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 Canadian Bar Association Copyright Submission on Bill C-32 (now C-11) - Some Useful Links

(Mussorgsky/Stokowski/Disney - 1940)

There has been a lot of discussion in recent days about the Canadian Bar Association (CBA) Submission on Bill C-32, the Copyright Modernization Act from February, 2011. That bill is the same as Bill C-11, which is now heading into the homes stretch in Parliament. “Some of the top” copyright lawyers in Canada" have signed a letter to the CBA circulated by Claude Brunet and Casey Chisick, demanding that it “publicly withdraw” this document, launch an investigation, etc. The list of signatories (see below) is as interesting for who it does not include as it is for who it does.

The CBA, at all levels up to and including its President, have unequivocally continued to support and express confidence in the submission, the process that led to it, and those involved with producing it. Michael Geist’s name has been mentioned very frequently in the recent discussions and mine a couple of times. For the convenience of those interested, below are links to the most useful recent documents in this saga, beginning with the CBA Submission itself.  

With all of the attention the CBA copyright policy submission has been getting, readers may wish to read it carefully and decide for themselves whether it contains useful points to include in last minute submissions to Members of Parliament and Ministers as the Clause by Clause process on Bill C-11 (identical to Bill C-32) begins. Readers may even wish to bring it to the attention once again of Members of Parliament and Ministers, if they believe this would be helpful.

So – without any further comment:

• CBA Submission on Bill C-32, Copyright Modernization Act February, 2011
• Letter from Claude Brunet, Casey Chisick, Dan Glover, Barry Sookman, et al to CBA February 21, 2012
• Letter of CBA President Trinda Ernst, Q.C. to Claude Brunet and Casey Chisick March 1, 2012
• National Post Article by Drew Hasselback March 7, 2012
• Comment by Terence Corcoran, Editor of Financial Post March8, 2012
• Michael Geist Counterpoint “Music lobby smears CBA paper”March 8, 2012
• Letter from CBA President Trinda Ernst, Q.C., March 9, 2012
• Message from Andrew Bernstein March 9, 2012
• Update by Drew Hasselback, Financial Post, March 9, 2011

Here, once again, is a handy list of the responsible Ministers (the Minister of Industry, Christian Paradis, and the Minister of Canadian Heritage, James Moore) and the C-11 Committee members and Clerk of the Committee, at email addresses provided below:     

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 

HPK


PS - if you wish to make your views known concerning any of the above at this time to those in Parliament who can do something about fair dealing, email the following. 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

#C11 & Just Say No to Policy Bullying and the Imposition of Laws based on Policy-based Evidence Making

Beginning on Monday, March 12, 2012 we are going to see “clause by clause” alteration of Bill C-11. What Canadians will not see is what happens behind the scenes. The making of legislation has often been likened to the making of sausage:

"There are two things you don’t want to see being made—sausage and legislation." Attributed to Otto von Bismark (1815-1898

See here.

Prof. Dwayne Winseck has a must read blog on Bill C-11.

He says:

The biggest problem with all of this is not the underlying faulty economics and total absence of meaningful evidence, but rather the complete bankruptcy of the lawyers and lobbyists peddling the case. They appear to have no moral compass when it comes to these matters and would just as easily turn ISPs, search engines and social networking sites into online gatekeepers working on their behalf as they’d toss their grandmothers overboard if she hacked a digital lock

So - are we looking now at evidence-based policy making or policy-based evidence making?

The entertainment industries are doing very, very well and outperforming most other sectors in very difficult times - in spite of their hysterical and hyperbolic assertions that the sky is falling. 

In fact, the evidence is that the “Sky is Rising”.

Parliament should not forget how the late Jack Valenti, all time lobbyist supremo for the U.S. motion picture industry  solemnly told Congress in 1982 that:

I say to you that the VCR is to the American film producer and the American public as the Boston strangler is to the woman home alone.

Congress had the good sense in those days to ignore Hollywood on that issue - and the movie industry should be very glad that they did, because the VCR soon saved Hollywood, who could have saved themselves a lot of trouble and embarrassment by listening more to their customers and less to their lawyers. 

Oh, how history repeats itself.

