Sam Trosow points to a new advisory from the Canadian Association of University Teachers on fair dealing. The advisory does a terrific job of explaining the breadth and limits of fair dealing in Canada. More importantly, it urges action — legislative action to preserve the Supreme Court of Canada's analysis in CCH and education action to actively exercise their fair dealing rights.
CAUT Releases Fair Dealing Advisory
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Sam, an IP prof, was in residence at CAUT and provides a detailed discussion of CAUT’s IP paper on his blog — did he write this advisory? Is there a reason for him to not to identify his authorship in his write-up? It’s a bit confusing.
grunt
libel would be next, right?
copyright is also being used to repress free speech.
hoiw ’bout invasion of privacy /piracy and pi?
pat
The advisory is a good read, but applicable only to users who are members of relatively large institutions, institutions that can afford well-articulated published policies, lawyers to craft and justify those policies, and lawyers to defend those policies and the institution’s users against accusations of infringement.
That’s all well and good, but it doesn’t help the rest of us, the individual fair users who do not have a collective or an institution to represent us and to defend us.
The proposed amendments are also well and good, in that they are simple and intended to keep fair use as a matter of judgement and debate. However, a single paragraph contains both the best and worst aspects of doing so:
“Parliament and the courts have created this broad and important right and entrusted its proper exercise to the good judgement of the public…. The limits of the practice are imprecise and will always be subject to dispute.”
Judgement, entrusted to the public – good. Dispute – hmm. Problematic. Dispute is fine, well and good, when disputants are reasonable people arguing in good faith in an attempt to arrive at a common understanding. And sometimes, in coffee shops and bars and studios, they are.
But then dollars and lawyers get involved (no offense, Michael). Lawyers acting for large corporations, targeting individuals, small institutions, etc., fair users who cannot defend themselves without expensive counsel.
The advisory’s well-intended recommendation re good faith and unavailability of statutory damages matters not at all if legal sharks can restrict fair use by threatening proceedings against individuals who will have no reasonable choice but to abandon their fair use rights rather than face expensive legal battles or accept settlements the costs of which may be attractive compared to that of the battle but are outlandish compared to the “damages” suffered.
Do we need an amendment that makes it a serious offense (indictable or disbarrable) for a copyright holder or officer of the court to game the legal system in this way? As much as I might like to see that, it just means more legal proceedings, more arcana, more time spent arguing.
It might be enough to amend the copyright act to make explicit the presumption that all use is fair unless proven otherwise. To protect individuals and small organizations against legal sharks gaming this as well, perhaps a “small copyright claims court” is needed.
All claims of copyright infringement would start there. The claimant would have a short time (15 minutes? No more than half a day…) to make their case that they have a case. The alleged infringer is not present.
Hearings are public, but the identity of the infringer is sealed – they are J. Doe until the tribunal finds for the claimant; if the tribunal finds against the claimant, the sealed documents are destroyed.
If the tribunal finds against the claimant, the claimant pays all costs for the hearing and the identity of the infringer is not revealed.
Only if the tribunal agrees that there is a case is the claimant permitted to serve the alleged infringer or otherwise initiate legal proceedings.
Tribunal decisions could be appealed, with the same ground rules: If the appeal is rejected the claimant pays all costs and the infringer is not identified.
(I’ll leave the open questions to the lawyers: Should persistent or frequent claimants be fined after a number of rejected claims? In what cases, if any should the infringer pay tribunal costs (criminal copyright infringement, sure; where damages are comparable to tribunal costs, OK; in all other cases, the tribunal is a public good funded by the public purse?)
chronoss releases his even more fair dealing to the masses
ya hi,
id like to take this commercial break to inform you that
corporate control and power of the world has peaked
and people that write huge long bits about whatever are to be totally ignored and just remember he who needs ot convey a thought with large words when small ones will do is a sign that he is trying to put you down by telling you , that you are an idiot.
One skill of writing and communication is to talk and write to those you write too, not to make yourself seem more important
AND ill add here comes another class action BCE lawsuit
…..details come in the new year ENJOY the holidays everyone.
P.S, Salutations and greetings to the old members of the united hackers association who have returned and to all the new members , keep the peace and be on good behavior and spread the truth
“the truth is out there”
P.S.S> so you all don’t think idiot thoughts code i have written for a game 7 times has now lent it self to bettering security and also to making other things work better and be more interactive.
Would you destroy that?
Ban DRM please!
“…the Copyright Act must not
prohibit the circumvention of measures that
“lock down†(by encryption or otherwise)
digital works unless the purpose of the circumvention
is infringement. In other words,
any new provision in the Act that prohibits
circumvention must be carefully targeted
against infringement (for example, commercial
piracy) and must not prohibit circumvention
to allow fair dealing and other user rights.”
DRM doesn’t work preventing commercial infringements; instead, its sole design is to prevent private copying or use of a hardware, and it works as intended. Whether the private copying is fair or not, the cartels wants to be their own jurisprudence. Moreover, the cartels have no business controlling the use of anyone else’s hardware. This proposal virtually eliminates the need for DRM, which is a good step in the fair direction. The next step would be to ban DRM altogether.
> people that write huge long bits about whatever are to be totally ignored…
This is just hilarious! “Only my view is important.”