“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

Canadian Copyright Kerfuffle – How NOT to Fix Copyright Law? (with apologies to Bill Patry)

I just can’t refrain from weighing in hopefully for one last time on the Knopf/Glover/Katz/Patry (in approximately that chronological order – key links provided below) kerfuffle ostensibly about the status of the “effect on the market” fourth factor in American fair use law. Although this has one or two amusing aspects to it (see below), it is mostly very serious. In fact, it’s really about a lot more than where the fourth factor ranks. (Hint – 4th is not necessarily the right answer though it could be, sometimes).  In all seriousness, this is very serious.  There are huge amounts of money and extremely important implications for education, teaching, research and innovation at stake.

Mr. Glover and some of his clients and others with similar intentions want nothing less than to:

1. Persuade the Supreme Court of Canada to reverse its landmark CCH v. LSUC decision (less than eight years after it was decided) in ways that Prof. Katz discusses in some detail in his blog of March 16, 2012  and, whether or not that happens, to get Parliament to effectively do so via the following steps;
2. Get rid of the proposed inclusion of the word  "education" in s. 29;
3. Prioritize the US fourth fair use “effect on the market” factor  as priority numero uno in Canada, when it has no such status in the USA or in England; and,
4. Inject the "three-step test" treaty language verbatim into Canadian jurisprudence and even legislation, just so nobody misses the point.

There is a fascinating and important – indeed “must read” -  interchange here starting with Prof. Katz’s long but very readable and scholarly blog of March 16, 2012 with comments by  William Patry, Dan Glover, and Prof. Katz.

In any event, I am not going to respond in any detail to Mr. Glover’s blog of March 16, 2012 other than to say that it merely elaborates and confirms the misstatements in his earlier March 9, 2012  posting  concerning UK and, particularly, American law on the “effect of the market” issue, etc. One new thing that he does add is to frontally take on Judge Pierre Leval and Bill Patry – both towering authorities on the subject of fair use, and cited as such by the Supreme Court of the United States in the pivotal Campbell v. Acuff-Rose case that Mr. Glover would like to ignore but which effectively rejects the nine year older decision on which he has staked so much, not only in these recent blogs but in the Supreme Court of Canada, as Prof. Katz discusses in some detail. Some might say that Mr. Glover is courageous to openly criticize Judge Leval and Bill Patry on fair use law. Others might put it differently.

I don’t know how I can usefully add to the careful critique of Mr. Glover's position by Prof. Katz, wherein Katz concludes on the point about the “effect on the market” factor in American law:

Mr. Glover is not a law professor, so he cannot be faulted for not keeping up with “fresh from the oven” studies, such as those by Netanel and Sag. But Mr. Glover is a lawyer at a top law firm, graduate of top law school, and he surely knows how to retrieve US Supreme Court cases and how to check their currency. On a blog, relying on an earlier Supreme Court decision that supports a proposition while ignoring a later decision that refutes it (i.e., invoking Harper & Row while ignoring Campbell) might be embarrassing but excusable. On a blog, it is somewhat amusing that he accuses Howard Knopf of quoting “from ideologically friendly academic texts to misstate the law” because that would also mean that the US Supreme Court in Campbell, to which Knopf also refers, is equally “ideologically friendly”.

But regrettably, the intervener factum that Mr. Glover submitted last fall (with Mr. Sookman) misstated US law in the same manner. In para. 22 of the factum, Glover and Sookman wrote, quoting Harper & Row, that “In the USA, the Supreme Court has called the effect on the market factor “undoubtedly the single most important element of fair use.” The paragraph did not mention Campbell or any of the appellate cases that unequivocally interpreted Campbell as modifying Harper & Row. [FN. [2] The factum mentions Campbell twice, in para. 20 and para. 27, but to support other points. While both of these points are not really controversial, para. 20 erroneously describes Campbell as a case in which a fair use defence was rejected. The excerpt of Campbell included in their Book of Authorities omits the key passage at page 578 of the report that states “Nor may the four statutory factors be treated in isolation, one from another. All are to be explored, and the results weighed together, in light of the purposes of copyright.” (further references and footnote omitted)]

That statement about US law is incorrect. As US law stands today, the effect on the market is undoubtedly not the single most important factor. Ignoring this in a factum submitted to the Supreme Court of Canada resembles the kind of advocacy that Judge Posner recently described as the “ostrich-like tactic of pretending that potentially dispositive authority against a litigant’s contention does not exist”—advocacy which I find not amusing, and indeed, quite disappointing.

