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fair dealing

CAUT Releases Guidelines for the Use of Copyrighted Material

Submitted by administrator on May 9, 2011 - 9:40am

The Canadian Association of University Teachers has released a new comprehensive guide to the use of copyrighted materials in schools. The guidelines assess the current state of fair dealing in Canada and provide assistance for those with questions on their copyright rights.

Wednesday February 23, 2011
Documentary Organization of Canada on C-32's Digital Lock Rules: Denies Our Freedom of Speech
The Documentary Organization of Canada appeared before the C-32 committee last week and gave a strong presentation on the need for anti-circumvention exception for fair dealing, noting that the current approach raises free speech concerns: The intersection of fair dealing and documentary production has been at the heart of DOC's advocacy efforts for many years, and this is why we are particularly concerned about the bill's provisions on digital locks. DOC supports digital locks as a form of protecting one's expression from infringement, but the current digital locks provisions proposed in Bill C-32 do not provide exceptions for anti-circumvention measures for the purposes of fair dealing. Visual materials are the raw matter with which documentary filmmakers work. Having access to various sources - analog and digital - is essential to the craft of documentary. As technology advances, we encode our history on different media. History is being digitized. The ubiquity of digital media may lead to more digital locks, but how can we have free access to this history if it is unavailable because of a digital lock? Consider the impact this would have on our ability, as Canadians, to tell our own stories. The introduction of digital locks without the proper exceptions for fair dealing, especially for the purpose of documentary filmmaking, would hinder documentary filmmakers' ability to carry out their trade. If documentary filmmakers are kept from practising their craft because of digital locks, they are being denied their freedom of speech and creative expression. Fair dealing is legal. Criminalizing the tools, or the creation and sale of tools, to exercise fair dealing is an inherent contradiction in copyright law.
doc org on c-32

The Documentary Organization of Canada appeared before the C-32 committee last week and gave a strong presentation on the need for anti-circumvention exception for fair dealing, noting that the current approach raises free speech concerns:

The intersection of fair dealing and documentary production has been at the heart of DOC's advocacy efforts for many years, and this is why we are particularly concerned about the bill's provisions on digital locks. DOC supports digital locks as a form of protecting one's expression from infringement, but the current digital locks provisions proposed in Bill C-32 do not provide exceptions for anti-circumvention measures for the purposes of fair dealing.

Visual materials are the raw matter with which documentary filmmakers work. Having access to various sources - analog and digital - is essential to the craft of documentary. As technology advances, we encode our history on different media. History is being digitized. The ubiquity of digital media may lead to more digital locks, but how can we have free access to this history if it is unavailable because of a digital lock? Consider the impact this would have on our ability, as Canadians, to tell our own stories.

The introduction of digital locks without the proper exceptions for fair dealing, especially for the purpose of documentary filmmaking, would hinder documentary filmmakers' ability to carry out their trade. If documentary filmmakers are kept from practising their craft because of digital locks, they are being denied their freedom of speech and creative expression. Fair dealing is legal. Criminalizing the tools, or the creation and sale of tools, to exercise fair dealing is an inherent contradiction in copyright law.

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Tuesday August 24, 2010
Writers Groups Attack Fair Dealing Reform in Copyright Bill
Several writers groups have written to Industry Minister Tony Clement and Canadian Heritage Minister James Moore to criticize elements of Bill C-32.  The letter focuses on the fair dealing exception for education: From our perspective the biggest weakness in the bill is the addition of the word ‘education’ to the purposes of “fair dealing” without clear legislative guidance on how this amended provision of the Copyright Act will work in conjunction with other, more specific exceptions for education. We think that this new fair dealing provision will result in serious damage to the cultural sector and to Canada’s embryonic knowledge economy and, together with other new exceptions, negatively affect Canada’s professional writers. The letter adds "we see that without further clarification of some provisions there will be unintended consequences and years of costly litigation." It is important to emphasize again that this is fear mongering that is simply inaccurate. 

