Today Public Knowledge is sponsoring World's Fair Use Day, described as a day to celebrate the doctrine of fair use and the benefits it brings to creators, innovators, and consumers. As many readers will know, Canada does not have a fair use provision but rather one called fair dealing. Given the focus on fair use, it is worth considering both the breadth of fair dealing in Canada as well as its limits. For those supportive of fair dealing, the good news is that the Supreme Court of Canada has ruled that it is a user right. In CCH Canadian v. Law Society of Upper Canada, a unanimous court ruled:
Before reviewing the scope of the fair dealing exception under the Copyright Act, it is important to clarify some general considerations about exceptions to copyright infringement. Procedurally, a defendant is required to prove that his or her dealing with a work has been fair; however, the fair dealing exception is perhaps more properly understood as an integral part of the Copyright Act than simply a defence. Any act falling within the fair dealing exception will not be an infringement of copyright. 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.
Treating fair dealing as a user right was a crucially important milestone that breathed new relevance into the provision. However, fair dealing only applies to a limited list of categories, namely research, private study, news reporting, criticism, and review. While this list can be interpreted broadly (ie. the Copyright Board treated song samples as consumer research), there are still many common activities that are not strictly permitted under Canadian copyright law:
- For creators, this means no protection for parody or satire.
- For educators, this means no protection for teaching.
- For innovators, it means no protection for many innovative business models and new technologies.
- For archivers, it means limited protection for digitization.
- For consumers, it means no protection for recording television shows, backing up a DVD, format shifting from a DVD to video player, or transferring music from a CD to an iPod.
These limits should not be underestimated as they unquestionably have a stagnating effect on innovation, a chilling impact on creators, and create uncertainty for consumers, students, and businesses. So as we celebrate the breadth of fair use (dealing), let's not forget that reform is needed to ensure that the benefits of a balanced fair dealing provision accrue to all.
Private vs for profit
As I understand the “fair dealing” provisions, they are set up to facilitate private and not-for-profit uses. We do have, effectively, protection for consumers as described above, although it is not enshrined in the Copyright Act.
For the other uses, it is greyer. The parody/satire protection should be enabled.
For innovators, there is also patent protection available, and used. There are “high-tech” companies that exist solely as patent holding companies.
Now, for educators and archivers. At this point we are bordering on the “for-profit” realm, and is open to much more discussion. In theory an archiver is going to create one or two copies of a work for safe keeping, in the same way as an individual would. For an educator, on the other hand, a large number of copies of a protected work may be generated. The reason that I include both of these uses under “for-profit” is that in general this work is done either to generate revenue for the organization, or to save revenue. As such it is more difficult to justify that those protections are needed.
In the case of the educators, the argument can be made that an exception is in the public interest as it saves the students money, allowing more students to get post-secondary education. The latter part of that statement is true, but, is it in fact in the public interest to have more people with post-secondary education, or is it better described as in the educational institution’s, and educator’s, interest? This is not exactly an objective opinion, does McDonalds need more servers with a MA in liberal arts? And frankly, does anyone really expect the student to destroy the copied materials and buy originals when they go out into the real world? This has to enter into the consideration, as this is a real lost-sale.
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A good example of fair use is The Daily Show. The program couldn’t exist without the ability to play short clips from news programs. Yet it’s this basic principle which is being eroded away thanks to laws favoring big content and DRM.
Creating Copyright Legislation that Supports Media Literacy
An essay with this title was submitted to the copyright consultations on behalf of media educators. It argues for a broad interpretation of fair dealing in order to enable media literacy education in schools. It also argues against the adoption of American style DMCA regulations.
You can read this short essay at
http://www.facetofacemedia.ca/page.php?sectionID=3&pageID=86
An excerpt is found below.
In our experience media producers, teachers and educational institutions in Canada are wary of exercising their right to utilize media materials for critical study and review for fear of transgressing copyright laws. They also frequently face cumbersome and restrictive institutional guidelines that have been framed out of caution and concern about potential lawsuits or injunctions.
The situation in the United States is noticeably different. There, by utilizing the broader, more clearly stated and more expansive provisions of the US copyright legislation governing Fair Use, educators and producers have created Codes of Best Practices for use by documentary film producers and by educators. This allows both teachers and producers a high degree of confidence that they are exercising their rights on behalf of their students and institutions and stimulates the use of media materials in the classroom. This more robust approach creates a more dynamic environment for media education and reflects a better balance between the competing needs of copyright holders (and creators generally) and educators.[2] It also brings more relevant and timely material into the classroom.
The prevailing atmosphere of confusion and uncertainty in Canada, by contrast, creates a chilling effect on use of media materials in the classroom. Both teachers and producers of classroom resources are reluctant to use the provisions of the current copyright act for fear of sharp letters from lawyers threatening litigation or stern memos from their school administration.
Before the Code of Best Practices was created in the United States, a similar fog of worry and confusion surrounded the question of copyright. As summarized by the Center for Social Media, this confusion is costly.
read the full essay at http://www.facetofacemedia.ca/page.php?sectionID=3&pageID=86
I have to disagree with Anon-K about educational use of copyright material representing ‘a real lost-sale.’ Classroom use of a work would be more along the lines of copying a chapter of a book for a reading comprehension test, or copying of a newspaper article for a current events discussion.
