Fair Dealing for Copyright in Canada

Copyright issues in Canada may not be top of most people's list of interesting news items but Canada may be on the cusp of legislating new copyright reforms and the reason may be a recent set of rulings from their supreme court.  The courts ruling covered several media formats and distribution methods and could generally be construed as a win for consumers.  That would be 'free-loaders' if you were of a certain group that saw the rulings as representing a way from consumers to make broader use of content without paying for it.  The details of the rulings make this conclusion less clear and the result maybe that the Canadian legislature may enact a new set of copyright rules by the end of the year.

The rulings covered music and educational materials (content) and centered on the issue of 'fair dealing' which equates to the US fair use doctrine and similarly requires a review of specific criteria to determine whether a use can be considered 'fair dealing' and thus is permitted.  From the ruling Judge Abella sets out this criteria:  (Corrected from Rothstein)

… the concept of fair dealing allows users to engage in some activities that might otherwise amount to copyright infringement.  The test for fair dealing was articulated in CCH as involving two steps.  The first is to determine whether the dealing is for the allowable purpose of “research or private study” under s. 29, “criticism or review” under s. 29.1, or “news reporting” under s. 29.2 of the Copyright Act.  The second step of CCH assesses whether the dealing is “fair”. The onus is on the person invoking “fair dealing” to satisfy all aspects of the test.  To assist in determining whether the dealing is “fair”, this Court set out a number of fairness factors: the purpose, character, and amount of the dealing; the existence of any alternatives to the dealing; the nature of the work; and the effect of the dealing on the work. 

In reviewing each of these fairness hurdles Abella offered several zingers and reading between the lines it doesn't seem there was much sympathy for the argument education publishers presented.  For example, in reviewing the 'purpose' factor he dismissed the reasoning that “private study” should not be understood as requiring users to view copyrighted works in splendid isolation (my italics) and that focusing on the 'geography' of teaching artificially separated the teacher from the studying students.  At issue is whether teachers can be separated from the students with respect to the use of the content and Judge Abella politely shoots this down saying that,

with respect, was a flawed approach.  First, unlike the single patron in CCH, teachers do not make multiple copies of the class set for their own use, they make them for the use of the students.   Moreover, as discussed in the companion case SOCAN v. Bell, the “amount” factor is not a quantitative assessment based on aggregate use, it is an examination of the proportion between the excerpted copy and the entire work, not the overall quantity of what is disseminated. 

Interesting that the Judge is suggesting it doesn't really matter how big the class is but rather the amount of material taken from the entire work which equates to the US concept of fair use.

In the press, the reaction to the set of decisions oscillated between 'free content' and 'the end of publishing'.  A point counter point ran in the Canadian Financial Post.  De Beer suggests that the ruling is not an assault on copyright (as his fellow FP columnist Corcoran comments) but rather an opportunity for innovation in education:

The education case that Financial Post editor Terence Corcoran calls an assault on copyright will drive innovation in classrooms across the country by providing necessary breathing room for teachers and students to deal fairly with copyright-protected materials. Schools will probably continue a trend that predates this decision by shifting away from collective blanket licences. But, where copying goes beyond validated fair dealings, institutions will instead choose market-oriented solutions like custom database subscriptions and direct licences on various terms from authors or publishers.

In my (biased) view, I thought the Judge's comments with respect to the 'alternatives to the dealing' argument presented by the publishers to be most interesting.

I also have difficulty with how the Board approached the “alternatives to the dealing” factor.  A dealing may be found to be less fair if there is a non-copyrighted equivalent of the work that could have been used, or if the dealing was not reasonably necessary to achieve the ultimate purpose (CCH, at para. 57).  The Board found that, while students were not expected to use only works in the public domain, the educational institutions had an alternative to photocopying textbooks: they could simply buy the original texts to distribute to each student or to place in the library for consultation

He goes on to suggest that buying books for the entire class when only a portion is needed is is not realistic,

Under the Board’s approach, schools would be required to buy sufficient copies for every student of every text, magazine and newspaper in Access Copyright’s repertoire that is relied on by a teacher.  This is a demonstrably unrealistic outcome. 