There is no real uncertainty about how the addition of education will work in conjunction other exceptions such as research and private study.  The courts have ruled that the exceptions should be interpreted broadly, so that education - like research and private study - will be broadly defined. 

However, the courts have also ruled that the assessment of fair dealing is a two-part test.  First, does the dealing qualify under one of the categories of the fair dealing?  With the C-32 reform, the few remaining educational activities currently outside of the scope of fair dealing will almost certainly qualify as a potential fair dealings. But that alone is not enough.  The second part of the test is whether the dealing itself is fair.  This involves a fairness inquiry with a six part analysis identified by the courts.  The reforms in C-32 do not affect this part of the test.  This was recently confirmed by the Federal Court of Appeal, which, in discussing C-32, concluded that the education fair dealing reform "serves only to create additional allowable purposes; it does not affect the fairness analysis."

So there is no real uncertainty or likelihood of serious damage here. The reforms will expand the scope of fair dealing categories such that some additional educational uses will qualify for a fairness analysis. The fairness analysis does not change with this bill, however. It is always possible that there will be litigation on fair dealing - Access Copyright just won a major case on the issue - but the norms will not change with C-32 and there is no reason to believe that the bill will open fair dealing litigation floodgates (unlike the digital lock provisions, which are likely to face a constitutional challenge). 

Opposition to the inclusion of education is therefore based on fears that there are currently educational uses that fall outside the current list of categories that a fairness analysis would determine are fair uses. A balanced copyright approach - not to mention the Supreme Court of Canada - dictate that these uses should not require prior permission or compensation.  If the writers groups are against fairness and balance in copyright, they should say so, rather than trumpeting misleading claims about the effects of the fair dealing reforms.

Copyright 2010, copycon, copyright

Several writers groups have written to Industry Minister Tony Clement and Canadian Heritage Minister James Moore to criticize elements of Bill C-32.  The letter focuses on the fair dealing exception for education:

From our perspective the biggest weakness in the bill is the addition of the word ‘education’ to the purposes of “fair dealing” without clear legislative guidance on how this amended provision of the Copyright Act will work in conjunction with other, more specific exceptions for education. We think that this new fair dealing provision will result in serious damage to the cultural sector and to Canada’s embryonic knowledge economy and, together with other new exceptions, negatively affect Canada’s professional writers.

The letter adds "we see that without further clarification of some provisions there will be unintended consequences and years of costly litigation."

It is important to emphasize again that this is fear mongering that is simply inaccurate. 

