Is Mira Rajan Wrong or Right About Moral Rights and Whether Creative Commons “Gets it wrong”?

Ms. Rajan is once again extending her unique perspective and preoccupation with moral rights to realms few would understand and reaching conclusions with which few would agree. She has received some harsh criticism concerning her views on Creative Commons ("CC") recently posted on Jeremy’s 1709 blog and has now published a “rejoinder”.   While she is to be commended for her prolific and passionate writings on moral rights, culminating in a 572 page book published by Oxford in 2011, her views are indeed nevertheless controversial, unorthodox, and arguably, in many instances, simply wrong.

In a remarkable new post on Jeremy Phillips's 1709 Blog, she attacks the Creative Commons movement as another incursion on moral rights and an author’s “right of getting paid”, which she says is a moral right. Concerning the CC movement, she says:

Today the United States has less legal protection for moral rights than ever. But there is a new alternative venue for moral rights in the United States: Creative Commons. The shortcomings of this alternative are so striking that the Creative Commons phenomenon should be a new and powerful reason for the American government to re-examine the possibility of introducing federal legislation on authors’ moral rights – not because Creative Commons has failed to recognize moral rights – but because it fails to recognize an artist’s right to be paid for his or her work. (Emphasis added)

Getting paid is a fundamentally important economic right in copyright law, but the enjoyment of this right it is subject to two perfectly obvious qualifications – indeed obvious copyright laws of gravity. The first is that there must be one or more parties that are willing to pay. The second is that an author is perfectly free to not exercise the right to its full extent, or even at all. The author could be J.K. Rowling, or an unknown aspiring poet or a professor.  In other words, some authors can be generous and choose not to get paid; others have little or no choice.

Mira presumably let Jeremy publish this piece without payment. Presumably this could have been because she believes in open access, desires the prestige of this fabled forum, or just wants to be helpful. Or any other good or even bad reason or combination thereof. Whether or not she could have been paid for this in another forum, I have no idea.

The right to get paid or not to get paid is an economic right.  It has NOTHING  whatsoever to do with moral rights. Nada. Niente. Nihil. Rien.

And this is the basis of how Creative Commons works. CC may actually bolster moral rights in the USA by encouraging users to show respect for moral rights beyond what is explicitly required in 17 USC, which is basically nothing, other than for visual artists. This is not some sort of compelled sacrifice or deal with the devil. Nobody is forcing anyone to use CC – and authors such as J.K. Rowling or Stephen King are not exactly rushing to do so. However, some very successful authors such as Larry Lessig are indeed embracing it – and are still able to deal with commercial publishers with apparently great success. Indeed, one can specify that the CC license is only for non-commercial use, thereby retaining the right to license the work for commercial use. To see how this works in practice, see www.lessig.org

 

In any case, even if the USA has an obvious lacuna in its Copyright Act regarding moral rights, there is a readily available and much more potent remedy available for the failure to attribute – which is probably the most important moral right and the one she seems to be most concerned about. This is the “P” word –  i.e. plagiarism. Any student, academic or journalist who fails to attribute even short quotations from another person – and even ideas where they are clearly “original” – may face allegations of plagiarism. This can have career ending consequences. In the academic context, "plagiarism" is and should be a far more serious allegation than that of merely non-commercial copying, which happens frequently in de minimis non-commercial ways that are often fair dealing or fair use and which virtually nobody cares about, except Access Copyright, which is beginning to resemble a "troll" in its business model.

Moral rights can be waived, explicitly and even implicitly – in Canada at least. If she is “not sure” that implicit waivers of moral rights are recognized in Canada, she had better re-read the Canadian Copyright Act, as well as David Vaver’s writings on Canadian copyright law. He is very authoritative on matters such as this and is quite definitive and explicit that moral rights can be implicitly waived in Canada. 

This is not the first time that her pronouncements on moral rights have evoked confusion, disbelief and even incredulity. In her Fordham paper that she cites in her blog here from June 6, she says, quite astonishingly, concerning the Google Books project, that:

In fact, the Google Books decision is of immense significance, not only for U.S. copyright law, but also for moral rights. If the display of snippets was a violation of copyright law, there can be no doubt that it could also violate the author‘s moral right to maintain the integrity of his or her work. (Footnote omitted).

