Writers Groups Attack Fair Dealing Reform in Copyright Bill

Several writers groups have written to Industry Minister Tony Clement and Canadian Heritage Minister James Moore to criticize elements of Bill C-32.  The letter focuses on the fair dealing exception for education:

From our perspective the biggest weakness in the bill is the addition of the word ‘education’ to the purposes of “fair dealing” without clear legislative guidance on how this amended provision of the Copyright Act will work in conjunction with other, more specific exceptions for education. We think that this new fair dealing provision will result in serious damage to the cultural sector and to Canada’s embryonic knowledge economy and, together with other new exceptions, negatively affect Canada’s professional writers.

The letter adds “we see that without further clarification of some provisions there will be unintended consequences and years of costly litigation.”

It is important to emphasize again that this is fear mongering that is simply inaccurate. 

There is no real uncertainty about how the addition of education will work in conjunction other exceptions such as research and private study.  The courts have ruled that the exceptions should be interpreted broadly, so that education – like research and private study – will be broadly defined. 

However, the courts have also ruled that the assessment of fair dealing is a two-part test.  First, does the dealing qualify under one of the categories of the fair dealing?  With the C-32 reform, the few remaining educational activities currently outside of the scope of fair dealing will almost certainly qualify as a potential fair dealings. But that alone is not enough.  The second part of the test is whether the dealing itself is fair.  This involves a fairness inquiry with a six part analysis identified by the courts.  The reforms in C-32 do not affect this part of the test.  This was recently confirmed by the Federal Court of Appeal, which, in discussing C-32, concluded that the education fair dealing reform “serves only to create additional allowable purposes; it does not affect the fairness analysis.”

So there is no real uncertainty or likelihood of serious damage here. The reforms will expand the scope of fair dealing categories such that some additional educational uses will qualify for a fairness analysis. The fairness analysis does not change with this bill, however.  It is always possible that there will be litigation on fair dealing – Access Copyright just won a major case on the issue – but the norms will not change with C-32 and there is no reason to believe that the bill will open fair dealing litigation floodgates (unlike the digital lock provisions, which are likely to face a constitutional challenge). 

Opposition to the inclusion of education is therefore based on fears that there are currently educational uses that fall outside the current list of categories that a fairness analysis would determine are fair uses. A balanced copyright approach – not to mention the Supreme Court of Canada – dictate that these uses should not require prior permission or compensation.  If the writers groups are against fairness and balance in copyright, they should say so, rather than trumpeting misleading claims about the effects of the fair dealing reforms.


  1. Heh
    I think it’s hilarious how poorly written this bill is. No one seems to understand it properly, let alone the people that wrote it themselves. This alone should be enough to discredit it and pull it from the tables.

  2. Get depressed: Talk with ignorant Canadian authors on twitter says:

    Well most people don’t read the bill and even worse most people don’t read what already exists.

    I found most authors didn’t even understand that fair dealing was necessary to make copyright charter compatible (copyright infringes on section 2(b) w/o fair dealing).

    They also didn’t seem to understand that fair dealing was rather limited.

    You’d think someone dedicated to reading and writing would read.

  3. Emotional Not Logical
    The problem with some representing creators is their reliance on the emotional. You can see it often in fact-less arguments. Not that they aren’t faced with dire problems but that they continue to cling to worthless consumer hurting solutions.
    In the frantic almost mindless desperation to protect themselves they do little more than box themselves away from the very people who open their wallets to support them.
    Their idea to strengthen monopoly to the point of no choice and no rights for anyone but creators and corporations leaves us with only one choice, leaving our wallets closed.

  4. quality education says:

    I think the concern is very simple – that schools and universities will claim that education covers everything they now pay for.

  5. @QE “I think the concern is very simple – that schools and universities will claim that education covers everything they now pay for.”

    That is ridiculous, and the result of fear mongering. If educational institutes use all their instructional materials without providing any compensation there will be no incentive for writers to create new up to date material or textbooks. They obviously realize this, although if they want to use in house materials then that is their prerogative.

  6. It is possible to oppose parts of Bill C-32 without opposing fairness and balance. Geist is guilty of the very mischaracterization that he accuses others of.

  7. Michael Geist says:

    Responding to @Quality Education and @Bob
    @quality education

    There is virtually no risk that higher education will claim that education now covers everything they now pay for. Fair dealing already covers private study and research (broadly defined). The addition of education means adding some non-private study and teaching uses. Important to be sure, but there is already much that is covered by fair dealing. Notwithstanding that coverage today, higher education is among the most risk-averse organizations anywhere (this is a group that felt they needed a full Internet exception for displaying Web pages in a classroom). They are very reluctant to aggressively argue fair dealing. Given that the fairness analysis remains unchanged, there is no likelihood that universities will suddenly argue everything is free. At the end of the day, education will not claim everything is covered by fair dealing, because given the need to meet the two part test, it isn’t.


    Only James Moore thinks that you can’t oppose parts of C-32 without opposing fairness and balance. Of course, you can. My point in arguing that these groups oppose fairness and balance is that they are arguing against a fair dealing provision where the very ability to use it is premised on meeting a fairness analysis. To argue against it, is to say that you do not believe in the fairness analysis that the courts have built into the copyright law. Ironic, given the recent Access Copyright victory at the Federal Court of Appeal and the insistence on the fairness of the Copyright Board of Canada proceedings.


  8. Thanks, Bob and QE. It can be tiring over here, but there’s value in pointing out the obvious attempts to mislead.

    4600 paying members of professional creator organizations (run on grassroots democratic principles, by the way) have expressed a desire for “clear legislative guidance” and they are immediately dismissed as fear mongers attacking fair dealing reform.

  9. No real uncertainty?
    “There is no real uncertainty about how the addition of education will work in conjunction other exceptions such as research and private study.” Really? As you know, Michael, there is no such thing as a set “six part analysis”. The list of contextual ‘fairness’ factors identified in CCH is clearly not exhaustive. Courts can create more factors in the absence of clear legislation. Therein lies part of the real uncertainty about how the exercise of a new proposed ‘user’s right’ for the purpose of “education” would be interpreted by courts.

    On the other hand, what we do know for certain, from the SCC’s latest point of view expressed in CCH, and what is disconcerting from the perspective of many self-employed folks that rely on copyright to earn a living, is the following: “[while] 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”. If the impact on embarrassingly low average Canadian author incomes is not the most important factor than can you say with any certainty which one is?