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Wednesday March 24, 2010
Writers' Union of Canada: Flexible Fair Dealing Legalizes Theft
The Charlie Angus fair dealing motion has stirred up considerable anger from the Writers' Union of Canada.  The organization's copyright committee is urging its members to write to their Members of Parliament to protest motion, advising them to use speaking points that include equating flexible fair dealing with theft, claiming it will result in tens of millions in losses, and would constitute an attack on Canadian culture.  Speaking points provided to members include: The expansion of fair dealing would legalize the theft of material under copyright because it would allow teachers and others in the educational sector to make multiple copies of our work without compensation. If the fair dealing expansion is broadened it would eliminate more than $30 million of income from Canadian writers, visual artists and publishers.  Writers and artists in this country already suffer from low incomes and this would make it even more difficult for creators to earn a living. Governments in the past have encouraged the development of collectives like Access Copyright that collect fees for the secondary use of material under copyright and distribute it to creators and publishers.  This was done to strengthen the culture in this country.  The expansion of fair dealing would make it very difficult for Access Copyright to survive, and it would be an attack on Canadian culture.
The Charlie Angus fair dealing motion has stirred up considerable anger from the Writers' Union of Canada.  The organization's copyright committee is urging its members to write to their Members of Parliament to protest motion, advising them to use speaking points that include equating flexible fair dealing with theft, claiming it will result in tens of millions in losses, and would constitute an attack on Canadian culture.  Speaking points provided to members include:
  • The expansion of fair dealing would legalize the theft of material under copyright because it would allow teachers and others in the educational sector to make multiple copies of our work without compensation.
  • If the fair dealing expansion is broadened it would eliminate more than $30 million of income from Canadian writers, visual artists and publishers.  Writers and artists in this country already suffer from low incomes and this would make it even more difficult for creators to earn a living.
  • Governments in the past have encouraged the development of collectives like Access Copyright that collect fees for the secondary use of material under copyright and distribute it to creators and publishers.  This was done to strengthen the culture in this country.  The expansion of fair dealing would make it very difficult for Access Copyright to survive, and it would be an attack on Canadian culture.
The Charlie Angus fair dealing motion has stirred up considerable anger from the Writers' Union of Canada.  The organization's copyright committee is urging its members to write to their Members of Parliament to protest motion, advising them to use speaking points that include equating flexible fair dealing with theft, claiming it will result in tens of millions in losses, and would constitute an attack on Canadian culture.  Speaking points provided to members include:
  • The expansion of fair dealing would legalize the theft of material under copyright because it would allow teachers and others in the educational sector to make multiple copies of our work without compensation.
  • If the fair dealing expansion is broadened it would eliminate more than $30 million of income from Canadian writers, visual artists and publishers.  Writers and artists in this country already suffer from low incomes and this would make it even more difficult for creators to earn a living.
  • Governments in the past have encouraged the development of collectives like Access Copyright that collect fees for the secondary use of material under copyright and distribute it to creators and publishers.  This was done to strengthen the culture in this country.  The expansion of fair dealing would make it very difficult for Access Copyright to survive, and it would be an attack on Canadian culture.
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Knopf on the Opposition to Fair Dealing

Submitted by mgeist on March 22, 2010 - 9:48am

Howard Knopf posts on the opposition to the Angus fair dealing motion, warning "make no mistake - these folks are trying to push back and to effectively undo the decision in CCH v. LSUC."

Globe on Angus Fair Dealing Motion: A Welcome Move

Submitted by mgeist on March 19, 2010 - 7:58am

The Globe and Mail's masthead editorial today comments on the Angus fair dealing motion: "Mr. Angus also tabled a motion that would expand the Copyright Act's definition of "fair dealing," allowing the reasonable use of copyrighted materials for innovation, research and study - a welcome move."

CFS Expresses Support For Fair Dealing Motion

Submitted by mgeist on March 17, 2010 - 10:04am

The Canadian Federation of Students has issued a release expressing its support for NDP MP Charlie Angus' motion on flexible fair dealing.

Tuesday March 16, 2010
Angus Introducing Private Copying Levy Bill, Flexible Fair Dealing Motion
NDP MP Charlie Angus has shaken up the copyright reform process today with a pair of proposed measures.  The first is a private member's bill that would expand the scope of the private copying levy to include digital audio recorders (DARs) such as iPods.  Bill C-499 comes as a response to earlier court cases that ruled that DARs are beyond the scope of the current law.  The second is a motion (M-506) that calls for support to reform the Copyright Act's fair dealing provision by adding the words "such as" to make the current list of fair dealing categories illustrative rather than exhaustive.  In addition, the motion codifies the six criteria discussed in Canadian caselaw for determining whether a particular use of a work qualifies as fair dealing.  I'm certainly supportive of Angus' effort to push copyright issues into the spotlight.  I'm particularly supportive of the motion on fair dealing.  The motion states: Fair Dealing Provisions within the Copyright Act That, in the opinion of the House, the government should amend section 29 of the Copyright Act in such a way as to expand the Fair Dealing provisions of the act; specifically by deleting section 29. and inserting the words, 29. Fair dealing of a copyrighted work for purposes such as research, private study, criticism, news reporting or review, is not an infringement of copyright. 29.1 In determining whether the dealing made of a work in any particular case is fair dealing, the factors to be considered shall include, (a) the purpose of the dealing; (b) the character of the dealing; (c) the amount of the dealing; (d) alternatives to the dealing; (e) the nature of the work; and (f) the effect of the dealing on the work. This approach is precisely what thousands of Canadians supported during last summer's copyright consultation.  It strikes the right balance - it's fair dealing, not free dealing - and it is based on current Canadian jurisprudence.  Greater fair dealing flexiblity benefits creators, innovators, educators, and the broader public.  The motion deserves strong support from all parties.
The attempt to expand the private copying levy in Bill C-499 is more problematic. I am not as opposed to private copying as some, but I think expanding the system in this manner raises real concerns.  First, I think we need to work on fixing the system before we work on expanding it.  There are ongoing concerns about distribution of proceeds, copying vs. making available, and overbroad coverage of the levy that should be addressed.