Prof. Katz also deals with a number of other important points, including how Mr. Glover also misstates English law. On the three-step test, Prof. Katz refers back to my blog on why the three-step test issue is a red herring and part of a “camouflage” to attack CCH v. LSUC.

Mr. Glover has an unconvincing reply to Prof. Katz posted as a comment on Katz’s blog in which he still effectively denies the fact that the US Supreme Court in its 1994 Campbell v. Acuff-Rose decision rejected the interpretation that he is trying to promote in Canada regarding the nine year older Harper v. Row decision on the issue of prioritizing the “effect on the market”.

The best way to understand case law is usually to read it. Here is what the Campbell Court said in 1994, in the key passage found at pages 577-578 of the report that Prof. Katz and I included in our Book of Authorities, but which Messrs. Glover and Sookman did not:

Congress meant § 107 "to restate the present judicial doctrine of fair use, not to change, narrow, or enlarge it in any way" and intended that courts continue the common-law tradition of fair use adjudication. H. R. Rep. No. 94-1476, p. 66 (1976) (hereinafter House Report); S. Rep. No. 94-473, p. 62 (1975) (hereinafter Senate Report). The fair use doctrine thus "permits [and requires] courts to avoid rigid application of the copyright statute when, on occasion, it would stifle the very creativity which that law is designed to foster." Stewart v. Abend, 495 U. S. 207, 236 (1990) (internal quotation marks and citation omitted).

The task is not to be simplified with bright-line rules, for the statute, like the doctrine it recognizes, calls for case-by-case analysis. Harper & Row, 471 U. S., at 560; Sony, 464 U. S., at 448, and n. 31; House Report, pp. 65-66; Senate Report, p. 62. The text employs the terms "including" and "such as" in the preamble paragraph to indicate the "illustrative and not limitative" function of the examples given, § 101; see Harper & Row, supra, at 561, which thus provide only general guidance about the sorts of copying that courts and Congress most commonly had found to be fair uses.9 Nor may the four statutory factors be treated in isolation, one from another. All are to be explored, and the results weighed together, in light of the purposes of copyright. See Leval 1110-1111; Patry & Perlmutter, Fair Use Misconstrued: Profit, Presumptions, and Parody, 11 Cardozo Arts & Ent. L. J. 667, 685-687 (1993) (hereinafter Patry & Perlmutter ).10 (Footnotes omitted)

Note the Court’s references to Leval and Patry, the same Leval and Patry concerning whom Mr. Glover says:

Because Nimmer on Copyright represents an inconvenient truth for Mr. Knopf, he resorts to the text authored by William Patry, now the senior copyright counsel at Google, who is himself quoting not decided case law, but a 1996 academic article (“Fair Use Rescued”) by Pierre Leval, a well-known judge formerly at the Second Circuit. The core point here is that Mr. Patry and Judge Leval are (as is their right) criticizing the logic behind the Sony and Harper & Row Supreme Court decisions as being circular or wrong in policy. Mr. Patry also clearly agrees with the user rights analysis of the CCH decision. Their views are an attempt to address, critique and change the law of copyright (as are those of Aufderheide and Jaszi), but they are not a statement of the law as it stands in the United States. They are a statement of the law as they would like to see it. (Emphasis added).

Hmm. So much for the US Supreme Court, Judge Leval, Bill Patry, as well as Patricia Aufderheide and Peter Jaszi, at least according to Mr. Glover. It’s hard to respond to this, other than to say that I am really honoured to see my name mentioned in the same paragraph as these outstanding American authorities, even if, according to Mr. Glover, they do not correctly state “the law as it stands in the United States”.