So, let's hope that Parliament next week will:

• just say no to TPMs that will stop Canadians from watching legitimately purchased regional  coded DVDs and BlueRay discs from India and elsewhere, to transfer format, to make backups, to time and place shift, to migrate from obsolete technology and interfere in countless other ways with their rights to use the expensive content and hardware that they have purchased
• just say no to attempts to undo the Supreme Court of Canada's 2004  "Magna Carta" ruling in CCH v. LSUC in order to extract tens of millions a year from businesses, researchers, taxpayers, educators and students for non-existent rights to non-existent repertoire
• just say no to attempts to circumscribe fair dealing that would put Canada at a huge competitive disadvantage to the USA in terms of education, research and innovation
• just say no to the injection of the treaty based "three-step test" intended to accomplish the foregoing and undo CCH v. LSUC.
• just say no to term extension that will create windfall profits for foreign corporations
• just say no to an iPod tax or any other tax on technology
• just say no to sneaking in a probably unconstitutional and definitely undesirable deemed digital rights grab from authors and an effectively coerced collective enforcement mechanism that could cost educational institutions, students and taxpayers tens of millions a year in the very short term (see proposed ss. 30.01(6) and (7)
• just say no to overreaching SOPA-like intrusion laws that would allow the entertainment industry to shut down legitimate websites with insufficient due process
• just say no to SOPA-like measures that would cripple the utility and accuracy of search engines
• just say no to SOPA-like measures that would stop or “tax” many useful and harmless social networking activities (e.g. baby dancing to Prince)
• just say no to draconian statutory minimum damages in Canada that could cost ordinary Canadians as much as a new car

Above all, Parliament should just say no to the imposition on Canadians of heavy-handed, untested, anti-technology, anti-innovation and anti-education policy-based evidence making through policy bullying on may obvious and not so obvious fronts by lawyers, lobbyists, trade associations, diplomats and politicians representing mostly non-Canadian interests.  

On a more positive note, the late Pierre Juneau was a genius in determining how to benefit Canadians in deft and non-partisan ways that required almost no taxpayer expenditures, other than a bit of regulatory oversight. CanCon and commercial substitution are tools that - though controversial in their day – have really worked well. Even their early critics are now very grateful for Juneau’s contributions to Canadian culture and the broadcasting and telecommunications sectors.  This is the kind of history that should repeat itself.

If you wish to make your views known to Parliament, and the responsible Ministers, here’s a useful list of email addresses. Remember, form letters based on “templates” have very little effect. Write your own thoughts and make the three or so points that you most care about. And make them short but good.

Send your email to the responsible Ministers (the Minister of Industry, Christian Paradis, and the Minister of Canadian Heritage, James Moore) and the C-11 Committee members and Clerk of the Committee, at email addresses provided below:    

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 

 HPK

In fact, here's the above email list in a convenient "cut and paste" form that should work with most email clients for a one-step submission to all of the above:

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

On Plagiarism and What It Really Means

Anyone reading the National Post this morning might be puzzled as to whether “some of the top” copyright lawyers in Canada actually understand what “plagiarism” really means.

So – here is what it means. Please don’t take my word for it. I’ve copied below (with full attribution)  the definition of “plagiarism” from the full edition of the Oxford English Dictionary and Black’s Law Dictionary.

I’ve underlined and highlighted the key fundamental concept – which is that the copying must be of the work of another person.

One cannot plagiarize oneself.  Since some copyright lawyers are fond of often overwrought property analogies and metaphors, I’m sure that they would agree that one cannot steal one’s own car.

Likewise, if I work on a report or a brief as part of a team and I allow my work to be incorporated into the result, the resulting work is not “plagiarized”. Otherwise, how would one describe a brief from a large law firm that may incorporate the unattributed input of many lawyers and law students?

Oxford English Dictionary

plagiarism

(ˈpleɪdʒɪərɪz(ə)m)

[f. as plagiary + -ism.]

1.       The action or practice of plagiarizing; the wrongful appropriation or purloining, and publication as one's own, of the ideas, or the expression of the ideas (literary, artistic, musical, mechanical, etc.) of another.

   1621 Bp. R. Montagu Diatribæ 23 Were you afraid to bee challenged for plagiarisme?    1716 M. Davies Athen. Brit. II. To Rdr. 46 A good Plea to any Charge of Plagiarism or Satyrism.    1753 Johnson Adventurer No. 95 ⁋9 Nothing‥can be more unjust than to charge an author with plagiarism merely because he‥makes his personages act as others in like circumstances have done.    1820 Hazlitt Lect. Dram. Lit. 257 If an author is once detected in borrowing, he will be suspected of plagiarism ever after.    1861 Buckle Civiliz. II. vi. 542 A certain unity of design which is inconsistent with extensive plagiarism.