In fact, Judge Chin never ruled that “the display of snippets was a violation of copyright law”. The case and decision to which she refers dealt with far more than mere snippets; it was also about the scanning of entire books.  And Google wanted the settlement to cover the display of far more than mere snippets. 

In any event, the copying of a snippet (presumably meaning short excerpts out of an entire book) is rarely going to constitute a copyright violation of economic rights. Only in a very hypothetical sense would a moral rights issue arise, and then very rarely. That might be the case, perhaps, if someone were to quote a passage completely out of context with the intention of distorting the author’s intended meaning. Once again, there are real world sanctions against such behavior that are much more effective than any moral rights legislation.  In any case, good writers are constantly on guard about writing sentences that cannot stand on their own, if so quoted. 

My choice to copy the foregoing snippet from Mira’s published paper would not violate her moral rights merely because she might not approve my choice of this particular snippet or the way I use it. She has no basis in copyright law to deny my right to make use of such a quote. Her theory would mean that virtually every essay, newspaper, magazine, and every scholarly paper and book ever written that contains quotations potentially violate several persons’ moral rights because the quoted persons didn’t get to approve the choice of quote. If that’s what she means, that is absurd. 

If what she means is rather that one cannot take a quote out of context in a way that its meaning becomes distorted or it becomes part of an act of defamation or becomes associated with a product or cause against the wishes of the author, that is simply trite law and common sense and is hardly worth writing a blog about. I think that we would all agree that, even under American law, nobody could get away with taking an excerpt from the Rolling Stones or the Beatles and using it, without permission, in a Viagra or Victoria’s Secret commercial. Moreover, basic tenets of journalism and academic protocol require attribution, even in the USA. This is entirely independent of moral rights.

Mira is right about one thing, which that it would be better if the USA explicitly recognized moral rights beyond those of visual artists. But that is hardly a new insight and indeed has been old news since 1988 when Dr. Bogsch turned a blind eye to the lacuna in 17 USC and welcomed the USA into the Berne convention.

I’ve now had a quick look at her 2011 book. It’s long and full of footnotes, as one might expect from Oxford. But it contains such statements as “In relation to orphan works, if nothing else, Google’s approach clearly undermines the author’s right to decide whether or not his work should be part of the Google Books archive — the moral right of disclosure.” (p. 524). The right of “disclosure” or “divulgation”, as the French call it. relates only to “first publication”.  Ms. Rajan gets this right at p. 55 of her book, but she gets it wrong in the aforesaid reference to Google and orphan works. In so doing, she muddles and confuses the already sufficiently difficult reconciliation between civil and common law conceptions of copyright (both economic and moral rights), and is even incorrect with respect to common law. An author’s right to prevent disclosure of a work is axiomatically protected by the overarching right as stated, for example, in s. 3 of the Canadian statute: “…if the work is unpublished, to publish the work or any substantial part thereof”. That is an economic right that has nothing to do with moral rights, at least in common law countries. Once a work is published, there is no right to recall it or control the quotation of insubstantial excerpts or even substantial parts, provided that the quotation or reproduction can be justified as fair dealing or fair use.

In Jeremy’s calm and understated Englishman’s words, Mira’s posting of June 6, 2012  has “become more or less instantly one ofthe most controversial pieces to appear on the 1709 Blog".  That, at least, is easy enough to understand. What follows, not so much.

HPK

On Rapid and Readable Rendering of Judgments in the Federal Court

Who says reading judgments need be tedious? And who says that one needs routinely to wait months or even years before they are rendered?

How about one that starts out:

1]               It was dark at Brigade Bay.  It was cold. The tide was dropping. The front end of the truck was in the water; the rear axle was on the barge. A rope was tied to the rear of the truck and attached to the tug in a desperate attempt to pull the truck onto the barge. Ed Menczel, the truck driver, went into the water a second time to release the air brakes on the truck so that it could be pulled up. As he did so, the barge swung. The truck toppled into fifty-five feet of water. Ed swam for his life. He reached shore and phoned his boss.

