Friday, February 21, 2014
The Associations of Canadian Publisher’s (“ACP”) has worked hard and apparently spent lots of money over the years fighting against fair dealing. It has fought against fair dealing twice in the Supreme Court of Canada and lost both times. The ACP is also a very active lobbyist in Ottawa, as a search of the lobbyist registry readily shows, seeking on the one hand to get grants from the Government and on the other hand “lobbying to amend the Copyright Modernization Act…to limit fair dealing exemption for education”. That lobbying against fair dealing also didn’t work. Again, the ACP lost badly.
So, it seems that the ACP has reverted to more blunt tactics. It has recently been sending out this document dated December 2013 to post-secondary institutions entitled “STATEMENT OF PRINCIPLES ON FAIR DEALING IN EDUCATION”. It provides seven (7) principles of fair dealing that are at best misleading and are, at worst, clearly wrong. The document might more accurately be entitled “[MIS]STATEMENT OF PRINCIPLES ON FAIR DEALING IN EDUCATION”.
Don’t just take my word for this. As everyone knows, there are have been three Supreme Court of Canada (“SCC”) decisions on fair dealing since 2004 and the word “education” is now included as one of the recognized general allowable purposes of fair dealing in the statute. Despite the monumental and concerted efforts of the ACP and their colleagues, the word “education” has not been defined or limited by Parliament.
Despite all the disinformation and denial from the ACP and others, the law of fair dealing in Canada is actually now remarkably straightforward due to Parliament and the acclaimed jurisprudence of the SCC. However, it’s taking a long time for this clarity to sink in, at least in ACP circles.
Parliament has said – and this is the now law, like it or not:
29. Fair dealing for the purpose of research, private study, education, parody or satire does not infringe copyright. (Emphasis added)
There were many ingenious and some rather disingenuous attempts to limit or qualify the addition of the word “education” in 2012 when the fair dealing amendment was being debated in Parliament – but the attempts failed. The legislative history will confirm that those opposed to the word “education” feared its very broad coverage. They now need to live with consequences of these dire predictions and they may be haunted by their own words in any litigation attempting to limit the meaning of the word “education”. As I always say to copyright maximalists, “be careful what you wish for”. And the addition of the word “education” was passed and given Royal Assent even BEFORE the SCC ruled in the K-12 case and the iTunes previews case.
And, the SCC made it clear in the CCH case in 2004 that that, once the use is determined to be for a legitimate “purpose”, such as “of research, private study, education”, then there are six factors to consider to see if it is really “fair”. These are:
60 To conclude, the purpose of the dealing, the character of the dealing, the amount of the dealing, the nature of the work, available alternatives to the dealing and the effect of the dealing on the work are all factors that could help determine whether or not a dealing is fair. These factors may be more or less relevant to assessing the fairness of a dealing depending on the factual context of the allegedly infringing dealing. In some contexts, there may be factors other than those listed here that may help a court decide whether the dealing was fair.
It should be noted that:
- No single factor has priority
- Not all factors need be satisfied
- There may be additional relevant factors
- These factors closely resemble the American four factors, which are: (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work.
So – with all this in mind, let’s look at the ACP’s astonishing misstatements about Canadian copyright law. What ACP says is in Blue. My comments follow in Red.
1. Quantitative limits on fair dealing are not at the heart of defining what is fair. In the absence of a permission negotiated with copyright owners or their representatives, an arbitrary amount becomes a guideline for unfair copying: regardless of the purpose or impact of copying, the analysis starts and ends with calculating a quantity. That is not fair.
HPK: This is seriously misleading. Fair dealing – by definition – does not require “a permission negotiated with copyright owners or their representatives”. There is nothing wrong with “guidelines” that suggest quantitative norms in line with “best practices” in Canada and comparable jurisdictions and which indicate, as in the case of the U of T fair dealing guidelines, that the application of these suggestions (e.g. “up to 10% of a copyright-protected work (including a literary work, musical score, sound recording, and an audiovisual work)” may “vary depending on the exact nature of the work being used, and of the use itself, all in the context of consideration and application of the fair dealing factors”. Quantitative guidelines are useful so that users can enjoy their rights without having to “negotiate” every use. There will be cases where these guideline suggestions are too high – or too low. Training, experience and good faith will prevail. The existence of good fair dealing policy guidelines is a key element in any institution’s copyright approach. Indeed the Law Society’s “Access Policy” was repeatedly mentioned by the SCC in the CCH decision, and was instrumental in the LSUC’s successful defence.