  10. Quality ed comment
    @QE “I think the concern is very simple – that schools and universities will claim that education covers everything they now pay for.”

    I believe the issue is tied to something my old econ text referred to as the allocation of scarce resources and responsible deployment.

    Perhaps the institution’s frustration comes from paying for what they don’t need to pay for based upon the current law or the diminishing utility of the materials . Ultimately mis-allocation reduces the amounts available in the budget to cover genuine need and demand .

    Digital subscriptions and costs are not shrinking on most college campuses. I am certain there are many more databases and modern digital journals which the institutions and their constituents would like to see available if they had the budget available for purchase.

    My guess is that payments for digital subscriptions and will increase if the current tariff is reduced.

  11. Litigating Scribes United says:

    @Authors and Schools
    There are a few problems I can see… the most obvious one is why do students and consumers have to pay for your inability to get a good sum of money from your publishers?

    Is reduced fair dealing actually going to benefit you in any way?

    I suspect the answer is no but you know what side your bread is buttered so you all insist on holding an un-tenable position, whether or not it will benefit you in the end.

  12. Michael,

    The letter is quite explicit in its request for “clear legislative guidance.” Your suggestion that these groups are arguing against the fairness test and thus against fairness and balance in general is more of the usual overgeneralization and senationalism.

    Are you against clear legislative guidance?

  13. “Education”
    I in fact have to agree with the writers groups on the potential impact of adding the term “education” to the list of exemptions in section 29 without defining what “education” means. While Dr Geist has focused on higher education, and I suspect that he is correct in his take for “higher education”, that is not the only place in Canada that “education” takes place.

    How about on the job learning? This education does not take place in the context of an “educational institution” as defined in the copyright act. If I reproduce a book from the company’s library to learn about a technology (so that I can use it to develop products for them), can I claim an fair dealing exemption for education? Most high tech companies that I’ve worked for over the past 19 years have very small budgets for training; generally you are expected to pick it up on your own. Heck, in 19 years in the industry I’ve had a grand total of about 4 weeks of formal training. And my experience is far from atypical based on those that I’ve spoken to.

    At the macro level I think QE has a point; Crockett’s response is valid if Canadian universities as a whole decide not not bother paying the AC tariff, claiming an educational exemption. However, given that the text can still be sold into the far larger US market, can you honestly say that the impact of all Canadian universities and colleges taking the education fair dealing exemption is going to be large enough for the authors to stop producing texts? And take the institutions to court to fight the use of the education exemption?

  14. Michael Geist says:

    Further responses

    What you describe is not uncertainty with respect the inclusion of an exception for fair dealing, but rather with how the fairness test is interpreted. The legislation does not touch this issue. I don’t see how a codification of the court’s fairness analysis would change very much, unless the writers are seeking to change the analysis itself (as you hint at with reference to commercial use). If that is the case, the ramifications would extend far beyond the education exemption and presumably apply to all fair dealing exceptions (or user rights). I think the flexibility inherent in the fairness analysis works well for both creators and users since it allows for adaptation to changing circumstances and encourages reasonable interpretations for fear of facing a lawsuit if either side pushes too far. I would strongly oppose attempts to restrict the fairness analysis, which in light of the recent Access Copyright decision at the Federal Court of Appeal, has treated writers pretty well.


    I encourage everyone to read the letter – the claims of serious economic damage and years of costly litigation are there for all to see. With respect to legislative guidance, I don’t see the need for it. What do you think needs further guidance? The reform involves adding a new category to fair dealing. I think it is very clear – education in the broadest sense. This interpretation is consistent with the Supreme Court’s view on fair dealing. If you are seeking legislative guidance on how it will be applied – ie. the fairness test – that is not part of the bill since there is no change to the fairness analysis. It would be odd to provide guidance on an issue that is not even part of the bill. As noted above, if “legislative guidance” is really code for restricting the current fairness analysis with a new codification in the law, I would strongly oppose.


  15. What is “education in the broadest sense” code for?

  16. Adding education to fair dealing clearly will have a negative effect on what is licensed or requires permission. There’s be no point in making the change if that wasn’t the case. So it’s hardly fear-mongering for those negatively affected to oppose this, and their opposition does not equate to opposing balance. I think a better approach is to ask what is now impossible that the addition of education will make possible. Very little, as far as I can see. On the flip side, as long as the FCA ruling holds, it does seem likely that systemic and multiple copying will fail the fairness test. If it ends up in the Supreme Court, though, writers and publishers have major cause for concern.

  17. Michael Geist says:

    Not code for anything. Just relying on the Supreme Court of Canada. See Vancouver Society of Immigrant and Visible Minority Women v, M.N.R.:

    “There seems no logical or principled reason why the advancement of education should not be interpreted to include more informal training initiatives, aimed at teaching necessary life skills or providing information toward a practical end, so long as these are truly geared at the training of the mind and not just the promotion of a particular point of view…there is no good reason why non-traditional activities such as workshops, seminars, self-study, and the like should not be included alongside traditional, classroom-type instruction in a modern definition of ‘education.'”


  18. @Geist
    Ah, then you can see why, given this definition, that education will be interpreted in a completely open-ended way, and why this is problematic for people who write and publish for a living. There is the added concern that pretty much no-one gets beyond step 1, i.e. if it’s a fair dealing purpose then it’s ok to copy.

  19. Creature of Statute

    As you know, there is no set fairness test or six part analysis on what may constitute a fair dealing in respect of any proposed, new ‘user’s right’, and that means uncertainty. Such uncertainty is acute for many self-employed people that rely on their copyrights to earn a living. What you call “fear mongering” on the part of Canada’s professional writers, seems to me to be a reasonable call for “clear, predictable and fair rules”.

    Concerning your anticipated opposition to our elected representatives providing courts with such legislative direction, surely you don’t disagree with the SCC that Canadian copyright law is a “creature of statute”.


  20. I love how the education guys are now trolling Geist’s blog ONLY after he posts the Access Copyright tariff news. So I guess you guys just had your heads up your asses all this time, only to conveniently post on this blog at exactly the same time.