This has nothing to do with IP - other than the Judge who just wrote this is none other than Roger Hughes,  whose extraordinary influence as a trial judge in the Federal Court and as a leading barrister for decades earlier, and ongoing role as an author are legendary.

This highly readable 36 page judgement was delivered 11 days after the case was heard.  

I wonder if a Notice of Compliance case will ever be this gripping.

 

Happy reading....

HK

Repeat After Me: "Fair Dealing Does Not Require Payment – Even to Access Copyright"

One Canadian university has just posted the following as part of its "COPYRIGHT GUIDELINES (based on the guidelines set by ACCESS COPYRIGHT)":

1. FAIR DEALING (copying not sold in the Bookstore)

The Canadian Copyright Act indicates that the copying of a work for the purpose of research, private study, criticism, review, or news reporting is justified as Fair Dealing. This applies to all works and does not require permission from the rights holder. [XXXX] University remits an annual fee (based on FTE) to account for this type of copying. (Emphasis added)

This, of course, reflects a serious misunderstanding. If the copying is “fair dealing”, it is unnecessary to pay Access Copyright or anyone else for copying it. 

Here, once again, are the two fundamental steps in determining whether there is any need to get permission or to make a payment for the use of copyrighted material.

The first step of enquiry is to determine if the copying amounts to at least “a substantial part” of the work. If the copying is of an excerpt that is so brief that it is not "substantial" in the context of the whole work, s. 3 of the Copyright Act makes it very clear that there is no right to prevent such copying. Contrary to misstatements occasionally heard, this is not limited to one sentence. One of Canada’s foremost copyright authorities, David Vaver, states that even where the writing is of the quality of Dickens or Shakespeare, it is “simply nonsense” to suggest that “the taking of even a single sentence” may infringe.  See p. 183 of his 2011 book.

The determination of what is substantial is context specific. However, there is absolutely no arbitrary “one sentence” rule. In the academic context, the copying of several sentences or even paragraphs is often necessary to make a point and to ensure that context is provided. Attribution is necessary, of course, as a matter of academic protocol and to avoid any allegation of plagiarism. But such “insubstantial" copying is not prevented by the Copyright Act, and requires neither permission nor payment. Unfortunately, there have been recent misstatements or misunderstandings relating to this point that have appeared in contexts ranging from thesis approval procedure to oral argument in the Supreme Court of Canada.

Here is the second step. If the copying amounts to a "substantial part" of the work, then the copying still may be permitted as an example of “user’s rights” under the general fair dealing provision of the Copyright Act for the purpose of research or private study, criticism or news reporting – or perhaps under one of the specific exceptions in Copyright Act . Such copying requires neither permission nor payment. The Supreme Court of Canada was very clear about this back in 2004 in the CCH. v. LSUC case when it stated that:

The fair dealing exception under s. 29 is open to those who can show that their dealings with a copyrighted work were for the purpose of research or private study.  “Research” must be given a large and liberal interpretation in order to ensure that users’ rights are not unduly constrained. 

We may soon learn more from the Supreme Court of Canada about what fair dealing means in Canadian classrooms and whether the concerted attempt to push back on the CCH v. LSUC decision will succeed. (Disclosure – I and Ariel Katz argued on behalf of CILP in this case in support of the proposition that multiple copies in the classroom and copies of teacher prescribed material may fall within the fair dealing provisions of s. 29 and 29.1 of the Copyright Act when such copying meets the criteria set forth by the Court in CCH v. LSUC, contrary to the rulings of the Copyright Board and Federal Court of Appeal.)

It is important for all to realize that Access Copying is not entitled to any payment whatsoever on account of any copying that is not substantial or that is permitted as a “users’ right” by virtue of "fair dealing". Such copying should be subtracted from any calculation of an overall license rate. It is unfortunate that this issue may not get adequately thrashed out at the Copyright Board, with AUCC having withdrawn. It is also unfortunate that there is still such basic misunderstanding on these points. Such misunderstanding may perhaps have contributed to the recent agreements of UofT/Western to signed licenses, and AUCC, and ACCC to model licenses that are 800% in the case of universities and 300% in the case of community colleges more expensive and more restrictive than the pre CCH v. LSUC licenses, which should have been adjusted downwards at the earliest opportunity after CCH but were not.

