Saturday, October 27, 2007

William Patry on Fair Dealing in Canada

Bill Patry has important words about Canada and fair dealing. Probably nobody knows more and has published more about the American law of fair use law than Bill - as shown in his past monograph and wonderful new seven volume treatise. He is authoritative on this very complex subject. He has collaborated on it in important scholarly work with the one and only Judge Richard Posner. American law is about to loom large in Canada, where we have “fair dealing” - the doctrine that had been until recently thought to be more restrictive than the American “fair use” framework. Bill’s work is bound to be an indispensable reference in the debates, research and jurisprudence to come.

The Tariff 22 decision from the Copyright Board is a good step forward. It is a breath of fresh air in a forum where users’ rights have too often in the past seemed somewhat subordinate to the agenda of the collectives.

The next acid test will be the Board’s ruling on the Access Copyright (counterpart to the American CCC) attempt to zap the Canadian educational system for $8 bucks or so per student per year - for all of the supposedly infringing activity that Access Copyright thinks is going on in the K-12 classrooms. That hearing is almost over - and a decision will likely be at least six months away. Fair dealing has been dealt with - and all eyes will be on the result.

The issue of fair dealing could also arise in the future at the Copyright Board in the context of such files as media monitoring and private copying, for starters.

I suspect that the Copyright Board 's recent decision on Tariff 22 will be taken to judicial review (“JR”) (i.e. “appealed”). It puts a lot of water in several of the ley parties’ wine. The result will either be a standoff with no JR, or a full blown consolidated JR hearing where several issues will be raised. The fair dealing ruling is likely going to be seen as a real threat by many collectives and corporate copyright owners. JR would have the result of prolonging SOCAN’s efforts for its proposed Tariff 22 internet tariff effort, which is now 12 years old, for at least another year and possibly more if the Supreme Court of Canada takes a second bite at it, which is entirely possible. Not to mention that six of the seven parts of the tariff still haven’t been completely dealt with at the Copyright Board. One or more of these rulings could also generate judicial review as well, when they come out presumably in the next few weeks or months. The proceedings in SOCAN’s proposed Tariff 22 are nowhere near over - even after 12 years. I’ve set out the main issues in the recent decision, which I call the "Single Malt Tariff" because of its age, elsewhere on this blog.

If Bill Patry thinks that Canada is on the right track, as exemplified in CCH v. LSUC and the recent Copyright Board decision in Tariff 22, that’s very, very important. The CCH decision from Canada’s Supreme Court is really remarkable - because it allows for the flexibility of the Amreican fair use analysis + the certainty of Canadian fair dealing. We could have the best of both possible worlds up here - if we don’t screw things up.

I hope that the CCH decision remains intact and is built upon, as the Copyright Board is trying to do. But I’m sure that there are efforts underway to undermine CCH in the forthcoming legislative revision exercise. In fact, whatever the intention may be, the efforts by the Council of Ministers of Education Canada (CMEC) for a special internet educational exception could have precisely this effect, due to the a contrario implications for everyone outside the educational tent if CMEC gets its wish. In this context and others, such as its widely used publication Copyright Matters!, CMEC seems to be in denial, or at least far too cautious, with respect to its interpretation of the benefits to its constituency of the landmark victory at the Supreme Court in CCH.

Anyway, Bill Patry is a towering figure in world copyright law. If he thinks we are doing something right in Canada, we probably are and we should pay attention and be grateful for his attention.


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