Should Canada adopt “fair use” as proposed by NDP MP Charlie Angus?

March 18th, 2010 by Barry Sookman Leave a reply »

Earlier this week, Charlie Angus introduced an amendment to the Copyright Act to expand the fair dealing exemption to include, in essence, any fair use with a work. While the amendment would add only a few words to the Act, it would radically reshape the copyright balance in Canada-to the ultimate detriment of our Canadian cultural industries, those that work and depend on them, and the Canadian public as a whole.

Charlie Angus’ proposed amendment reads as follows:

“M-506 — March 15, 2010 — Mr. Angus (Timmins—James Bay) — That, in the opinion of the House, the government should amend section 29 of the Copyright Act in such a way as to expand the Fair Dealing provisions of the act, specifically by deleting section 29 and inserting the following: “29. Fair dealing of a copyrighted work for purposes such as research, private study, criticism, news reporting or review, is not an infringement of copyright. 29.1 In determining whether the dealing made of a work in any particular case is fair dealing, the factors to be considered shall include: (a) the purpose of the dealing; (b) the character of the dealing; (c) the amount of the dealing; (d) alternatives to the dealing; (e) the nature of the work; and (f) the effect of the dealing on the work.”

I have previously expressed my views that Parliament should expand the existing fair dealing exceptions in the Act in certain special cases, where justified, rather than delegating important decisions affecting the public interest to the courts. See, Barry Sookman and Dan Glover More Fickle than Fair: Why Canada Should Not Adopt A Fair Use Regime.

In proposing a broad fair use amendment, Mr. Angus has chosen to align himself with Prof. Geist and others who have advocated for this amendment. However, in doing so he chosen to oppose the interests of hundreds of thousands of Canadian artists, choreographers, composers, directors, educators, illustrators, journalists, makers, musicians, performers, photographers, playwrights, producers, publishers, song writers, videographers, and writers. Their representatives, over fifty prominent Canadian organizations, filed a joint submission to the Copyright Consultations, WHY CANADA SHOULD NOT ADOPT FAIR USE:  A JOINT SUBMISSION TO THE COPYRIGHT CONSULTATIONS.

These organizations, which also represent a substantial portion of the Canadian creative industries, summarized their views in the Joint Submission as follows:

“In the latest round of copyright consultations, advocates of copyright liberalization have made calls to replace Canada‘s longstanding fair dealing provisions with a general fair use provision. Alternatively, these advocates have argued that the fair dealing provisions enumerated in the Copyright Act, such as the ―research or private study and the ―criticism or review provisions, should be treated as merely ―illustrative examples of allowable exceptions. The most common proposal to achieve this result is to insert the term ―such as into the current fair dealing provisions. This ―expanded fair dealing proposal would have a similar effect to implementing a fair use provision, as it would create an open-ended system allowing users to argue that any given purpose is ―fair.

These proposed amendments are not needed. Canada already has broad and flexible fair dealing provisions…

Moreover, these proposals would go in precisely the wrong direction. At a time when most stakeholders are calling for greater certainty and clarity in Canadian copyright law, these proposals to replace the specific fair dealing provisions that Parliament has established with broad, open-ended ―user rights would leave copyright owners and users guessing where copyright ends and ―user rights begin.

The fair use model is not a panacea for solving difficult problems resulting from digitization and the internet. ―Fair use has been described as an ―astonishingly bad system amounting to little more than ―the right to hire a lawyer. Fair use and/or expanded fair dealing systems are models that many of our trading partners including the United Kingdom, the European Union, Australia and New Zealand have expressly rejected. So did Canada when it last considered introducing an expanded fair dealing or fair use provision into Canadian law. In fact, of the 164 countries that are members of the Berne Convention, only four have implemented it.

Far from solving copyright problems, adopting fair use would only exacerbate them. Its drawbacks are numerous. Fair use would lead to uncertainty, expensive litigation and leave important public policy decisions to be made by courts instead of Parliament. It would reduce revenues available to the Canadian creative industries; revenues which are vital to their indigenous growth. It would undermine legitimate licensing models including collective licensing of copyrights…

Creating an expanded fair dealing or fair use model could also put Canada off-side its treaty obligations, which require that exceptions comply with the three-step-test.

The Government should not amend the Act to introduce a fair use or expanded fair dealing model into Canada. At the very least, it should not do so without further detailed consideration of its potential adverse effects.”

We should not transplant fair use to Canada without appreciating that it has many critics. Many of them are summarized in the Joint Submission. In fact, there is currently a controversial movement in the US to amend fair use because of its perceived problems.

