Fair Dealing in Canada: Dry Erase Boards and Overhead Projectors - Believe It Or Not? Updated

(Wikimedia)

Believe  it or not, the following was in Canada's Copyright Act until 2012:

Reproduction
for instruction
29.4 (1) It is not an infringement of copyright for an educational institution or a person
acting under its authority
(a) to make a manual reproduction of a work onto a dry-erase board, flip chart or other
similar surface intended for displaying handwritten material, or
(b) to make a copy of a work to be used to project an image of that copy using an overhead
projector or similar device for the purposes of education or training on the premises of an educational institution.

Thankfully, those provisions are now gone and those responsible for them are doing other things or have retired.

Mercifully, the Supreme Court of Canada was much smarter than these drafters and said that fair dealing is "always available" and must be given a "large and liberal interpretation" and we shouldn't have to look at these particular (and IMHO sometimes silly) little exceptions when the general provision in s. 29  is applicable.

I am glad we never had to test what would happen if the janitor used a wet cloth to clean chalk off a blackboard after school (I may be dating myself) or whether computer projectors would be considered a "similar device" to the long obsolete "overhead projector".

HPK

PS:
April 28, 2017

A copyright nerd from Queen's Law School has provided me with a recent picture that illustrates the ongoing presence of both the dry erase board and the overhead projector at that institution.

Canada, Fair Dealing, and #FordhamIP 23rd Annual Conference at Cambridge University

@jamie_love Canada has no greater champion than @howardknopf! #fordhamip
— Managing IP (@ManagingIP) April 9, 2015

During panel on Fair Use, @howardknopf extols Canada's approach on exceptions. #fordhamip pic.twitter.com/e3ZrRPTl2D
— James Love (@jamie_love) April 9, 2015

I'm very proud of these tweets from the 23rd annual  #FordhamIP conference held this year once again at Cambridge University.

I do my best each year to tell it like it is regarding Canadian copyright law at this the leading international IP conference by far....which it has been for 23 years and going strong....

The news from Canada has not always been good but overall we have much to be proud of. Right now, the USA and the EU would be wise to look very carefully at Canada's statute and jurisprudence on fair dealing. I've done my little bit to contribute to this, along with Ariel Katz - as you can see reflected in the Province of Alberta decision from Canada's Supreme Court. 

It's surprising that they are so unaware - and sad for them that they do not realize the potential that they could achieve if they simply read our statute and our Supreme Court of Canada cases.

And they should ignore Canadian lobbyists who have tried unconvincingly and without success to discredit these achievements on irrelevant and inapplicable grounds. 

Of course, if Canada is offside internationally, then we would be in very good company with the USA and its Section 107 of the USA Copyright Act, which has never been challenged and almost certainly never will be - and if it is, will almost certainly emerge unscathed. 

This is very important for #TPP and #ISDS.

HPK

Be Careful What You Wish For on the Three-Step Test and Fair Dealing

Once again, my old admonition to copyright maximalists about being “careful what you wish for” is proving to be true.

The US now wants its future TPP partners to benefit from its “fair use” doctrine and the “three-step test” in international law. The USA clearly believes that its own law is fully consistent with the “three-step test”. Those who have been pushing for a certain idiosyncratic notion of what the “three-step test” should mean for Canada are probably not thrilled about the way this is unfolding.

Is this some kind of trick or Trojan horse, i.e. a high stakes policy shopping play on the part of the US Government to change domestic US law? I don’t think so. The epic battles over “fair use” in Congress and the US Supreme Court have been too monumental to get changed in the middle of the night with some “technical” amendment or in some other secretive  sleight of hand, as has been known to happen in US copyright law.

It’s probably a wise concession on the part of the USA in the face of the inevitable realization that large and liberal exceptions are important to education and innovation and always have been and always will be. If countries such as Canada insist on hobbling its own innovators and educators with restrictive and expensive regimes like that of Access Copyright, the USA probably wants to ensure that such short sighted thinking does not hurt the global interests of US corporations operating abroad. 