I’m also very happy to be “upheld” by none other than Bill Patry, through his vindication in the form of two eloquent comments that appear on Prof. Katz’s blog, which in turn supports my analysis.  This is how Patry very succinctly makes it very plain in his comment posted on Prof. Katz’s blog that the Campbell court rejected Nimmer and the Harper court nine years earlier on the “effect of the dealing” issue:

Harper & Row merely cited Nimmer, and Campbell, as has been noted, rejected Harper & Row, as have courts after Campbell. Put as clearly as possible, it is an inaccurate statement of U.S. law to say that the fourth factor is the single most important, determinative, primus inter partes, or anything of the sort. It is one of four and the four are inter-related and therefore considered together. (emphasis added)

Those who wish to read Mr. Patry’s work in full form work may want to look at his multi-volume treatise Patry on Copyright or his monograph Patry on Fair Use, and his many other books and works over the years.

In any event, Prof. Katz mentioned the recent decision of Judge Richard Posner  - remarkably colourful even by this remarkable judge’s standards - concerning the risk of ignoring relevant and dispositive precedents. Here’s the relevant passage  – with the illustrations included by Judge Posner himself:

When there is apparently dispositive  precedent, an appellant may  urge its  overruling or  distinguishing or reserve a  challenge  to  it  for a petition  for  certiorari but may not simply  ignore it …

The ostrich is a noble animal, but not a proper model for an appellate advocate. (Not that ostriches really bury their heads in the sand when threatened; don’t be fooled by the picture below.) The “ostrich-like tactic of pretending that potentially dispositive authority against a litigant’s contention does not exist is as unprofessional as it is pointless.” Mannheim Video, Inc. v. County of Cook, 884 F.2d 1043, 1047  (7th Cir. 1989), quoting Hill v. Norfolk & Western Ry., 814 F.2d 1192, 1198 (7th Cir. 1987).6 Nos. 11-1665, 08-2792

Judge Posner’s much discussed decision should be required reading for all law students and all litigation lawyers. As it happens, Mr. Glover’s own firm, McCarthy, Tétrault, has a  blog on appellate advocacy with a posting on Judge Posner’s decision that concludes with the wise advice that:

So don’t be an ostrich. Distinguish adverse authorities with your head high (and firmly out of the sand).

Patry’s Ottawa Appearance on March 19, 2012

By serendipitous coincidence, Bill Patry is giving a talk in Ottawa on Monday, March 19, 2012 at 5:00 Monday, March 19, 2012, Gowlings Moot Court Room (FTX 147)at Fauteux on his new book, “How to Fix Copyright Law”.

 

Details here. Not to be missed.

Hopefully this will be webcast live and archived.

All of this recent kerfuffle on the Canadian copyright blogs – not to mention the recent and hopefully final chapter of the CBA imbroglio – in which both Mr. Glover and I had roles to play – no doubt illustrate examples of “How NOT to Fix Copyright”.

HPK


PS 


Bill Patry has posted a comment with additional material on Mr. Glover's post on Barry Sookman's blog. Patry says:

Harper & Row merely cited Nimmer and did no analysis of its own; it was dictum, Court did not, in fact, base its decision only on the fourth factor. But it is true that until Campbell rejected Harper & Row’s treatment of the fourth factor, lower courts did cite the “single most important factor language.” Judge Leval and I both that Harper & Row and the lower courts following it were wrong on this point and we said so. Our advocacy was adopted by the Campbell court; it is, therefore, is entirely inaccurate of you to pretend that our views remain mere criticisms of Sony and Harper & Row. Campbell accepted them and they are now the law in the U.S., like it or not. (emphasis added)

 Addendum:

Links to previous blog postings in this kerfuffle:

Knopf March 6 2012

http://excesscopyright.blogspot.ca/2012/03/market-effect-factor-in-fair.html

Glover March 9 2012
http://www.barrysookman.com/2012/03/09/renewed-attacks-on-the-%E2%80%9Ceffect-on-the-market%E2%80%9D-factor/ 
HPK March 12 2012

http://excesscopyright.blogspot.ca/2012/03/efforts-escalate-to-reverse-cch-v-lsuc.html

Glover March 16 2012

http://www.barrysookman.com/2012/03/16/misleading-parliament-really/

Katz March 16 2012 + Patry comments

https://arielkatz.org/lets-talk-about-the-effect-on-the-market-seriously/

(Note: dead link updated July 13, 2019)

Efforts Escalate to Reverse CCH v. LSUC and Mislead Canada's Parliament in Bill C-11 on the Three-Step Test

Unusual efforts continue unabashed and even escalate to somehow convince anyone who will listen that the Supreme Court of Canada got it wrong on fair dealing in its landmark 2004 decision in CCH v. LSUC, and that, if the Court does not “revisit” this decision in the current cases under reserve, Parliament should overrule it through legislation.

