Fair Dealing by Giulia Forsythe (CC BY-NC-SA 2.0) https://flic.kr/p/dRkXwP
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.
Led by Justice Abella, the court has reaffirmed that fair dealing is a user’s right that must be interpreted in a broad and liberal manner. In fact, the court provides further guidance on interpreting fair dealing with an emphasis on the need for a flexible, technology-neutral approach. In reading the decisions in the Access Copyright and song previews cases, it is hard to imagine a bigger victory for education, Internet users, and innovative companies. This post will provide some quick key points in the Access Copyright and song previews decisions.
The Access Copyright case has enormous implications for education and copyright in Canada. With the court’s strong endorsement of fair dealing in the classroom, it completely eviscerates much of Access Copyright’s business model and calls into question the value of the model licence signed by many Canadian universities. Writing for the majority, Abella adopts several crucial findings, not the least of which is that fair dealing is a user’s right. Piece by piece, Abella tears apart Access Copyright’s claims. First, she says the attempt by Access Copyright to separate teacher copies for students and students making their own copies should be rejected. The court states:
Nigel Farage, a UK Member of the European Parliament, has tabled a question to the European Commission that asks if it “will undertake a revision of the EU-Canada deal to remove all proposals similar to ACTA.” Farage says that CETA should be thoroughly revised to remove anything that would implement […]
Access Copyright’s Executive Director Maureen Cavan tells University Affairs magazine that 40 percent of university students outside of Quebec are currently at institutions that have not signed the Access Copyright model licence. Carleton University, which opted-out of the licence last year, reports that “roughly 80 percent of requests to use […]
Professor Michael Carrier has published the results of a remarkable initiative on copyright and innovation that uses the music industry and Napster as the case study. Carrier interviewed leading executives at major record labels and technology companies in an effort to better understand the implications of the litigation strategy against […]
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Michael Geist
mgeist@uottawa.ca
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