The University in question also states in its guidelines that:

 This Canadian copyright licensing agency administers rights, collects royalties and distributes payment to the majority of our rights holders. (an ‘Exclusions List’ of publishers not covered by Access Copyright available through Bookstore)."

 I don't know what is meant by "majority of our rights holders". However, the extent of AC's actual repertoire - especially that of interest to the university - is shrouded in mystery.  AC's actual repertoire has never been publicly disclosed.  I have never heard that it amounts to a "majority"  in any sense of the required repertoire. This is a point that could have been very vigorously pursued at the Copyright Board, and should be if the hearing goes on.

HPK 

PS - the above institution is Kwantlen Polytechnic University http://bit.ly/QYMgjD

It has apparently chosen to ignore the carefully considered views of its faculty and students and has signed the #ACdeal

Big Fat Canadian Wedding "Tax" to Increase by Further 333%? Other Resoundingly Unpopular Proposals at the Copyright Board?

 

Well, it seems that Re:Sound is not content with its big fat Canadian wedding "tax" that ranges up to $39.33 (double to $78.66 with dancing). They now want a 333% increase to $131.10 and $262.19 respectively.  How they come up with such precise figures as $262.19 is very mysterious – but it might make it look to some, at least, as if somebody actually thought about this and did a careful calculation.

The newly published proposed tariff also contains a proposed increase of up to 708% over existing rates that retailers and other establishments which provide their own background music could be forced to pay.

No doubt the rest of the 46 pages of proposed tariffs contain many other unpleasant surprises. One wonders why Re:Sound does this every year now, or so it seems. When they propose big fat tariffs that require long and expensive hearings, it should be the case that such tariffs last for a long time. This is the fourth background music proposed tariff in four years. Whose interest does this serve? Background music – whatever it may be – and the background music business doesn’t change very much or very often. The background music file is a slow and seemingly endless "dance" of its own at the Copyright Board, in which I am one of many lawyers and self-represented parties that are involved.

Objectors have until August 8 2012 to file objections. After that, they can worry about where to find the six or seven figures usually necessary to fight a Copyright Board case to the point of an actual hearing. Re:Sound, of course, doesn't have to worry. It has tens of millions in assured annual revenues from its previous tariffs, which it can spend to get new and richer ones.

This will be a resoundingly unpopular set of proposed tariffs.

HPK

The Big Fat Canadian Wedding “Tax” – SOCAN + Re:Sound + AVLA - Pay Three Pipers and Double for Dancing

1566 The Wedding Dance by Pieter Brueghel the Elder

The Copyright Board has recently delivered reasons and a tariff for Re:Sound for the use of music at “live events”. Re:Sound represents record companies and performers. SOCAN has been getting paid for these types of “events” for many years. Re:Sound is now playing catch up. And the Copyright Board is letting it do so retroactively back to the beginning of 2008.

The tariff item that that is naturally getting the most attention is for weddings, which are considered to be “receptions”. There are numerous media references to this as a “tax” and to the fact that it’s retroactive. Indeed, the media focus on this tariff is remarkable, compared to most other Board tariffs .  The Board will presumably take note of all this media coverage, since it now has recently entered into a contract with a "newspaper clippings and reports services" provider. The new tariff also covers other live events such as parades, parks, fireworks displays, circuses and lots of other places. 

One odd thing about the wedding tariff is that it gets doubled if there is dancing. There aren’t many weddings without dancing.  It‘s not easy to figure out why dancing should double the tariff. This is why many may see this as a “dance tax” or even a “wedding tax”.  Depending on how many wedding guests are present, the “tax” payable to SOCAN and Re:Sound can be as much as $253.45, if recorded music is used. (If only live and no recorded music is used, Re:Sound needn't be paid). Presumably, SOCAN’s and Re:Sound’s roving inspectors don’t count as “guests”. And the Copyright Board is permitting and encouraging the sharing of information between SOCAN and Re:Sound.