Here is what the USTR just said about this:

For the first time in any U.S. trade agreement, the United States is proposing a new provision, consistent with the internationally-recognized “3-step test," that will obligate Parties to seek to achieve an appropriate balance in their copyright systems in providing copyright exceptions and limitations for purposes such as criticism, comment, news reporting, teaching, scholarship, and research. These principles are critical aspects of the U.S. copyright system, and appear in both our law and jurisprudence. The balance sought by the U.S. TPP proposal recognizes and promotes respect for the important interests of individuals, businesses, and institutions who rely on appropriate exceptions and limitations in the TPP region.

(Emphasis added)

I couldn’t agree more – namely that §107 of the US law and case law such as Campbell v. Acuff Rose – reflect the “three-step test”. The  1994 Campbell v. Acuff-Rose decision from the US Supreme Court clearly establishes that the fourth factor concerning effect on the market is no more or less important than the other fair use factors.  

Here is 17 USC §107:

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.

          (emphasis added)

Note the stuff about “teaching (including multiple copies for classroom use”.

It’s hard to imagine but some prominent Canadian lawyers and lobbyists have been arguing lately in fora ranging from the Supreme Court of Canada to Parliament that Canadian fair dealing law does not and should not include the purpose of education or the allowance of multiple copies for classroom use because this could offend the “three-step test” and/or what they inaccurately indicate as a prioritized fourth factor effect on the market test. In fact, there was a heated debate on this blog and elsewhere involving Ariel Katz and I (supported by Bill Patry) with others who had thrown down the gauntlet against such reasonable exceptions in Canada on the spurious and misleading basis that these would contravene the “three-step test”. As I’ve said before, if that argument had any merit whatsoever, which it doesn’t, the USA would have been found to be in violation on this point many years ago.  See also here.

So – the USA, no less, is urging other countries to adopt “balance” as exemplified by its own law on fair use. Sounds like a pretty good idea to me...  Wish I’d thought of it myself ;-)

Actually, Ariel Katz and I did think of it when we urged the Supreme Court of Canada to look at US law in the K-12 case and to treat any suggestion that the “three-step test” should restrict “liberal educational exceptions” in Canadian fair dealing law as a “red herring”. Here’s our factum.

So, maybe this time at least, Canada should not only do as the USA says but as it actually does. In this case, the USA largely gets it right on “fair use”. If the Canadian Supreme Court continues along the path of its own landmark CCH v. LSUC decision and when Bill C-11 becomes law, we will be headed in the right direction with much momentum and well deserved confidence.

HK

Georgia State On My Mind - Here's the 350 Page Judgment and a Few First Thoughts

The long awaited trial judgment in the Cambridge et al v. Georgia State et al copyright litigation has been delivered. HT to Ariel Katz.

The University prevailed in 94 of the 99 initially alleged infringements:

Of the 99 alleged infringements that Plaintiffs maintained at

the start of trial, only 75 were submitted for post-trial findings of

fact and conclusions of law.  This Order concludes that the

unlicensed use of five excerpts (of four different books) infringed

Plaintiffs’ copyrights. 

Result – as per the Court:

Relief?

VI. Relief To Be Granted

In light of the findings of fact and conclusions of law

contained in this Order, Plaintiffs are DIRECTED to file, within

twenty (20) days of entry of this Order, the proposed text of any

injunctive and declaratory relief they seek, together with the

rationale supporting their request.  Alternative proposals are

acceptable.  Defendants may state their opposition, if any, and may

propose one or more alternative orders, within fifteen (15) days

after Plaintiffs’ filing.  If Defendants object to Plaintiffs’

proposal(s) or if Defendants suggest one or more alternative

order(s), the rationale shall be stated.  These filings shall not

exceed thirty (30) pages each.   

Costs?

VII. Costs and Attorneys' Fees

Section 505 of the Copyright Act, 17 U.S.C. § 505 provides:

In any civil action under this title, the court in its

discretion may allow the recovery of full costs by or

against any party other than the United States or an

officer thereof. . . . [T]he court may also award a

reasonable attorney's fee to the prevailing party as part

of the costs.

Both sides have requested an award of costs and attorneys' fees

[Doc. 1 at 29; Doc. 415 at 47 n.18; Doc. 411 at 61-62]. Consideration

of these requests will be deferred until further order of the Court.

Fair Use?

