Imagine

Fair Dealing Week (Fair Use Week for others) is upon us – that one week among 52 where exceptions to copyright are afforded some spotlight. As maximalism dominates copyright’s public persona, reminding Canadians and others of the importance of exceptions within the system of copyright becomes increasingly important. 

My last post highlights how easy it is to cast aspersions on efforts to mitigate the costs that a maximalist approach to copyright imposes on a country. Uttering the words “Berne Convention” often chills, and can silence, debate. Such is the power of that first international treaty regarding protection of authorial works across nations. Against this reality, a recent article by T. Prashant Reddy and Vishal Rakhecha invites imagination and execution: “[India] must push for amendments to the Berne Convention that allow member states to introduce a registration requirement for publishers under their laws.” The authors explain their quest as critical towards achieving affordability for scientific and educational publications.

Amending the Berne Convention is no small task. But perhaps India and her 1.4 billion people, including an attractive commercial market larger than the populations of many so-called developed nations, might just have the clout to do so.

To be sure, it will be an uphill battle. The Berne Convention never aspired to be a means of encouraging learning or advancement of arts and sciences. Those early motivations, invoked in the Statute of Anne (1709) and the American Constitution (1789), sought to create systems of copyright that acknowledged the interaction and importance of both public wellbeing and individual benefit. But calls for international observance of foreign copyrights (the Imperial Copyright Act (1842), the Berne Convention (1886), and, modern IP treaties and bilateral agreements), focused on individual gain and market dominance.

Nineteenth century arguments for global uniformity of ever-increasing protection endure; dominant nations alternate between scolding others for a lack of civility and enticing them with unsubstantiated claims of future success for domestic authors and publishers operating in the weaker market. When those arguments did not succeed on their own merits in the nineteenth century, Imperial strong-arming followed, to the detriment of developing nations (Canada included, see here and here). Later, in twentieth century, a new version of the same story emerged as the United States wielded its Special 301 lists.

In International Copyright and Access to Knowledge (2016), Sara Bannerman shuns the popular narrative of copyright as a 300 year progressive expansion of authors’ rights; instead, she writes:

The history of international copyright can be seen, in some cases, as the erosion of the principles of access to knowledge. … The Berne Convention embeds and reinforces the substantive inequalities of the international system, enshrining rich countries and corporations, the primary producers of copyright works, as the main beneficiaries of international copyright … with few mechanisms to ensure that local public policy goals [of poorer countries] are met (p.3-5).

Bannerman shows the consistent narrowing of provisions meant to facilitate a freer flow of educational, scientific, and news content. And as the twentieth century unfolded, trepidation over exceptions and limitations defined within the Berne Convention, cast further doubts on nations’ abilities to exercise what are now recognized as user rights. With Canada at the brink of adding twenty years to its copyright term, those user rights—principle among them, fair dealing—become all the more vital.

To that end, Tanya Aplin and Lionel Bentley offer a more positive view of limitations as being supported by the Berne Convention—a view that encourages robust application of fair dealing or other domestic statutory exceptions. In Global Mandatory Fair Use (2020) they begin with an enticing prospect: “Imagine an international instrument that does not merely oblige [conferring] rights on copyright holders… but also mandates limitations. Imagine, too, that such an instrument requires parties to permit use of material that has been taken from from existing works, irrespective of the purpose of so doing, but only on the condition that the use is in accordance with fair practice (p.1).”

Aplin and Bentley then reveal that imagination is not required, as the instrument already exists—it is none other than Article 10 (1) of the Berne Convention: Certain Free Uses of Works.

With exceptional detail, the authors excavate the deeper history, meaning, and application of Article 10 (1). Their scholarship may well blunt the ease with which the Berne Convention is currently thrown up as an obstacle to reliance on exceptions. Interested readers may also enjoy Aplin and Bentley’s presentation and discussion, offered through the auspices of the Program for information Justice and Intellectual Property in late January. As to how their work may be supported and operationalized, with a nod to Emily Hudson, Aplin suggests that cultural institutions might be a place to start.