2. “Textbook-like collections” are created by instructors during their course planning and are most often presented as course outlines. For any resource that appears as required material on an instructor’s course outline, copyright owners should be paid. Although the copying of short excerpts to complement core resources may be fair, fair dealing is not intended to enable the assembly of textbook-like collections, whether digitally or on paper. That is not fair.
HPK: This is wrong. The SCC has explicitly ruled that the fact that a teacher takes the initiative to tell a student what to be read does NOT ipso fact preclude that material from being “fair dealing”. When it is fair dealing, the user does NOT need permission and copyright owner does NOT get paid. That’s the whole point about fair dealing.
3. Fair dealing is intended to facilitate transformative uses of copied material, such as new research, criticism, and satire. When copying is simply duplication for distribution, it is not fair dealing.
HPK: This is wrong. The term “transformative” use can be found in American case law, but is only one of many potentially relevant aspects. It is NOT an essential requirement of American fair use, much less Canadian fair dealing. Copying that is “simply duplication for distribution” may very well be fair dealing, if it is for one of the recognized purposes and meets the SCC’s factors.
4. Fair dealing is intended to enable situational uses of copyright-protected material, in support of free expression, expanded discourse, and creativity. Fair dealing is spontaneous—not planned, organized, coordinated for maximum value gained, or designed specifically to avoid payment. If copying is not spontaneous, it is not fair dealing.
HPK: This is wrong. Most fair dealing will involve careful analysis as to whether the dealing meets the requirements of the statute and the SCC factors. That is why all educational institutions are disseminating guidelines and educating their communities. Would intelligent copyright owners want it any other way? The use of fair dealing to minimize costs and maximize quality of education and research is the fundamental part of the foundation of copyright law and is the reason why the SCC tells us that is a “users’ right” that must be given a “large and liberal” interpretation.
5. Fair dealing depends on copying from a legal source. Copying from an illegally acquired original is not fair dealing.
HPK: There’s no basis for this statement as such a general and categorical proposition. It’s conceivable that “copying from an illegally acquired original” might be an additional factor above and beyond the SCC’s six factors in some hypothetical instance in determining whether the copied material involved fair dealing – but equally conceivable that it may not be.
6. Fair dealing is not intended to exclude paying for the work of authors and all those involved in the original publishing of the material when those doing the copying are being paid for their work, or when students are being charged for the materials. That is not fair.
HPK: This is wrong and very seriously misleading. The SCC clearly ruled in the CCH decision that lawyers have the right to engage in fair dealing for the purpose of research. Lawyers normally get paid for their work. Professors and teachers also get paid for their work. And it’s OK to charge students for materials incorporating copying that is fair dealing, as long as it’s on a not-for-profit cost recovery basis.
7. Fair dealing is not intended to cause damage to the markets for works, along with the livelihoods of authors and publishers, and their ability to create new works. Depending on the work, such damage can occur at any level of copying, but damage is very likely when large amounts of a work are copied, or when multiple copies are made. If copying damages the market for a work, it is not fair dealing.
HPK: This is very seriously misleading. There is nothing in Canadian law that prevents the making of multiple copies, if such copying meets the requirements of the statute and the SCC fair dealing factors. Even If there are thousands of students in a MOOC, the provision of material to each and every one can be fair dealing, if the purpose is for education or another allowable purpose and the SCC’s factor test is satisfied.
Those in the educational community should ignore the ACP misstatements – or perhaps use them as a teaching tool about how NOT to inform the Canadian public accurately about copyright law.