    It seems to me that Degen and the rest don’t really understand the point of fair dealing for education. Fair dealing for education could easily mean using YouTube clips in a lesson or using clips from a DVD, among other casual things. For students, it could mean the same for projects. Of course, all these potential common sense uses are lost to people like Degen, solely because they are selfish and don’t look beyond their own self-interest. And again, I like how they only pop up after the Access Copyright tariff. Talk about an instantaneous “grassroots” movement.

    As an aside, the following is my personal opinion of course, but I think Degen and the rest don’t really care about students or their viewpoints.

  21. Eric L.,

    I’ve been commenting on this blog for years, and writing about copyright concerns on my own blog for longer.

    Feel free to check it out:

    Warren has also been in the discussion longer than I can remember. I don’t know Bob, but I sure do welcome his perspective.

    I’m not an “education guy” — that would be Dr. Geist. I am an independent writer.

    Buy a program next time. And keep in mind that when you don’t even bother to pay attention to who is talking, you don’t really have the option of telling us what we think.

    I am very concerned for students, since they tend to not stay students forever and eventually have to enter the workforce. I’d prefer they enter a cultural workforce in which they still have a robust set of rights.

  22. “I am very concerned for students, since they tend to not stay students forever and eventually have to enter the workforce. I’d prefer they enter a cultural workforce in which they still have a robust set of rights.”

    Excellent. You apparently see the importance of fair dealing then…

  23. Have I ever mentioned how much I hate the cheap-out version of argumentation favoured over here. A quick quote and some snide remark you’re far more proud of than you should be?

    But I digress into the complete toilet-circling of discourse that is the Internet. Seriously, is the formation of two original sentences so much to ask?

    Eric L., there isn’t a writer in the world who doesn’t love and respect the principles of fair dealing. It’s a cornerstone of the craft. Only those with ideological agendas against professional creation portray writers as being opposed to fair dealing.

    Achieve some nuance, please.

  24. I have read the posting and the comments below. On balance I think Mr. Degen is correct and that Dr. Geist is being unnecessarily inflammatory. The accusations that Dr. Geist brings, which are worded in fairly purple prose, appear to rest on the idea that, as caselaw has set out a clear framework through which the statute is to be read, there is no reason for the statute to encode such a framework. I see nothing wrong with such an idea, but nor do I see why those holding the contrary view — that, if important, the framework should be set out in statute — should be pilloried as they have been here. In fact, somewhere in my fuzzy memory I seem to recall advocacy, perhaps on this blog, of writing into statute those consumer “wins” that had already been achieved at court.

  25. @all, one tiny question.
    define educational fair dealing
    On some other note I’m a university student … I buy all my books (sell the annoying ones at the end of the year).Anyone care to explain why am I paying do I have some copyright fee on my invoice ?? what does that enable me to do ?? is it fair dealings. Should I stop paying it ??? what does that have to do with Access Copyright is it not ??
    everyone (mean almost) seems self centric and ready to cut the throat of the other (metaphorically). can you all stop for one second a DEFINE what the f*** you’re all talking about?
    And one other thing STOP deflecting and answer the questions for a change, with arguments REAL ones — this part goes especially for you Degen —

  26. pat donovan says:

    gront cartoon

    niecly put…

  27. RE: R.B.
    Thank you for post. I do regret parts of my post yesterday, but it is interesting to note that the more emotion-driven parts of my posts are the ones Degen attacked, rather than intelligently responding to my common sense point that educational fair dealing has a far greater range than just applying to course materials as Degen and the others are trying to unconvincingly state in their arguements. I would furthermore add that their points seem to be mostly based on FUD. Let me just put your mind at ease Degen; fair dealing will happen whether it is law or not. I’m pretty sure Canadian YouTube users didn’t give a crap when they released fair use vids when Canada’s laws didn’t support such an endevour. If you think any legislation will be able to restrict fair dealing, then you are kicking a dead horse. Having said that, such legislation will likely bring annoyance to some more general people who will want to obey such laws and as a result will have to jump through hoops like DRM, causing annoyance among other negative effects. So in the end, restricting fair dealing in this way will only cause people to back away from buying works, because they won’t want to deal with the annoyance put in place because of greed and paranoia.

    Furthermore, I like how you only think of your own industry in relation to fair dealing, as if your industry is the only one that matters when it comes to new laws. That is a selfish and narrow-minded position to take, especially when many other organizations, including some notable business ones, wholly disagree with your opinion. I’m not saying you don’t have the right to have an opinion, but I am saying that you need to step back and look at this fro multiple viewpoints, like in any good and fair arguement. Considering your ad hominem attacks and refusal to respond to many noteworthy points against your viewpoint, I don’t seem a chance of that happening.

  28. Has anyone ever come across an argument for copyright lasting any longer than a patent? Generally speaking, copyright works are less vital than patented inventions, so why should they attract greater monopoly protection?

  29. Seems we’re back to trading insults. I think Eric is corerct in saying that copyright law is often ignored, but that doesn’t mean we shouldn’t attempt to craft something reasonable. As to what is reasonable, reasonable people can differ. If you write or publish for a living, then you aren’t likely to be supportive of proposals to chip away at your livelihood. This doesn’t make you obstructive or selfish. Let’s come at this from another angle. We have a huge accessibility problem with universities. Fees are high and rising fast and many smart kids can’t afford to go. One solution would be a cut in faculty salaries – say 10%, which is the percentage often used around fair dealing – to cut fees and create extra funding for students. I might think this is fair. Professors average about $100,000 which is well above the average income and most of them make extra from outside commitments, including writing. So why not? They, like writers and publishers, are part of the educational food chain and it’s only fair that they should contribute to the funding challenges. Except that it’s not fair, and professors – who are among the more militant trade unionists – go on strike over amounts that are a fraction of that.

    Let’s go back to fair dealing. Education, as widely defined as he proposes, will cut deeply into the market for educational materials. Most of the activity is in fact covered by Access Copyright licences, and if this change goes through then without a doubt there will be demands to reduce existing tariffs, never mind any proposed tariffs. I think that there are some valid issues over how to deal with things like assignments and especially multi-media contexts where licensing doesn’t always provide the answers. With the way it’s written, though, and with how education is being defined, this piece of Bill C-32 is a problem. It is not narrow or selfish for those adversely affected to point this out, and it is inappropriate for a professor to frame these concerns as fear-mongering, especvially when his own definitions contribute to those concerns.

