Monday, March 04, 2019

“Reclaiming Fair Use” by Aufderheide & Jaszi – My Treat During Fair Use/Fair Dealing Week



I took some time during fair use/fair dealing week to belatedly look at the second edition of “Reclaiming Fair Use” by Patricia Aufderheide and Peter Jaszi published last year by the University of Chicago Press. This is an update of the first edition published in 2011 by the same authors.

The book, by its nature, is primarily about the American landscape of fair use. However, it is an important book for Canadians.

Despite the significant scholarly credentials and accomplishments of the authors, the book is written in very plain language that bridges the gap between lawyers and laypersons. Both will find it useful and appealing. There are no footnotes – but lots of references, which are now, of course, easy to track down through the obvious sources on the internet.

The book examines the culture of fair use, and the development of the doctrine in the law, the courts and above all in the real world of education, films, etc. It includes a good list of various Codes of Best Practices and a specific Statement of Best Practices for documentary film makers, a subject dear to my heart having done a still useful White Paper for the Documentary Organization of Canada back in 2006.

The book is not a legal text, as such, though I have found it useful to confirm in clear, simple and authoritative terms certain contentious points, for example to diffuse the inaccurate statement that the fourth factor in American law concerning the effect on the market has priority over the other factors. See the interesting “kerfuffle” interchange on my blog involving  me, Ariel Katz, Bill Patry, Barry Sookman and Dan Glover from 2012.

The second edition of the book does have a brief reference to Canada. The authors credit David Vaver, Michael Geist, Ariel Katz, myself and Laura Murray for having “helped to persuade the courts there [Canada] – and particularly the Supreme Court – to apply fair dealing with an emphasis on interpretive openness and technological neutrality. This approach is justified in part by the fact the Canadian judges explicitly regard fair dealing as a users’ right.” This comment is very flattering. However, one hopes that the next edition may have more about Canada – perhaps a whole chapter?

This book along with that of  Murray and Trosow (2013) and collected papers in a 2013 book edited by Michael Geist available via open access here should be on the shelf of anyone in Canada who is concerned about fair dealing or fair use and the law, culture, politics and advocacy trends that are involved. Such readers would include:
·        Copyright librarians
·        University counsel
·        Copyright lawyers
·        Copyright professors
·        Policy analysts in government
·        Researchers in intuitions where copyright is important, including many government departments, agencies, and the Copyright Board
·        Members of the INDU Committee s. 92 review and their staff
The only other reliable books of which I am aware of interest to Canadians that are written in language that both lawyers and non-lawyers can appreciate are by David Vaver – but they are out of date on the topic of fair dealing and the 2012 legislation and “pentalogy” case law.

There are also numerous posted guidelines about fair dealing in Canada from various institutions. Some of these are more reliable than others. I am admittedly partial to the guidelines I helped to draft, namely those of the University of Toronto. Readers should be aware of any approach or material that seems too arbitrary or too simple.

HPK

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