Prominent lawyer and lobbyist Barry Sookman has just published a guest blog by Dan Glover, who is his young associate and protégé at McCarthy, Tétrault. Mr. Glover’s blog is entitled Renewed Attacks on the "Effect on the Market" Factor. One can presumably assume that Mr. Sookman not only endorses Mr. Glover’s blog, but that Mr. Glover would never say anything about copyright law in public of which Mr. Sookman might disapprove.

As I read Mr. Glover’s blog, he seems to be saying:

-         That Michael Geist and I are publishing “misinformation masquerading as the correction of misinformation, a concept George Orwell labelled as “doublethink”;

-         That the “three-step test” from treaty law should be literally adopted in Canadian jurisprudence and incorporated into the Copyright Act, just to ensure that our Courts don’t miss the point;

-         That the word “education” should not be allowed into s. 29 of the Copyright Act, as proposed in Bill C-11; and,

-         That “The key flaw of CCH is that it misquotes English law to conclude that the "effect on the market" is "neither the only factor nor the most important factor that a court must consider in deciding if the dealing is fair" (para. 59).” (emphasis added). In other words, it seems that, according to Mr. Dan Glover, the Supreme Court of Canada (SCC) wrongly decided the CCH v. LSUC case.  

Mr. Glover hopes that the SCC will “will revisit this issue” in the current cases under reserve in which his firm (and many others including mine) have made submissions. He also believes that Parliament should deal with it:

So the question becomes what to do to avoid an imbalanced educational fair dealing exception. Around the world, courts have preserved the balance by placing primary importance on the question of whether a given use "would materially affect the market or potential market for a work, if it would supplant any part of the market for it, or if the challenged use should become widespread, it would adversely affect the potential market for the work". If a course of copying would have that effect, it is not excused by the fair dealing or fair use exception.

(Emphasis added)

That is very inaccurate in many ways, but the inaccuracy begins with his characterization of American law.

Mr. Glover accuses Prof. Geist and I of not understanding and even, in my case, misstating the law - apparently, by referring to the latest and controlling US Supreme Court decision on fair use and referring to the latest important book on fair use,  written in this case by two of America’s leading scholars on the subject (Aufderheide and Jaszi) and published by the University of Chicago Press. Mr. Glover apparently believes that he knows more about American copyright law than top American scholars such as Aufderheide and Jaszi. Mr. Glover dismisses this book as “ideologically friendly” to my point of view.

I could have also quoted from many other sources, including from William Patry, who states in his authoritative treatise Patry on Fair Use that:

§ 6:1. Generally

The least understood, and, as a consequence, most misapplied of the factors is the fourth. [FN1] This misapplication is of relatively recent vintage, however, and may be traced to two Supreme Court decisions a year apart, Sony Corp. of America, Inc. v. Universal City Studios, Inc.[FN2] and Harper & Row, Publishers, Inc. v. National Enterprises.[FN3] In a careful review of both opinions, Judge Pierre Leval concluded “in short the market effect by itself is nearly meaningless, we cannot interpret it without learning from other factors ….”[FN4] We shall first review how things went astray, and then attempt to set them aright. (footnotes omitted)

Indeed, I could have quoted as well from Patry’s overall treatise on Patry on Copyright in which he explicitly mentions and approves the SCC’s decision in CCH:

Patry on Copyright § 10:2

Similarly, in CCH Canadian Ltd. v. Law Society of Upper Canada,[FN14] involving the Great Library's fulfillment of request-based reproductions, the Canadian Supreme Court well-articulated that exceptions to copyright (in its case fair dealing, a kissing cousin of fair use) are a part of the system, not a derogation from it. In interpreting the Canadian fair dealing provision, the Court wrote that they “must not be interpreted restrictively,” but rather accorded “large and liberal interpretation” so that “users' rights” are not impeded. (footnotes omitted, Note that Patry’s treatises are available on Westlaw).

