Tuesday, February 23, 2016

Fair Use/Fair Dealing Week

This week is Fair Use/Fair Dealing Week, with Canadians celebrating as well.

Understanding fair use/dealing is critical for understanding copyright.  To understand copyright it is best to think of the word "copy" as a synonym for the word "manuscript".  Copyright regulates a series of activities, only one of which is copying.  This series of activities are sometimes referred to as a bundle of rights.

While copyright might have originated with written text, copyright currently regulates activities relating to more than manuscripts and thus you will more often read the term "works".

Given copyright is about regulated activities, it makes sense to talk about exceptions to otherwise regulated activities using terms like "dealing" or "use".   Fair use/dealing discusses activities which might otherwise be copyright regulated activities, but where an exception is made for the purpose of ensuring copyright remains fair to all parties involved.

Understanding the need for fairness in copyright law is often missing in political debates.  As Lawrence Lessig once articulated, "Creativity and innovation always builds on the past.  The past always tries to control the creativity that builds upon it."  Anyone who has looked closely at fair use/dealings laws in their own country will notice that the vast majority of activities it is enabling are activities carried out by the next generation of creators.   In other words, fair use/dealings is a required exception to copyright in order to protect the rights of creators to create new works.

Section 29 of Canada's Copyright Act provides examples including research, private study, parody or satire, criticism or review, and news reporting which are all activities which creators must carry out in the creation of new works, and where it would not be fair or in the public interest if creators needed to get permission from past copyright holders to create.

A use/dealing being of a specific type is not what makes something fair, and it is the criteria for fairness that is the most important aspect of the exception.  In fact, more advanced copyright law such as used in the USA use the phrase "such as" for their list to make it clear that the list is an illustration and not intended to be a criteria for determining if a use is fair.  While there was an opportunity to modernize this section of Canada's copyright act with Bill C-11, and the issue was often discussed at hearings, the Harper Government unfortunately chose not to do so.

While the USA includes their criteria for fairness within their law (U.S. Code § 107), in Canada the criteria for fairness was unfortunately left out of the law and left to the courts to determine.  The 6 factors to determine fairness are set out in CCH Canadian Ltd. v. Law Society of Upper Canada

The following factors help determine whether a dealing is fair:  the purpose of the dealing, the character of the dealing, the amount of the dealing, the nature of the work, available alternatives to the dealing, and the effect of the dealing on the work.

While it is true that some exceptions are used by audiences of works who will not be building new creative works, there are equally good public policy reasons for these exceptions when you look at specific examples. Fair Dealings does not allow people to get something for nothing, which would not be considered fair, but enables very specific examples of activities which shouldn't require permission from a copyright holder but are still one of the activities which copyright otherwise regulates.

Later in the week I will publish articles relating to one of the more hotly debated areas of fair dealing (education) as well as proposals where I believe Fair Dealing could be used to solve some of the more problematic  areas of copyright law.

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