Protect Fair Dealing – Canada’s Upcoming Copyright Act Review

I’m starting to get a little worried. The Canadian Government is set to review the Copyright Act at the end of 2017 and it looks like – despite a large number of evidence-based court rulings supporting it – that there is a chance that the user right of fair dealing might be severely limited.

Most recently we’ve seen a column in the Globe and Mail arguing that Fair Dealing encourages piracy and takes revenue away from writers. Before this there was a Public Policy Report, Shattered Mirror, about we can help news media survive in the digital age. This report recommended tightening fair dealing provisions in favour of creators. Before that there was an Open Letter to Heritage Minister Mélanie Joly from the who’s who of Canadian writers, artists, and publishers, who (rightful) ask for more funding and support from the Government. While they don’t make any direct claims about how this support can be provided, they do strongly hint that the Copyright Act Review can be used to change the act to “divert the flow of revenue back to the hands of the idea generators”. The Copyright Act is a balance between users and creators. Money money to creators will be at the expense of user rights like Fair Dealing.

Access Copyright is also not happy about Fair Dealing. Not Surprisingly. They commissioned Pricewaterhousecoopers to put together a report called Economic Impacts of the Canadian Educational Sector’ s Fair Dealing Guidelines  [PDF] which makes the long and detailed case that fair dealing will just completely decimate publishers and creators Canada.

Interesting aside here – If you open the PDF of this report on Chrome or IE, it is actually a extremely DRM heavy PDF. You can’t copy a single piece of text from it (Not if you use FireFox though. Yay Firefox!). Same thing goes if you download the report and open it with Adobe Reader. No copy and paste at all. I mean. Of course, Access Copyright would do this. They commission a report on fair dealing that has a digital lock on it that stops anyone from even trying to make use any of their fair dealing user rights. The terrible DRM on this PDF is a great argument why need fair dealing…. Hilarious.

Wanda Noel has noted [PDF] that their has been an active lobby from publisher groups to parliament hill in the last year. Even Universities starting to get concerned. Tom Adam, the Copyright Librarian at Western University, says that “Everything is up for grabs, essentially” when it comes to the Review. With the amount of infrastructure Universities have put in place to guide students and faculty to provide fair dealing support, any change to it will likely result in mass confusion and frustration.

There seems to be two arguments that are used to justify Fair Dealing being restricted:

  • The Fair Dealing exception is confusing and encourages piracy
  • Fair Dealing is taking away from the income of our creators and publishers. It will damage our creative class and result in less Canadian content being created.

Let’s start with the first argument. This was argued by that Globe piece I referenced at the start of this post. It looks at a case at Concordia University where the Centre for Expanded Poetics was scanning full books of poetry and making them for available online for free. While the column’s author, Kate Taylor, acknowledges that fair dealing “does make it pretty clear that what Expanded Poetics was doing is out of bounds” she still suggests that this case is the result of how confusing and complex fair dealing is. Now, clearly this is a bad argument, fair dealing can’t both make it clear that an action is not allowed and make it confusing if that action is allowed.

Taylor’s real problem is with users using fair dealing as a justification for piracy. As she says ” there is no shortage of tenured Internet libertarians willing to offer some convenient intellectual cover for their use”. Two things: (1)Fair Dealing makes it very clear that some practices are completely out of bounds (scanning full book and making it accessible online). If someone does those practices anyway and then uses Fair Dealing to justify it, the problem is not Fair Dealing, it’s ignorance. (2) Fair Dealing does have grey areas when it comes to more nuanced areas of copying that, by design, doesn’t give strict interpretations of what is allowed and what isn’t. This is because Fair Dealing is a “balance between the rights of a copyright owner and users’ interests, it must not be interpreted restrictively” (CCH, para 48). Balancing two parties interests is always complicated and it should be. When it’s not, one party always benefits at harm to the other. If you are struggling with how to determine what counts under fair dealing and what doesn’t, there are a large number of tools out there to help. Try the University of Guelph Fair Dealing Tool or the Copyright Decision Tool.