Here’s the Court’s own summary of its findings on fair use at p. 86:

Summary of Fair Use Assessment

This case involves unlicensed copying of 75 excerpts from

Plaintiffs' copyrighted books for nonprofit educational use by

professors and students at Georgia State University in 2009. The

question whether this constitutes a permissible fair use is resolved

primarily by reference to 17 U.S.C. § 107 and the Supreme Court's

decision in Campbell. The Court must consider all of the statutory

elements of § 107; none may be overlooked. However, other factors

may be considered. There is no precise manner in which the elements

must be weighed in relation to each other; however, it is paramount

that all factors be weighed and considered “in light of the purposes

of copyright." Campbell, 510 U.S. at 578.

Because (1) the excerpts were used for the purpose of teaching

(including multiple copies for classroom use) and scholarship, as

described in the preamble to § 107, (2) the use was for a

noncommercial, nonprofit educational use, as described in § 107(1)

and (3) Georgia State is a nonprofit educational institution, fair

use factor one weighs heavily in Defendants' favor.

Because all of the excerpts are informational and educational in

nature and none are fictional, fair use factor two weighs in favor of

Defendants.

With respect to fair use factor three, the amount of the copying

as a percentage of the book varies from book to book. In determining

what percentage of a book may be copied, the Court looks first to the

relationship between the length of the excerpt and the length of the

book as a whole. Then, the relationship between the value of the

excerpt in relation to the value of the book is examined. The Court

also considers the value of a chapter in itself (rather than just a

few paragraphs). In the case of extra long books with a large number

of chapters, a limit on the number of chapters which may be copied is

appropriate. Professors may well have a legitimate educational

reason for wanting to use a chapter of a book; it is more apt to

contain a complete treatment of a particular topic or subtopic than

would a few isolated paragraphs. However, the convenience of using

whole chapters from an over-length book may lead to an undue amount

of unpaid copying in absolute terms.

Taking into account the foregoing considerations in relation to

the books involved in this case, the factor three conclusions are:

Where a book is not divided into chapters or contains fewer than ten

chapters, unpaid copying of no more than 10% of the pages in the book

is permissible under factor three. The pages are counted as

previously set forth in this Order. In practical effect, this will

allow copying of about one chapter or its equivalent.50 Where a book

contains ten or more chapters, the unpaid copying of up to but no

more than one chapter (or its equivalent) will be permissible under

fair use factor three. Excerpts which fall within these limits are

decidedly small, and allowable as such under factor three. Access

shall be limited only to the students who are enrolled in the course

in question, and then only for the term of the course. Students must

be reminded of the limitations of the copyright laws and must be

prohibited by policy from distributing copies to others. The chapter

or other excerpt must fill a demonstrated, legitimate purpose in the

course curriculum and must be narrowly tailored to accomplish that

purpose. Where the foregoing limitations are met factor three will

favor fair use, i.e., will favor Defendants. Otherwise factor three

will favor Plaintiffs.

The Court must also consider, under fair use factor four, the

effect of the use in question on the potential market for or value of

the copyrighted book. Unpaid use of a decidedly small excerpt (as

defined under factor three) in itself will not cause harm to the

potential market for the copyrighted book. That is because a

decidedly small excerpt does not substitute for the book. However,

where permissions are readily available from CCC or the publisher for

a copy of a small excerpt of a copyrighted book, at a reasonable

price, and in a convenient format (in this case, permissions for

digital excerpts), and permissions are not paid, factor four weighs

heavily in Plaintiffs' favor. Factor four weighs in Defendants'

favor when such permissions are not readily available.

The Court has considered whether unlicensed copying of small

excerpts as contemplated by this Order would disserve the purposes of

the copyright laws, namely, “To promote the Progress of Science and

useful Arts, by securing for limited Times to Authors and Inventors

the exclusive Right to their respective Writings and Discoveries.”

U.S. Const. art. I, § 8, cl. 8. Because the unpaid use of small

excerpts will not discourage academic authors from creating new

works, will have no appreciable effect on Plaintiffs' ability to

publish scholarly works, and will promote the spread of knowledge,

the Court concludes that it would not.

