As the Standing Committee on Industry, Science and Technology (INDU) prepares for its first copyright review hearing next week featuring various representatives from the education community, MPs will regularly hear witnesses talk about the “copyright balance.” For Canadian copyright policy, balance has long been a foundational goal, regularly reflected in the views of both government and the courts. Yet according to a document obtained under the Access to Information Act, last fall officials at the Ministry of Canadian Heritage advised Minister Melanie Joly to abandon the emphasis on a copyright balance.
Post Tagged with: "cch"
Against Copyright Balance: Canadian Heritage Officials Say It’s Time “To Move Beyond the Notion of Balance”
Access Copyright has filed its response to the Copyright Board of Canada’s series of questions about fair dealing and education in the tariff proceedings involving Canadian post-secondary institutions. I have several posts planned about the 40 page response, which continues the copyright collective’s longstanding battle against fair dealing. This one focuses on Access Copyright’s astonishing effort to urge the Copyright Board to reject the Supreme Court of Canada’s clear ruling on the relevance of licensing within the context of fair dealing.
Access Copyright has frequently argued that the availability of a licence should trump fair dealing. For example, in the 2001 copyright consultation it stated:
As a rule, where collective licensing is in place there should be no exception or limitation to a right for which the holder has a legitimate interest. As defined in the Act, anytime that a licence to reproduce a work is available from a collective society within a reasonable time, for a reasonable price and with reasonable effort, it is commercially available.
Access Copyright reiterated its position in its 2003 intervention in the Law Society of Upper Canada v. CCH Canadian case. It argued:
As Meera Nair noted last week, today marks the tenth anniversary the Supreme Court of Canada’s landmark CCH Canadian v. Law Society of Upper Canada. A decade after its release, the case has grown in stature as the leading the users’ rights copyright decision by a high court in the world. Writing for a unanimous court, Chief Justice McLachlin stated:
the fair dealing exception is perhaps more properly understood as an integral part of the Copyright Act than simply a defence. Any act falling within the fair dealing exception will not be an infringement of copyright. The fair dealing exception, like other exceptions in the Copyright Act, is a user’s right. In order to maintain the proper balance between the rights of a copyright owner and users’ interests, it must not be interpreted restrictively. As Professor Vaver, supra, has explained, at p. 171: ‘User rights are not just loopholes. Both owner rights and user rights should therefore be given the fair and balanced reading that befits remedial legislation.’
The articulation of fair dealing as a users’ right represented a remarkable shift, emphasizing the need for a copyright balance between the rights of creators and the rights of users. While this approach unquestionably strengthened fair dealing, the immediate reaction to the CCH was somewhat mixed.
On Monday, the Writers’ Union of Canada told the committee: