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.
Here are just a few examples of what members and "friends" of CALL have been up to in recent weeks on social media.
I describe friends as non-members of CALL who either follow us on the CALL listserv or who have attended a CALL event.
Le texte français suit ci-dessous.
Policy Options, a publication of the Montreal-based Institute for Research on Public Policy, is taking a closer look this month at Reviewing Canadian Copyright Policy as the Canadian government prepares for a mandatory legislative review of the Copyright Act that starts later this year.
"Reforming the Copyright Act was a tough slog the last time around, a balancing act for policy-makers and legislators, who heard from wildly different perspectives on what would be best for consumers, creators, and the businesses that deal with original work. Five years have passed, and the time has come for the required review of the Act. Our contributors, writing from multiple vantage points, offer their analyses of the current state of the copyright regime in Canada, what should be changed, and what should be left alone."
One of the articles is Libraries and the copyright (balancing) act by Victoria Owen. Owen is the chair of the Canadian Federation of Library Associations’ Copyright Committee.
Options politiques, la revue de l'Institut de recherche en politiques publiques basé à Montréal, publie une série d'articles intitulée Repenser la politique canadienne sur le droit d’auteur quelques mois avant que le gouvernement fédéral n'entame l'examen périodique obligatoire de la Loi sur le droit d'auteur.
"La dernière révision de la Loi sur le droit d’auteur n’a pas été de tout repos, imposant aux décideurs et aux législateurs de trouver le juste équilibre entre des avis très divergents sur les meilleurs intérêts des consommateurs, des créateurs et des entreprises touchés par l’épineuse question des œuvres originales. C’était il y a cinq ans, et revoici déjà le moment de réexaminer la Loi. Les collaborateurs d’Options politiques, qui soutiennent eux-mêmes différents points de vue, analysent le régime actuel du droit d’auteur, les dispositions qu’il faut conserver et les changements à mettre en œuvre."
Un des articles est Libraries and the copyright (balancing) act par Victoria Owen. Owen est la présidente du Comité sur le droit d’auteur de la Fédération canadienne des associations de bibliothèques.
As usual, members and friends of CALL have been busy on social media in recent weeks.
Here are a few examples:
The website Librarianship.ca has compiled a list of Competencies for Information Professionals developed by associations and other professional bodies.
The list breaks down into many categories, including:
The Canadian Association of Law Libraries in recent years has prepared two documents on what it calls Professional Development Pathways:
Here are just a few examples of what members and friends of CALL have been up to in recent days on social media.
Members of CALL and friends of the association are busy as ever tweeting, blogging and posting on Facebook.
Here are a few examples of what they have been thinking about in the past few days.
A few weeks ago, I asked CALL members & friends of CALL who blog, Facebook and/or tweet if the website could reuse or mention what you were up to.
You have been busy this week. Here are a few examples of what's online:
Sarah Sutherland (CanLII) tweeted a link to The Legal Profession’s Resistance To Evidence In Addressing Access To Justice
Jennifer McNenly (Fasken Martineau DuMoulin LLP) tweeted a link to Why do one third of Knowledge Managers have no KM skills?
Five university libraries in Ontario (at the University of Ottawa, the University of Western Ontario, Queen's, University of Toronto, and McMaster) are participating in the Keep@Downsview partnership, which is a shared last print copy repository project:
"The project, called Keep@Downsview, aims to consolidate and rationalize low-use print materials held by the partner libraries and ensure long-term preservation of these important scholarly materials in Ontario, while still providing access via document delivery and ILL. In doing so, each of the partner institutions demonstrates its commitment to the stewardship of print collections for future generations while repurposing valuable space on campus. This paper describes the background, rationale, challenges, and lessons learned for this unique Canadian project that leveraged funding from the province of Ontario, the University of Toronto‘s high density preservation facility at Downsview, and the commitment of all partners to preserve the scholarly record in Ontario (...)
"(...) the five libraries also quickly established the goals of the project and agreed to four key principles:
The project strives to save costs while maintaining access to a principal research collection by sharing in the responsibility of storing and maintaining one shared preservation print copy at the Downsview facility.
The project includes both journals and monographs.
All materials in Downsview are low-demand materials, as determined by the participating institutions.
All institutions share ownership of the materials they transfer. "
[Original article published in Serials Review. An open access version was made available on the Western University institutional repository]
There has been some discussion (but maybe less action) in relation to the idea of a "last print copy repository" in the specific case of legal materials, as can be seen in these two Slaw.ca articles written in recent years by CALL/ACBD members:
This appears to be a frequent question asked by CALL members on the CALL-L listserv.
The SOQUIJ blog has a post about that very topic today. It describes the Translated decisions service of SOQUIJ, the Société québécoise d'information juridique, the Crown corporation in charge of publishing Québec court and tribunal decisions.
These are unofficial English translations of selected judgments of the Court of Appeal of Quebec, the Superior Court of Quebec, the Court of Quebec, the Human Rights Tribunal, and the Professions Tribunal.
Some rulings are chosen for their "pan-Canadian" value, in other words for their importance in areas of law that are relevant anywhere in Canada such as criminal or bankruptcy law.
Others that deal with purely provincial matters are selected if they apply legal principles similar to those from the common law tradition. And then there are translations of judgments that attracted media attention even if the issues raised have little equivalent outside of civil law.
Louis-Jacques, Lyonette "How to Find Cases in English Translation, Revisited" Slaw, January 23, 2015.
Tjaden, Ted "Finding English Translations of French Language Court Decisions in Canada" Slaw, March 2, 2011