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Wednesday July 28, 2010
Federal Court Ruling Shows Fair Dealing Fears Greatly Exaggerated
While concern over Bill C-32's digital lock rules has garnered the lion share of attention, the other major issue in the bill is the extension of fair dealing to cover education, parody, and satire.  I have characterized those changes as a reasonable compromise - not the full "such as" flexibility that would have been preferable, but helpful extensions that attempt to strike a balance.  Some writers groups have reacted angrily to the changes, claiming it will cost them millions in revenue and arguing that it amounts to an "expropriation of property." Last week, the Federal Court of Appeal issued its much-anticipated ruling in the K-12 case, which specifically addressed fair dealing in the context of education.  The ruling was a major win for Access Copyright, as the court dismissed objections from education groups on a Copyright Board of Canada ruling and paved the way for millions in compensation from school boards.  The case is notable since it demonstrates how critics of greater fair dealing flexiblity have greatly exaggerated claims of potential harm.  For example, former PWAC Executive Director John Degen wrote this week that "the introduction of an overly broad exception to copyright for educational use would all but eliminate fair compensation for this established use."  Access Copyright reacted to the court victory by stating it was "bittersweet" given the C-32 changes.  While there is no doubt that extending fair dealing to education (the law currently covers many educational activities under research, private study, criticism, and review) will bring more potential copying within the scope of fair dealing, this case reinforces the fact that fair dealing is a fair for all, not a free for all and that fears that the extension of categories will wipe out all revenues bear little relation to reality.

The court held that Canadian fair dealing analysis involves a two-part test.  First, does the use (or dealing) qualify for one of the fair dealing exceptions (the Supreme Court of Canada has called these user rights).  Second, if it does qualify, is the use itself fair.  In this particular case, the court affirmed that the copying in question qualified under the first part of the test (ie. for research or private study), but that it did not meet the six-part test for fairness and thus was not fair dealing.  In other words, claims that a new category would eliminate compensation is plainly wrong since the copying in question already qualified under a category of fair dealing.

It is critical to note that extension of fair dealing to education, parody and satire in Bill C-32 only affects the first part of the test.  In other words, while the bill will extend the categories of what qualifies as fair dealing, it does not change the need for the use itself to be fair.  The Supreme Court of Canada has identified six non-exhaustive factors to assist a Court‘s fairness inquiry: (1) the purpose of the dealing; (2) the character of the dealing; (3) the amount of the dealing; (4) alternatives to the dealing; (5) the nature of the work; and (6) the effect of the dealing on the work. 

Whether the use of the work qualifies as fair dealing depends upon both meeting both parts of the test.  In fact, the court notes:

I am also aware that Bill C-32, An Act to amend the Copyright Act, 3rd Session, 40th Parliament, 59 Elizabeth II, 2010, section 21 would amend section 29 to state that "Fair dealing for the purpose of research, private study, education, parody or satire does not infringe copyright". However, this amendment serves only to create additional allowable purposes; it does not affect the fairness analysis. As the parties agree that the dealing in this case was for an allowable purpose, the proposed amendments to the Act do not affect the outcome of this case and no more will be said about Bill C-32.

The case represents a big win for the copyright collectives, but it also demonstrates that their concerns about C-32's fair dealing reforms are overstated.  The bill will open the door to other potential uses being treated as fair dealing, but the requirements for fairness remain unchanged.

copyright, copycon, Copyright 2010

While concern over Bill C-32's digital lock rules has garnered the lion share of attention, the other major issue in the bill is the extension of fair dealing to cover education, parody, and satire.  I have characterized those changes as a reasonable compromise - not the full "such as" flexibility that would have been preferable, but helpful extensions that attempt to strike a balance.  Some writers groups have reacted angrily to the changes, claiming it will cost them millions in revenue and arguing that it amounts to an "expropriation of property."

Last week, the Federal Court of Appeal issued its much-anticipated ruling in the K-12 case, which specifically addressed fair dealing in the context of education.  The ruling was a major win for Access Copyright, as the court dismissed objections from education groups on a Copyright Board of Canada ruling and paved the way for millions in compensation from school boards. 

The case is notable since it demonstrates how critics of greater fair dealing flexiblity have greatly exaggerated claims of potential harm.  For example, former PWAC Executive Director John Degen wrote this week that "the introduction of an overly broad exception to copyright for educational use would all but eliminate fair compensation for this established use."  Access Copyright reacted to the court victory by stating it was "bittersweet" given the C-32 changes.  While there is no doubt that extending fair dealing to education (the law currently covers many educational activities under research, private study, criticism, and review) will bring more potential copying within the scope of fair dealing, this case reinforces the fact that fair dealing is a fair for all, not a free for all and that fears that the extension of categories will wipe out all revenues bear little relation to reality.

