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The Case for Fair Use in Canada
 

The Case for Fair Use in Canada

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    The Case for Fair Use in Canada The Case for Fair Use in Canada Presentation Transcript

    • The Case for Fair Use in Canada michael geist canada research chair in internet and e-commerce law university of ottawa
    • Outline
      • The hot issue
      • What is fair use?
      • Why Canada?
      • How Canada?
    • The “Hot” Issue
      • Litigation in the U.S. (fair use project)
      • Innovation testing fair use
      • Reform - Australia, UK, NZ, EU
      • WIPO - Chile focus on exceptions
      • Canada - several groups focus on fair use
    • Why The “Hot” Issue?
      • Emphasis on balance in copyright discourse
      • Digitization
      • Growing class of creators focused on access
      • Innovation - both technical and creative business models
      • Rejection of DRM/anti-circumvention and the accompanying interoperability issues
    • Not a Panacea
      • Criticism from rights holders
      • “ CEA has twisted and contorted ‘fair use’ beyond its true intent, turning it into a free pass for those who simply don't want to pay for creative works.”
      • - Cary Sherman, RIAA
      • Criticism from “Copy-Left”
      • “ Either pay a lawyer to defend your fair use rights or pay a lawyer to track down permissions so you don’t have to rely upon fair use rights.”
      • - Larry Lessig
    • Flavours of Fair Use
      • Fair Use, Not Free Use
        • Fair use is a core provision in a “balanced approach”
        • It is not free for all uses
        • It is not prior permission for any/all uses
        • Rather - “fair” - fair to the creator and fair to the public having regard to the traditional notion of balance in copyright
      • Fair Use - U.S. style
      • Expanded fair dealing
      • Expansion of exceptions
    • Fair Use - U.S.
      • Copyright Act, Section 107
      • the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include -
      • (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.
    • Fair Dealing - Canada
      • 29 Fair dealing for the purpose of research or private study does not infringe copyright.
      • 29.1 Fair dealing for the purpose of criticism or review does not infringe copyright if the following are mentioned…
      • 29.2 Fair dealing for the purpose of news reporting does not infringe copyright if the following are mentioned…
    • Fair Dealing - Canada
      • “ The exceptions to copyright infringement, perhaps more properly understood as users’ rights , are set out in ss. 29 and 30 of the Act. The fair dealing exceptions to copyright are set out in ss. 29 to 29.2. In general terms, those who deal fairly with a work for the purpose of research, private study, criticism, review or news reporting, do not infringe copyright.”
      • “ Before reviewing the scope of the fair dealing exception under the Copyright Act, it is important to clarify some general considerations about exceptions to copyright infringement. Procedurally, a defendant is required to prove that his or her dealing with a work has been fair; however, the fair dealing exception is perhaps more properly understood as an integral part of the Copyright Act than simply a defence. Any act falling within the fair dealing exception will not be an infringement of copyright. The fair dealing exception, like other exceptions in the Copyright Act, is a user’s right. In order to maintain the proper balance between the rights of a copyright owner and users’ interests, it must not be interpreted restrictively.”
    • Fair Dealing - Canada
      • “ The fair dealing exception under s. 29 is open to those who can show that their dealings with a copyrighted work were for the purpose of research or private study. “Research” must be given a large and liberal interpretation in order to ensure that users’ rights are not unduly constrained . I agree with the Court of Appeal that research is not limited to non-commercial or private contexts.”
      • - CCH Canadian v. LSUC
    • Fair Use - Why Canada?
      • 1. Consistent with Supreme Court’s vision of copyright
    • Fair Use - Why Canada?
      • “ Excessive control by holders of copyrights and other forms of intellectual property may unduly limit the ability of the public domain to incorporate and embellish creative innovation in the long-term interests of society as a whole, or create practical obstacles to proper utilization. This is reflected in the exceptions to copyright infringement enumerated in ss. 29 to 32.2, which seek to protect the public domain in traditional ways such as fair dealing for the purpose of criticism or review and to add new protections to reflect new technology, such as limited computer program reproduction and “ephemeral recordings” in connection with live performances.”
      • - Theberge
      • Combination of SCC view - balance, user rights - consistent with a provision that is itself not unduly constrained by limited enumerated categories
      • If user rights and balance are to mean anything, they cannot be restricted solely to the current fair dealing list
    • Fair Use - Why Canada?
      • Consistent with Supreme Court’s vision of copyright
      • Consistent with public practice
    • Fair Use - Why Canada?
      • the public, as a matter of course:
        • Records television shows
        • Transfer music between devices (ie. copy to CD to iPod)
        • Share clips of their culture
        • Offers links or pointers to websites
        • Engages in shared learning and cultural experiences
      • Possible to establish compensation systems for some of these activities
        • Likely to face opposition
        • Expense may outweigh benefits
        • Market better suited to build in the costs into price
        • Uses may reflect the balance of what is “fair”
      • Copyright awareness vs. copyright acceptance
    • Fair Use - Why Canada?