Those in the educational community should acquaint themselves with good fair dealing guidelines that apply in their context. While the basic underlying principles are the same for everyone, there may be some differences between certain types of institutions and situations. K-12 is obviously not quite the same environment as and advanced research university – though there is more in common than not when it comes to fair dealing. Overall, I am partial to the U of T fair dealing guidelines, which are nuanced, sophisticated and yet very clear and logical. I should reiterate, as I have previously disclosed, that I had some involvement in their creation.
The final paragraph of the ACP document is particularly ironic:
As long-term, effective partners in education, Canadian-owned higher-education publishers are open to discussion and negotiation on the limits of fair dealing. We propose that copyright users adopt policies based in the principles we outline here, an approach that recognizes that authors, publishers, professors, learners, universities, colleges and schools are partners, not adversaries, in education.
One may well ask how parallel efforts in seeking a mandatory tariff, suing a major university, and disseminating wrong and misleading statements of principle are likely to promote a relationship of “partners, not adversaries, in education”.
Friday, February 14, 2014
Just in time for for Valentine's Day, though they probably didn't intend it that way, the National Post and Richard Warman have discontinued their appeals from the decision from Justice Rennie. These were to have been heard on February 19, 2014 here in Ottawa. This is a very pleasant surprise and lets Justice Rennie's decision stand. It will be interesting to see what happens with costs, since this went down to the wire. Such a last minute discontinuance of an appeal is very unusual. Here's what was at issue in the appeal:
Here's the Notices of Discontinuance.
PS - here are the substantive memoranda filed by the parties and the interveners:
- what is substantial?
- how does fair dealing apply in the context of news reporting, blogs, and critical comment?
- when the limitation period begins to run for material posted online?, and
- whether there can be copyright in a headline?
Here's the Notices of Discontinuance.
PS - here are the substantive memoranda filed by the parties and the interveners:
Saturday, February 08, 2014
(sculpture of José Antonio Elvira in Guantánamo, a city in southeast Cuba. Wikimedia)
The issues of music as torture is once again back in the news, since a Canadian band named Skinny Puppy reportedly sent an invoice to the US Government for $666,000 for the alleged use of their "industrial dance" music without permission for this purpose.
Having been among the first - maybe even the first - to write about this issue from a copyright standopint back in 2008, before President Obama got elected and promised to close down Guantanamo, I got called by the Voice of Russia - formerly Radio Moscow - to be interviewed on this subject. How could I resist this interview, on the eve of #Sochi2014?
Seriously, I agreed to do this interview on the copyright aspects of music as torture because "black humour" is an important component of informed discussion about serious issues. I take no position on the underlying very serious political, diplomatic, military, counter-trerrorism, human rights, etc. issues involved - which are, to say the least, very complex and very serious. I'm just a Canadian copyright lawyer.
Of all of the issues involved with GITMO, copyright is undoubtedly the most trivial - but it's rather interesting, ironic and would make for a fantastic law school exam question or moot.
Anyway, here's the Voice of Russia article, with a link to a voice interview with your's truly.
Wednesday, February 05, 2014
As a member of Access Copyright, I am posting AC's latest email missive to the membership. My comments may or may not follow. In the meantime, reader's comments are welcome.
Access Copyright's Board of Directors wishes to notify you of proposed changes to AC's governance structure and a potential vote on the changes at the April 2014 AGM.
Access Copyright's traditional licensing is facing considerable challenges, particularly in the education sector. At a membership summit last spring representatives of our creator and publisher communities gathered to consider the future of Access Copyright and to begin the process of re-shaping the organization to meet these challenges.
In the past year the Board has endorsed a transformation agenda and much progress has been made. Access Copyright will continue to advocate on behalf of the copyright of creators and publishers, however, as a renewed organization, we must also re-dedicate ourselves to the service of content users. Our continued service to creators and publishers likely depends on our ability to develop new ideas and customer-facing digital services-specifically, content clearance and access tools integrated across digital platforms.
In addition to the work on business strategy and communications, the Board is seeking to support the transformation agenda with a revised Governance structure.