2.       A purloined idea, design, passage, or work.

   1797 Monthly Mag. III. 260 He found the‥song‥to be ‘a most flagrant plagiarism from Handel’.    1850 Maurice Mor. & Met. Philos. (ed. 2) I. 98 A Thaumaturgist whom they had created‥to convince the world that the Christian church was a plagiarism.    1875 Jowett Plato (ed. 2) I. p. xx, They are full of plagiarisms, inappropriately borrowed.

Oxford English Dictionary Second Edition on CD-ROM (v. 4.0.0.3)
© Oxford University Press 2009
All rights reserved.

Black’s Law Dictionary

PLAGIARISM

plagiarism. (17c) The deliberate and knowing presentation of another person's original ideas or creative expressions as one's own. • Generally, plagiarism is immoral but not illegal. If the expression's creator gives unrestricted permission for its use and the user claims the expression as original, the user commits plagiarism but does not violate copyright laws. If the original expression is copied without permission, the plagiarist may violate copyright laws, even if credit goes to the creator. And if the plagiarism results in material gain, it may be deemed a passing-off activity that violates the Lanham Act. It can also be a criminal act under 17 USCA § 5–6. Cf. INFRINGEMENT. [Cases: Copyrights and Intellectual Property 53(1).] — plagiarize (play-j<>-rIz), vb. — plagiarist (play-j<>-rist), n.

“Plagiarism, which many people commonly think has to do with copyright, is not in fact a legal doctrine. True plagiarism is an ethical, not a legal, offense and is enforceable by academic authorities, not courts. Plagiarism occurs when someone — a hurried student, a neglectful professor, an unscrupulous writer — falsely claims someone else's words, whether copyrighted or not, as his own. Of course, if the plagiarized work is protected by copyright, the unauthorized reproduction is also a copyright infringement.” Paul Goldstein, Copyright's Highway 12 (1994).

“That the supporting evidence for the accusation of plagiarism may on occasion be elusive, insufficient, or uncertain, is not the same as thinking that the definition of plagiarism is uncertain. The gray areas may remain resistant to adjudication without being resistant to definition. It may be perfectly clear what constitutes plagiarism (‘using the work of another with an intent to deceive’) without its being clear that what faces us is truly a case of this.” Christopher Ricks, “Plagiarism,” 97 Proceedings of the British Academy 149, 151 (1998).

© 2009 Thomson Reuters

Bryan A. Garner, Editor in Chief

By the way, the incomparable polymath Prof. Tom Lehrer (satirist, musician, who taught math etc. at Harvard, MIT, University of California etc.) knew better than anyone how to expound on a lighter note on the subject of plagiarism. Don't miss the video below. 

(Prof. Tom Lehrer)

 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

Access Copyright Repertoire Look Up Tool - Beta Version - Not Yet Ready for Prime Time

(Lesser Ury: Leser mit Lupe, c. 1895)

So, AC has launched an Access Copyright Repertoire Look Up Tool in beta version.  What follows is copied from the AC website with my comments inserted in bold red - except for the links, which are green. AC's words are in black italics.

I make no comment as to whether this lookup tool complies with the Board rulings to date in this matter, especially the comments in paragraphs 16-22 of the Board’s reasons of April 7, 2011 regarding the amended interim tariff.   Interestingly, no effort at all was made by AUCC or ACCC to have the interim tariff or its amended version reviewed by the Federal Court of Appeal. Rather, these comments are directed toward the utility of this lookup tool and AC's comments - or lack thereof. 

*********

The Access Copyright Repertoire Look Up Tool ^(beta) is a tool designed to advise you whether a particular publication is in Access Copyright's repertoire. This tool can be used to help you determine whether you can make a copy from a book, journal, magazine, newspaper or similar publication if your educational institution, board of education or provincial or territorial government is licensed to copy works pursuant to a licence or any of the following tariffs:

• Access Copyright Interim Post-Secondary Educational Institution Tariff, 2011-2013
• Access Copyright Elementary and Secondary School Tariff, 2010-2014 (There is no such tariff. It has not been certified and there is no “interim” tariff)
• Access Copyright Provincial and Territorial Governments Tariff, 2010-2014 (There is no such tariff. It has not been certified and there is no “interim” tariff)

What AC is not telling you is that anyone can copy anything protected by copyright as long as the copying does not constitute a “substantial part” of the work, or if it does, the copying falls within the users’ rights of “fair dealing” or, if necessary, the other exceptions found in ss. 29.3 ff. of the Copyright Act. There is no categorical quantitative rule as to what is a “substantial part”. This will be context specific. For example, it would be fundamentally wrong to categorically assert, as a general statement, that copying any more than one sentence of any work necessarily entails copying a “substantial part” of it. Depending on the context and circumstances, copying a few or even several sentences, paragraphs, pages or even more than one section or chapter may not be a “substantial part”.  See David Vaver’s 2011 book at pages 182 – 188 on this and some of the “hyperbole”, “nonsense” and “risible claims” that arise on this basic issue.

