market activity. The possibilities and pitfalls of new technology coupled with world-wide connectivity have become clearer; time has allowed for a more measured evaluation. Recent comments from Heritage Minister James Moore and Industry Minister Tony Clement at the Digital Economy Conference suggest that the Federal Government will look to the future, and not to the past, as amendments are considered. Thank you to both Ministers.

But, if I may offer up my wish-list, I hope Ministers Moore and Clement will give their unequivocal support for fair dealing. Our Copyright Act is deemed to offer encouragement for creative effort, and, respect for creators. Fair dealing is the only measure within the Act that actually supports creativity.

Getting Started

In Posts on July 8, 2009 at 9:46 pm

As I envision it, this blog could serve as a source of information for those who are new to copyright, or, new to the principle of fair duty. The root of both topics lies in the awareness that copyright is not a grant of absolute control. Copyright provides some rights of control, to a copyright owner, accompanied by a duty to share with all creators. This duty is the measure of Fair Dealing.

Briefly, Fair Dealing permits some good-faith, productive uses of copyrighted material without authorization from the copyright holder. It is not an invitation to copy without restriction. It is a modest measure, but it ensures that the system of copyright which theoretically exists to protect creative people, and creative work, does not stifle creativity itself.

Paraphrasing from the Copyright Act:

3.1 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…
5.1 … copyright shall subsist in Canada, for the term hereinafter mentioned, in every original literary, dramatic, musical and artistic work
27.1 It is an infringement of copyright for any person to do, without the consent of the owner of the copyright, anything that by this Act only the owner of the copyright has the right to do.

29. Fair dealing for the purpose of research or private study does not infringe copyright.
29.1 Fair dealing for the purpose of criticism or review does not infringe copyright if [attribution is] mentioned.
29.2 Fair dealing for the purpose of news reporting does not infringe copyright if [attribution is] mentioned.

It is inconsistent within the law to affirm copyright in a work, and simultaneously deny the possibility of Fair Dealing in that same work. As to how to make an assessment of fair dealing, that’s for another day. For now, if you are a student, teacher, librarian, artist, musician, photographer, writer, anyone with creative talent, just keep doing what you’re doing.


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