I guess we all breathed a sigh of relief in 2012. The Supreme Court of Canada issued a pentalogy of judgments reinforcing the notion of fair dealing as a users’ right and Parliament passed a copyright amendment that elucidated fair dealing and added a few modern exceptions.
So, having gone through all that, fair dealing and the balance between the rights of the copyright holder and those of the user should be a done deal – from 2012 onward it’s just a matter of applying the law, right?
Not according to Dr. Michael Geist, Law Professor at University of Ottawa and renowned expert in copyright law. Dr. Geist gave a plenary talk at the 2017 CALL/ACBD Conference in Ottawa, and issued a wake-up call to anyone who feels complacent that copyright matters were settled in 2012.
Copyright debates are not going away. Ever.
They may only get bigger. The online world has enabled and expanded the creation of works in which copyright may subsist, and has greatly accelerated the means to reproduce and distribute these works. The fair dealing interpretation arising from the SCC’s decision in CCH v. LSUC is also obscured in the increasingly contractual arena of online licensing.
The current field of battle is section 92 of the Copyright Act, which mandates a Parliamentary review of the legislation to begin no later than November 2017. So far, the efforts have been one-sided. Slide after slide after slide of Dr. Geist’s presentation showed his review of the active and early efforts of rights holders to redirect the review away from the 2012 outcomes.
Fair dealing has been characterized as having turned into a “free for all” policy in what Geist describes as a fake panic. Notably, he pointed to lobbyists on behalf of segments of the publishing industry blaming fair dealing applications for declining sales, despite the variety of ways the education sector obtains materials, which includes consortia database licensing, open access, transactional licensing, and de minimis (copying so minimal that a fair use analysis is not warranted), as well as book purchases and fair dealing.
Geist outlined a basic laundry list of reforms. For example, prefacing the list of fair dealing exceptions in section 29 with the phrase “such as” would make the exception open-ended, like the “fair use” provision in paragraph 107 of the US Copyright Law, Title 17 of the US Code. Geist also proposes a clear exception to the anti-circumvention provisions around technological protection measures (TPMs aka “digital locks”), as the government proposed in 2012, but never delivered. TPMs make many activities that would be legal with analog technology illegal in the digital realm. The proposed exception would legalise circumventing a TPM for purposes that are otherwise legal.
The relationship between contract law and copyright law should be further explored. If fair dealing continues to be considered a user’s right, what is this right’s interaction with a license agreement? This question becomes increasingly important as we access more and more of our content by way of online licensing agreements.
For Crown Copyright, Geist would like to see more open-ended licensing for non-commercial use – or even better, abolish Crown Copyright altogether.
But for the most part, Geist advocates for a defensive position against challenges to balanced copyright. He opposes, for example, the notion that Canada is a “piracy haven,” and needs to institute a notice-&-takedown system to replace our internationally-lauded notice-&-notice system. Aside from a few uncertainties noted above, Canada’s current law seems to strike an effective balance between the rights of industry and users. Therefore, he envisions the review as a benchmarking exercise, to assess the progress of cultural industries under the current legislative regime, rather than an occasion for a major overhaul.
Geist ended his presentation with a reminder that the fight for balanced copyright is not over, and that thus far, very few have spoken out on behalf of user’s rights, or even argued for maintaining the current balance. As such, he calls for CALL/ACBD members to add their ideas, evidence and voice to the debate.
2012 was not the end, it was the beginning.
If you would like to be involved in the review process, please contact copyright committee co-chair Kim Nayyer or Ken Fox.
A version of this piece was posted June 14, 2017 on Legal Sourcery.