An ill-fitting solution

The furor over the inclusion of education to permissible categories of fair dealing continues. Several writers’ groups in Canada have issued a call to the Federal Government for legislative guidance in terms of fair dealing and its application in educational settings. Clarity is the desired outcome.

On the surface, clarity seems like a good idea. But this must be placed in terms of the situation at hand – fair dealing. If one considers the role that fair dealing plays in the system of copyright, it should become evident that clarity will only be achieved by reducing the viability of fair dealing.

Fair dealing operates in aid of creative effort and thus fair dealing is necessarily as indeterminate as creativity itself. Guidance is important, which was provided by the Supreme Court in 2004 through CCH Canadian. That guidance indicates that decisions of fair dealing must include consideration of commercial impact. This is not a theoretical exercise – our courts have already engaged in this kind of deliberation.

It may be helpful to remember that the United States grappled with similar concerns – Canada is not trying anything novel. William Patry’s work is invaluable; as I wrote before, the U.S. considered what degree of detail for fair use should be coded into the law. At that time, in response to criticism of fair use’s imprecision, came these remarks:

… the doctrine of fair use is reasonably definite. It is equally as definite as many legal criteria we employ … from day to day. There is no mathematical formula, for example, by which to determine what constitutes negligence, or by which to determine what a reasonably prudent man would do in a given circumstance, but courts and lawyers apply the principle of these legal doctrines all the time. … I think that our difficulties in this area do not stem from the absence of a statutory rule, but from an ignorance of the jurisprudence. A greater knowledge about the doctrine of fair use would allay many misconceptions… (John Schulmann quoted in Patry, p.262).

Unfortunately, greater knowledge is hampered by misinformation. An inaccurate editorial surfaced this week at the Toronto Star. It decries the inclusion of education as a permissible category of fair dealing and offers up the foreboding (and baseless) scenario that a Canadian schoolboard could make use of a single book for all its students. The intentions of the editorial seem noble, i.e. concern over the well-being of Canadian writers. However, that is a greater problem and not one well-served through the blanket regime of copyright.

Whatever proceeds are obtained through copyright licensing, they must be directed to all copyright holders – Canadian or otherwise. This is known as national treatment and is an international requirement. In terms of our current law, Section 5(1) of the Copyright Act describes the conditions for subsistence of copyright:

5(1) Subject to this Act, copyright shall subsist in Canada, for the term hereinafter mentioned, in every original literary, dramatic, musical and artistic work if any one of the following conditions is met:
(a) in the case of any work, whether published or unpublished, including a cinematographic work, the author was, at the date of the making of the work, a citizen or subject of, or a person ordinarily resident in, a treaty country;
…

Treaty countries include those who are party to the Berne Convention, a UCC country, or are a WTO member. While those countries will reciprocate and afford copyright protection to Canadians, it will only be to the level that is provided to their own nationals. And this invites comparison: do other programs offer comparable returns to what is collected in Canada? Which leads to further speculation: what does the trade imbalance look like? How much Canadian material is used outside of Canada, compared to the amount of foreign material used inside Canada?

However, for the sake of argument, let’s assume that all copyright proceeds are dedicated entirely to Canadian copyright holders. This still does not ensure that the funds will end up in the hands of the originating author. The contractual terms between authors and publishers will control the division of royalties. From the anecdotal evidence I have heard, contracts are not uniformly good contracts. (Although, I would appreciate hearing from writers themselves …)

If the objective is to serve Canadian writers, with a policy measure underwritten by Canadians en masse, copyright is not the appropriate instrument to use. Canadian writers would do far better with a program initiative that can be targeted to their needs.

Special to July 4th

For the last few months I was immersed in readings about Fair Use, hence last week’s reference to William Patry’s work. Today seems a good day to describe some of the thinking that went into codifying what eventually became Section 107 (Fair Use) within American copyright law.