Here there may be some similarity to the recent Georgia case in the US where Judge Evans plainly stated that if a publisher's chapter is readily and easily available and the permission is set at a "reasonable price" then the law comes down on the publisher's side. Abella does not go this far; however, there's some logic in taking his argument down that path.  This may be consoling to Canadian rights holders if they are able to easily deliver the 'except' in question rather than the entire book.  On other words, if the precise excerpt was available and reasonably priced to the student could Abella's argument be as strong?

Lastly, Abella thought publishers argument regarding financial harm caused by teachers' photocopying spurious and pointed to many other macro issues impacting publishers fortunes such as, "the adoption of semester teaching, a decrease in registrations, the longer lifespan of textbooks, increased use of the Internet and other electronic tools, and more resource-based learning."

In his concluding comments, de Beer suggests that this ruling may undercut copyright agency's (such as Access Copyright) desire to license use on a universal basis. Similar arguments have been made by others to the extent that blanket agreements will be less viable options for most institutions and many education institutions will establish direct agreements with select publishers and for others will seek permission on an needed basis.  This point coincides with a substantial increase in the per head rate that Access Copyright rolled out to education institutions for universal access late last year the size of which was 'heavily debated' and will come as welcome news to many Provosts.

All interesting developments, but the most interesting outcome may concern the government's effort to reform Canadian copyright.  Given these rulings (not all covered here), content owners may be motivated to pressure the legislature to set rules more in their favor but that remains to be seen.

MediaWeek (Vol 5, No 6): Serendipity and the Internet, Facebook Users, Canadian Copyright Issues + More

Serendipity killed the Internet: Ian Leslie writing in More Intelligent Life

The word that best describes this subtle blend of chance and agency is “serendipity”. It was coined by Horace Walpole, man of letters and aristocratic dilettante. Writing to a friend in 1754, Walpole explained an unexpected discovery he had just made by reference to a Persian fairy tale, “The Three Princes of Serendip”. The princes, he told his correspondent, were “always making discoveries, by accidents and sagacity, of things which they were not in quest of…now do you understand Serendipity?” These days, we tend to associate serendipity with luck, and we neglect the sagacity. But some conditions are more conducive to accidental discovery than others.

Today’s world wide web has developed to organise, and make sense of, the exponential increase in information made available to everyone by the digital revolution, and it is amazingly good at doing so. If you are searching for something, you can find it online, and quickly. But a side-effect of this awesome efficiency may be a shrinking, rather than an expansion, of our horizons, because we are less likely to come across things we are not in quest of.

When the internet was new, its early enthusiasts hoped it would emulate the greatest serendipity machine ever invented: the city. The modern metropolis, as it arose in the 19th century, was also an attempt to organise an exponential increase, this one in population. Artists and writers saw it as a giant playground of discovery, teeming with surprise encounters. The flâneur was born: one who wanders the streets with purpose, but without a map.

Most city-dwellers aren’t flâneurs, however. In 1952 a French sociologist called Paul-Henry Chombart de Lauwe asked a student to keep a journal of her daily movements. When he mapped her paths onto a map of Paris he saw the emergence of a triangle, with vertices at her apartment, her university and the home of her piano teacher. Her movements, he said, illustrated “the narrowness of the real Paris in which each individual lives”

Interesting report from the Pew Internet that took a look at Facebook users.  From their summary:

The average Facebook user gets more from their friends on Facebook than they give to their friends. Why? Because of a segment of “power users,” who specialize in different Facebook activities and contribute much more than the typical user does.

The typical Facebook user in our sample was moderately active over our month of observation, in their tendency to send friend requests, add content, and “like” the content of their friends. However, a proportion of Facebook participants – ranging between 20% and 30% of users depending on the type of activity – were power users who performed these same activities at a much higher rate; daily or more than weekly. As a result of these power users, the average Facebook user receives friend requests, receives personal messages, is tagged in photos, and receives feedback in terms of “likes” at a higher frequency than they contribute. What’s more, power users tend to specialize. Some 43% of those in our sample were power users in at least one Facebook activity:  sending friend requests, pressing the like button, sending private messages, or tagging friends in photos. Only 5% of Facebook users were power users on all of these activities, 9% on three, and 11% on two. Because of these power users, and their tendency to specialize on specific Facebook activities, there is a consistent pattern in our sample where Facebook users across activities tend to receive more from friends than they give to others.  