The proposed changes originated from the work of a Governance Advisory Group. The six-person Advisory Group included creator and publisher representatives with experience in organizational governance. The group reported to the Board of Directors and its mandate was to assess the current governance structure and recommend changes or enhancements that could support the strategic vision.
The Advisory Group completed its work last August and made recommendations to the Board in September. And, after much reflection and minor amendments, the Board approved substantially similar recommendations in December, for the consideration by the membership.
At the heart of the proposed changes is the establishment of a member-driven Nominating Committee to enable the targeted recruitment of the most appropriate skills and expertise-while, of course, maintaining the essential character that defines Access Copyright.
We believe a smaller, competency-based structure will be more agile, cost-effective and conducive to the task at hand; however we also recognize that this is a significant change and want to ensure our affiliates are well informed prior to the vote taking place.
Please see the attached backgrounder for a more detailed overview of the proposed changes. If there is sufficient support to proceed, the proposal will be voted on by the member organizations at the 2014 AGM scheduled for April 25, 2014. Affiliates with questions or concerns about these changes are encouraged to contact their respective member organization. [sic - note that the final words "member organization" appeared in the e-mail as a non-functional link - HPK]
Nancy Gerrish James Romanow
Monday, February 03, 2014
Access Copyright ("AC") has responded to CMEC's motion for leave to intervene. It strongly opposed the motion and asks that the motion be dismissed with costs of $2,500 payable forthwith.
York University's response is very short and "does not oppose the motion".
York University's response is very short and "does not oppose the motion".
Friday, January 31, 2014
The deadline to object to CPCC's proposed tariff on blank CDs of $0.29 each is next Wednesday, February 5, 2014. Here's the Copyright Board's notice. There is no cost in terms of Board fees to file an objection and no liability to the CPCC if the objection is later withdrawn or not pursued.
It's surprising that the existing levy generates any income for CPCC, since it's cheaper now to buy DVDs, which hold about seven times the data. But there are, apparently, still some legacy computers out there that don't have DVD burners. There are other obvious storage media choices that are very cheap or virtually free - including cloud, microSD, USB and hard drives.
Here's the latest reported financial data from CPCC.
At the current rate of decline in revenue, CPCC will likely soon be out of business - absent any miracle delivered by way of legislation. This would seem unlikely from a Government that issued a regulation stopping a levy on microSDs and whose then Minister of Heritage, the Hon. James Moore, referred in 2010 to a proposed levy on iPods, etc. in the following terms:
This idea of imposing a new tax on iPods and MP3 players is not a new idea because there are very few new ideas, unfortunately, that come from the opposition on the issues of copyright and taxes. However, this idea is really toxic and, frankly, really dumb. This would punish consumers if we were to put in place a tax of up to $75 on iPods, Blackberries, cell phones, laptops, computers, memory sticks and automobiles, anything that is capable of playing digital music. (emphasis added)
Tuesday, January 28, 2014
Last week the CMEC, the Council of Ministers of Education, Canada sought leave to intervene in the Access Copyright v York U lawsuit. I have obtained, from the Court itself, a copy of these materials, which are on the public record.
CMEC is not seeking to get involved in the discovery process but rather wishes to make oral and written submissions following completion of the evidence and to have standing to seek leave to appeal. CMEC wishes to address four main issues:
- The legal guidelines, justifications and international norms that underlie the copying limits set out in the York Fair Dealing Guidelines;
- The interpretation of the word “education” in s. 29 of the Copyright Act, and in particular, the meaning of fair dealing in the context of a classroom with teachers and students;
- The interpretation of the SCC’s decision in CCH v. LSUC and Alberta (Education) v. Access Copyright; and,
- The Copyright Board’s jurisdiction to set tariffs and the compulsory or mandatory nature of these tariffs.
CMEC says that “It is not clear, based upon the pleadings in this case, how and whether York University will address each of this [sic] issues. It is crucial that this Court be able to fully explore each of these issues in order to determine this case…”
CMEC states that its K-12 members are subject to an interim tariff that is “similar” to the interim tariff pursuant to which York is being sued and that its members are thus “currently in the same position as the Defendant, York University”. This is presumably the interim tariff that the Board imposed on May 29, 2013. There is no indication that CMEC sought judicial review from this decision. Nor is there any indication that AC has sued any school board pursuant to the interim tariff.