In 1955, Congress began preparation for general revision of their copyright law (dated to 1909). Congress authorized a set of studies (thirty five were eventually completed and circulated) to investigate the problems related to copyright revision. Patry describes Study #14: Fair Use of Copyrighted Works (1958), by Alan Latman. Latman provided a comprehensive review of the theoretical bases for fair use together with case law, and went so far as to consider relevant foreign laws. He presented various options, including whether the provision should be introduced into statutory law and if so, should the doctrine be represented in general terms, with specific criteria, or address specific situations?

Nine copyright experts reviewed the Latman study with eight of the opinion that fair use should not be statutorily recognized. Patry writes:

Typical of the comments was that of Walter Derenberg: “I believe–and the Latman study seems to bear this out–that the term ‘fair use’ defies definition and that in the long run more would be accomplished if our courts would be entrusted with setting the outer limits of the doctrine as they have been under the Act of 1909.” (p.262).

Fast forwarding ahead, it was not until 1976 that the new copyright law was passed, and 1978 before it took effect. The Congressional reports of the day emphasize that the statutory recognition of of fair use was to “restate the present judicial doctrine of fair use, not to change, narrow, or enlarge it in anyway (quoted in Patry, p.414).” And the ‘judicial doctrine’ of the day, was predicated upon a multi-factor inquiry.

The final language of Section 107 emphasizes flexibility; it begins as:

Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include [the multiple factors of inquiry**]

The bolding is my own addition. Patry writes that the terms “including” and “such as” are defined within U.S. law as “illustrative and not limitative.” A legislative report of the day identifies that the flexibility was deliberate:

The bill endorses the purpose and general scope of the judicial doctrine of fair use, but there is no disposition to free the doctrine in the statute, especially during a period of rapid technological change (quoted in Patry, p.415).

What makes this period of history addedly interesting is that the deliberations about fair use were shaped by the advent of the photocopier.

** The multiple factors of inquiry have spawned legions of scholarship and debate … more to come another day.

Not so light reading

This week, the Minister of Canadian Heritage, James Moore, made some rather peculiar and disparaging remarks about copyright advocates who differ from his brand of thinking. NDP Heritage Critic Charlie Angus writes:

Moore needs to tone down the rhetoric and get down to the serious business of working with all stakeholders on amendments that will improve the legislation.

To that end, I offer up some not-so-light-but-extra-ordinarily-helpful-and-interesting reading: William Patry’s The Fair Use Privilege in Copyright Law. To say it is comprehensive is inadequate; it’s 544 pages in length. Patry takes his readers through every facet of fair use, beginning with its judicial and legislative origins.

Assuming Minister Moore allows for discussion and debate upon fair dealing, the question will arise as to the viability of making it more flexible. It has been argued that Canada is following in the footsteps of fair use. This may be true in terms of the letter of the law, but it remains that interpretation will take its form from Canadian events. Nevertheless, the two regimes share a common antecedent. Canadian policy makers could benefit from knowing where the principle behind copyright exceptions came from.

Patry’s opening sentences are as applicable to Canada as they are to the United States:

Unlike Athena, the doctrine of fair use did not spring forth full formed. Yet, while the scope of its application and contours of its features were filled in gradually, still the basic foundation and rationale were established remarkably early (p.3).

So what was the origin of the debate we are having today? Well, as I indicated here, the roots of fair dealing/use are in an early English doctrine of fair abridgment. But Patry sheds more light on the rationale of the English Court in 1740:

The right to make a fair abridgment was judicially created out of fear that the benefit from otherwise infringing works, which depended upon the use of the original work, would be lost (p.7).

If the Federal Government is committed to using fair dealing as a means of encouraging future creativity, C-32’s stance on technological protection measures defeats that commitment. But, the fact that parody, satire and education were proposed as allowable purposes for fair dealing suggests that the commitment was real. For now, I’ll dwell on that, and less on the uncomfortable sight of a Canadian cabinet minister debasing one of the fundamental tenets of civil society – the right to disagree.