      • Consistent with Supreme Court’s vision of copyright
      • Consistent with public practice
      • Consistent with artists’ needs
    • Fair Use - Why Canada?
      • Canadian Music Creators Coalition
      • “ On the issue of fair use of music, copyright should be changed to clarify that transferring songs from one format to another is not an infringement of copyright. It is not fair to require consumers to pay twice for the ability to transfer bought songs to an iPod or other device by imposing additional levies. Instead, eliminating the rigid technicalities of the current fair dealing provisions and moving to a more flexible concept of fair use can solve this problem .”
    • Fair Use - Why Canada?
      • Appropriation Art
      • “ Artists and other creators require Certainty of Access. Artists who use appropriation in their practice, rely on Canada’s fair dealing exception to create. Fair dealing is a narrow right, perhaps at times too narrow to support this work. Creators should enjoy the support of the law, and not have to work under conditions of uncertainty. The work we speak of here does not compete with that of its subject, nor does the value of this work derive from the value of its subject. The time has come for the Canadian government to consider replacing fair dealing with a broader defense, such as fair use, that will offer artists the certainty they require to create .”
    • Fair Use - Why Canada?
      • Documentary Organisation of Canada
      • “ The ‘fair dealing’ defence in the Copyright Act is designed to respect freedom of expression, balancing the rights of authors with the public good. However, the categories of fair dealing are too narrow to accommodate many otherwise fair treatments of pre-existing content common to documentary films, including parody, sampling and social commentary . The narrowness of the defence leads to cautious application by filmmakers and producers, as well as by insurers. Fair dealing has become a gate many documentary filmmakers must overcome, not the creative catalyst it is intended to be.”
    • Fair Use - Why Canada?
      • Common themes
      • Artists depend on access - fair use a critical part of access
      • Artists depend on connecting with fans/consumers/the public - they need to be treated fairly
      • Fair dealing may result in some loss of control/loss of revenue
      • Compensated by greater certainty, creative license, and potential to exploit other markets
    • Fair Use - Why Canada?
      • Consistent with Supreme Court’s vision of copyright
      • Consistent with public practice
      • Consistent with artists’ needs
      • Consistent with emerging expression
    • Fair Use - Why Canada?
      • The Rise of User-Generated Content/Blurring of User-Creator Distinction
        • Blogging
        • Video
        • Music Mash-Up
        • Citizen Journalism
        • Wikipedians
        • Flickr - digital photography
      • Flourishing creativity and cultural development - much of the interactivity, commentary, and content has a fair use component
    • Fair Use - Why Canada?
      • Consistent with Supreme Court’s vision of copyright
      • Consistent with public practice
      • Consistent with artists’ needs
      • Consistent with emerging expression
      • Consistent with business’ needs
    • Fair Use - Why Canada?
      • Telus
      • “ Canada needs a new regime for recognizing appropriate exceptions to copyright liability which will ensure our copyright laws have the capacity and capability to reflect and respond to changes in technology and in consumer behaviour. In order for Canada to continue to foster innovation and play a leading role in the development and usage of world class communications technologies, our copyright system must be flexible enough to adapt in a timely manner to the rapidly changing technical and entertainment environment we now face, while ensuring a proper balance is maintained between the rights of creators and the rights of consumers and other users.
      • In particular, the Government should ensure Canadians are able to use new technologies to fully enjoy copyrighted materials they have legally obtained or accessed in a manner that does no real measurable harm to copyright owners' legitimate interests. For example, customers of TELUS and other Canadian broadcasting distribution undertakings (BDUs) should be able to use new technologies to record, store and access television programming, for their own private enjoyment, at a time of their choosing ("time-shifting"). Similarly, Canadians should be able to transfer content they own from one device to another for ease and flexibility of access for their private use ("space-shifting").”
    • Fair Use - Why Canada?
      • Digital Security Coalition
      • “ Canadian innovators rely on an unacceptably narrow defence of fair dealing for the legality of reverse engineering and security research. Our American competitors face no such uncertainty with respect to the broader US defence of fair use, which clearly captures reverse engineering. It is time to address this competitive disadvantage by harmonizing fair dealing with fair use.”
    • Fair Use - Why Canada?
      • Common themes
      • innovation relies on balance - protection for IP is important, but so too is appropriate standards of access
      • Canadian law hinders the introduction of new services and new innovative research
    • Fair Use - Why Canada?
      • Consistent with Supreme Court’s vision of copyright
      • Consistent with public practice
      • Consistent with artists’ needs
      • Consistent with emerging expression
      • Consistent with business’ needs
      • Consistent with emerging international practice
    • Fair Use - Why Canada?
      • Chile WIPO Exceptions Proposal
      • Identification, from the national intellectual property systems of Member States, of national models and practices concerning exceptions and limitations.
      • Analysis of the exceptions and limitations needed to promote creation and innovation and the dissemination of developments stemming therefrom.