But that’s not all folks. If you use a DJ, the DJ has to get a copyright license from AVLA – another music industry collective - for the privilege making mechanical reproductions (unless the DJ does not pre-record anything, which would be rare) – for which the DJ will certainly charge the happy couple either directly or indirectly.

It’s true that most people do not tend to get married very often. And many weddings cost $25,000 or more. So, some may not be too concerned about the macro or even microeconomic aspects this particular tariff item. It won’t likely harm Canada’s economy overall or even the institution of marriage. 

But these little tariffs add up. The little tariffs such as $0.29 for a blank CD or $5.16 per year for each K-12 student, or $253.45 for a wedding soon add up to about $500 million a year in Canada. One is tempted to say that "A half billion here, a half billion there, pretty soon, you're talking real money."  Copyright Board tariffs siphon huge sums out of the educational system, the broadcasting and telecom industries, businesses of all kinds that use blank media for ordinary data storage and transfer purposes, etc.  

Sadly, very little of this money through gets to the artists that need it the most.  This is because the copyright collective system tracks and rewards commercial success. Celine Dion, U2,  Lady Gaga and their record and publishing companies do very well by the this system but emerging creators see very little of this money. The ones who really and consistently benefit the most are those who run the collectives, those who are consultants to the collectives, and the lawyers who punctually pursue new and higher Copyright Board tariffs using money raised from the previous tariffs and paid for ultimately by the Canadian public. Many if not most Copyright Board hearings generate millions of dollars in legal fees in order to generate average annual payments to creators that are typically much less than a junior lawyer’s hourly rate. 

Canada is notable and perhaps even unique in its propensity for encouraging multiple tariffs requiring multiple payments to multiple parties for the same transaction. The Copyright Board sees no problem with this approach. It values each right separately, which results in significant additional complexity, hearing costs, and overall license and royalty costs that are inevitably passed on to consumers and taxpayers. We don’t see this nearly as much in the USA, where the Courts and Congress have gone to some length to avoid this phenomenon.  Canada has six times as many copyright collectives as the USA and a copyright tribunal with more than five times the staff and up to two more members than its American counterpart.

There were about two dozen parties opposed to this Re:Sound “live events” tariff. The Board, to its credit, went to some length to allow late interventions, since it took a long time for the thousands of potentially affected parties to realize what was about to unfold. The fact is that very few of Canadians even know about the Copyright Board, much less spend hours every year monitoring the Canada Gazette or the Copyright Board websites, which is where notice is given of these proposed tariffs.  One of the oldest and most cynical observations in Ottawa is that the best way to keep a secret is to publish it in the Canada Gazette. Sadly, this is still true to a great extent – even in the age of the internet.

There was no oral hearing in this instance, which is perfectly understandable – since probably none of the institutional objectors or interveners could have afforded or justified the six or seven figure costs of getting that far. Cost is no problem, however, for Re:Sound – since it has huge cash flows from previous tariffs and it has only one mission – which is to establish and enforce new and higher tariffs. 

It is entirely possible that this “multiple tariff” and “layering” problems may be addressed by the Supreme Court of Canada in the eagerly awaited “pentalogy” of cases from the Copyright Board heard on December 6 and 7, 2011 – all of which emanate from the Copyright Board.

If not, this issue may rise to the top of the list of priorities for the next wave of copyright law reform. In an era of “no new taxes”, Canada’s copyright system is the gift that keeps giving to its more than three dozen copyright collective, their consultants and their counsel. And Canadian citizens from newlyweds to university presidents are beginning to take notice.

HPK 

PS - here's some coverage from CTV that has been updated to include some information about Re:Sound and its tariff revenues.

Stretching Moral Rights - A Bridge Too Far?

Mira Rajan is to be noted for her continuing attempts to discover moral rights issues where others have not and would not. 

She has an interesting guest post on the notable 1709 blog entitled "Is Apple deleting the history of music? Moral rights on iTunes".

