Wednesday, April 25, 2012
The Three-Step Test Red Herring is Starting to Really Smell
I posted earlier about Efforts Escalate to Reverse CCH v. LSUC and Mislead Canada's Parliament in Bill C-11 on the Three-Step Test.
Wonders never cease. Here's a letter from the International Publishers Association (possibly inspired by some Canadian sources?), suggesting that Canada may face a WTO challenge over the fair dealing provisions in Bill C-11. HT to Michael Geist.
This is simply absurd. The fair dealing provisions of Bill C-11 are less permissive than those of the USA, which explicitly allows for multiple copies for classroom use.
Once again, here's the USA provision - which has been there since 1976:
17 USC § 107 - Limitations on exclusive rights: Fair use
Notwithstanding the provisions of sections 106 and 106A, 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.
The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.
Michael also reminds us that Canada would be in good company in such a challenge with South Korea and Israel, and of course the USA.
Ariel Katz and I dealt with this point in para. 24 our Supreme Court factum in the K-12 case, now under reserve. We said then the issue is “nothing but a red herring” and provided ample authority. It’s still a red herring and the smell continues to get even worse...
And by the way, lobbyists should always be careful what they wish for. If they really want to reopen Bill C-11, there will be lots of folks in line ready to fix up lots of other issues too - and with really good reasons, not specious and smelly red herrings.