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 â€œfairâ€ 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.