With all respect, her argument is very unconvincing. 

It must be noted that Apple (iTunes) and Amazon are American companies and moral rights cannot be found in the American Copyright Act for performers or anyone else other than visual artists.

At present, there simply are no moral rights in performer’s performances in Canada. If and when Bill C-11 passes, performers will have these rights but only prospectively. Moreover, the right of association or (or attribution as she calls it) will be clearly qualified by the wording “where reasonable in the circumstances”. 

This clearly means that there is no need to credit the third desk violists or even the bass clarinetist (which I was) in a symphonic or operatic performance. The side persons in a small ensemble may present a closer case, but there can be no “one size fits all” rule. Besides, moral rights can always be waived and this would be the case in the new law. Canadian law does not require that waivers be in writing and a sufficient waiver may be implied in the circumstances. Arguably, this would be the case for many session musicians or even sidemen who were and are used to being nameless – even on old record jackets or inserts (remember when?) where there was plenty of room to list their names.

I agree that more information is better for cultural and historical purposes. However, the market and not moral rights law will probably fill the void – i.e.www.IMDb.com  I believe that there are other databases already existing that provide metadata for many CD era recordings.

As to providing the wrong track, that’s perhaps an isolated programming glitch in her example and someone might want to get their get their 99 cents back. But unless there’s a deliberate attempt to pass a Keith Jarrett improvisation off as Horowitz playing Scriabin (or other such unpleasant surprise), I don’t see any IP problem - much less a moral rights problem.

As for using single tracks from an album rather than the whole album, or even single movements – what else has radio been doing for the last 100 years or so?  How does selling a single track at a time harm a performer’s honour or reputation? Again, there’s probably at least an implied waiver here. Recording artists know that this will happen. They can try to work around it – like Gould if they are in his league – or they can live with it. But it’s rarely if ever going to be a moral rights issue. 

Anyway, the bottom line is that there are presently no moral rights for performers in Canada or the USA. I can’t speak for elsewhere.

HK  

ACCC Makes Model License Deal with Access Copyright & Raises More Questions re Prior Deals

The Association of Canadian Community Colleges has just struck a deal with Access Copyright. It is similar to the AUCC deal - with one big difference. It’s for $10 per student per year and not $26 as per AUCC and $27.50 as per UofT/UWO. Here’s the model license.

So why the difference? AC has suddenly and conveniently determined that “Although we have little data regarding digital copying on campuses, historical coursepack usage data indicates that universities copy 2.6 times more than colleges.”

This appears to justify why the ACCC license is for $10 and the AUCCC model license is for $26. But is there any evidence to support either figure?

The previous ACCC rates per FTE and per page were the same as the AUCC rate, namely $3.38 and $0.10 per page each. Here’s an example of a community college agreement.

AC originally sought $45 per FTE from universities and $35 per FTE from colleges.

So why does ACCC deal now appear to be a MUCH better deal than that of AUCC ($26) or UofT/UWO ($27.50)? Is the discrepancy in copying quantity between universities and colleges really so great?

However, it’s not that the ACCC deal is so good. It isn’t – given the CCH decision from 2004 and the imminently expected legislation, not to mention the forthcoming Supreme Court decisions which are likely to make things better and not worse for the educators than the status quo. It’s just that it makes the AUCC and UofT/Western deals look even worse than they are. And they already looked pretty bad in the eyes of most both interested and independent observers. 

Indeed, the ACCC deal is about three times more expensive than the American CCC rate which most institutions don't bother using - which is now very problematic anyway given the recent Georgia State decision. Canada is way out of line with the USA, See here and here. 

A prominent American law firm has now weighed in questioning why Canadian institutions would pay to do what may now be or soon will be legal anyway because:

Some critics argue that such a license is unnecessary, because educators are already permitted to copy approximately that amount without a license under existing Canadian law, or at least they will be upon the passage of Bill C-11, which is currently pending before Parliament.

None of these figures make very much sense – especially when compared to each other. Students, academic staff and taxpayers will expect some answers.

