Aquarium Nov 24th, 2013 by GoToVan (CC BY 2.0) https://flic.kr/p/hSmrXE

Aquarium Nov 24th, 2013 by GoToVan (CC BY 2.0) https://flic.kr/p/hSmrXE

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Why Fair Dealing Safeguards Freedom of Expression: The Case of the Vancouver Aquarium

Having discussed the importance of fair dealing for creators in yesterday’s post, today’s case looks at the link between freedom of expression and fair dealing. A recent case involving the Vancouver Aquarium placed the spotlight on how fair dealing can be used to safeguard freedom of expression, even when (indeed particularly when) a rights holder may prefer to use copyright to block the expression. In 2015, two film makers created a documentary on the Vancouver Aquarium called “Vancouver Aquarium Uncovered.” The film, which can now be viewed online, focuses on whales and dolphins in captivity. The Vancouver Aquarium filed a copyright infringement action, seeking to have the documentary removed from all public viewings and the deletion of photos and video clips shot at the aquarium.

While a trial judge remarkably granted an interlocutory injunction, last year the B.C. Court of Appeal set it aside. Fair dealing and safeguards for non-commercial user generated content played an important role in the decision, with a unanimous court stating:

Fair dealing is not considered a defence, but an integral part of the Copyright Act: CCH at para. 48. It is more properly characterized as a “user’s right.” An act that is captured by the fair dealing provisions of the Act will not infringe copyright. As noted above, s. 29 of the Act sets out fair dealing for the purpose of research, private study, education, parody or satire, and use in that context does not infringe copyright. Section 29.1 exempts fair dealing for the purpose of criticism or review, and s. 29.2 exempts news reporting. Section 29.21 exempts non-commercial use, with specified conditions.

In order to sustain the balance between the users’ rights and those of the copyright owner, fair dealing “must not be interpreted restrictively”: CCH at para. 48. CCH addressed research in the context of headnotes and other additions by publishers to judgments, and whether permitting photocopying at a law library fell within the research exemption in fair dealing. In concluding that it did, McLachlin C.J.C. concluded that “research” was to be given a large and liberal interpretation to ensure that users’ rights are not “unduly constrained”: para. 51. It is not limited to non-commercial or private contexts.

The court did not issue a definitive conclusion – it limited its discussion to agreeing that fair dealing was not properly assessed at trial – the role of fair dealing and freedom of expression was crucial in the decision to set aside the injunction. Indeed, the court concluded:

Evotion created the documentary to contribute to the conversation on the social and political issue of keeping cetaceans in captivity. This is an unusual copyright case in that the injunction will, in part, silence criticism of the Aquarium and potentially stifle public debate on a topic of great interest to the community. In addition, the Aquarium is not seeking to protect works that are being unfairly used to profit others, such as was alleged in SOCAM.

On the other hand, it is clear that the debate regarding cetaceans in captivity continues, despite the injunction. It is a matter of public record that the Vancouver Park Board, earlier this year, voted to ban the bringing of new cetaceans to the Aquarium. More litigation may ensue from this, so no more need be said.

The engagement of s. 2(b) in the analysis also responds to the concerns of Animal Justice in terms of bringing the issue of cases of animal cruelty to the public’s attention. In my opinion, the balance of convenience lies with Evotion. The film is part of a public dialogue and debate on the issue of whether cetaceans should be kept in captivity, and thus, the Charter value of freedom of expression must weigh against granting the injunctive relief.

Critics frequently claim that licensing can adequately substitute for fair dealing, but the Vancouver aquarium case provides an important reminder that sometimes no amount of money will lead to a licence since rights holders seek to use the law to silence others. Fair dealing is an essential safeguard for freedom of expression since it is available as a user’s right without need for permission from the copyright owner.

12 Comments

  1. What the hell does this have to do with so-called fair dealing in the classroom, when paid teachers and students pirate my work without compensation?