So, readers are free to decide whether it is I, or rather Mr. Glover, who “misstate” the state of American law. His extensive focus on my short blog suggests that I have indeed struck a raw nerve. Although I doubt he will find much support for his views, his fallacious challenge is, to some extent, fair game. 

However, Mr. Glover’s attack on the SCC’s decision in CCH v. LSUC is quite another matter and is really remarkable for its chutzpah and hubris. He says that:

The key flaw of CCH is that it misquotes English law to conclude that the "effect on the market" is "neither the only factor nor the most important factor that a court must consider in deciding if the dealing is fair" (para. 59). (emphasis added)

It is not necessary to defend the CCH decision, which I and others regard as the “Magna Carta” of Canadian copyright law. It is a unanimous decision of the SCC from only eight years ago penned by The Right Honourable Chief Justice of Canada, Beverley McLachlin, P.C.  Mr. Sookman and many other top copyright lawyers had ample opportunity to make submissions in that case.  The result was a landmark, eloquent and unambiguous rejection of a wide variety of overreaching assertions by him and others who were seeking such results as copyright in judgments (based on editorial corrections, choice of fonts, etc.), and above all, to have the Court deny or at least severely curtail users’ rights of fair dealing in connection with research. However, that judgment clearly and categorically stated that:

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)

That decision has been praised far and wide by Canadian and notable foreign scholars, such as William Patry. Indeed, Mr. Glover and Mr. Sookman not so long ago relied on this decision, in the context of arguing against further statutory expansion of fair dealing, that Canada already has sufficiently “broad and flexible” fair dealing provisions to permit “flexible fair dealing”, which they now apparently want to reject:

...Canada already has broad and flexible fair dealing provisions. Pro-reform advocates have acknowledged that the Supreme Court of Canada‘s landmark fair dealing decision in CCH instantly ranks as one of the strongest pro-user rights decisions from any high court in the world. (emphasis added) (B. Sookman and D.  Glover,  Why Canada Should Not Adopt Fair Use: a Joint Submission  to the Copyright Consultations, (2009) 2 Osgoode Hall Rev. L. Pol’y 55, p. 139 at 141.)

So, it’s remarkable but revealing to finally see an explicit indication that Mr. Glover and those for whom he speaks believe that the SCC got CCH v. LSUC wrong and that the Court should “revisit” it.

Mr. Glover, presumably Mr. Sookman, presumably the other lawyers who argued in favour of the “three-step test” in the SCC,  and presumably their various interested clients now want to see it in the Canadian statute. These others include Glen Bloom and his client CRIA (now Music Canada) and Casey Chisick, and his client CMMRA-SODRAC.  They apparently:

-        want the SCC to “revisit” CCH v. LSUC

-        want the treaty language concerning the  three-step test as found in Article 9(2) of the Berne Convention incorporated into Canadian jurisprudence and the Canadian statute, although they don’t say anything about the longstanding provision that follows  in Article 10(2) dealing with exemptions for teaching purposes. Nor do they point out that it is very rare indeed that treaty language is simply cut and pasted into domestic legislation

-        want Canada to have a far more restrictive fair dealing/fair use regime than their American-dominated clients prosper under in the USA.

Let us put the three-step test canard to bed once and for all. What the educators apparently sought in the SCC and now seek in Parliament is simply a fair dealing regime where the use of multiple copies for classroom use, the making of copies of a work that is “prescribed” by an instructor, and other common and essential educational, teaching, scholarly and research practices MAY be found to be fair, based upon the SCC’s six factor analysis, but are not ipso facto unfair, as the Copyright Board and the Federal Court of Appeal found.