  30. Jeff Power says:

    Dave I think it’s because Patents are so vital that they have less monopoly protection.
    Also why I think the argument being made over losing our culture because of the length of copyright is a good one. ie out of print books that will never again see the light of day.

  31. @Jeff
    Agreed. I can’t even begin to count the number of video games that have vanished from the face of the planet because of the same (out of production, illegal to reproduce)

  32. Sandy Crawley says:

    Your confusion regarding the relationship of buying a text to Fair Dealing (there is none) and the purpose and mandate of collectives such as Access Copyright is instructive. It is clear that your knowledge of copyright law and how it functions is severely limited. Don’t worry, though, you are not alone in this. That is why it is disturbing to professional writers that Professor Geist sets himself up as an expert rather than the highly biased consumer advocate that his positions on C-32 betray.

    It is completely disingenuous to cite a Supreme Court decision in support of the exception for Fair Dealing as expressed in the draft bill as if the legislative process is somehow subservient to previous decisions by the courts. If this were the case we would still have slavery, child labour and women would not have the vote. That the professor shows such open disrespect for thousands freelance writers who have put considerable effort into analyzing the draft bill from their particular perspective is also instructive.

  33. Curious
    I’m more curious why people feel the need to come something narrowly defined as opposed to a more interpretive definition. The reason I ask this is the more specific your definition, the more easily it is to get around. Of course, that’s probably why the copyright collectives want it to be as specific as possible so that they can go after people who happen to fall outside that narrow definition. But they will ultimately start running into problems with that as the way people do things starts to change, and the definition no longer fits the reality of the situation. That’s why we currently have a copyright bill that, in some cases, doesn’t protect the interest of content producers because the technology used falls outside the realms of our current law. And it will happen again in the future.

    Having the actual definition hammered out in the courts is not a bad thing either since that means that when something new comes up, the court can decide quicker than the government can move if something is actually against copyright, and content producers (and consumers) are more likely to get proper compensation. Just because a court made a decision in the past on something also doesn’t make it so that they decision can not be changed by a later court decision.

  34. Re: Curious
    @Chris A: For me the issue is pretty simple. I believe you are correct in that an open definition makes it easier for someone to get around the legislation, but that can go both ways; while I suspect (and my apologies if I am incorrect) you are referring to, in this case, the publishers taking liberties which were not envisioned when the legislation was drafted, the same thing can be said of the consumers. At the very least, citing concrete examples in the wording provides guidance to the courts as to the intentions of Parliament.

    The big problem, to me, is the uncertainty that open wording involves. Can you say with any certainty that an activity is non-infringing until it has come in front of the courts?

    Regarding the second part of your post. Do we in fact want the courts deciding on something new, in particular if there is no guidance in the current wording of the legislation? Remember, the members of the court are appointed by the government of the day. As such, they are not answerable to the people of the country. The courts, as I understand it, base their decisions on legislation and on precedent. Where the legislation is unclear, the latter takes on more and more importance. Unfortunately, this can go either way… imagine a situation where the precedent was against the societal norms. There is something to be said, however, about giving the courts review powers. The very fact that they are not having to run for re-election means that they can step back and try to balance the multiple sides of the issue without having to worry about being out of a job (theoretically this is what the Senate is supposed to do, but they are so partisan that it doesn’t occur).

  35. C-32, wisely, contains a directive to have Parliament review the Act every five years, presumably to account for changing circumstances and uses.

    The question of whether or not there should be clarity in the bill is ridiculous. We don’t intentionally make vague laws and then wait to see what the courts do with them. Why have a Parliament at all if we want legislation by court?

  36. Because you still need someone to make the laws and govern the country. The courts interpret the laws all the time, that’s part of their job. There’s nothing wrong with that, and it has worked many times, most recently in Access Canada’s favour. There’s fair use for education, and I see no problem at all leaving that up to the court on what constitutes education. Why does the bill need to be more specific?

  37. @Sandy
    My knowledge of copy right may be limited but I’m not confusing byuing books and fair dealing. If buy a book that copy of the book is MINE I don’t need any fair dealing or what or the opinion of any one to dispose of how the H I WANT. I think I asked an other question. Why am I paying something related to copyright licenses in my university bill, what does that enable me to do ??? Do I really need it???
    The whole debate here is about fair dealing in the context of education. Before stating what’s wrong and what’s right it fairly obvious to me that one must state (define) what that means. Some posts are leading me to believe that fair dealing == carte blanche to copy redistribute an d do whatever you want as long as it is under the banner of education. ???? If true it is the most stupid thing. Fair dealing should be fair (for everyone), if there is confusion that’s for a court to decide (how? as they usually do it works fairly good for other thongs why shouldn’t work for copyright???)

  38. On some rater side note (ont totally unrelated) this trend is the perfect example of what’s wrong with our political system. Elected officials spend more time throwing rocks at eachothers than solving problems. I thinks that’s why people are sick of politics and are rather reticent on election day ….

  39. When copyright goes bad
    When copyright goes bad:


  40. Un-Trusted Computing says:

    Thank you for the link.

  41. @R.B.
    Two points.

    I understood your first post in the same manner as Sandy. There may have been some miscommunication on both sides.

    I suspect that your point about fair dealing being fair for everyone, and the role of the courts in interpreting the legislation, is the crux of the matter for the Writers Guild. They seem to be concerned based on the expectation for the revenue streams if the bill is enacted. They do have a point.

    Expanded fair dealing is pretty nearly guaranteed to negatively affect the revenue stream; after all, if it is legal to make a copy fewer people are likely to buy a second copy of a work to replace a damaged one or to format shift. This is more or less predictable, however. While many people are likely to do this even in the absence of expanded fair dealing, the expansion means that the writers and publishers have fewer means to deal with the people egregious offenders.

    Now, add in the uncertainty that comes when you have legislation that is not well drafted. Once it goes to the courts, the decision could go either way. This is a less predictable impact on the revenue stream. For writers getting advances on a work, I can’t see the publishers being all that keen on keeping the size of the advance as high; why would they take the risk of paying out an advance to the writer where the book doesn’t sell enough copies to cover the advance? I see the payment model changing, becoming based more on royalty payments and less on advances.

    Unfortunately in Canada we suffer from a tendency, in Parliament, for the politicians to draft legislation in a manner to please the voters. How often is legislation vetted during committee hearings to see if there is any Charter violations in it?