Would a student purchase an entire book just to have access to one chapter? I’d have to say probably not. Would the student purchase an entire newspaper to read one article? Maybe. It might not be possible to purchase the newspaper considering that the article might well be a week old before the teacher creates an assignment around it, and may well no longer be easily available.
The entire idea of each copy being lost sale seems to be put forward without any supporting evidence whatsoever. I can point to book authors and musicians who have reported that sales increased when the same material was made available for free on the internet. There are several studies out showing that downloading material from the internet either does not harm, or increases sales of the same material. The evidence seems to indicate that equating copying with lost sales is a fallacy, and anything based on that fallacy is more than likely going to be simply wrong.
@Kelly Gray
Within the context of primary and secondary education, I definitely agree with you. My comment was in the context of post-secondary education, in particular with respect to textbooks. In this situation, agreed it is not a guaranteed lost sale (it was not my intention to indicate that it guaranteed one), the lost sale is dependent on a couple of factors:
1) How much of the text was copied and is held by the student. The more that was copied, the more likely that the former student wouldn’t buy the book, since they already have the info.
2) The state of the copy itself. The worse the shape that the copy is in (physically or to the quality of the copy), the more likely it is that the student would be willing to purchase a clean, complete copy of the text.
Remember, I am talking about college and university level texts here. Books that are on the order of $60 – $125 per copy retail (for instance, I purchased a copy of “The C++ Programming Language” in 1997 for $79.18 after taxes, very necessary for what I do professionally but not tax deductible… overall I have purchased about $1000 in texts between work and home). I suspect we may have been talking about two similar, but different, things.
Existing evidence fair use won’t work in Canada
I trust that at some point you will expansively discuss the evidence tendered that fair use in Canada wouldn’t work. I know it disproves your argument, but if your argument holds water you should be able to defend it.
@Anon-K
I suspect we are indeed talking about two different things.
Wholesale copying of textbooks is a non issue. No post secondary educational institution would copy textbooks to give to students even if the law permitted it. The reason is simple economics. Copying books costs money, money the institutions simply do not have. Copying textbooks to sell to students is still copying for sale, and therefore would not fall under any educational exemptions. The cases of textbook copying that hit the news in Toronto last year did not involve the educational institutions, but rather involved businesses near those institutions copying for profit.
Keep in mind that education is much more than post secondary. The entire post secondary educational system occupies maybe a third of the population for four years, and a much smaller percentage for a few years more. A significant percentage of this being paid for by the students. Elementary and secondary education occupies all of the population for a minimum of ten years, and more likely twelve. All of this is paid for by taxes. The elementary and secondary education systems are where an educational exemption is most needed, and would provide a direct benefit to society as a whole, not just a few individual students.
@Kelly Grey
Education more than post-secondary? Agreed 🙂 An exemption here would be of societal benefit. My experience, however, has been that the texts that are more likely to be used in the working world are the post-secondary ones, which is why I focused on them and the issues surrounding an academic exemption there.
I am not completely sure about your comment “No post secondary educational institution would copy textbooks to give to students even if the law permitted it”. I agree it isn’t economical to provide copies of entire books to student, however we need to be aware of course notes sold to the student at cost (my wife had to buy a set when she was doing an MEng degree at UOttawa). Since it isn’t for profit, would an educational exemption apply? Add to this a portion of a textbook in the course notes for one class, another portion of the same book in a different class; after a few classes this can add to a significant portion of the book, even though the individually copied portions are small (in particular with texts for the mathematics and engineering disciplines).
In this we’ve been discussing student materials. How about the materials used by the teacher/prof themselves? Texts, teachers guides to the texts, “slides” and lesson plans. Should these be subject to an educational exemption? I harken back to Dr Geist’s Day 48 in the C-61 discussion, where a lack of exemption would mean that, under the changes proposed, the exempted items themselves would need to be destroyed 30 days after the course completes. By way of illustration I’ll use the example of a copy of a teacher’s guide to a text. This is something that would most likely be used year after year… is it right that a board should be able to buy a single copy and then copy it for each teacher who needs it? Where they are unable to acquire sufficient copies as the publisher hasn’t printed enough for the demand, fine, a copy to be used until such time as copies are available from the publisher is, to me, acceptable; they’ve made an honest attempt to acquire sufficient copies and what prevents them is the publisher. The lack of exemption would also force the teacher to re-examine the course material on a yearly basis; this is not necessarily a bad thing as it encourages updates to the curriculum (otherwise we’d still be taught the world was flat 😉
Availability
“Where they are unable to acquire sufficient copies as the publisher hasn’t printed enough for the demand, fine, a copy to be used until such time as copies are available from the publisher is, to me, acceptable; they’ve made an honest attempt to acquire sufficient copies and what prevents them is the publisher.”
This is an interesting point. I don’t know if something like this should be codified under fair dealing/usage exemptions, or if it should somehow be a limitation of the holders rights.
In trademark law, if you don’t actively protect your trademark, you stand a good chance to lose it. Possibly a similar kind of limitation or exemption in copyright law, where if a work is unavailable for a period of time the copyright is lost or severely limited.
This type of situation is what Google has run up against. But it doesn’t just apply to “old” works. I recently searched all kinds of places, including the publisher, for a specific book. Out of print. I wanted 4 copies (gifts). After 2 months, I finally located a single, tattered, used copy. The book was copyrighted in 2007.
This concept might apply to other kinds of works protected by copyright as well.