CMEC states that its guidelines are “virtually identical in substance” to the York U guidelines. In particular, CMEC seems to be concerned that any judicial interpretation of the SCC’s K-12 decision, in which it was the Appellant, of the phrase “short excerpt” may directly affect the use of copyright-protected works by students and teachers in every K-12 school outside of Quebec.
CMEC appears to be willing and even determined, along with York U, to put their guidelines on trial. However, some will question whether this is either desirable or even necessary.
It may be recalled that over the last decade the Supreme Court of Canada has handed down three landmark decisions on fair dealing, including CMEC’s own case involving fair dealing in the classroom. Those decisions (as well as in the other copyright cases that the Court has decided) are highly favourable to CMEC and all educators and students in Canada. The Court has articulated clear guidelines that give educators a strong and unequivocal mandate to pursue their educational mission in accordance with the law, and without the need to obtain the restrictive, expensive, and intrusive licenses that AC seeks to impose on them. It is difficult to see what additional clarification is needed, and why York U and CMEC would want to put their own policies on trial, unless they have no choice.
As far as the interpretation of the word “education” is concerned, the word itself, its usage in the act, and legislative history make if quite clear that the meaning is very broad. As far as I know, AC has not disputed that teachers in Canadian K-12 schools, colleges or universities are engaged in “education”. Asking a court to confirm what is obvious may not only be unnecessary but risky, unless this becomes absolutely inevitable.
As to whether it is necessary to put these issues on trial, I have previously questioned whether the AC v. York U litigation even needed to proceed at all and why steps have not been attempted to attack the pleadings. Such an attack, had it succeeded, might have saved a lot of time and money and avoided a lot of risk for educators and the public interest at large.
The one issue that arguably really does need to be tested in the appropriate way, in the appropriate forum and sooner rather than later is that of AC’s “sword of Damocles”, which is whether the Copyright Board has the jurisdiction to put in place an effectively “mandatory” tariff – whether on an interim or final basis. We cannot count on the York U litigation to resolve this issue. Indeed, as I have pointed out before:
York appears to have effectively conceded that the inevitable final tariff, when certified by the Copyright Board, will be “mandatory”. Its main defence in this litigation seems focussed on the notion that the tariff is merely “interim”. It does not confront the “elephant in the room” question as to whether any final tariff for reproduction of literary works – and a fortiori (even more so) an interim tariff – can be “mandatory” in the “one copy of one work” sense espoused by AC and endorsed by the Copyright Board.
CMEC makes a good point in addressing this issue but is asking, as a potential intervener, to make submissions only after the completion of the evidentiary stage. Moreover, as things currently look, it seems that the York U litigation will go on potentially for years with an agenda being largely controlled by Access Copyright itself, as the plaintiff.
There are other and better ways to determine the “mandatory tariff” issue, and to do so in the short term. Ariel Katz suggested the best and most elegant possible solution, which the Board rejected, even though AC itself had stated that “Assuming the question is framed as Access Copyright proposes, Access Copyright would not oppose a reference by the Board of such question to the Court.” The differences in the wording being suggested by Prof. Katz and AC were simply semantic and likely could have been easily reconciled. The result could have been a direct reference from the Board to the Federal Court of Appeal. It might have been quick, inexpensive, and conclusive. Nonetheless, there are still other ways to resolve this issue sooner rather than later, if there is a will to do so.
I won’t comment on the likelihood of CMEC’s success in being allowed to intervene in the York U case, other than to say that, generally speaking, such an attempt is unusual at this early stage, at the trial level, and in these circumstances. It will be interesting to see how AC and York U react.
By the way, CMEC will have an opportunity to address all of the issues with which it is concerned in this potential AC v. York U intervention at the Copyright Board in the hearing on AC’s proposed K-12 tariff, set to begin on April 29, 2014. CMEC’s Statement of Case is due to be filed on March 14, 2014 and it will be posted on this blog as soon as I obtain a copy.