Reports from CTV and the Globe and Mail indicate that the government is planning to introduce a new copyright exception for political advertising. The reports suggest that the exception would permit the use of news content in political advertising without authorization provided that it meets three conditions:
News content would have to meet three criteria for this exemption, the cabinet memo says. It would have to be published or made available through TV broadcasts or platforms such as YouTube. It would have to be obtained from a news source such as a news program or newspaper or periodical. And it would have to feature a political actor operating in that person’s capacity as a politician, or relate to a political issue.
While the reports sparked an immediate reaction claiming the government is legalizing theft, my view is that copyright law should not be used to stifle legitimate speech. Political speech – even noxious attack ads – surely qualifies as important speech that merits protection (see this CDT analysis for similar concerns in the US). I am not a fan of attack ads, but attempts to use copyright to claim absolute rights over the use of a portion of a video clip is surely counter to basic principles of fair dealing (in Canada) or fair use.
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Last year, the Writers’ Union of Canada and Union des Ã‰crivaines et des Ã‰crivains Quebecois announced
that they were joining a lawsuit
against HathiTrust, a consortium of U.S. universities that work with Google on the digitization of millions of books. The lawsuit, which was led by the Authors’ Guild in the U.S., challenged the legality of scanning millions of books and placing the books in the HathiTrust Digital Library (HDL)
. Yesterday, a U.S. court ruled resoundingly for the universities
, concluding that the practices fall squarely within U.S. fair use (good analysis from Grimmelman
). The case is an important win for fair use and it points to a potential model for Canadian universities that have lagged behind in ensuring digital access to materials.
The HDL, a joint project of the University of California, University of Wisconsin, Indiana University, Cornell University and University of Michigan, used digital copies originally scanned by Google to allow for three purposes: (1) full text searches; (2) preservation; and (3) access for people with print disabilities. The universities implemented access to the database of scanned books in different ways. The full text search functionality enabled users to search through millions of books for particular terms. If the book was not in the public domain or there was no authorization from the copyright owner, searches only indicated the page number where the search term was found with no actual text copied. Students with print disabilities were able to access the full-text through a secure system that was not available to the general public or student body.
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Judge Richard Posner, one of the best regarded judges in the world, has a blog post
in which he expresses concern about the potential for patent and copyright law to restrict competition and creativity. On patents, Posner notes:
When patent protection provides an inventor with more insulation from competition than he needed to have an adequate incentive to make the invention, the result is to increase market prices above efficient levels, causing distortions in the allocation of resources
He continues by citing the software industry as an example of the dangers of excessive patent protection. On copyright, he expresses doubt about the social benefit of copyright for any academic work other than textbooks, noting that they are a by-product of academic research that would be produced with or without copyright protection. His two major concerns involve the term of copyright (which is longer in the U.S. than in Canada but could be extended under the TPP) and narrow interpretations of fair use:
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KEI has posted a leaked version of the U.S. fair use proposal for the Trans Pacific Partnership. The leak raises significant concerns about the language that may create new restrictions. It also highlights a divide among TPP countries (Canada has yet to participate in the negotiations) with Australia supporting the […]
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The reverberations from yesterday’s Supreme Court of Canada copyright decisions will be felt for years (good coverage of the decisions include posts from Mark Hayes
, IP Osgoode
, Barry Sookman
, Howard Knopf
, the Toronto Star
, and the CBC
). While much of the coverage has focused on the music downloading issue, the continued expansion of fair dealing is perhaps the most significant development.
I focused on the court’s expansive view of fair dealing in an earlier post, but I think it is worth digging a bit deeper to ask whether Canada has now effectively shifted from fair dealing to fair use. The Copyright Act obviously still speaks of fair dealing, but the expansion by the courts and the legislature may have effectively rendered it very close to fair use.
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