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Bill C-11 Extremism Continues: The Attack on Fair Dealing

We don’t really want the six factors to be written into the act. The court is going to apply the six factors no matter what. That’s what the Supreme Court looks at, how they analyze it and they’ve done that for a long time, and recently in the CCH case, codified it. We are concerned about their treatment of those six factors because they don’t take the market factor very seriously. We want you to write into the act some sort of language that makes the market primary, or at least to be a major factor. We would be happy if you would do only that.

That view was repeated by the Canadian Publishers’ Council yesterday:

I think the CCH case was a very specific case about a very specific kind of content with a very specific role that the publisher played in that instance. Our concern with CCH is that it does not make the primacy of the market first and foremost; in fact, it quite blatantly states that “fair” isn’t really defined by the commercial impact on the work. For us, that’s absolutely antithetical to the notion of copyright: how can it be fair if it undermines the commercial prospects for the work? We just don’t understand that. That’s why we feel CCH does not elevate the marketplace to the first priority.

As the hearings wind down, the pretense of concern about expanding fair dealing to education is gradually giving way to the real issue: overturning the Supreme Court of Canada and its six-factor fair dealing test. The earlier claims that adding education to the list of fair dealing categories would open the door to unlimited copying was always demonstrably false. The real intent of the opposition is to use Bill C-11 to turn back the clock on fair dealing, a move that would have an impact on all Canadians who rely on fair dealing as a crucial part of the copyright balance. Such a change clearly does not qualify as a “technical amendment” to the bill, but it isn’t stopping the full court press for the reform.

3 Comments

  1. Ray Saintonge says:

    What is the market?
    If industry wants the market to be a determining factor it would need to accept that damages be based on a percentage off the recent market. A product that has not been published in the last decade probably has no market. Old versions that have been replaced by more recent ones are suppressed to keep them offf the market.

  2. A dark and winding road …
    The desires of the content industry and the public have always seemed to be at odds, now apparently even to the degree of absurdity.

    As they see their grasp on legislator’s tailcoats beginning to tear, they are manically grabbing at whatever they can … sad really. What would be really sad though would be for people and to stand by and do nothing and let these flailings take hold.

    Caveat to creators: The above may not sound very compassionate, but not so. I honestly hold that the overreaching antics of the ‘professional’ advocacy groups does more to harm your position than help. By disfranchising your audiences with such unfair and retributive attitudes they are just shooting themselves in both feet. When an atmosphere of mutual respect returns, and that will require flexibility from both sides, new relationships can be formed on realistic expectations.

    This includes you being paid while having greater personal control over your works, and customers having the freedom to use their purchases as they wish. Using simple and modern distribution systems unencumbered by high overhead contractual obligations, there will be a greater number of works available at less cost delivering more profit. When that takes place, piracy will diminish to negligible levels and a much healthier marketplace will emerge.

    Call me a foolish optimist, but that’s how I see it. The road your representatives are trying to take us down is a much darker one indeed.

  3. tom brown says:

    cch – fair dealing summary.
    IMHO this post would greatly benefit from some background on the CCH/fair-dealing case… I don’t know if http://en.wikipedia.org/wiki/CCH_Canadian_Ltd._v._Law_Society_of_Upper_Canada is accurate, but it seems to be written in a factual matter, and reading it helps me to see why the case and fair-dealing are important.

    p.s. these frigging captchas are almost impossible :(