To suggest that this would contravene international law is not only “speculative”. It is simply misleading and even nonsensical. If this were the case, the USA would have been successfully challenged a long time ago for its generous and explicit fair use statutory provision which reads as follows:

17 U.S.C. § 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.

What users are seeking in Canada is even more modest than this. In fact, Prof. Ariel Katz points out in an incisive and very important blog dated March 11, 2012 that the well-hidden copyright “grab” of digital rights by Access Copyright buried deep in Bill C-11 is much more likely to violate the three-step test:

In addition, readers who followed the attempts to roll back the Supreme Court’s decision in CCH and prevent any broadening of the language of the statutory fair dealing provision, must have noticed the specious argument fair dealing is inconsistent with the Three-Step-Test of the Berne Convention and other international treaties. Neither of those self-proclaimed advocates of authors’ rights seems to have any issue with the forced collectivization of authors’ rights, a move that is much more likely to be inconsistent with the Three-Step-Test than any expansion of fair dealing currently contemplated. It turns out that respect for the copyrights of others and genuine concerns about compliance with international obligations are very brittle concepts when ignoring them can turn a profit. (Emphasis added)

In any event, a recent treatise on by Paul Goldstein and Bernt Hugenholtz published by Oxford University Press notes (see § 11.4.3) that the USA and many other countries including The Netherlands, Germany and Japan have a wide range of generous exceptions for educational, instructions etc. that are completely compliant with international law.

  

The WTO decision concerning US §110 mentioned by Mr. Glover is not only completely inapposite (it concerns the clearly illegal exception that allowed “a wide variety of restaurants and bars to publicly perform copyrighted musical works for free”). The great irony of his misplaced reliance on this reference is that the USA - now putting pressure on Canada directly and indirectly through interest groups such as clients of Mr. Glover, Mr. Sookman, Mr. Bloom and Mr. Chisick to incorporate the wording of the “three-step test” - continues a decade later to flout that ruling and to be the singular major adjudicated, unrepentant and outstanding scofflaw of international copyright.

In conclusion, it would seem that Mr. Glover - and those for whom he presumably speaks or at least echoes, are now engaged in a remarkable series of  increasingly desperate statements as Bill C-11 comes closer to fruition and as the SCC contemplates its pending decisions in the two fair dealing cases currently under reserve.

The past week has seen explicit and indeed virtually simultaneous attacks on not only a major Canadian Bar Association submission to a Parliamentary Committee but, above all, a recent landmark and internationally acclaimed decision of the Supreme Court of Canada, even while two decisions on its further application are still under reserve by the Court. This is not only unprecedented and inappropriate in terms of rhetoric, civility and decorum. These attacks were simply and fundamentally wrong in substance and deserve, at the very least, to be summarily and unequivocally dismissed by all concerned.  

HPK

PS - if you wish to make your views known at this time to those in Parliament who can do something about fair dealing, email the following people. You should be able to cut and paste this list directly into most email clients:

Christian.paradis@parl.gc.ca, James.moore@parl.gc.ca, moore.j@parl.gc.ca, Glenn.thibeault@parl.gc.ca, Charlie.angus@parl.gc.ca, Scott.armstrong@parl.gc.ca, Tyrone.Benskin@parl.gc.ca, Peter.braid@parl.gc.ca, Paul.calandra@parl.gc.ca, Andrew.Cash@parl.gc.ca, Dean.delmastro@parl.gc.ca, Mike.lake@parl.gc.ca, Phil.mccoleman@parl.gc.ca, Rob.moore@parl.gc.ca, Pierre.Nantel@parl.gc.ca, Geoff.regan@parl.gc.ca, cc11@parl.gc.ca

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

More on Satire and Parody and the Need for Legislation in Canada

Prof. D’Agostino has posted a thoughtful comment, with which I respectfully disagree, on my posting from yesterday on the BC parody case. It merits a sufficiently lengthy reply to require a new entry.

I think that Prof. D’Agostino and I agree that parody (she doesn't discuss satire) should be part of the law of fair dealing in Canada, but we disagree on whether to leave this to the courts or whether it should be dealt with by Parliament.

Here is what she actually said about "legislative intervention" on the parody issue in her two recently published papers.