(Footnotes omitted)

Note that the Court looks to the US Supreme Court’s 1994 decision in Campbell as the ultimate authority regarding fair use and the interplay of the four factors. This issue arose in the recent Canadian Supreme Court  K-12 case argued on December 7, 2011 and now under reserve. The issue of the status of the fourth factor and the role of Campbell became the subject of some heated discussion by Dan Glover, Ariel Katz, Bill Patry and myself recently on this and other blogs. Once again, we have confirmation - not that it was needed - that the US "fourth factor" is simply one of four factors  and in no sense the most important factor - and that, indeed, even other factors can be considered.

The decision is 350 pages long. Though tempted, I’m not rushing to be the first to analyze it in detail on this fine spring weekend.

Of interest in Canada? You betcha!

And when reading this, bear in mind that our Supreme Court of Canada ruled in 2004 in CCH v. LSUC that:

70   The availability of a licence is not relevant to deciding whether a dealing has been fair.  As discussed, fair dealing is an integral part of the scheme of copyright law in Canada.  Any act falling within the fair dealing exception will not infringe copyright.  If a copyright owner were allowed to license people to use its work and then point to a person’s decision not to obtain a licence as proof that his or her dealings were not fair, this would extend the scope of the owner’s monopoly over the use of his or her work in a manner that would not be consistent with the Copyright Act’s balance between owner’s rights and user’s interests.

And bear in mind that Access Copyright is refusing to provide transactional licenses in Canada, in contrast to the CCC in the USA and arguably in contravention of Canadian competition law. However, this point is not likely to be vigorously pursued if it is raised at all at the Copyright Board, the way things are now going.

Let’s all think about what, if any, impact this might have had – or still might have – in the Access Copyright case at the Copyright Board that appears destined to proceed against the universities without their participation, following their abandonment by AUCC – unless things change.

(highlights added)

HPK

The Effect on the Market Factor in Fair Dealing/Fair Use Law - What IS the law? #C11

Listening out of the corner of my ear to the sometimes insightful but sometimes confused and even misleading testimony at C-11, I thought I heard some suggestions that Parliament should prioritize the “effect on the market” factor in CCH v. LSUC.

Here is how the SCC listed the six factors in CCH (see para. 53 ff.):

1) the purpose of the dealing; (2) the character of the dealing; (3) the amount of the dealing; (4) alternatives to the dealing; (5) the nature of the work; and (6) the effect of the dealing on the work.  (emphasis added)

Concerning the last “effect on the market “ factor, the SCC said:

59    Finally, the effect of the dealing on the work is another factor warranting consideration when courts are determining whether a dealing is fair.  If the reproduced work is likely to compete with the market of the original work, this may suggest that the dealing is not fair.  Although the effect of the dealing on the market of the copyright owner is an important factor, it is neither the only factor nor the most important factor that a court must consider in deciding if the dealing is fair.  See, for example, Pro Sieben Media AG v. Carlton UK Television Ltd., [1999] F.S.R. 610 (C.A.), per Robert Walker L.J. (emphasis added)

It is not only presumptuous to suggest that the SCC doesn’t understand the law of fair dealing and that industry lobbyists know better. It’s simply misleading and inaccurate – if I heard it right – to suggest that prioritizing the “effect” factor is the way American law works.

It’s quite the contrary. The American courts now put what the SCC calls the first two factors at the top of the their priorities. For a very short, lucid and readable (by lawyers and non-lawyers alike) analysis of the state of the law on fair use in the USA, see Patricia Aufderheide and Peter Jaszi, Reclaiming Fair Use (2011) available  on Amazon for immediate shipment. The  Committee should have several copies on hand. On this issue, see Chapter 6 and pages 84 and 85 in particular. After the Campbell v. Acuff Rose decision in the USA Supreme Court in 1994, “transformativeness” – which arises from the first of the four American factors which correspond to the first two of the six Canadian factors is the top priority.

By the way, here is the American legislation, which we would do well to emulate:

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.

(emphasis added) 

It is always important that those who are about to change the law should know what the current law actually is. Perhaps I heard wrong, but I thought I heard some misstatements of the current law this morning.  I hope I was wrong, but the above may be useful in any event.

HPK

PS - for those following the C11 hearings closely, the Twitter hash tag is #C11

Righthaven "Troll" Litigation Could Take Toll on More Meritorious Claims

The widely criticized Righthaven copyright "troll" litigation campaign in the USA seems to be going down in flames. But it may cause a lot of collateral damage to plaintiffs that would evoke more sympathy and could conceivably set precedents that could work against more meritorious claims.