As to what is “fair dealing”, the law was clearly stated by the Supreme Court of Canada in CCH v. LSUC in 2004, which should be seen as the “Magna Carta” of users’ rights under Canadian copyright law. AC and others, such as CMRRA and CRIA (now Music Canada), are trying to effectively reverse this decision both in that Court in one or both of the “pentalogy” fair dealing cases and in Parliament in Bill C-11. (I acted for the intervener, Centre for Innovation Law and Policy at the University of Toronto, in the K-12 case). 

The tool is not intended to advise whether you are required to obtain authorization from Access Copyright to make a copy of a publication. The user acknowledges sole responsibility for determining whether a licence to copy a publication is required, including determining whether the publication is in the public domain.

AC has refused to issue transactional licenses. That issue is now before the Federal Court of Appeal, with AUCC having predictably lost the first round because it sought to introduce evidence that was not before the Copyright Board.  What exactly is the point of providing and charging for a blanket license if the user cannot know whether they are “required to obtain authorization from Access Copyright to make a copy of a publication”? AC has no right whatsoever to consider public domain works as part of its repertoire, and should not under any circumstances be remunerated for use of such works. BTW, whatever happened to its vapour-ware “public domain registry”, which AC proudly announced six years and two days ago on March 3, 2006 and for which we still wait, but without holding our breath.

Recall that in 2009 I blogged about how AC was quite happy to take your money for copying works that are in the public domain. 

For any other user or entity, Access Copyright makes no representations regarding your authorization to make copies of any publication. Access Copyright declaims all liability for any such user or entity.

Once again, if AC effectively accepts so little, if any, responsibility for anything, why pay for a license? What about AC’s “indemnity” scheme, which the Board ordered to be included in the post-secondary interim tariff for paper but not digital copies but which is questionable from a legal standpoint as being a potentially “illegal” and “void” indemnity scheme, along with the corollary that AC may be operating illegally as an unlicensed insurance company, as I wrote about in 1999? See here at pp. 121-122.

Click here to search Access Copyright's repertoire and determine whether you can make a copy of a publication. One needs to know the precise ISBN number and publisher. This may not be known, if one does not have the “original” in one’s hands.  Why can’t one simply quaere, for example, whether a particular work of Margaret Atwood or Jack Granatstein or a publication by Oxford University Press are in AC’s repertoire?  Why force the user to provide an ISBN number? That is the kind of thing that people need to know. For example, here is a link to my paper from 1999 on setting up an alternative collective to AC that would be run by academics themselves. You won’t find the ISBN number on this scanned reproduction. You could search it out, but this may be very time consuming unless you have the original journal from which this scan came – or unless it can be readily easily found online, which would not be the case in this instance. There are simple ways of fining  some ISBN numbers, at least for most recent books, but AC does not tell you how. In fact, the ISBN system was not even implemented in 1967, which means that countless books and journal articles still protected by copyright do not have ISBN numbers. AC does make its exclusion list available online, if you can find it. But this list does not allow for “cut and paste” copying of ISBN information, which would be a simple courtesy to users. Why isn’t this list linked to the repertoire finding tool, so that if a work is clearly excluded, this will be obvious? Nor does it follow that, just because a work is not listed in AC’s exclusion list, it is in AC’s repertoire either directly or indirectly through a valid foreign affiliation. In fact, most of the millions of works in Canada’s post secondary libraries likely are neither directly nor indirectly part of AC’s repertoire. If that is the case, AC has no basis to license such works. Reliance on AC’s questionable indemnity scheme in such cases raises other questions in turn. Above all, this implies that no work can be copied unless it is in AC’s very limited repertoire. This is incorrect. If the work is protected by copyright, and if the copying requires permission – which will often not be the case in either the K-12 or post-secondary or governmental context if the concepts of “substantial part” and “fair dealing” are correctly understood – then the work can be copied with permission obtained directly from the rights holder. This is what dozens of universities that have opted out of the AC Interim Tariff are doing.