Second, the bill expands the levy to audio recording devices, defined in C-499 as "a device that contains a permanently embedded data storage medium, including solid state or hard disk, designed, manufactured and advertised for the purpose of copying sound recordings, excluding any prescribed kind of recording device."  This covers everything - iPods, iPhones, Blackberries, Androids, iPads, personal computers.  While the CPCC (the private copying collective) may not target all of these devices, there is nothing in the bill that prevents them from doing so.

Third, the bill deals solely with sound recordings, but there have already been calls to extend to video and other forms of content.  Expanding the levy in this manner without addressing those issues leaves open the prospect of an even bigger levy in the future.

Fourth, the competitive concerns associated with levies on devices cannot be ignored.  The last attempt to place a levy on iPods led to charges as high as $75 per device.  That market distortion leads consumers to purchase outside Canada, which means no levy, no sales taxes, and lost retail sales.

Fifth, we need to think about the interaction between private copying and anti-circumvention rules.  The industry is pushing for anti-circumvention rules that would prohibit Canadians from picking the digital lock on copy controls found on CDs.  If Canadians have paid for the right to copy via the levy, surely those rights should not be trumped by the use of DRM.  Yet that is precisely what both Bills C-60 and C-61 proposed.

Sixth, the industry cannot have the levy and continue to claim that Canada is an illegal downloading haven.  Canadians have paid more than $250 million in fees associated with the levy and the Angus bill would ratchet that up dramatically. 

Angus' comments in the House of Commons this morning are posted below:

Mr. Speaker,

I rise today to submit a bill  to update the Canadian copyright Act, which extends the Private Copying Levy to the next generation of devices that consumers are using for copying sound recordings for personal use. 

The private copying levy is a long-standing Canadian solution that has compensated artists for some of the enormous copying that is taking place.
At the same time, updating the levy will provide legal certainty for fans to copy songs onto an i-Pod or MP3 player.

The levy is a compromise that works. In a world of endless downloading and copying, it provides a monetizing stream for the artists who create such phenomenal cultural works.

Mr. Speaker, there are two dead end roads on the copyright debate. The first dead end is the belief that digital locks, predatory lawsuits and zero tolerance on access can push consumers back in time.

The other dead end is the belief that all the great works of film, music and art can be looted at will.

If we are going to move down the right road we must get serious about securing a monetizing stream for creators.

Canada has a chance to strike the right balance:
No. 1: artists have a right to get paid. This is why I am bringing forward the bill on updating copying levy.
No. 2. Consumers, educators and researchers have a right to access those works - which is why I will be tabling a motion on defining fair dealing to protect those rights.

Mr. Speaker, the New Democratic Party will continue to work to ensure that copyright laws are updated to protect artists while ensuring access to these amazing works.
NDP MP Charlie Angus has shaken up the copyright reform process today with a pair of proposed measures.  The first is a private member's bill that would expand the scope of the private copying levy to include digital audio recorders (DARs) such as iPods.  Bill C-499 comes as a response to earlier court cases that ruled that DARs are beyond the scope of the current law.  The second is a motion (M-506) that calls for support to reform the Copyright Act's fair dealing provision by adding the words "such as" to make the current list of fair dealing categories illustrative rather than exhaustive.  In addition, the motion codifies the six criteria discussed in Canadian caselaw for determining whether a particular use of a work qualifies as fair dealing. 