  42. Laurel L. Russwurm says:

    to quote the cowardly lion: “The nerve!”
    I am more than a little annoyed that this “writer’s group” pretends to speak on behalf of all Canadian writers. They most certainly don’t.

    my blog post:

  43. Laurel L. Russwurm says:

    psssst: the Writer’s Guild was not signatory to the letter.

  44. If C-32 makes no difference, why are educators celebrating?

    It would be nice to believe that writers like myself are alarmist, as you claim, and nothing much is going to change in the educational sector with the new copyright act, but that is not my read of C-32.

    The proposed legislation first defines education as fair dealing. This is Section 29.
    “Fair dealing for the purpose of research, private study, education, parody or satire does not infringe copyright.”

    And if that is not clear, Section 29.4 says:
    “It is not an infringement of copyright for an educational institution or a person acting under its authority for the purposes of education or training on its premises to reproduce a work, or do any other necessary act, in order to display it.”

    In education the secondary use of material – that is the Xeroxing of material for classroom use, course packs and the electronic distribution of material – is becoming more and more important. When the Internet becomes the primary way that the written word is distributed, copying will be even easier. With the educational exemption in C-32, that will mean that more and more material will be distributed in Canadian schools, universities and colleges without the payment of copyright to the writers of the material.

    Students out there worried about the cost of text books should not think that C-32 will reduce those costs. It is the secondary distribution of material that the legislation will affect. And did you know that the university is making a tidy profit on the course packs that are sold through the university bookstores? I suspect they are making more money than the copyright fees on the material. If C-32 is passed the writers will get nothing for the use of their work, but you can be certain that the university will still take its profit.

    Michael, I am sure you are aware that the provincial Ministers of Education and the teachers unions have been lobbying hard in Ottawa for this exemption. If you are right, and C-32 will have no impact on the education sector, then you had better tell the ministers and the teachers unions because right now they are celebrating. They believe that C-32 has delivered the exemption that they want and they will never have to pay a licensing levy to Access Copyright again.

    The expansion of fair dealing to include education is not fair any way that you look at it. Creators deserve to be paid. Teachers get paid, school administrators get paid, even professors specializing in copyright law get paid. Writers deserve to be paid when their work is used.

  45. Laurel,

    I’m glad you’ve found at least one writers group that doesn’t completely offend you. You are right that the the Writers Guild didn’t sign the coalition letter, and they do indeed represent lots of professional Canadian screenwriters — a couple thousand at least.

    Of course, the Guild has already made their position on copyright clear when they called for ratification of WIPO, more collective licensing solutions, an expansion of the private copying levy, and no expansion of fair dealing. They single out educational use in particular, and explicitly take Access Copyright’s side. In fact, they argue for the creation of their own collective licensing society on the AC model. On digital locks, they say what many creators say — locks that unduly affect access will die a natural death in the marketplace. No panic necessary.

    So there you go, add the Guild’s 2,000 members to the 4,600 represented in that letter, and we now know that close to 7,000 working professional Canadian writers have legitimate concerns about the wording in C-32 around education.

  46. @Bill — The proposed legislation does not define education as fair dealing. The clause, “Fair dealing for the purpose of research, private study, education, parody or satire does not infringe copyright” does not mean that anything purported to be for any of these purposes is fair dealing. It means anything that is *both* fair dealing and for one of these purposes is not infringement. As stated by Professor Geist in his post above, “The second part of the test is whether the dealing itself is fair. This involves a fairness inquiry with a six part analysis identified by the courts. The reforms in C-32 do not affect this part of the test.”

    However, I see no reason why calling for legislators to clarify this issue and any other issues that would impact stakeholders on either side of this debate is unreasonable. If people mistakenly interpret the statute as meaning that anything for educational purposes is not infringement (and I believe they will, if for no other reason that people believe what they want to believe), then that places the burden on creators to take action after the damage is already done. Alternatively, people who want to abide by the legislation cannot easily decide for themselves what is and isn’t an infringing use. I am not opposed to the addition of education as a purpose, but I do wholeheartedly agree with Mr. Degen’s statement that to make vague laws and leave it to the courts to figure out what to do with them is not appropriate. And if people spend days discussing what a proposed piece of legislation means or doesn’t mean, then I think we should all be able to admit that it’s too vague.

  47. The thing with fair dealing is that the concept in itself is about flexibility. Ignore this primary factor in fair use/fair dealing and you get illegal DMCA take-downs on YouTube that aren’t enforced. It seems that large corporations and media conglomerates want a black and white copyright world where they don’t have to put effort into explaining their point-of-view in court. I can see why they are so opposed to a notice-and-notice system for example, since rather than intimidating their target with the sudden action of a take-down, they would actually have to back up their argument and provide evidence.

    The approach suggested by the “Writers Groups” appears to be the same. If their intent was in fact to replace the broad education exception with several exceptions covering a wide range, I’d be a little less annoyed. But this does not seem to be their intent.

    Fair dealing should work like free speech, with restrictions introduced over time. I’m sorry, but I simply could not see what even could occur to Canadian writers that would cause such an instantaneous monetary loss if broad fair dealing is implemented. If this group actually does represent the majority of Canadian writers (which evidence has shown that such organizations aren’t), then they should go after corporations that are affiliated with books and similar content. Based on their current practises, most notably the “patent wars” that are occurring between major Computer-related corporations, they are far more of a threat than any single Canadian citizen. I really don’t see how this logic of restricting the people who are also your primary revenue source makes sense.

  48. Laurel L. Russwurm says:

    prevarication, misrepresentation… the list goes on

    I agree that legislative clarity would help. A;though too much clarity can lead to further problems down the line like the CD levy has. The problem is that so long as Bill C32 grants digital locks the power to negate creator rights and consumer access to public domain or creative commons licensed material, I have to wonder if there will be any actual fair dealing in Canada.

    @ Mr. Degen

    I have no problem with writer’s groups. Everyone is entitled to their own choices and opinions.

    But if you’re the “Executive Director, Professional Writers Association of Canada”
    [ as per ] you are living proof that members of any writer’s group may have memberships in other writer’s groups. So even if the Writer’s Guild was signatory this letter– which they are not — simply adding the numbers together would be… misleading.

    There would need to be a mechanism for ensuring that the numbers aren’t… fudged.