If you do not have the ISBN/ISSN of the publication you wish to copy, you can seek permission to copy the publication by filling out our online permission request form. We will respond in 1-2 business days. How does it follow that AC can give permission to copy because a user does not have the ISBN number, which will often be the case? AC has no legal basis to grant permission to copy for works not in its limited repertoire. In any case, this takes 1-2 business days and requires giving AC the requester's email address. Those concerned with risk aversion and privacy may not be very happy about giving their email addresses to AC in an inquiry about repertoire status. In any event, this is clearly not much of a database if it requires what appears to be a manual search and manual response by old fashioned email. *********** CONCLUSION At least AC says that this is the Beta version. It clearly has a long way to go before it’s ready for prime time, even as version 1.0. Never mind the six year old vapour-ware promise of a public domain registry. This latest effort raises many more questions than it provides answers.

 HPK

"Egregious action" & "serious willful infringement" by Penn law students of Louis Vuitton trademark? - C&D letter

So many IP lawyers have become so enamored of the word "egregious" that, if it were a trademark, it would now be seriously "diluted".

The Oxford English Dictionary tells us that some of its meanings are as follows: 

2.2 Remarkable in a good sense: a.2.a Of persons and personal qualities: Distinguished, eminent, excellent, renowned. Obs. (exc. in humorously pedantic use).  b.2.b Of things: Remarkably good or great. Of events and utterances: Striking, significant. ? Obs.  3.3 Remarkable in a bad sense; gross, flagrant, outrageous. [This sense does not belong to L. egregius or to It. egregio; prob. it arose from an ironical use of 2, though our earliest quotations afford no evidence of this.] a.3.a of persons and personal attributes. 

(emphasis added) 


It seems to be a bit like another favourite lawyer word, namely "fulsome". In other words, it's potentially very ambiguous and one should use it with great care and not promiscuously. Indeed, the word is not often heard outside of legal circles. For example, I don't know if it is  part of Rush Limbaugh's vocabulary. It probably has too many syllables and is too difficult to spell.

So, speaking of "egregious", Louis Vuitton has just sent what many might consider an "egregious" C&D letter (readers may decide for themselves in which, if any, of the above senses they wish to understand the word) to the Dean of Law at University of Pennsylvania, which is one of the top rated law schools in the USA. The law students at Penn are planning a conference on fashion industry law, and are using an invitation/poster showing a parody of the famous LV pattern interspersed with © and ™ symbols. LV says that this is an"egregious action" and a "serious willful infringement".


LV is an aggressive litigator not only against counterfeiters, which is not controversial. Last year, it obtained an ex parte injunction - later lifted - against the artist Najda Plesner for her "Darfurnica" painting. This was very controversial. Here is a detail of the original.

No doubt, this action by Louis Vuitton had the unintended effect of bringing considerable attention to the artist's work. 

The author of the LV Penn letter says that he “would have thought that the Penn Intellectual Property Group, and its faculty advisors, would understand the basics of intellectual property law and know better to infringe and dilute the famous trademarks of fashion brands, including the LV Trademarks, for a symposium on fashion law.”

Hmm.  It would indeed be a better world in general if the authors of many "egregious" C&D letters were to “understand the basics of intellectual property law”. And it would also benefit their clients if there were greater awareness of the notorious Streisand Effect.

Anyway, here is the "egregious action" and "serious willful infringement" of which the Penn law students are accused in their invitation/poster:

Penn law has responded here on behalf of its students. The author of the C&D letter has been invited to attend the conference. Perhaps LV will want him to attend. It looks like there will be a good discussion of the "basics of intellectual property law”.

HPK

Is this a Wily Lawsuit or an Unwise Lawsuit by Wiley?

I had to double check my various calendars to make sure that this is not April 1, 2012. That important date is still four weeks and two days hence.

Nonetheless, the extremely respected patent blog, Patently-O,  is reporting that:

Copyright: Law firms Sued for Submitting Prior Art to the USPTO
The Hoboken publishing company (John Wiley) and the non-profit American Institute of Physics have continued their quest to pursue copyright infringement charges against US patent attorneys who submit copies of journal articles to the US Patent Office during the patent application process. The submission of those documents is required by law and attorneys who fail to submit known and relevant prior art can be subject to ethics charges and the associated patents held unenforceable. Earlier this year, the US Patent Office issued a memo indicating its belief that copying and submitting copyrighted documents should be considered a non-actionable fair use.  Firms already pay for access to the articles and the USPTO also has its own access to most of the articles. The issue is whether the patent applicants must pay an additional fee for making a copy for the USPTO and an additional copy for the in-house file. 

See the whole Patently-O blog with further links here. 

One can only hope that this doesn't give Access Copyright ideas in Canada.

HPK