Hudson’s work, Drafting Copyright Exceptions (2020) details her exploration of environments of practice of exceptions in Australia, Canada, the United Kingdom and the United States during the early 2000s. Her Canadian focus begins in the years following our landmark decision CCH Canadian v. Law Society of Upper Canada (2004) and it’s re-introduction of the language of “rights” with respect to use in Canada. (It is worth remembering that in Canada’s first fair dealing case, Zamacois v. Douville (1943), the presiding judge emphasized the presence of user rights within the system of copyright, namely the right to quote. See here for some details.)

Noting the “muted” impact of CCH on Canadian institutions, a fact Hudson situates on our judicial and legislative histories, aided and abetted by the past dominance of collective management, she also draws attention to the uneven distribution of copyright knowledge and expertise across Canadian institutions. More than ten years after Hudson’s fieldwork, capacity building in Canada should remain a priority, particularly in light of the standards, guidelines and purported customs which permeate evaluation of use of copyright-protected work.

As stated at the outset, “fair practice” is the cornerstone on which fair dealing or other exceptions rest. Comprising, as Aplin and Bentley describe, “a plurality of considerations,” it is telling that the authors mention “custom and trade” among elements of fair practice but do so with some reservations. Referencing the work of both Kenneth Crews and Jennifer Rothman, Aplin and Bentley write:

… [Thus Crews is] highly dubious about the role of fair use guidelines and observes that the guidelines are not law, reflect a minimalistic view of fair use and risk fixing understandings of fair use and undermining its flexibility. [Similarly, Rothman] views using custom to evaluate ‘fairness’ as disadvantageous because of its tendency to be treated as a ceiling rather than a floor, in effect narrowing fair use. In Professor Rothman’s view, there can be a role for custom to play but it must be measured against a framework of factors: ‘the certainty of the custom, the motivation for the custom, the representativeness of the custom, how the custom is applied (both against whom and for what proposition), and the implications of the custom’s adoption’ (p.171-173).

Aplin and Bentley then suggest: “Customs that are ‘uniformly recognised and supported’, formulated as an ‘aspirational set of practices’ rather than as litigation avoidance techniques, are developed ‘with a diverse representation of interests’ and applied to those who participated in the custom generation or were represented in that process, should be given more weight.”

Imagine that.

misrepresentations

In 2008, as part of my doctoral research, I had surveyed university rules concerning use of copyright-protected materials by graduate students – to rather dreary results. CCH had not made any appreciable impact on institutional awareness of fair dealing; there was no sign of the “large and liberal interpretation” of fair dealing as was prescribed by a unanimous Supreme Court in 2004. Nor were institutions particularly moved by the Court’s reminder: “It may be relevant to consider the custom or practice in a particular trade or industry to determine whether or not the character of the dealing is fair (para 55).“ Higher education in Canada apparently had no qualms about cultivating permission as the practice among their following generations of researchers.

Bleak as those findings were twelve years ago, the situation looks worse now. Despite the continued development of fair dealing by our Courts (not by the Supreme Court alone but also through lower court decisions such as Warman (2012) and Blacklocks (2016), and Parliament’s continuing support for use and expansion of exceptions,* fair dealing is even further from a solid footing in Canada’s university sector. What may be most frustrating is that some institutions have devolved from a timidity with fair dealing, to an outright misrepresentation of it.

For instance, from the University of British Columbia:

When copying copyrighted works for use in a thesis, such copying is primarily for the purpose of research. As understood in the context of the fair dealing exception, the research purpose does not contemplate distribution to the public (i.e., publication of your research). 

Because the University requires you to submit your thesis to cIRcle (which, as mentioned above, means that it is published online) and also to submit your thesis to the Library and Archives Canada, the fair dealing exception is not available for use in your thesis. (Emphasis in the original.)

As most graduate students do not have a deep understanding of fair dealing or its history, they are only too prone to believe this diktat as truth. Even if they have such knowledge, being at the mercy of the institution means compliance is the likely outcome.