At page 41 of her Canadian Heritage paper, she says:

In this context, it is also useful to consider whether fair dealing necessitates clarification to encompass important (and new) uses. In the UK, Gowers recommended that the government should enact a new copyright exception for parody. Before CCH many scholars posited that parodies would be infringing in Canada. Post CCH’s liberal interpretation of the enumerated grounds, it could be argued that “criticism” could now encompass parody. Michelin no longer seems good law. Indeed, parody in the US is not an automatic. Parody still requires analysis of each of the four factors as well as some use of the target to be fair. This can now also be the case in Canada and would likely not require any legislative intervention. (Footnote omitted) (emphasis added)

At page 359 of her McGill paper, which I had not seen until now, she says virtually the same thing:

In this context, it is also useful to consider whether fair dealing necessitates clarification to encompass important (and new) uses. In the United Kingdom, Gowers recommended that the government enact a new copyright exception for parody. Before CCH, many scholars posited that parodies constitute infringement in Canada. In light of CCH’s liberal interpretation of the enumerated grounds, it may be argued that “criticism” could now encompass parody. Michelin no longer seems to be good law. Indeed, the protection of parody in the United States is not a foregone conclusion: parody still requires analysis of each of the four factors as well as some use of the target to be fair. Now this might also be the case in Canada, without the necessity of legislative intervention. In Canada, the issue may turn on the sufficient acknowledgment requirement (not present for research or private study, nor required in the United States). In the United Kingdom, where the same requirement exists, courts have been flexible in overcoming this hurdle in the case of criticism, review and news reporting. This flexibility or, indeed, dispensation with the acknowledgement requirement should be more warranted for parody. In parody, the link between the original and the parodic twin is often obvious since “the parody must be able to ‘conjure up’ at least enough of that original to make the object of its critical wit recognizable.” (Footnotes omitted) (emphasis added)

Prof. D’Agostino seems to prefer more of a soft law approach of “best practices.” Unfortunately, one cannot count on this achieving tangible results in Canadian courts.

She mentions Prof. Peter Jaszi’s work on best practices. I have worked with him over the years and have the highest admiration for him. However, “best practices” initiatives as developed by him and Pat Aufderheide are likely to be more successful in the USA, where fair use is codified only in the most general terms and industry practices are more likely to be accepted by the courts as fair. Indeed, that’s part of the theory and practice of the American system. In Canada, we now have the CCH decision, which follows decades of restrictive literal reading of the mostly very specific and explicit exceptions, of which the “dry erase board” takes the cake. However, as enabling and liberating as CCH seems for users’ rights, it may not permanently throw the door wide open. There are concerted efforts by lobbyists that could result in significantly undoing it, including by some who should know better. Ironically, the efforts of educational community at the management level as exemplified by CMEC and the AUCC could have this result. They don’t seem to get the message from this decision, or if they do, they don’t seem content to rely on it in any possible future litigation.

A “best practices” initiative can’t hurt and may help - as long as any initiative in this respect does not take pressure off the need to legislate. Such "best practices" could be a "complement" to legislation, as Prof. D'Agostino recognizes, but should not be an "alternative" as she also suggests at page 361 of her McGill paper. Such an initiative might provide guidelines for acceptable satire and parody practices, but should not replace legislation needed to enable satire and parody in the first place. Indeed, Prof. D’Agostino is kind enough to give me credit me for an initiative to develop guidelines at page 361 of her McGill paper. This stems from my White Paper on film documentaries from 2006. However, in that same paper, I also explicitly recommended near the top of my list of recommendations a legislative change to establish a satire and parody right. On this issue, I’m taking a “belt and suspenders” approach.

We have had this parody impasse in Canada since the 1996 Michelin decision, which a lot of people believe may have wrong been then and even more wrong now in light of subsequent case law. But it wasn’t clearly wrong and still isn’t clearly wrong. It was a reasoned and lengthy ruling by a highly respected Federal Court judge. It was never appealed. And it’s still the law in Canada, at least in the eyes of Master Donaldson in the BC Supreme Court.

One of these days, we will have a functioning Parliament again. I hope that it does its job by passing clear legislation so that Canada doesn’t stand almost alone amongst comparable countries in rejecting a parody right in the name of copyright law. Even France, which is a civiliste and copyright “maximalist” country allows for parody.

Canada can’t tolerate years of uncertainty and an uncertain outcome if this matter is left to work its way through the development of best practices and further litigation.

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