I'm certainly supportive of Angus' effort to push copyright issues into the spotlight.  I'm particularly supportive of the motion on fair dealing.  The motion states:

Fair Dealing Provisions within the Copyright Act

That, in the opinion of the House, the government should amend section 29 of the Copyright Act in such a way as to expand the Fair Dealing provisions of the act; specifically by deleting section 29. and inserting the words,

29. Fair dealing of a copyrighted work for purposes such as research, private study, criticism, news reporting or review, is not an infringement of copyright.

29.1 In determining whether the dealing made of a work in any particular case is fair dealing, the factors to be considered shall include,

(a) the purpose of the dealing;
(b) the character of the dealing;
(c) the amount of the dealing;
(d) alternatives to the dealing;
(e) the nature of the work; and
(f) the effect of the dealing on the work.

This approach is precisely what thousands of Canadians supported during last summer's copyright consultation.  It strikes the right balance - it's fair dealing, not free dealing - and it is based on current Canadian jurisprudence.  Greater fair dealing flexiblity benefits creators, innovators, educators, and the broader public.  The motion deserves strong support from all parties.
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Tuesday March 16, 2010
Angus Introducing Private Copying Levy Bill, Flexible Fair Dealing Motion
NDP MP Charlie Angus has shaken up the copyright reform process today with a pair of proposed measures.  The first is a private member's bill that would expand the scope of the private copying levy to include digital audio recorders (DARs) such as iPods.  Bill C-499 comes as a response to earlier court cases that ruled that DARs are beyond the scope of the current law.  The second is a motion (M-506) that calls for support to reform the Copyright Act's fair dealing provision by adding the words "such as" to make the current list of fair dealing categories illustrative rather than exhaustive.  In addition, the motion codifies the six criteria discussed in Canadian caselaw for determining whether a particular use of a work qualifies as fair dealing.  I'm certainly supportive of Angus' effort to push copyright issues into the spotlight.  I'm particularly supportive of the motion on fair dealing.  The motion states: Fair Dealing Provisions within the Copyright Act That, in the opinion of the House, the government should amend section 29 of the Copyright Act in such a way as to expand the Fair Dealing provisions of the act; specifically by deleting section 29. and inserting the words, 29. Fair dealing of a copyrighted work for purposes such as research, private study, criticism, news reporting or review, is not an infringement of copyright. 29.1 In determining whether the dealing made of a work in any particular case is fair dealing, the factors to be considered shall include, (a) the purpose of the dealing; (b) the character of the dealing; (c) the amount of the dealing; (d) alternatives to the dealing; (e) the nature of the work; and (f) the effect of the dealing on the work. This approach is precisely what thousands of Canadians supported during last summer's copyright consultation.  It strikes the right balance - it's fair dealing, not free dealing - and it is based on current Canadian jurisprudence.  Greater fair dealing flexiblity benefits creators, innovators, educators, and the broader public.  The motion deserves strong support from all parties.
The attempt to expand the private copying levy in Bill C-499 is more problematic. I am not as opposed to private copying as some, but I think expanding the system in this manner raises real concerns.  First, I think we need to work on fixing the system before we work on expanding it.  There are ongoing concerns about distribution of proceeds, copying vs. making available, and overbroad coverage of the levy that should be addressed.

Second, the bill expands the levy to audio recording devices, defined in C-499 as "a device that contains a permanently embedded data storage medium, including solid state or hard disk, designed, manufactured and advertised for the purpose of copying sound recordings, excluding any prescribed kind of recording device."  This covers everything - iPods, iPhones, Blackberries, Androids, iPads, personal computers.  While the CPCC (the private copying collective) may not target all of these devices, there is nothing in the bill that prevents them from doing so.

Third, the bill deals solely with sound recordings, but there have already been calls to extend to video and other forms of content.  Expanding the levy in this manner without addressing those issues leaves open the prospect of an even bigger levy in the future.