• On average, Facebook users in our sample get more friend requests than they make: 63% received at least one friend request during the period we studied, but only 40% made a friend request.
• It is more common to be “liked” than to like others. The postings, uploads, and updates of Facebook users are liked – through the use of the “like” button – more often than these users like the contributions of others. Users in the sample pressed the like button next to friends’ content an average of 14 times per month and received feedback from friends in the form of a “like” 20 times per month.
• On average, users receive more messages than they send. In the month of our analysis, users received an average of nearly 12 private messages, and sent nine.
• People comment more often than they update their status. Users in our sample made an average of nine status updates or wall posts per month and contributed 21 comments.
• People are tagged more in photos than they tag others. Some 35% of those in our sample were tagged in a photo, compared with just 12% who tagged a friend in a photo.

There's been a lot of controversy in Canada regarding proposed changes that the Canadian copyright clearance agency (Access Copyright) has imposed on copyright use.  After facing significant opposition to their new "all in" pricing model for universities, Access Copyright just announced the agreement of the University of Toronto and the University of Western Ontario to the new scheme.  While the agreement, based on a per student charge, is almost 50% less than the originally proposed rate it remains to be seen if this decrease will be enough to placate the other schools.  Opposition to the deal has already been voiced by the Canadian Association of Universtity Teachers (CAUT):

The Canadian Association of University Teachers is condemning an agreement two universities have made that allows for the surveillance of faculty correspondence, unjustified restriction to copyrighted works and more than a million-dollar increase in fees.

This week, the University of Western Ontario and the University of Toronto signed a deal with the licensing group Access Copyright that includes: provisions defining e-mailing hyperlinks as equivalent to photocopying a document; a flat fee of $27.50 for each full-time equivalent student; and, surveillance of academic staff email.

“Toronto’s and Western Ontario’s actions are inexplicable,” said James L. Turk, CAUT executive director. “They have buckled under to Access Copyright’s outrageous and unjustified demands at a time when courts have extended rights to use copyrighted material, better alternatives are becoming available to the services Access offers and just before the passage of new federal copyright legislation that provides additional protections for the educational sector”.

Turk also pointed out that the Supreme Court is set to clarify the educational use of copyrighted works in the coming months, clarifications that could undercut Access’s bargaining position. In contrast to Western Ontario and Toronto, many institutions have opted out of agreements with Access Copyright or are fighting its demands at the Copyright Board of Canada.

“These two universities threw in the towel on the copyright battle prematurely,” said Turk. “We call on other post-secondary institutions not to follow Toronto’s and Western Ontario’s example of capitulating to Access Copyright. It‘s time to stand up for the right to fair and reasonable access to copyrighted works for educational purposes”.

In the telegraph a look at 'vanity' magazine publishing impresses Thomas Marks (Telegraph):

Small magazines are proliferating in London. Steven Watson, the founder of the innovative subscription service Stack – which transfers the lucky-dip principle of the vegetable box to the delivery of independent magazines – speaks enthusiastically about the quality of their production values and content. There is The Ride Journal, freewheeling its way through cycle culture, Boat Magazine, a nomadic publication that relocates to a different city every six months, the offbeat fashion journal Address, the creative film criticism of Little White Lies. While many industry leaders are struggling for subscriptions and advertising revenue, their former readers have started generating editorial content for themselves.

No doubt some of these publications trade on their hipness and many flash and fade after a handful of issues. But they have an energy that raises them well beyond vanity projects: they begin like apprenticeships but the best evolve into impressive small enterprises. Nevertheless, there remains a certain amount of gratifying amateurishness involved: Scott and Smith describe lugging sale-or-return copies of Lost in London around London in a rucksack. Many writers and photographers relish the chance to take the imaginative risks they often avoid when they’re being remunerated – so long as they can find paid work elsewhere. 

From the Twitter:

Flow of venture capital into K-12 market exploded over the past year EdWeek

Utah is working on free online textbooks for high school http://shar.es/fjoan

Opening the book conference to people who buy books. Finally, (well, 2013) - BookExpo for the readers. BookExpo

Scientific publishing: The price of information Economist

In sports, ManUtd fought back from three goals down to draw at Chelsea. (MEN)