    Funny thing is, simply belonging to a writer’s group is no guarantee that the members agree with the stance taken by the board, as Ursula K Le Guin, a former member of the Authors Guild, would be first to tell you. You’d need at least a referendum — with a secret ballot for accuracy — to be sure you were actually speaking for all your members.

    One reason for the existence of so very many Canadian writer’s groups is the fact that no one group can hope to speak for all. It simply doesn’t work.

    My problem is not with writer’s groups.

    My problem is with anyone claiming to speak for me. The writer’s groups signatory to this letter have done just that, and THAT is a problem.

    Because they don’t speak for me.

  49. Laurel,

    I get it. I really do. You so want your new beliefs to be infallible that you’ll argue anything to get there, and you’ll pretend no-one noticed all the mistakes you’ve made along the way. I’ve seen more of this kind of blind ideological loyalty in the last few years than I care to remember.

    Revealing to the world that I am the Executive Director of PWAC is absolutely not the slam-dunk scoop you were hoping for.

    First of all, you’re wrong. The document you link to is old. Back when that letter was published in the Hill Times, I was indeed the ED at PWAC (in fact, ahem, I wrote that great bit about creators owning the field). I have mentioned my relationship to PWAC many times on this blog, once at least in conversation with you.

    I am not the ED at PWAC anymore. I’ve moved on to a different day job, but my interest in copyright didn’t stay with PWAC; it came with me to my new desk, because no matter what else I do, I am a professional writer in Canada.

    The new ED at PWAC is Sandy Crawley, and you’ve been talking to him on this blog as well. He also doesn’t hide who he is. Sandy and I agree on a lot of things (not just the brilliance of Bob Dylan, or the location of the best bar patio in Toronot) including the fact that representative democracy is alive and working.

    Policy statements don’t appear out of thin air from professional associations. They are fiercely debated on member forums, informed by surveys, brought to general and official vote at AGMs, polished and prepared by committee and given authority through the responsible governance of an elected board of directors.

    By contrast, elected by no-one, and using little else than the one-click membership numbers at Fair Copyright for Canada, lots of consumer advocates both professional and self-appointed pretend to speak for Canadian consumers, students, AND creators.

    Well, I’m all three of those things, and those consumer advocates don’t speak for me. I put a hell of a lot more faith in a truly democratic and representative professional association with engaged members who have paid a fee to belong, than I do in the musings of a law professor and his handful of regular blog commenters.

    I assume the government will exercise the same judgment, and understand who speaks for the writing community in Canada.

  50. Wisely?
    @Degen – “C-32, wisely, contains a directive to have Parliament review the Act every five years, presumably to account for changing circumstances and uses.”

    Five years is much too long a period to revisit the statues of this bill in this fast paced age of shifting technology. You tube is hardly older than that and look what a impact it had on the copyright/fair use landscape (Did Prince really want to collect for his grainy toddler background music?). Recently, in the USA the body tasked with revisiting copyright issues there mandated some major fair use exemptions. The Canadian non-binding review is slow and toothless by comparison.

    Oh, and now those new fair use exemptions in the US will be illegal in Canada under C-32. Guess the Americans are now among those radical extremists ol’ James was ranting about.

  51. Digital War Measures Act (again)
    > C-32, wisely, contains a directive to have Parliament review the Act every five years, presumably to account for changing circumstances and uses.

    Degen, it is not wise at all. In fact, choosing the maximum five years is absolutely irresponsible in today’s ephemeral obsolescent of technology. I have said this before. The five years mandatory review is a matter of legality. Even James Moore cannot invoke his _Digital War Measures Act_ and have it last more than five years.

    Exception where express declaration
    33. (1) Parliament or the legislature of a province may expressly declare in an Act of Parliament or of the legislature, as the case may be, that the Act or a provision thereof shall operate notwithstanding a provision included in section 2 or sections 7 to 15 of this Charter.

    Five year limitation
    (3) A declaration made under subsection (1) shall cease to have effect five years after it comes into force or on such earlier date as may be specified in the declaration.

    > The question of whether or not there should be clarity in the bill is ridiculous. We don’t intentionally make vague laws and then wait to see what the courts do with them. Why have a Parliament at all if we want legislation by court?

    You are ridiculous!! _Heather Robinson had a non-exclusive deal with the Globe!_ The Globe doesn’t go around infringing freelance writers – in this case, by posting Heather Robinson’s two articles in the Globe news without some sort of agreement, oral or written. You brainwashed Heather Robinson, or she came to you, to file a suit based on a US’s win trying to “rights grabs” in Canada. You failed partly because the Supreme Court of Canada Justices had merited _Heather Robinson had a non-exclusive deal_ not in writing and _dismissed the appeal entirely._ This is why paragraph 58 says:

    “If it is determined that freelance authors have in fact impliedly licensed the Globe the right to republish their articles in the electronic databases, this decision will, of course, be of less practical significance. Parties are, have been, and will continue to be, free to alter by contract the rights established by the Copyright Act.” [58]

    You compelled Heather Robinson, or she came to you, into _filing a frivolous suit._ The Supreme Court of Canada Justices were very generous, in my view, by giving Heather Robinson some compensation for the long judicial ordeal via the database format. So yes, they were very generous considering the frivolous nature, and they narrowly limited the precedent by accepting the CD-ROM format. In case you don’t understand the frivolous nature of the case – the frivolous part began with _a non-exclusive deal_, Heather Robinson had _zero objection_ to the currently (1995) online reproduction, and ended at the Globe using new technology to do what they’ve always done since 1977.

    Thus, it’s basically your fault for practically losing the case, where it shouldn’t have been there in the first place. Then, you come here and imply it was the Supreme Court of Canada’s fault for your losing a 10 year case, and demand “rights grabs.” If anyone doubts my interpretations of the ruling, read its entirety for yourself.
    Robertson v. Thomson Corp., 2006 SCC 43, [2006] 2 S.C.R. 363

    > I put a hell of a lot more faith in a truly democratic and representative professional association with engaged members who have paid a fee to belong, than I do in the musings of a law professor and his handful of regular blog commenters.

    Just like you put “a hell of a lot more faith in” pro-bono law services and lost a 10 year frivolous case???

    Writers’ letters to the ministers:
    “We thank you for your express willingness to amend C-32 and we will be presenting
    a comprehensive position that includes specific measures we hope will receive the
    support of your government.”