In the latest twist, Judge Pro of US District Court of Nevada has ruled that the fact that an entire work may be copied, while relevant to the issue of fair use, is not determinative that the use is unfair. Actual harm must be shown:

    Merely arguing that because [defendant] Hoehn replicated the entirety of the Work the market for the Work was diminished is not sufficient to show harm. Therefore, Righthaven has not presented evidence raising a genuine issue of material fact that the fourth factor favors a finding of fair use.   
   
    There is no genuine issue of material fact that the above factors favor a finding of fair use. Of the four factors, only the fact that Hoehn replicated the entire Work weighs against a finding of fair use. Hoehn used the Work for a noncommercial and nonprofit use that was different from the original use. The copyrighted Work was an informational work with only some creative aspects, and the Work was used for an informational purpose. Righthaven did not present any evidence that the market for the Work was harmed by Hoehn’s noncommercial use for the 40 days it appeared on the Website. Accordingly, there is no genuine issue of material fact that Hoehn’s use of the Work was fair and summary judgment is appropriate.                  

This may not be good news to many copyright owners - including perhaps those whose works are copied in the educational sector - whether in the USA or Canada...

HK

Lost in the iPod Shuffle “Tax” Shuffle

Charlie Angus, M.P. from Timmins, is the able NDP copyright critic and is doubtless Parliament’s most accomplished professional musician, although he has yet to perform with Yo-Yo Ma. But he is a two time Juno award nominee. Earlier this week, he caused a stir on the Hill with two items. The proposed iPod “Tax” Bill - which could have hit on everything from iPod Shuffles to Blackberries and even personal computers - did not sit very well with most people - and especially not well with the two responsible Ministers and the Government. Within no time, Minister Clement called it “nonsensical” and Minister Moore said “Consumers deserve lower, not higher taxes.” That’s a pretty decisive response from the Government, I would say.

Lost in the shuffle and the ensuing noise, spin and misinformation, was Mr. Angus’ other item, which was a very positive suggestion dealing with “fair dealing”:

M-506 — March 15, 2010 — Mr. Angus (Timmins—James Bay) — 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 following: “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.”.

Mr. Angus' wording is a good first draft of what should be done in the legislation. It certainly merits discussion, as the Globe and Mail masthead editorial yesterday confirmed:

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.

Mr. Angus’ approach is completely consistent with the landmark decision of the 2004 Supreme Court of Canada in CCH v. LSUC. Indeed, it may do nothing more than to codify it. The CCH decision has been incorporated into the pantheon of American copyright scholarship by William Patry, author of one of the two leading treatises on American copyright law. Mr. Patry comments on how Chief Justices McLachlin's' reasoning on behalf of a unanimous Court in CCH fits into a great common law tradition in the evolution of “fair use” and “fair dealing” that is consistent with the ultimate purpose of copyright law, which is to “encourage learning.” According to Patry:

What Judge Leval [Appellate Judge of the 2nd Circuit Court of Appeals in the USA and fair use scholar], Chief Judge McLachlin [of the Supreme Court of Canada], and the early common-law judges who created fair use understood is that copyright is a system; it is not a thing, it is not a property right. Copyright is a means to an end, the end being to encourage learning. All learning is a community experience, and one that takes place over generations, over decades, over centuries. For any system to function, it must take into account, in a meaningful, liberal way, the manner in which humanity proceeds. In the case of copyright, this means that fair use must be viewed as an integral part of the system, and not a begrudging exception to a Hobbesian state of nature where ruthless enforcement of exclusive rights as private property is the ideal.”

So much for the “moral panic” comments circulating about the ills of the “fair use” approach and how it will hurt all manner of creators. It is no accident that America creates and exports both commercially and artistically successful culture and innovation with astonishing success. Its long standing embrace of an open ended common law evolution of permitted “fair” use in copyright law has served American creators and innovators very well, not to mention incredibly successful corporate interests in the content industries. In order to create great new content, it is necessary to absorb, use, “remix” and deal with previous work in a fair way. That cannot be circumscribed by a closed door approach and a list of often picky and silly exceptions, such as the infamous Canadian “dry erase board” provision introduced in 1988 - yes - 1988, not 1788.