Bill Rosenblatt, in an article entitled Thoughts on Fair Use, recently gave an American perspective on fair use stating the following:

“There are people who claim that Fair Use is a vital bulwark against the chilling effects on innovation caused by some recent developments in copyright law. They cite laws like the Digital Millennium Copyright Act or court opinions like the Supreme Court’s 2005 MGM v. Grokster as dampers on innovation.  And there have been various stories about how Fair Use enables innovation, such as the Computer and Communications Industry Association’s 2007 report Fair Use in the U.S. Economy, which claims that Fair Use contributed over half a trillion dollars to U.S. GDP growth from 2002-2006.

But I think it’s time to realize that Fair Use also chills innovation in its own way.  Fair Use is a trap door out of the technology world.  As distribution and usage of content online becomes ubiquitous and free in the digital age, it is just not practical to have to hire a lawyer and go to a court to decide whether certain uses are permissible. It’s as if someone designed a car that required the driver to pull over, stop, and turn the wheels by hand in order to change direction.”

In a follow up article he re-iterated his concern with fair use saying “But the inevitable discussions on Fair Use reinforced both sides’ eagerness to embrace and protect the status quo rather than challenge it, because the ambiguity and imprecision of Fair Use makes it amenable to interpretation to serve each side’s needs… the ambiguity and imprecision of Fair Use makes it a deterrent to innovation, because it scares startups (and their investors) away from the entire area.”

Charlie Angus has also introduced a second proposed amendment to the Act, to expand the private copying levy to include iPods and other digital audio recorders. He did so to enable consumers to make copies of music onto their favourite devices and to ensure that songwriters, artists, and performers get compensated for such copying. In introducing this amendment, Mr. Angus has perhaps not realized the potential incompatibility between the expanded levy and expanded fair use. The incompatibility between the two amendments was adverted to in the Joint Submission:

“By expanding what can be done without infringement, fair use could also significantly undercut the existing private copying levy as well as prospects for extending that levy to new media such as Digital Audio Recording Devices (DARs) and to content other than music. It would leave uncertain what uses of works are permissible in a variety of other settings as well, such as uses in libraries and educational institutions.”

Ministers Clement and Moore swiftly rejected Mr. Angus’ proposal for an expansion of the private copying levy. The Tories repeated their objections to the amendment again in the House of Commons yesterday.

It is interesting that Ministers Moore and Clement did not speak out against the proposed fair use amendment. Does that mean that the Tories support such an amendment? If they do, there is bound to be a political storm in Canada.

A fair use system would reduce incomes available to the Canadian creative industries and those individual Canadian creators that depend on them. These industries, which reflect the diversity of Canadian languages and cultures, need the support of the Copyright Act. This support is critical, particularly for our french language and minority cultural industries where the markets and potential revenues for works is smaller.

In Canada, we have long recognized that copyright is an instrument of both economic and cultural policy. Effective copyright protection is a key to our strong and distinctive cultural identity. The Economic Council of Canada pointed this out 40 years ago in its Report on Intellectual and Industrial Property, (Ottawa: Industry Canada, 1971):

“Before proceeding to recommendations regarding copyright, a word is in order about what may be termed the “noneconomic” aspects and implications of the subject. We are fully conscious that copyright relates more to the cultural and artistic side of life than does any other form of intellectual and industrial property…

The problem is essentially one of bringing into the analysis, in some workable way, a number of the more important noneconomic goals and aspirations that appear to be widely held by Canadians, even though these goals have not yet been subjected to nearly as much thoughtful specification and systematic study as they deserve to be. What we have done on the basis of considerable, though necessarily largely impressionistic, evidence is to wrap these various goals and aspirations into one and assume that most Canadians desire for their country (full account being taken of its fundamentally bilingual and bicultural character) a strong and distinctive cultural identity. We have further assumed that, for this, most Canadians would be willing to pay some as yet undetermined economic price.”

The effects of fair use on the Canadian cultural marketplace was also considered in the Joint Submission which expressed concerns about this impact of fair use:

“In reform processes elsewhere, governments have recognized the critical importance of designing a copyright system that takes into account the realities of the size and geographical or cultural isolation of their marketplace. For countries like Canada, which have a relatively small population, overbroad exceptions and limitations can have adverse effects on the ability to earn adequate remuneration from creative endeavours. This general concern is even further magnified for specific cultural marketplaces such as the Province of Quebec, First Nations and Métis communities.”

The Joint Submission also referred to New Zealand which rejected amending its laws to introduce fair use because of the relatively small size of its market and the need to protect its cultural industries.

The fundamental role of copyright in Canada will not be lost on the Bloc and Liberals with strong roots in the Province of Quebec, or on the Tories with strong ambitions in that province.

We should not blindly adopt fair use in Canada and put our diverse cultural industries and the artists, composers, writers, performers, and other creators across this country that depend on them at risk. The fair use model is not a solution to the challenge of rebalancing copyright for the 21st century. It certainly is not a solution for Canada.

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