One of the most frequently discussed issues at the hearings on Bill
C-32 was the implications of extending the fair dealing
categories to include education, parody, and satire. Throughout the
discussion, the starting point was the Supreme Court of Canada's
approach to fair dealing, which consists of a two-stage analysis.
First,
the use must qualify for one of the fair dealing categories. Second,
assuming it does qualify under one of the categories, the court
identified six factors to consider to gauge the fairness of the dealing
in Law
Society of Upper Canada v. CCH Canadian, the seminal case on fair
dealing in Canada. The six factors identified by the court are:
- The Purpose of the Dealing
- the Court explained that “allowable purposes should not be given a
restrictive interpretation or this could result in the undue
restriction of users' rights.”
- The Character of the Dealing
- one should ask whether there was a single copy or were multiple
copies made. It may be relevant to look at industry standards.
- The Amount of the Dealing
- “Both the amount of the dealing and importance of the work allegedly
infringed should be considered in assessing fairness.” The extent
of the copying may be different according to the use.
- Alternatives to the Dealing
- Was a "non-copyrighted equivalent of the work" available?
- The Nature of the Work -
"If a work has not been published, the dealing may be more fair, in
that its reproduction with acknowledgement could lead to a wider public
dissemination of the work - one of the goals of copyright law. If,
however, the work in question was confidential, this may tip the scales
towards finding that the dealing was unfair."
- Effect of the Dealing on the Work
- Will copying the work affect the market of original work?
"Although the effect of the dealing on the market of the copyright
owner is an important factor, it is neither the only factor nor the
most important factor that a court must consider in deciding if the
dealing is fair."
University of Western Ontario professor Sam Trosow now notes that the
Canadian Recording Industry Association has taken aim at the fair
dealing test, submitting a factum to
the Supreme Court
in a forthcoming case on whether song previews may constitute fair
dealing that argues that the court's analysis is, well, wrong (Trosow
also notes the surprise of finding the lawyer representing Canadian
universities arguing in favour of this fair dealing test now also
arguing against it for the recording industry).
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David Hammerstein reports
that the Anti-Counterfeiting Trade Agreement has been determined to be
a "mixed agreement."
This means that the agreement must be approved by both the EU and by
the 27 member states. That suggests a long process to obtain individual
parliamentary approval throughout the EU (the EU
Council is moving quickly on the issue, however).
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Dwayne Winseck has another terrific
column at the Globe, this time reflecting on the recently concluded
CRTC vertical integration hearing.
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Engadget features a great
piece
on the link between government regulation and broadband. While the
piece is focused on the EU vs. US, many of the same lessons apply in
Canada.
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As I posted earlier
this week,
the civil society advisory council within the OECD has refused to
endorse new Internet policy principles. CSISAC explains its position here. KEI provides
its perspective here. A
detailed backgrounder on the issue from Kieren McCarthy here.
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