This discrepancy hurts the Canadian creators who are supposedly being helped by some powerful corporate lobbyists, who never hesitate to profess to speak on the creators’ behalf. Maybe the reason that so many of Canada's talented comedians, film producers and others have moved to the USA is, at least in part, that we can’t do much satire or parody in Canada because of past restrictive interpretations of fair dealing, which may or may not be good law any more but are still on the books and have not been overruled. Nothing chills the creative spirit like the threat of litigation in the morning.

And so much for the bizarre suggestions under the lead authorship of a well known lobbyist that an approach such as that of Mr. Angus would violate the Berne Convention. If so, Canada would be in good company, namely that of the USA itself. It taxes credibility to suggest that there would be such a challenge over an amendment that essentially codifies the decision of Canada’s Supreme Court, which in turn incorporates and reflects more almost two centuries of the Anglo-American common law approach to the evolution of what is fair and permissible in the context of copyright.

Thus, it is more than curious why there is such a concerted effort driven by those same American corporate interests that have done so well under the US copyright system to deny Canada the benefits of one of the better aspects of the American approach and jurisprudence. Make no mistake - these folks are trying to push back and to effectively undo the decision in CCH v. LSUC.

Meanwhile, these same lobbyist folks are equally busy trying to force Canada to adopt the bad aspects of the US system as embodied in the DMCA approach, which has not worked well. Take this not from me but from the “architect” of the DMCA and the WIPO treaties, Bruce Lehman.

Canada has an opportunity to show leadership by picking the best features from other countries’ copyright laws, learning from their mistakes, and adding some considerable “made in Canada” value.

Recent Ministerial pronouncements are very promising indeed. We optimistically look forward to a copyright system that Canadians deserve and need and that will outlast the persistent attempts of lobbyists who would like to control the future of culture and technology by going backwards in time.

Bravo, Charlie Angus, for provoking discussion on this crucial “fair dealing” issue. Let’s hope that the fair dealing discussion doesn’t get lost in the the iPod Shuffle “tax” shuffle.

HK

Is Fairey's Use Fair Use?

Associated Press has filed its very lengthy Answer and Counterclaim in Fairey's preemptive litigation. Here is is, courtesy of Ray Beckerman.

Interestingly, AP has relied to a large extent on allegations that Fairey has made a career out of this sort of thing, and provides several other examples. AP also makes much of its history of photographing Presidents.

This is a rather unusual pleading - but this is a rather unusual case.

HK

National Federation for the Blind and the Authors Guild

Here's the American NFB (National Federal of the Blind press release re Kindle 2.0 and the Authors Guild statements.

Re the Authors Guild, the NFB says:

Dr. Marc Maurer, President of the National Federation of the Blind, said: “The National Federation of the Blind supports all technologies that allow blind people to have better access to the printed word, including the ability of devices like the Kindle 2 to read commercial e-books aloud using text-to-speech technology. Although the Authors Guild claims that it supports making books accessible to the blind, its position on the inclusion of text-to-speech technology in the Kindle 2 is harmful to blind people. The Authors Guild says that having a book read aloud by a machine in the privacy of one’s home or vehicle is a copyright infringement. But blind people routinely use readers, either human or machine, to access books that are not available in alternative formats like Braille or audio. Up until now, no one has argued that this is illegal, but now the Authors Guild says that it is. This is absolutely wrong. The blind and other readers have the right for books to be presented to us in the format that is most useful to us, and we are not violating copyright law as long as we use readers, either human or machine, for private rather than public listening. The key point is that reading aloud in private is the same whether done by a person or a machine, and reading aloud in private is never an infringement of copyright.

Re Amazon, they say:

“Amazon has taken a step in the right direction by including text-to-speech technology for reading e-books aloud on its new Kindle 2,” Dr. Maurer continued. “We note, however, that the device itself cannot be used independently by a blind reader because the controls to download a book and begin reading it aloud are visual and therefore inaccessible to the blind. We urge Amazon to rectify this situation as soon as possible in order to make the Kindle 2 a device that truly can be used both by blind and sighted readers. By doing so, Amazon will make it possible for blind people to purchase a new book and begin reading it immediately, just as sighted people do.”