But as the stakes are too high to let such misrepresentation go unchallenged, I offer the following deconstruction:

When copying copyrighted works for use in a thesis, such copying is primarily for the purpose of research.

Two aspects of copying endemic to research have been conflated. The first is copying from reference materials in order to become knowledgeable about a subject in order to embark on a scholarly path of one’s choice. A student copying some material has a compelling claim to legitimacy through consideration of: what is or is not protected content, whether the copying was substantial, the research purpose of fair dealing, other exceptions, and, the fact that journals/ebooks are commonly licensed for use by institutions and expressly permit copying of some content by faculty, staff and students.

The second use concerns copying information in order to create something new. Creating a scholarly work often means invoking other works, sometimes through quotation, when the newer scholar wishes either to make a point or to refute one. This behaviour is akin to review or criticism, both are permissible uses under fair dealing. (And again, whether the excerpted words are even eligible for protection would come under consideration before one thinks about potential infringement.)

 As understood in the context of the fair dealing exception, the research purpose does not contemplate distribution to the public (i.e., publication of your research).

Research’s life blood lies in distribution. Findings kept to oneself do not propagate further work; the test of good research is whether it can withstand the scrutiny of one’s peers. And from that scrutiny, and acceptance or rejection, the discipline itself is perpetuated.

Fortunately, the system of copyright was, and is, equal to this task. The records from the negotiations that led to the Berne Convention (1886) reveal a fascinating discussion about unauthorized uses of scientific and educational materials.  As Sara Bannerman shows, at the outset, the Convention’s provisions placed scientific articles on the same footing as newspaper and periodical articles; meaning in the public domain! An author or publisher was required to claim their copyright in such works. Recognizing that existing bilateral agreements among various countries permitted the use of excerpts of scientific and educational matter, individual countries were afforded the right to establish such provisions in their domestic laws. And, it was revealed that the right of quotation was an active practice among several countries, even when it was not prescribed by domestic law. Perhaps most notable was that in France (the powerhouse of arts and science in those days), “…works of science or criticism made very extensive uses of the right to quotation (p.115).”

Closer in time and space, Canada’s implementation of fair dealing began through the Copyright Act of 1921, as copied from the U.K. Copyright Act of 1911.  That marked the first time that fair dealing was codified in English law. Thanks to Isabella Alexander and Ariel Katz, we know that the legislators of the day sought to create in fair dealing a flexible standard that encompassed existing unauthorized uses which were endemic to the publishing sector (such as printing excerpts as necessary for review) as well as provide the basis for other reasonable uses.

Because the University requires you to submit your thesis to cIRcle (which, as mentioned above, means that it is published online) and also to submit your thesis to the Library and Archives Canada, the fair dealing exception is not available for use in your thesis

I have previously drawn attention to David Vaver’s explanation that the tradition of making graduate student work available is not in conflict with fair dealing. While the conduit of such availability was previously the university’s library, the fact that institutional repositories are now the norm does not affect its legitimacy. Our Copyright Act is technologically neutral.

A colleague raised a concern that license agreements by which many institutions obtain research publications, might contain language prohibiting further republishing. In terms of students’ uses, we have no case-law on this matter and likely will not, as such a dispute would not be favorable to a vendor. Students are not party to the negotiations of the institutional license, raising doubts as to how binding that language can be. In terms of the broader question of contracts v. the Copyright Act—which one will prevail?—in Royal Trust v. Potash (1986) the Supreme Court ruled that with respect to a benefit enacted in the public interest, “the long standing rule against waiver or contracting out should apply (para 40).” Of particular relevance to this analysis, was the Court’s position that the long standing rule applied regardless of whether or not the statute gave explicit protection to the benefit.