    Why should we, the Canadian public, accept “receive the support of your government?” I thought the government was supposed to receive the support of the Canadian public, not some private interest elite groupie.

  52. Tom, I don’t know how you did it, but you have somehow managed to uncovered my insidious freelance writer brainwashing scheme.

    I can only assume you have a dragon tattoo on your shoulder and are in fact a smokin’ hot Swedish hacker.

    Well played.

    I have no option but to accept your analysis of the Heather Robertson Supreme Court win as a loss. What else could it possibly mean when the Supreme Court rules in your favour and the Globe settles on the undecided details?

    Keep this up, and Darryl will be accusing you of being a gift horse to big content.

  53. Sandy Crawley says:

    Your research is as suspect as your bias measured in ratio to the inaccuracies in your post. You have both the facts and the outcome wrong in RobERTson vs. Thompson so….um, oh yeah, note to self: why am I responding to this idiotic screed?

  54. Darryl Moore says:

    John! No wait. Tom. Are you a pirate? Let me hear you say Arrrrr. Not that anyone should be looking a gift horse in the mouth, mind you.

  55. Sandy Crawley says:

    I guess you don’t really understand copyright law. There is nothing in C-32 or any other statute that prevents the Creative Commons approach and no rationale for placing works licensed as such under a digital lock. No one is going to prevent you, as a professional writer, from giving away your work. All our coalition letter to the ministers seeks is to mitigate the damage to our right to be compensated for use if we so wish.

  56. Sandy Crawley says:

    The Writers’Rights Coalition stance on Fair Dealing/ Fair Use is quite distinct from that of major corporations (instructive that you choose to conflate the two terms as if shared interpretation of intellectual property regulation between Canada and the US were inevitable).

    You are mistaken in assuming that the coalition is not seeking more clarity, a definition of “education” in the bill, if you will. That is precisely what they seek.

    We also agree that the legal concept of fairness must accommodate flexibility. However, C-32 raises the standard of proof for damages through infringement while lowering the penalty.

    Does this persuade you that our concerns amount to more than “fear mongering” as our host the good professor would have it?

  57. Sandy Crawley says:

    @Helen 22
    What a welcome voice of reason!

  58. Darryl Moore says:

    True, there is nothing C-32 which prevents creators using Creative Commons licences.

    The problem is is also allows other creators to take the same work (as permitted in some CC licences ) and republish it behind a digital lock contrary to the spirit, if not the letter, of the licence. It also allows publishers to lock up public domain works and restricts authors from choosing a CC license in the case of particular platforms which have been locked.

    Want to publish with a CC licence and not use digital locks for iPhone ebooks? no no no, not if Apple says you can’t. You own the content, but they own the lock on every iPhone in the world, and they will only open it for you if you meet their demands.

    Apple in particular, I would have though would be enough to allow people like you and John to see the dangers of digital locks. It puts far to much power into the hands of those who own the locks, which, surprise surprise, isn’t you. It’s the device manufacturers like Apple.

  59. Bill C-32 is actually not that broken …
    @Sandy – “However, C-32 raises the standard of proof for damages through infringement while lowering the penalty.”

    And this is a bad thing?

    Just look south of the border to see people being shook down with $5000 infringement letters with no more proof than an IP address and the choice to settle or rack up 3 times that amount in lawyers fees.

    Or multi million$ “damages” for a dozen shared songs.

    I think that part of C-32 is one of the sanest sections, we certainly don’t need that lunacy here.

    Add “except for non-infringing purposes” to the digital locks section and I think we can wrap this all up and go home.

  60. Darryl Moore says:

    Here here. There are several sections of the Bill which I think are wrong or can be improved, but I can live with them as they are if I must. The show stopper for me is digital locks trumping user rights. Add an exception for non-infringing purposes to the digital locks provision and many people will be much happier.

  61. Laurel L. Russwurm says:

    fix c-32
    @ Mr. Degen

    I’m afraid you don’t get it.

    Sorry to disappoint, but I wasn’t trying to do a ‘reveal’. Although I’m new I assumed people here know who you are; you appear to be a regular from your interactions. Your public association with two writer’s groups was a timely illustration that simply adding up the numbers of members of different writers groups won’t work since there is crossover. You may well belong to half a dozen such groups. But I’m afraid I wasn’t doing in depth research so I haven’t actually read the article you allude to. [Perhaps you might want to include a link when making that kind of reference.] I was only taking a quick wander through some of the pages to get an idea of the scope of the organizations and noticed your name (now that I know how to spell it).

    You sound aggrieved that consumer advocates claim to speak on your behalf, so you should be well able to understand why I am unhappy at having my own voice abrogated. This letter goes beyond speaking for the generic class of “writers”. The letter’s opinions are presented as being “on behalf of all professional writers in Canada”.

    I’m glad you’re happy to be involved with your “truly democratic and representative professional association”. But your statement that the government will understand “who speaks for the writing community in Canada” shows you’re a bit shaky on the concept of democracy. Perhaps you could audit one of the high schools civics courses now offered in Ontario for a refresher.

    @Crockett I agree that 5 years is far too long in a world were obsolescence can happen within a matter of months. I was under the impression that the details about a C-32 review process were not spelled out. Is the review actually mandatory or merely suggested?

    @Sandy Crawley Apologies for inadvertently attributing your job to Mr. Degen. And although I am not an IP lawyer, I am capable of reading and understanding laws. As Bill C-32 stands it would make circumventing digital locks illegal even for legal uses like accessing public domain, creative commons and fair dealing works.

    You may not be aware of the effects of the DRM in place already because there are no laws mandating DRM warnings to consumers. For the most part that means most of us don’t often realize our software or digital device doesn’t work as advertised because it was deliberately crippled by DRM. @Darryl Moore did a terrific job of explaining the digital lock relevance to C-32.

  62. Darryl,

    That was a very well argued position on your digital locks concerns. Illuminating.

    I especially liked the part where you said that the creator or rightsholder owned the content. Not the consumer; the rightsholder. Nice.

    So I publish something under a CC licence — attribution, non-commercial, sharealike etc., etc,, and then someone else takes a copy of that work and republishes it, say in an iBook format, and starts selling it for the iPhone behind a digital lock.

    Well, indeed that other person has broken many of the terms of the licence with which they obtained the copy of my work. I have legal recourse to have that work removed from the lock.

    Yay copyright! Protecting my individual creator rights again.