This all sounds pretty sensible to me. Hopefully, Canada will be active in promoting a WIPO treaty for rights of the blind.

HK

Fair(ey) Use of Obama Photo?

New York Times, Mannie Garcia/Associated Press

Here's a good article about the preemptive law suit (complaint is accessible through the article) started by Shepard Fairey, the artist of the famous Obama poster that was based on an AP Photo (both shown above). Interestingly, the photographer, Mannie Garcia, says that he and not AP owns the copyright in the photo and he has no problem with Fairey' creation.

"I feel very proud that I made the photograph," Garcia said. "I never would have imagined that it became what it is, and it's pretty cool. The AP is being very aggressive with Fairey, and I don't want to be a part of that. My last conversation with the AP was that I own the copyright, and that's what I'm maintaining."

Mr. Fairey is a very lucky man to have some heavy hitting legal talent behind this claim, including Anthony Falzone of the Stanford Law School Center for Internet and Society and Mark Lemley, renowned Stanford Professor and litigator of important cases.

While the fair use issues are fascinating and important, the interesting short term question from a procedural standpoint will involve AP's reaction, especially in view of the photographer's assertion that AP doesn't even own the copyright.

The NY Times also has a good article here.

PS - it seems that the renowned and/or notorious Mr. Fairey is getting a lot of publicity on other legal fronts, having been prominently arrested in Boston the other day on the way to a major opening of his show at the Institute of Contemporary Art in South Boston. The Boston Globe reports on the kerfuffle, which could be considered pretty impressive performance art.

If, as some say, all publicity is good publicity, then Mr. Fairey is doing exceptionally well.

Mr. Fairey may become Mr. Fair Use.

HK

Fair Use for Online Video - eh?

Peter Jaszi and Pat Aufderheide - two brilliant professors in Washington, DC, have just published a guide called Code of Best Practices in Fair Use for Online Video available here.

They had the input of such distinguished profs such as Pam Samuelson in this work.

It talks about what one can and can't do under American law in making online videos, smashups, parodies, etc.

A lot of what they say can be done in the USA won't be possible in Canada if Bill C-61 is enacted as is.

Canada still won't have a parody exception. Freedom of expression is still clearly trumped by copyright law in Canada. Although Canada's Supreme Court has recently signalled in WIC v. Simpson that freedom of expression may be given more scope than we had previously thought in defamation matters, we aren't there yet in copyright law and Bill C-61 may go a long way to shutting off that possibility.

So, read Peter and Pat's lucid and clear guide - and weep for what we don't have in Canada.

HK

How J.K. Rowling can "Choke Creativity"

There's an excellent article in the business section of the NYT today by Joe Nocera about J. K. Rowling's efforts to squash a small publisher who wants to publish a "companion" book. According to the Times:

“I feel as though my name and my works have been hijacked, against my wishes, for the personal gain and profit of others and diverted from the charities I intended to benefit,” she said in a declaration to the court.

And what perfidious act of “hijacking” has RDR Books committed? It planned to publish a book by Steven Vander Ark, who maintains a fansite called the Harry Potter Lexicon. The Lexicon publishes Harry Potter essays, finds Harry Potter mistakes, explains Harry Potter terminology, devises Harry Potter timelines and does a thousand other things aimed at people who can’t get enough Harry Potter. It’s a Harry Potter encyclopedia for obsessive fans.

RDR has the help of Lawrence Lessig's clinic at Stanford. This will be a very important test case on the parameters of fair use in American law.

It will be about the battle between those who believe in the evolution of culture through a large and liberal interpretation of the time honoured practice of fairly building upon what has come before and those, such as Ms Rowling and her agent, Mr. Neil Blair who says:

“There have been a huge number of companion books that have been published,” Mr. Blair said. “Ninety-nine percent have come to speak to us. In every case they have made changes to ensure compliance. They fall in line.” But, he added: “These guys refused to contact us. They refused to answer any questions. They refused to show us any details.”

(emphasis added)

In other words, creativity v. control.

J.K. Rowling may be the most successful author in history in the financial sense. It's just too bad that she is using her money and power to control, stifle and "choke" the creativity of others.

PS - here's a great article by Tim Wu from January 10, 2008 Slate on why Rowling should lose her lawsuit.

HK