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 unauthorized exceptions. 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.