new chapters

The title is literal in a many ways – September marks the start of the new academic year which means it is a time to set research and teaching in motion. This year I have taken up residency in Israel as an Azrieli Postdoctoral International Scholar at the Hebrew University of Jerusalem. Moving is always daunting, moving across continents and cultures even more so. D, supportive as always, is in tow and has taken the challenge of a year overseas in stride. (My thanks to her school crowd who faithfully stay in touch.) As we settle into our home-away-from-home, I look forward to my comparative study of Canadian and Israeli copyright development.

My project had been articulated with a sense that Canada’s fair dealing effort had stalled; hence the desire to look for more hospitable environments elsewhere. Israel may still prove to be that place. But, in July, our Supreme Court “stood up for fair dealing” and I hope to watch fair dealing thrive in Canada, albeit from afar. The Day of Five could indeed mark a new chapter in Canada’s own copyright development. As Michael Geist writes, the next steps will come from educational institutions. Perhaps those institutions that sat quietly in the wake of CCH Canadian are ready to stand up now.

In the meantime, I have finally updated my page on Notable Supreme Court Decisions.

New chapters are forthcoming on the research side. January–August were productive months in terms of a textbook chapter and a paper. Both will be posted as soon as the final versions are ready.

And now back to unpacking, shopping, figuring out the bus system…

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.

Second Reading – the day after

Bill C-32 had its second reading yesterday; Michael Geist gives the details. The campaign of misinformation concerning the inclusion of “education” to fair dealing is leaving its mark. This is disappointing, but not surprising given the deficit position fair dealing sat in before Bill C-32 was unveiled. Despite the viability of fair dealing as a measured response to the perennial calls for balance in copyright, and the lessons that can be drawn from the lengthy history of American experiences with fair use (see my chapter in From “Radical Extremism” to “Balanced Copyright”, free download available), the mere mention of education as fair dealing brings out the worst fears of Canadian writers.

Where fear may be understandable is if a change to the status quo introduced greater uncertainty. This is not the case with Bill C-32; the degree of uncertainty remains the same. That is probably not very comforting to some quarters. However, as I have noted earlier, a decision issued by the Federal Court of Appeal this past summer should reassure people that fair dealing is not a thinly disguised vehicle for theft. In that dispute concerning fair dealing and photocopying in the K-12 sector, the majority of photocopying conducted was held as subject to fees. Those in charge of copyright collectives could have alleviated the fears of their members by emphasizing this decision.

Interestingly so, that case proceeded upon the existing categories of fair dealing – confined as they are to private study, research, criticism, review and news reporting. Thus even without “education” the question of educational use as fair dealing can still arise. Which might induce the question: why bother then? If legitimate fair dealing occurs in educational institutions, then defend it under its existing language.

The challenge is that fair dealing is not actively used. And this is to the detriment of Canadian creators. Not merely for the access that fair dealing can support, but for the heightened awareness it imposes for responsible copying. When educational institutions favour stock-license agreements, there is little impetus for individual players to understand the issues at hand.

The merit of including education in fair dealing will ultimately be a better understanding of copyright throughout Canada. The necessary first step is to bring teachers closer to the discussion. That cannot happen when teachers are obliged to sit passively within the arcane strictures of institutional exceptions and the narrow repertoire available through copyright collectives. Whereas if teachers are given greater freedom in their choice of resources, presented with the Supreme Court CCH Canadian framework, and encouraged to probe the decision of fair or unfair, they become conduits of informed copyright decision making.

In the long term this benefits Canadians who aspire to be writers, musicians, artists and want to prosper in the world of the information commodity. Will it be easy? Probably not; achieving anything worthwhile is rarely easy. But encouraging Canadian teachers and students to understand the law – that copyright is a system of rights and duties – facilitates better observance of the law.

No doubt some people (including creators, teachers, students and administrators) will long for a neat-and-tidy, easy-to-follow rule. But creativity is not neat and tidy, and so deliberate thought upon every decision to copy is the duty that civil society demands of its citizens. Moreover, the duty of deliberate thought is not unique to copyright, and our Supreme Court continues to remind us of that.

Two weeks ago, our High Court spoke to the issue of confidentiality within investigative journalism in Globe and Mail v. Canada (Attorney General), 2010 SCC 41. The case is well worth reading; briefly, the judgment made clear that there can be no set rule defining when confidentiality reigns or can be broached. Decisions must proceed on a case-by-case basis. However, writing for the court, Justice LeBel laid out four questions to be addressed before a journalist is compelled to reveal his or her source. As the four questions have their roots in common law (the Wigmore factors), Justice LeBel took care to ensure that the framework is feasible to Canada’s bijural legal regime. The message was clear, that the framework should accommodate disputes as of yet unknown: “It is also sufficiently flexible to take into account the variety of interests that may arise in any particular case.”

The Supreme Court Justices recognize that the non-uniformity of life requires flexibility in law; one can only hope that the Federal Government does the same.