Finally, if institutions are so uncomfortable with relying on the indeterminacy of fair dealing (although, again, if committee members have done their work, students’ uses will implicitly be legitimate), we should not forget the precision of S29.21 (NonCommercial User Generated Content), which expressly protects unauthorized use of content as it pertains to the creation of a new work in which copyright subsists. Section 29.21 is not without conditions, but the nature of what a thesis or dissertation is makes abiding by those conditions seamless to the student.

Regardless of which measures under the Copyright Act a student leans on, or where their work is stored, a categorical claim that fair dealing does not apply to the creation of a thesis or dissertation is demonstrably false. Students, like all Canadians, are governed by the Copyright Act and entitled to all the rights therein.

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* Among the purposes listed for amending the Copyright Act in 2012 was to “allow educators and students to make greater use of copyright material.” And at the completion of the Copyright Review in 2019, the Standing Committee for Industry, Science and Technology recommended fair dealing be amended such that its purposes served “as an illustrative list rather than an exhaustive one (p. 69).”

 

Update 17 March 2020
Am happy to report that I was informed that UBC has been working on revising their instructions to graduate students regarding fair dealing.

July 1 tidbits

(Yes, I know it is July 5. And many boxes are yet to be unpacked.)

Building a better understanding of fairness

Posted to InfoJustice.org, Jonathan Band and Deborah Goldman remind us that there is a sizeable body of case law concerning fair dealing and fair use for all to draw on. They write: “One of the arguments used by rights holders opposed to the adoption of open-ended fair use or fair dealing provisions outside of the United States is that those jurisdictions would lack a body of case law to guide judges, and it would take decades for such a body of case law to develop.” Band and Goldman contradict with a listing of the number of opinions available through online databases in many countries. To skeptics who scoff at the idea of global opinion gathering, I offer the reminder that even in the United States (the quantitative leader in case law), even when precedent seems to exist, a shift in context requires renewed thought. (The recent decision by the U.S. Supreme Court in Kirtsaeng v. Wiley stands out in this regard; my three-part coverage begins here.) It is unwise to limit possibilities solely by what exists as domestic precedent when more information is at hand.

That said, each country may very well apply its own cultural flavour and interpretation in its rulings. Law is as much a reflection of culture as art, music, language, food, etc. Each country has a history that shapes its own future. It is to everyone’s advantage to investigate how others confront the issue of fairness and then use the best that knowledge has to offer towards an independent decision. Canada’s progression to flexible, fair dealing has been a series of modest steps spanning a decade. (Some might say it is quintessentially Canadian). Moreover, when our Supreme Court passed its famed CCH Canadian decision, the court emulated some of the American framework for fair use but also saw fit to bring in safeguards to protect the viability of fair dealing against the then-American tendency to deny fair use when commercial considerations existed. (Detailed coverage of CCH Canadian coupled with American events can be found in my last two publications.)

In essence, a wider exploration only facilitates the understanding of fairness.

Better prospects ahead for Google Books

Also on July 1, the United States Second Circuit Court of Appeal expanded the scope of fairness by extending it to the proceedings itself. In the ongoing saga of Authors Guild et al v. Google Inc, the case was returned to the district court with an instruction: do the fair use analysis.

Google has long argued that its practice of scanning books and making limited portions available online is fair use.  At its last court room appearance in May 2013, Google appealed a district court decision of June 2012 which had stipulated that the Authors Guild could carry the case as a class action suit.  In their ruling on July 1, Circuit Judges Pierre Leval, Jose Cabranes and Barrington Parker stated:

[Google intends] to assert a “fair use defense”, which might moot the litigation. Google also claims that plaintiffs are unable to “fairly and adequately protect the interests of the class,” because many members of the class, perhaps even a majority, benefit from the Library Project and oppose plaintiffs efforts.  … Putting aside the merits of Google’s claim that plaintiffs are not representative of the certified class—an argument which, in our view, may carry some force—we believe that the resolution of Google’s fair use defense in the first instance will necessarily inform and perhaps moot our analysis of many class certification issues…

Kevin Smith, writing for Duke University, explains how vital it is that the class action status be set aside:

The process of litigating a class action is so complex and expensive that class action certification is often a signal to the defendant to settle the case.  The result is that, if a class is certified, there is much less chance that a full determination about fair use will ever be made … . It would be very unfortunate if the Google case never got to that stage.  By fighting off the class certification, Google has won for itself a better opportunity to make that argument.  And the precedent set by this decision is important, since it tells trial courts to consider fair use before they make the potentially destructive decision about class certification.  In many cases, and the Second Circuit suggests that this may be one of them, the complexity and cost of a class action might be entirely avoided because fair use would lead to a lawsuit being dismissed before it got that far.

[Smith favourably compares Google Books to HathiTrust and provides more information about the role of the Authors Guild. It is especially helpful for those of us unfamiliar with the players in the United States.]

With the road ahead cleared to argue the case on the merits and applicability of fair use, this case is poised as a definitive force in fair use dialogue. Mike Masnick’s coverage for Techdirt (the July 1 ruling, preceded by the May 8 oral arguments) encourage optimism.

As an aside, copyright enthusiasts may have honed in on the name “Leval.” Judge Leval is the author of the famed “Towards a Fair Use Standard” written in 1990 for Harvard Law Review. A telling point in his paper is:

I believe the answer to the question of justification turns primarily on whether, and to what extent, the challenged use is transformative. The use must be productive and must employ the quoted matter in a different manner or for a different purpose from the original.

While fair use continues to mature in its application, Leval offers a comfortable starting point for any analysis of fair use/fair dealing.

A befitting release date

Sara Bannerman announced the publication of her book The Struggle for Canadian Copyright. The paperback version was released on  July 1 – Canada Day – a befitting date. Congratulations Sara!

Letters and more letters…

After reading Michael Geist’s last blog entry, I thought I would look into the Balanced Copyright For Canadians site. The creators of the site give their intentions as:

This website was created to allow Canadian creators, artists and those whose jobs rely directly on being able to be paid for what they create to show their support for the newly-announced Copyright Modernization Act, or Bill C-32.

The home page provides commentary on the proposed changes to the Copyright Act. That is helpful, albeit the site organizers cherry pick the articles which support Bill C-32. But such is their prerogative. However, the site facilities are not transparent – one has to establish an account to actively engage. Which I just won’t do. So sorry – but I don’t like leaving a trail of personal information throughout cyberspace. Call me old-fashioned.

Michael Geist’s post includes samples of form letters provided by the site. These letters are to be sent, without alteration, to Members of Parliament. I wonder how effective such letters will be? A prior consultation gave consideration to that question, and placed a lesser emphasis upon such letters. Here’s a blast from the past…

In 2001, Canadians were invited to contribute to a national consultation on copyright. The Ministries of Industry and Canadian Heritage prepared An Overview of Submissions On the Consultation Paper on Digital Copyright Issues. Approximately 670 submissions were made, with an additional 60 reply comments posted. But the use of form letters was a challenge for government officials:

Approximately 234 seem to have been clearly identified with or closely modeled on a form letter provided by the Electronic Frontier Foundation. … these letters are only reflected in the following statistics where they elaborate on the substantive issues raised in the consultation documents (p.3).

Sara Bannerman had interviewed a senior policy analyst within the Federal Government on this matter; he said:

The people who didn’t change the form letter – we felt they couldn’t be included in that kind of statistic … since they didn’t engage with the issue – we couldn’t say exactly how they felt on it. So it wouldn’t be fair to that kind of computation to include [the form letters] in that area because they didn’t actually say what they felt … it wasn’t our place to interpret what they said.

[See Sara Bannerman, “Canadian Copyright Reform: Consulting with Copyright’s Changing Public,” in Intellectual Property Journal, Apr 2006; 19.2, p.287].

The Federal Government has posted some comments on the outcome of the 2009 consultation process at the other Balanced Copyright site. It would be helpful if a report to the level of detail found in 2001 is forthcoming.

Update April 28, 2011 – I replaced the url for the Overview document as the previous link no longer worked.