Whenever a misinformed article like this on copyright is published by Canadian Media, it always results in the Michael Geist Bat Signal going up. Read his takedowns here and here. Geist is the hero we need, not the one we deserve.

Now for that second argument, that Fair Dealing damages our creative class by taking away much needed income. The Access Copyright Report argues this very forcefully:

Indeed,we expect that over time, the publishing of new content for K-12 schools in Canada will for the most part disappear, and the quality of the content used by school students will thereby decline.

Ok. Let’s be clear here. Publishers, artists, writers, and newspapers are struggling massively right now, but are they struggling because of fair dealing? Nope. In the digital information age with the move to text-book rental services, open educational and other free online resources, less print purchasing, and, of course, the rise in online piracy, fair dealing is only a drip in the sea. As Geist puts it “claims that the challenges facing scholarly publishers are primarily a function of copyright law is false.”

And more importantly, the divide between creator and consumer is growing less and less everyday. We are all creators. We all make content. Fair Dealing benefits everyone. Sharing allows us to discover more content and make use of it. Being able to use and build of that content without fear of copyright enforcement or fines allows us to create more. Like this blog. I wouldn’t have this blog without fair dealing.

To the signers of the Open Letter to Heritage Minister Mélanie Joly on supporting Canada’s Creative Sector: I’m with you. You need support. Let’s find away to give it. Don’t do this at the expanse of User Rights! Restricting Fair Dealing is solving the wrong problem. You’ll just hurt the discovery, use, and distribution of your work even more.

So what should the Copyright Review being focusing on instead of damaging user rights?

Geist (See what I mean? The hero we need), argues one of the big areas that needs to be changed is the Fair Dealing Gap. As I understand it, Canada’s digital lock provisions make it illegal to break a digital lock even if you are doing it only to use your fair dealing user rights. This greats a gap between the digital world and the print world. In the digital world, a company can stop you from using your fair dealing rights by placing a digital lock on the material. They can’t do this when it comes to print material. I can’t be stopped from copying a few pages of a print book – and I shouldn’t be thanks to Fair Dealing – but I can be stopped from copying a few pages of an eBook. I can also be fined if I break a digital lock to do with with an eBook.

Actually a perfect example of this is that Access Copyright Report. That digitally locked PDF that I couldn’t copy any text. I did copy text. I opened it in Firefox and copied it from there. I navigated around the digital lock. I didn’t break the lock….or did I? If I used a different software other than the widely used Firefox would I be breaking a digital lock? I only did so to copy some pages and text to use for this blog…. i.e. well within my Fair Dealing rights. Did I break the law? I doubt Access will charge me a fine for doing this, but could they? I’m not sure. That’s why we need to fix that Fair Dealing Gap.

This brings us to a larger issue. Fair Dealing rights can be signed away and restricted. You can enter into a contract where you agree to waive your fair dealing rights (often hidden in the small print). Libraries are very familiar with this, journal publishers often pressure us to sign away fair dealing rights under threat of a huge cost increases. Should this be the case? What if fair dealing rights couldn’t be signed away?  In her recent – and incredibly encompassing  – PhD Thesis, Lisa Di Valention has a section where she argues:

In fact, a legal analysis suggests it is more likely that the court would rule that copyright exceptions are statutory rights and cannot be preempted by contract terms

So. Lots to do here! The Copyright Act Review shouldn’t just be about creators but it should also be about user rights.

Howard Knopf gives a nice summary of some of the other areas that will be looked at during this Copyright Review. Things such as copyright infringement notifications, copyright extensions, fines and statutory damages for infringements. Worth following his blog for updates on the Copyright Review.

Some other blogs worth following from experts for updates on the review:

Until then – #ProtectFairDealing

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About Ryan Regier

Doing Library Stuff. Follow me on twitter at: @ryregier
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