Post Tagged with: "fair dealing"

The Supreme Court Copyright Hearings, Day Two: The Fight to Rollback Fair Dealing

The Supreme Court of Canada held the second day of copyright hearings yesterday with Canadian education groups and Access Copyright squaring off over fair dealing from the perspective of copying materials in schools for classroom use. Much like the first day that involved some discussion that will be rendered largely moot by reforms found in Bill C-11, some of the debate in this case may also change once the bill becomes law. There was considerable focus on the extent to which the fair dealing categories of research and private study can include some element of classroom instruction. That discussion referenced the exclusion of a general education exception, which is not found in the current law but is included in Bill C-11.

As for this particular hearing, the education institutions offered a confused and confusing argument. The problems started from the opening question, with Justice Rothstein opening the door to considering whether short excerpts might be treated insubstantial copying without the need for fair dealing and the schools simply dismissing the possibility. It went downhill from there as the arguments veered between confusing numbers and a failure to address the basic question of why the school’s copying met the six-factor fair dealing test. Access Copyright faced some challenges on the question of whose purpose is relevant when considering fair dealing (it wanted the focus on the teacher, the schools on the student), but the court seems very unlikely to overturn this decision.

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December 8, 2011 — 2 comments — News

The Supreme Court Copyright Hearings, Day One: Fair Dealing Scare Tactics Fall Flat

The Supreme Court of Canada heard three of the five scheduled copyright cases yesterday in the first day of an unprecedented focus on copyright at Canada’s highest court. The hearing drew many of Canada’s top copyright lawyers and featured a court that was highly engaged in the morning session but content to allow the lawyers to make their case with scant interruption in the afternoon. The three cases involved the Entertainment Software Association of Canada (whether downloading a video game involves communication to the public of the music in the game), the large telcos (music downloads), and Bell v. SOCAN (song previews as fair dealing).

There were several notable developments and lines of questioning. First, the fair dealing discussion that dominated the Bell v. SOCAN case would be familiar to anyone who has followed the debate on Bill C-11 as the usual suspects trotted out the usual scare tactics. The arguments included SOCAN likening music previews to ice cream samples (and therefore not worthy of being treated as research for fair dealing purposes), CRIA arguing for a “circumscribed definition of fair dealing”, and CSI claiming that including consumer research within fair dealing could put Canada offside its international obligations. 

None of these arguments gained any real traction with the court.

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December 7, 2011 — 16 comments — News

CRIA Targets Fair Dealing: Tells Supreme Court New Restrictions Needed on User Rights

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:

  1. 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.”
  2. 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.
  3. 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. 
  4. Alternatives to the Dealing – Was a “non-copyrighted equivalent of the work” available?
  5. 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.”
  6. 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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June 30, 2011 — 32 comments — News

Access Copyright’s Desperation: From Fair Dealing Allows Everything to It’s Too Risky to Rely Upon

The battle over competing visions of educational copyright licensing in Canada is coming to a conclusion. One on side, there is Access Copyright, which argues that a comprehensive collective licence is an essential part of an institutional copyright policy. On the other, are the Canadian education institutions, who believe that a more flexible, cost-effective alternative lies in relying on the combination of purchasing works, site licences, open access, fair dealing, and transactional licensing. Having first faced a proposal for a massive increase in Access Copyright licensing fees and later weeks of costly, unnecessary Copyright Board interrogatories, the educational institutions are clearly ready to break away from the Access Copyright comprehensive licence.

Access Copyright’s response has grown increasingly desperate. First it stopped offering transactional licences to educational institutions in the hope that those institutions would opt for the more expensive comprehensive licences instead. When the practice was publicly exposed, Access Copyright offered a laughable response that transactional licensing creates incentives to infringe. The Canadian educational institutions have filed a complaint with the Copyright Board in a case that will unfold over the summer.

Since the transactional licence gambit is likely to fail, Access Copyright has now released a note designed to scare the institutions away from relying on fair dealing. After months of issuing dire warnings that fair dealing would allow educational institutions to copy virtually everything without limits or compensation during the Bill C-32 debate (including claims that all educational licences were at risk), Access Copyright now ironically argues the opposite – that fair dealing is legally risky and should not be relied upon by educational institutions.

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June 17, 2011 — 11 comments — News

Canadian Rules Rain on Cloud Music Parade

Appeared in the Toronto Star on June 12, 2011 as Forecast Iffy for Music Cloud Services in Canada Apple has once again captured the attention of the Internet world with the unveiling of the iCloud, an online backup system that will allow users to instantly store their content on Apple […]

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June 14, 2011 — Comments are Disabled — Columns Archive
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