      • Establishment of agreement on exceptions and limitations for purposes of public interest that must be envisaged as a minimum in all national legislations for the benefit of the community; especially to give access to the most vulnerable or socially prioritized sectors.
    • Fair Use - Why Canada?
      • UK Gowers Report Recommendations
      • Recommendation 8 - Introduce a limited private copying exception by 2008 for format shifting for works published after the date that the law comes into effect. There should be no accompanying levies for consumers.
      • Recommendation 9 - Allow private copying for research to cover all forms of content. This relates to the copying, not the distribution of media.
      • Recommendation 12 - Create an exception to copyright for the purpose of caricature, parody or pastiche by 2008.
    • Fair Use - Why Canada?
      • Australia Exceptions
      • Time shifting
      • Format shifting
      • Certain purposes exceptions:
        • Non-commercial uses by LAM
        • Non-commercial uses by educational institutions for educational instruction
        • Use by person with a disability
        • Parody and satire
      • NZ Exceptions
      • Time shifting
      • Format shifting
    • Fair Use - Why Canada?
      • EU Information Society Directive
      • (a) use for the sole purpose of illustration for teaching or scientific research, as long as the source, including the author's name, is indicated, unless this turns out to be impossible and to the extent justified by the non-commercial purpose to be achieved;
      • (b) uses, for the benefit of people with a disability , which are directly related to the disability and of a non-commercial nature, to the extent required by the specific disability;
      • (c) reproduction by the press, communication to the public or making available of published articles on current economic, political or religious topics or of broadcast works or other subject-matter of the same character, in cases where such use is not expressly reserved, and as long as the source, including the author's name, is indicated, or use of works or other subject-matter in connection with the reporting of current events, to the extent justified by the informatory purpose and as long as the source, including the author's name, is indicated, unless this turns out to be impossible;
      • (d) quotations for purposes such as criticism or review, provided that they relate to a work or other subject-matter which has already been lawfully made available to the public, that, unless this turns out to be impossible, the source, including the author's name, is indicated, and that their use is in accordance with fair practice, and to the extent required by the specific purpose;
    • Fair Use - Why Canada?
      • EU Information Society Directive
      • (e) use for the purposes of public security or to ensure the proper performance or reporting of administrative, parliamentary or judicial proceedings;
      • (f) use of political speeches as well as extracts of public lectures or similar works or subject-matter to the extent justified by the informatory purpose and provided that the source, including the author's name, is indicated, except where this turns out to be impossible;
      • (g) use during religious celebrations or official celebrations organised by a public authority;
      • (h) use of works, such as works of architecture or sculpture, made to be located permanently in public places;
      • (i) incidental inclusion of a work or other subject-matter in other material;
      • (j) use for the purpose of advertising the public exhibition or sale of artistic works, to the extent necessary to promote the event, excluding any other commercial use;
      • (k) use for the purpose of caricature, parody or pastiche ;
    • Fair Use - Why Canada?
      • EU Information Society Directive
      • (l) use in connection with the demonstration or repair of equipment;
      • (m) use of an artistic work in the form of a building or a drawing or plan of a building for the purposes of reconstructing the building;
      • (n) use by communication or making available, for the purpose of research or private study, to individual members of the public by dedicated terminals on the premises of establishments referred to in paragraph 2(c) of works and other subject-matter not subject to purchase or licensing terms which are contained in their collections;
      • (o) use in certain other cases of minor importance where exceptions or limitations already exist under national law, provided that they only concern analogue uses and do not affect the free circulation of goods and services within the Community, without prejudice to the other exceptions and limitations contained in this Article.
    • Fair Use - Why Canada?
      • Consistent with Supreme Court’s vision of copyright
      • Consistent with public practice
      • Consistent with artists’ needs
      • Consistent with emerging expression
      • Consistent with business’ needs
      • Consistent with emerging international practice
      • Consistent with long-term rights holder interests
    • Fair Use - Why Canada?
      • For Rights Holders
        • Potential to reduce rights clearance costs for new creativity
        • Opportunity to build stronger fan/consumer base (ie. RIAA/CRIA support for device shifting)
        • Opportunity to price-in fair use into goods and services - better value proposition
      • For Copyright Collectives
        • Best represents interests of artist members
        • Best available alternative - ie. education exemption
        • Stronger position at copyright board
        • Licenses focused on value proposition; reduced litigation expense
        • Consistent with international counterparts
    • Fair Use - How Canada?
      • Trosow approach
        • Amend s.29 - illustrative rather an exhaustive (“such as”)
      • Linden approach (CCH drawn from Hubbard)
        • Six factors:
          • Purpose of the dealing
          • Character of the dealing
          • Amount of the dealing
          • Alternatives to the dealing
          • Nature of the work
          • Effect of the dealing on the work
      • Piecemeal approach (e.g)
        • Parody
        • Time shifting
        • Device shifting
      • michael geist
      • [email_address]