Meanwhile, other questions will arise. Will many ACCC members sign on? Will there be a “limited time” offer re retroactivity discount? Will ACCC abruptly withdraw its objection at the Copyright Board and abandon its membership, as did AUCC? What is the future of the Board hearing?

HK

PS - York University has just announced that "After careful review, a decision has been made that York University will not be entering into the Access Copyright licence agreement that was negotiated by the Association of Universities and Colleges of Canada (AUCC)." York is the latest entry on Prof. Ariel Katz's Hall of F/Sh/ame.

The Curious Case of the Various Robinsons (Crusoe, Curiosité, et Sucroë)

The Supreme Court of Canada has just granted leave to appeal in three related copyright cases involving Cinar, Ronald Weinberg, the Estate of Micheline Charest (Weinberg's late wife), Claude Robinson, BBC et al.

It’s about how a concept for Robinson Curiosité became a series entitled Robinson Sucroë.

The main judgment below appears to be  France Animation, s.a. c. Robinson, 2011 QCCA1361 (CanLII) 

Here’s the Supreme Court of Canada “summary”, which seems to be similar in all three cases 34466, 34467, and 34468.

Summary

Case summaries are prepared by the Office of the Registrar of the Supreme Court of Canada (Law Branch) for information purposes only.

Intellectual property – Copyright Act, R.S.C. 1985, c. C 42 – Infringement – Evidence – Steps and tests for determining whether substantial part of work reproduced within meaning of ss. 2 and 3 of Copyright Act – Admissibility of expert’s testimony concerning reproduction of substantial part of work within meaning of ss. 2 and 3 of Copyright Act.

In 1982, Claude Robinson, an artist, drew the first sketches of the characters for a proposed children’s television services to be called Robinson Curiosity. A few years later, in 1985, the Copyright Office issued a certificate of registration for Robinson Curiosity listing Mr. Robinson as the author of the work and Les Productions Nilem inc. (“Nilem”), a corporation of which he was the sole shareholder, as the owner of the work.

Starting in 1985, Mr. Robinson and Nilem stepped up their efforts for the promotion and production of Robinson Curiosity, including with Cinar Corporation/Cinar Films Inc., but those efforts were unsuccessful for nearly 10 years. In September 1995, however, the first episode of Robinson Sucroe, a work produced by Cinar Corporation/Cinar Films Inc., France Animation S.A. and Ravensburger Film + TV GmbH, was broadcast in Quebec.

Since Mr. Robinson and Nilem found similarities between their work, Robinson Curiosity, and the work produced as Robinson Sucroe, they brought an infringement action in the Quebec Superior Court, which allowed the action in part. On appeal, the Quebec Court of Appeal upheld in part the Superior Court’s findings concerning the infringers but reduced several aspects of the monetary award made at trial, mainly on the basis of revised calculations of the profits and punitive damages.

The case got a lot of attention in Quebec and has some very colourful personalities and prominent counsel involved.

For those of us of a certain age, there's always the original original by Daniel Defoe  Robinson Crusoe from 1719:

Defoe's work gets mentioned in the judgments below.

In any event, contrary to the expectations of some pundits, the Supreme Court of Canada has apparently not yet lost its appetite for copyright cases. 

Meanwhile, suspense builds on the outcome of the "pentalogy" from December 6 and 7, 2011, not to mention Cogeco et al v. Bell et al heard on April 17, 2012 regarding "value for signal" and the interplay between the Broadcasting and Copyright Acts.

HK

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

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

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

Of the 99 alleged infringements that Plaintiffs maintained at

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

fact and conclusions of law.  This Order concludes that the

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

Plaintiffs’ copyrights. 

Result – as per the Court:

Relief?

VI. Relief To Be Granted

In light of the findings of fact and conclusions of law

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

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

injunctive and declaratory relief they seek, together with the

rationale supporting their request.  Alternative proposals are

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

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

after Plaintiffs’ filing.  If Defendants object to Plaintiffs’

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

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

exceed thirty (30) pages each.   

Costs?

VII. Costs and Attorneys' Fees

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

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

discretion may allow the recovery of full costs by or

against any party other than the United States or an

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

reasonable attorney's fee to the prevailing party as part

of the costs.