    If you are offended by potential locks, licence your work to reflect that opinion. If you don’t want to accept Apple’s terms, don’t sign their contract (check Heather Robertson v. Thomson Corp at the SCC for details on contracts in Canada).

    So, it looks like we agree — digital locks will aid in marketplace definition, not just for consumers (what do I want to buy?), but for creators as well (how do I want to distribute?).

  63. Oh, and Laurel. I’m going to stop with you. You don’t even read the documents you link to. There isn’t much of a standard of argumentation over here (witness Tom), but happily NOT reading offends me to the core.

  64. Darryl Moore says:

    As usual John, you twist words so that you only read what you want to read. You also have a very liberal definition of the term “buy”. Do you really think that consumers actually “buy” anything when there is a digital lock involved? Especially when the laws are such that favour is given to the lock owner over the consumer.

    I agree entirely that in a digital lock world you would have to agree to Apple’s terms, and the only other option for you would be “don’t sign their contract”. What I can’t understand is why you don’t see this as a serious problem? This gives Apple a complete monopoly over the entire 3rd party market for people who bought their iPhone. It gives Apple tremendous power over authors to dictate terms. It is worse in my mind then the worst publishing monopolies that existed during the industrial era.

    Americans recently won the clear right to jailbreak their iPhones, meaning that the 3rd party market for iPhone applications could actually exist down their. They may yet get a free (as is freedom) market, yet with this Bill, Apple will be handed a monopoly which they can use to abuse consumers and creators alike.

    No one has explained why we need this legal protection for digital locks. You can still have your digital locks and you can still legally protect them (through contract law) without having to infringe everyone’s rights at the same time. Yet, here you are more than willing to give up your rights as both a consumer and an author to allow Apple (and others) to dictate distribution terms to you. Why?

  65. Complete madness
    There’s only one real cure to this madness:

    cancel the laws that enable it.


  66. In Soviet Russia, you frown on ad hominems
    > What else could it possibly mean when the Supreme Court rules in your favour and the Globe settles on the undecided details?

    Like I said, they were very generous and found a technicality because all in all, no precedent for all writers were set, except maybe to put in writing all agreements for freelance writers. You have 9 out of 9 Supreme Court Justices, that’s 100%, dismissed the appeal; and 5 out of 9 found the 2 databases didn’t conform to the look of a newspaper, while the CD-ROM does. Read two decisions again:

    “For the foregoing reasons, we would dismiss the appeal and allow the cross-appeal with respect to the CD-ROMs only. Taking into account all of the circumstances and the mitigated result, the parties should bear their own costs in this Court.” [64]

    “I would therefore dismiss the appeal, allow the cross-appeal, and dismiss the class action.” [101]

    “the parties should bear their own costs in this Court” is the evidence for you to win or lose, and my interpretation is supported by it. If you had really won, the Supreme Court of Canada would have awarded Heather Robertson her deserved court costs and all of the claims Heather Robertson had asked for. If you had really won, the precedent would have been set for all of writers in the news business, and probably all of writers in Canada, but that wasn’t the case. The precedent was limited and basically trivial.

    Remember, you claimed you’re the Supreme Court trend setter, the hero for _all writers._ Your proof showed very tiny to non-existent trend setting, but at least you showed something compared to Access Copyright’s Tariff. Where are Access Copyright’s “SCHEDULE INCLUSIONS LIST” or “Included Works”? Why are there only “SCHEDULE EXCLUSIONS LIST” and “Excluded Works”? When you say Access Copyright will only charge for copying Access Copyright’s repertoire and provide no such “SCHEDULE INCLUSIONS LIST”, Access Copyright can basically charge anything they want not in the list via the “SCHEDULE EXCLUSIONS LIST”. Think of this as overcharging and/or charging for unnecessary work fraud (car repairs, medical procedures…) just like you think intellectual “property” as real property.

    > You have both the facts and the outcome wrong in RobERTson vs. Thompson so….um, oh yeah, note to self: why am I responding to this idiotic screed?

    If I am wrong, then prove it. Why don’t you show what you’ve won as a trend for all writers with or without a contract, like Degen claims as a hero to all? Did Cameron Smith get a reward settlement with the Globe? How? Why? Cameron Smith didn’t have a leg to stand on, nevermind standing on shaky foundation.

    By the way, my questions regarding the “SCHEDULE EXCLUSIONS LIST” and previous legal proof queries in other threads apply to you and anyone defending Access Copyright’s “rights grabs.”

    Universities, colleges, and post secondary institutions from the east coast to the west coast must not create their own secure servers per institution to comply to Access Copyright’s ludicrous demands. It’s Access Copyright who should create one central distribution server (or server farms) and have institutions link to it and charge per usage, not linking. There is funny accounting going on, when Access Copyright claims to charge _everything not on the list._ While you’re at it, show some proof negotiating directly with the copyright owner costs more than using Access Copyright’s little repertoire?

    You’re no more funnier than Degen! In Canada, professional writers trying to “rights grab” for their little elite groupie enjoy using ad hominems on you!

    “note to self:” hahahaha

  67. My apologies to the Supreme Court of Canada
    I want to say I am sorry for offending the Supreme Court of Canada by my implying the Justices had ruled unimpartially. It was unintentional as I hold the highest regard for the Supreme Court of Canada to be impartial. I find the rulings very interesting, and I will read more in the future. As per this huge error, I will try not to repeat it.

    Many years ago I wanted to submit a short, nonprofit, and friendly comment to the CBC; however, their license agreement shocked me as they would want to own my copyright to my comment forever as it seemed. At the time, I found it uncalled for and couldn’t understand why they’d do that. Now, in light of the New York Times Co. v. Tasini and the Robertson v. Thomson Corp. cases I can see the trends these two cases have brought to the online world of news. The Robertson v. Thomson Corp. case, in my view, has caused an aura of mistrust between the CBC and ordinary Canadians who just want to send a nonprofit comment, recalling my experience with the CBC. For clarity and in my view, the people who sued the Globe began the hostile act and its consequences are what they are today, not the ruling of any court, even if the Globe won the whole case.

  68. Tom,

    That is a remarkable performance of blame the victim. Writers standing up for their rights are responsible for corporate over-reach?

    It’s their own fault. If they hadn’t been there, waving their rights around in the air like that, no-one would have tried to take them away from them.