Fourth, the competitive concerns associated with levies on devices cannot be ignored.  The last attempt to place a levy on iPods led to charges as high as $75 per device.  That market distortion leads consumers to purchase outside Canada, which means no levy, no sales taxes, and lost retail sales.

Fifth, we need to think about the interaction between private copying and anti-circumvention rules.  The industry is pushing for anti-circumvention rules that would prohibit Canadians from picking the digital lock on copy controls found on CDs.  If Canadians have paid for the right to copy via the levy, surely those rights should not be trumped by the use of DRM.  Yet that is precisely what both Bills C-60 and C-61 proposed.

Sixth, the industry cannot have the levy and continue to claim that Canada is an illegal downloading haven.  Canadians have paid more than $250 million in fees associated with the levy and the Angus bill would ratchet that up dramatically. 

Angus' comments in the House of Commons this morning are posted below:

Mr. Speaker,

I rise today to submit a bill  to update the Canadian copyright Act, which extends the Private Copying Levy to the next generation of devices that consumers are using for copying sound recordings for personal use. 

The private copying levy is a long-standing Canadian solution that has compensated artists for some of the enormous copying that is taking place.
At the same time, updating the levy will provide legal certainty for fans to copy songs onto an i-Pod or MP3 player.

The levy is a compromise that works. In a world of endless downloading and copying, it provides a monetizing stream for the artists who create such phenomenal cultural works.

Mr. Speaker, there are two dead end roads on the copyright debate. The first dead end is the belief that digital locks, predatory lawsuits and zero tolerance on access can push consumers back in time.

The other dead end is the belief that all the great works of film, music and art can be looted at will.

If we are going to move down the right road we must get serious about securing a monetizing stream for creators.

Canada has a chance to strike the right balance:
No. 1: artists have a right to get paid. This is why I am bringing forward the bill on updating copying levy.
No. 2. Consumers, educators and researchers have a right to access those works - which is why I will be tabling a motion on defining fair dealing to protect those rights.

Mr. Speaker, the New Democratic Party will continue to work to ensure that copyright laws are updated to protect artists while ensuring access to these amazing works.
NDP MP Charlie Angus has shaken up the copyright reform process today with a pair of proposed measures.  The first is a private member's bill that would expand the scope of the private copying levy to include digital audio recorders (DARs) such as iPods.  Bill C-499 comes as a response to earlier court cases that ruled that DARs are beyond the scope of the current law.  The second is a motion (M-506) that calls for support to reform the Copyright Act's fair dealing provision by adding the words "such as" to make the current list of fair dealing categories illustrative rather than exhaustive.  In addition, the motion codifies the six criteria discussed in Canadian caselaw for determining whether a particular use of a work qualifies as fair dealing. 

I'm certainly supportive of Angus' effort to push copyright issues into the spotlight.  I'm particularly supportive of the motion on fair dealing.  The motion states:

Fair Dealing Provisions within the Copyright Act

That, in the opinion of the House, the government should amend section 29 of the Copyright Act in such a way as to expand the Fair Dealing provisions of the act; specifically by deleting section 29. and inserting the words,

29. Fair dealing of a copyrighted work for purposes such as research, private study, criticism, news reporting or review, is not an infringement of copyright.

29.1 In determining whether the dealing made of a work in any particular case is fair dealing, the factors to be considered shall include,

(a) the purpose of the dealing;
(b) the character of the dealing;
(c) the amount of the dealing;
(d) alternatives to the dealing;
(e) the nature of the work; and
(f) the effect of the dealing on the work.

This approach is precisely what thousands of Canadians supported during last summer's copyright consultation.  It strikes the right balance - it's fair dealing, not free dealing - and it is based on current Canadian jurisprudence.  Greater fair dealing flexiblity benefits creators, innovators, educators, and the broader public.  The motion deserves strong support from all parties.
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Trosow on Why Copyright Fair Dealing Needs Flexiblity

Submitted by mgeist on March 15, 2010 - 7:54am

UWO's Sam Trosow has posted a column on why Canada should enact a flexible fair dealing provision.

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