things to read

Two new volumes relating to intellectual property are now available.

1) The United States’ annual Special 301 report, a charade of evaluation of intellectual property enforcement, was released on May 1. (As I have written before, this process has no international validity.) For those interested, in this year’s report Canada has moved up one level on the scale of American disgrace; we are on the  “Watch List” instead of our previous standing of “Priority Watch List.”

The American government is pleased with Canada’s Copyright Modernization Act (replete as it was with protection from circumvention of digital locks) and the introduction of legislation “to strengthen IPR enforcement, which included provisions that would provide ex officio authority to Canadian customs officials to seize pirated and counterfeit goods at the border (p.46)”. However, concerns still exist with respect to Canadian patenting practices, including “the impact of the heightened utility requirements for patents that Canadian courts have been adopting recently (p.46).” (I wrote about our courts’ reluctance to uphold a patent that did not live up to expectations; see here.)

2) Much more interesting is the release of a new book by University of Ottawa Press. The Copyright Pentalogy: How the Supreme Court of Canada Shook the Foundations of Canadian Copyright Law is available for purchase and for free download via a Creative Commons license. Michael Geist served as editor; he envisioned the collection and ensured its realization. The book features Geist’s work along with contributions from thirteen other scholars, including me (see here for some details). It was a pleasure to participate in such a well-executed project. Congratulations must go to Geist and his entire team of students, editors, reviewers and the staff at University of Ottawa Press.

thank you Madame Abella

A week has passed since our Supreme Court issued five decisions concerning copyright in the analog and digital age. The commentary is fascinating; see Howard Knopf here, Bob Tarentino here, and ongoing, detailed coverage from Michael Geist here.  In his posting today, Geist emphasizes that the long-term prospects for Canada are very good: (i) The language of user rights is not merely a conceptual term; it is a robust principle which will affect all future examinations of copyright. (ii) The Copyright Act must be read as technologically neutral; developments in technology cannot be assumed as sufficient reason to extract added licensing fees from people. (iii) Fair dealing is positioned for continued growth via the Court’s support of the “large and liberal interpretation” first enunciated in CCH Canadian.

To which I would add one more note of satisfaction. In Alberta (Education) v. Canadian Copyright Licensing Agency (Access Copyright),  the Supreme Court reminded Canadians that libraries were places where students and teachers may access and copy work germane to the pursuit of education. It borders on the absurd that we should need such a reminder but, as I wrote a year ago, AUCC’s copyright and fair dealing policies include an edict that material placed on reserve should not serve as a substitute for purchased copies. To which my question was, “What is the purpose then of library reserves, or indeed libraries in general?

The decision penned by Madame Abella debunks any idea that libraries should not serve as a source for required readings. In Education v. Access Copyright the material under consideration was quite specific: “… copies of works made at the teachers’ initiative with instructions to students that they read the material. Teachers would photocopy short excerpts from textbooks and distribute those copies to  students as a complement to the main textbook … (para. 7).” Clearly, if students are instructed to read the material, it could not be described as optional. To the suggestion that schools purchase individual copies of all copyrighted material for all students, Madame Abella was quite direct:

In my view, buying books for each student is not a realistic alternative to teachers copying short excerpts to supplement student textbooks.  First, the schools have already purchased originals that are kept in the class or library, from which the teachers make copies.  The teacher merely facilitates wider access to this limited number of texts by making copies available to all students who need them.  In addition, purchasing a greater number of original textbooks to distribute to students is unreasonable in light of the Board’s finding that teachers only photocopy short excerpts to complement existing textbooks.  Under the Board’s approach, schools would be required to buy sufficient copies for every student of every text, magazine and newspaper in Access Copyright’s repertoire that is relied on by a teacher.  This is a demonstrably unrealistic outcome.  Copying short excerpts, as a result, is reasonably necessary to achieve the ultimate purpose of the students’ research and private study (para. 32 – emphasis mine.)

Following the multi-facetted guidance set by CCH Canadian, Madame Abella deemed such copying as fair dealing. The entire decision is well worth reading; a legacy point is:

It seems to me to be axiomatic that most students lack the expertise to find or request the materials required for their own research and private study, and rely on the guidance of their teachers.  They study what they are told to study, and the teacher’s purpose in providing copies is to enable the students to have the material they need for the purpose of studying.  The teacher/copier therefore shares a symbiotic purpose with the student/user who is engaging in research or private study.  Instruction and research/private study are, in the school context, tautological (para.23).

By requiring that the conduct of copier and end-recipient be examined together, this Court is ensuring that fair dealing be as malleable as possible to address situations as of yet unknown.

Again, it must be emphasized that the Court was examining the copying of excerpts of additional material used by teachers. Fair dealing is not license to copy entire textbooks for an ulterior motive of profitable mass distribution, and in no way can this decision be read as such. But it ought to be clear to AUCC, and the post-secondary community at large, that libraries should be allowed to function as per their central purpose — to facilitate widespread access to legitimately acquired material.

good news

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.

domestic dispute and international obligation

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.

References

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.