Wednesday October 14, 2009
Access Copyright: Reduce Fair Dealing, No Taping TV Shows or Format Shifting
The Government continues to post copyright consultation submissions (still lots to go one month after the consultation concluded) with many making for interesting reading.  Access Copyright's submission is worth noting for two reasons.  First, rather than simply arguing against flexible fair dealing, it argues that the current fair dealing provision as interpreted by the Supreme Court of Canada is actually too broad.  It states: Rather than an expansion of fair dealing, Access Copyright believes that it may be necessary to qualify the fair dealing provision as set out by the Supreme Court of Canada in the CCH decision, in order to ensure that Canada is compliant with the three-step test. Access Copyright contends that the fair dealing provision as interpreted by the Supreme Court of Canada conflicts with the normal exploitation of a work and causes an unreasonable loss of income to creators and publishers. The collective goes on to say that research should be limited to non-commercial instances only (the Supreme Court of Canada ruled that there was no such limitation).  Access Copyright also takes aim at format and time shifting, submitting "that good public policy should not be dictated by legalizing common public practices." It is particularly concerned with format shifting, arguing for additional compensation for such exceptions.
The Government continues to post copyright consultation submissions (still lots to go one month after the consultation concluded) with many making for interesting reading.  Access Copyright's submission is worth noting for two reasons.  First, rather than simply arguing against flexible fair dealing, it argues that the current fair dealing provision as interpreted by the Supreme Court of Canada is actually too broad.  It states:

Rather than an expansion of fair dealing, Access Copyright believes that it may be necessary to qualify the fair dealing provision as set out by the Supreme Court of Canada in the CCH decision, in order to ensure that Canada is compliant with the three-step test. Access Copyright contends that the fair dealing provision as interpreted by the Supreme Court of Canada conflicts with the normal exploitation of a work and causes an unreasonable loss of income to creators and publishers.

The collective goes on to say that research should be limited to non-commercial instances only (the Supreme Court of Canada ruled that there was no such limitation).  Access Copyright also takes aim at format and time shifting, submitting "that good public policy should not be dictated by legalizing common public practices." It is particularly concerned with format shifting, arguing for additional compensation for such exceptions.
The Government continues to post copyright consultation submissions (still lots to go one month after the consultation concluded) with many making for interesting reading.  Access Copyright's submission is worth noting for two reasons.  First, rather than simply arguing against flexible fair dealing, it argues that the current fair dealing provision as interpreted by the Supreme Court of Canada is actually too broad.  It states:

Rather than an expansion of fair dealing, Access Copyright believes that it may be necessary to qualify the fair dealing provision as set out by the Supreme Court of Canada in the CCH decision, in order to ensure that Canada is compliant with the three-step test. Access Copyright contends that the fair dealing provision as interpreted by the Supreme Court of Canada conflicts with the normal exploitation of a work and causes an unreasonable loss of income to creators and publishers.

The collective goes on to say that research should be limited to non-commercial instances only (the Supreme Court of Canada ruled that there was no such limitation).  Access Copyright also takes aim at format and time shifting, submitting "that good public policy should not be dictated by legalizing common public practices." It is particularly concerned with format shifting, arguing for additional compensation for such exceptions.
Friday June 26, 2009
Copyright Board Releases Educational Copyright Decision
The Copyright Board of Canada has released its long delayed decision on photocopying in primary and secondary schools.  There are two ways of looking at these decisions - the dollar amount of the tariff and the reasoning.  The dollar amount in this case is big - jumping from the current fee of $2.45 per full-time student (FTE) to $5.16 per FTE.  Note that this goes back to 2005 (although the back pay will be set at $4.64 per FTE), so this represents a huge additional cost to Canadian education and a major source of revenue for Access Copyright.  The Board goes through a detailed analysis of how it arrived at this figure, but at the end of the day, it feels like that it simply split the difference between the two sides.  Access Copyright was seeking $8.92, while the schools argued for $2.43 - that averages to $5.67 per FTE and the Board's award is just below that figure. Whether this is just coincidental or by-design, the current system encourages big requests which set a framework for "reasonableness" that can result in major increases in royalties. The core aspect of the reasoning is the Board's assessment of fair dealing.

The analysis leaves something for both sides, though the on the big issue - can photocopying by teachers on behalf of their students for the purposes of private study qualify as fair dealing - the Board sides with Access Copyright.  It concludes that this copying is not fair dealing and therefore deals a blow to the school's argument that most photocopying in schools qualifies as fair dealing.  If there is an appeal - and one seems certain - this issue will no doubt arise.

On other aspects of fair dealing, the Board sided with education and against Access Copyright's attempt to limit its scope.  The Board started by emphasizing that all exceptions under the Copyright Act are users' rights.  It rejected arguments that research requires a narrow interpretation (Access Copyright said it must entail "an investigation, a search or a close study"), going back to its decision that consumer research could even include streaming a preview of a song.  The Board also rejected claims that criticism or review required a communication to the public, noting that:

"We cannot agree that a student conveying his or her impressions on the Harry Potter series violates J.K. Rowling's rights when writing them to the author but not when communicating them to the entire class or posting them on MySpace."

There is much more to digest, but the heart of the analysis suggests that fair dealing gets a broad interpretation, but not beyond the limits of the statute itself (ie. limited to the current set of categories) and not so broad as to include overlap with classroom instruction where the teacher does the copying for his or her students.

Update: Further coverage from Howard Knopf and Sam Trosow.

fair dealing decision

The Copyright Board of Canada has released its long delayed decision on photocopying in primary and secondary schools.  There are two ways of looking at these decisions - the dollar amount of the tariff and the reasoning.  The dollar amount in this case is big - jumping from the current fee of $2.45 per full-time student (FTE) to $5.16 per FTE.  Note that this goes back to 2005 (although the back pay will be set at $4.64 per FTE), so this represents a huge additional cost to Canadian education and a major source of revenue for Access Copyright.  The Board goes through a detailed analysis of how it arrived at this figure, but at the end of the day, it feels like that it simply split the difference between the two sides.  Access Copyright was seeking $8.92, while the schools argued for $2.43 - that averages to $5.67 per FTE and the Board's award is just below that figure. Whether this is just coincidental or by-design, the current system encourages big requests which set a framework for "reasonableness" that can result in major increases in royalties.

The core aspect of the reasoning is the Board's assessment of fair dealing.

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