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

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

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

Fair Use?

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

Summary of Fair Use Assessment

This case involves unlicensed copying of 75 excerpts from

Plaintiffs' copyrighted books for nonprofit educational use by

professors and students at Georgia State University in 2009. The

question whether this constitutes a permissible fair use is resolved

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

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

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

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

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

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

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

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

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

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

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

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

use factor one weighs heavily in Defendants' favor.

Because all of the excerpts are informational and educational in

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

Defendants.

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

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

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

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

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

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

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

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

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

appropriate. Professors may well have a legitimate educational

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

contain a complete treatment of a particular topic or subtopic than

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

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

of unpaid copying in absolute terms.

Taking into account the foregoing considerations in relation to

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

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

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

is permissible under factor three. The pages are counted as

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

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

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

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

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

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

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

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

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

prohibited by policy from distributing copies to others. The chapter

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

course curriculum and must be narrowly tailored to accomplish that

purpose. Where the foregoing limitations are met factor three will

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

will favor Plaintiffs.

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

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

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

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

potential market for the copyrighted book. That is because a

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

where permissions are readily available from CCC or the publisher for

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

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

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

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

favor when such permissions are not readily available.

The Court has considered whether unlicensed copying of small

excerpts as contemplated by this Order would disserve the purposes of

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

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

the exclusive Right to their respective Writings and Discoveries.”

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

excerpts will not discourage academic authors from creating new

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

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

the Court concludes that it would not.

(Footnotes omitted)

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

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

Of interest in Canada? You betcha!

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

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

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

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

(highlights added)

HPK

The Charter & Freedom of Expression on Canadian University Campuses - Stay Tuned

The Alberta Court of Appeal just released a very important decision yesterday  about academic freedom, universities and freedom of expression that appears very likely destined to find its way to the Supreme Court of Canada. The case is Pridgen v. U. of Calgary  2012 ABCA 139.

It involved a widely reported incident in which students were disciplined for making very unflattering comments on Facebook about a particular lecturer. There were severe problems in the procedure used to discipline the students. The Alta. Court of Appeal has just released a judgment confirming that the disciplinary proceedings should be quashed on purely administrative law principles.

However the main judgment by Paperny, J.A. has some resounding language about the Charter. The other two judges concurred in the administrative law result quashing the disciplinary ruling – but wrote that it was not necessary to decide the Charter issue in this instance.

So – according to Justice Paperny, the Charter generally and “freedom of expression” in particular applies on university campuses in Canada. This might have become an issue if the current Access Copyright board case were to have played out in the normal way at the Board. It would have been interesting to see how AUCC would have dealt with it. However, AUCC’s withdrawal and abandonment of its dissatisfied members in the Copyright Board hearing may prevent this from airing.

At the recent Fordham conference in NYC, I was on a panel dealing with fair use/fair dealing in which there was very intense interest between the interplay of “freedom of speech” as the Americans call it and “freedom of expression” as we call it on the one hand and copyright law on the other. The battle over the interplay is likely only just beginning.

Here are a couple of the key paragraphs from Justice Paperny’s reasons:

[122] One can no longer maintain a pastoral view of university campuses as a community of scholars removed from the rest of society. This does not mean that a university should not be able to direct its own affairs, certainly in academic matters, free from government interference. It should. Respecting Charter rights in disciplining students will not, in my view, inhibit it in the exercise of that institutional independence or the exercise of academic freedom. Rather, it will promote the institution as a place of discourse, dialogue and the free exchange of ideas; all the hallmarks of a credible university and the foundation of a democratic society. 

VI. Conclusion[128] The Canadian Charter of Rights and Freedoms applies to the disciplinary proceedings undertaken by the University. The decision of the Review Committee failed to take into account the Pridgens’ right to freedom of expression under the Charter. The decision breached the Pridgens’ freedom of expression and cannot be saved by section 1. Moreover, the Review Committee’s decision was unreasonable from an administrative law perspective. The decision of the chambers judge to quash the Review Committee’s decision is upheld and the appeal of the University is dismissed.

HPK