    • Well of course by definition it’s not “pirating” if it’s fair dealing (and if it’s not fair dealing, you should indeed be compensated).
      The short answer is that both are about the principle that the Copyright Act is intended to be for the good of Canadians as a whole, not some sort of “welfare for writers” and while granting a monopoly to a creator is seen as a good way to encourage more creativity, some other things (news reporting, criticism, and education) are considered more important. The good news is that educational institutions still pay millions of dollars to buy and license copyrighted works.

      • When you call a plumber to your home and pay him for work done, is that “welfare for plumbers”? When you buy an expensive piece of software, is that “welfare for Apple”? Writers in Canada don’t make a living wage from sales of books. It’s too small a market. They rely on secondary income from classroom use of book chapters. Copyright is not welfare, it has been around for centuries – longer than welfare – and is the means by which writers get remunerated after the fact, just like the plumber who fixes your pipes assuming he’ll be paid afterwards. If my work is good enough for a (well-) paid professor to teach it, then it’s good enough to pay a few pennies a page for.

  2. Kelly Manning says:

    Not a lot that I can see. Why did you think it should? Fair dealing is not copying a work in whole.

    Don’t we already pay a fee to copyright owners every time that we use a copier or buy recordable digital media?

    Do you think the fee isn’t enough? Make your case.

    http://www.cb-cda.gc.ca/tariffs-tarifs/certified-homologues/2016/SUP-2016-12-17.pdf

    https://www.cmec.ca/278/Tariff_for_Photocopying_set_by_Copyright_Board_of_Canada.html?id=283

    The classic pirated work tale is a poet visiting a school and being told by a teacher that he had copied the poet’s book for every student in his literature class. The teacher expected the poet to take that as a compliment on his work.

    • Uh, no, you don’t pay a fee for every time you use a photocopier. The article you link to is nine years old and the information in it is out of date under the so-called fair dealing interpretation of copyright law espoused by you and Geist and implemented by many major Canadian universities.

      As you seem to know a little bit about the topic, I can only assume this is deliberate misinformation on your part.

      • Kelly Manning says:

        The Canada Gazette Issue is dated 2016.

        The photocopier use tithe was in effect for decades. That technology is almost as outdated as Facsimile. It was relatively new when Daniel Ellsberg used it to make copies of the Pentagon Papers.

        These days folks are more likely to use Turbo Scan in a camera or digital pad, or a larger scanner connected to a PC or network, and make a digital copy, so the recordable digital media tithe is more applicable.

        Are you a paid troll for the Internet Control lobby?

        • did you answer my question about posting a false 2009 report on photocopy fees going to creators? No. Then you turn around and say that photocopying is out of date. I didn’t claim that creators benefit financially from photocopying, you did. Are you stupid, or evil, or both?

        • Recordable digital media tithe applicable to pirated book scans? Which century do you live in? They’re called electronic files, and travel about on their own, on the internet, as email attachments, on hard drives and USBs, without the need for a disc.

          • Kelly Manning says:

            You haven’t actually established that anything was false in the 2009 Copyright board of Canada Press Release.

            “In its recent decision, the Copyright Board set the rate at $4.64 per full-time- equivalent student for the first four years of the tariff, 2005 to 2008. The rate will increase to $5.16 for 2009. The tariff, which applies to all provinces and territories except Quebec, will cost about $20 million per year, based on a student enrolment of about 4 million students.”

            Libraries pay for a Public Library Photocopying Licence and the limits on copying are quite specific.

            http://www.accesscopyright.ca/businesses/public-library-photocopying-licence/

            http://www.accesscopyright.ca/about-us/

            “We license the copying of this repertoire to educational institutions, businesses, governments and others. The proceeds gathered when content is copied, remixed and shared are passed along to the copyright-holders.

            These investments help to ensure the continued creation of new and innovative works.”

            I’m not aware of any Fair Dealing advocate who advocates photocopying, scanning or duplicating a work in full or in large part. The Pentagon Papers was an exceptional case.

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