Early this week, I opened a lengthy response in Howard Knopf’s blog to my recent post in this blog. Never one to mince his words, Mr. Knopf suggests with sound and fury that I have sought to “mislead Parliament” by posting on the issue of the educational fair dealing provision. Although the House of Commons Committee on Copyright has completed its clause-by-clause review of Bill C-11 without touching this provision, there are certain statements in Mr. Knopf’s blog that need to be addressed.
My chief concern with Mr. Knopf is that while he is a vast repository of copyright lore and legend from both Canada and abroad, he is extraordinarily selective with his references, so as to paint the appearance of a reality elsewhere that does not exist, a phenomenon I referred to as “doublethink” in my recent post. The purpose of this selectivity is to promote his strong beliefs about “excess” in copyright, a belief that is clearly disclosed at the head of his blog. He also appears to believe that heaping scorn on others substitutes for constructive debate.
This response to Mr. Knopf will point out how selectively he treats the way copyright is dealt with elsewhere in the world. The purpose of this selectivity is to paint a picture of the law that accords completely with his views, not to mention those of many of his clients.[i] The problem with this selectivity is that it presents a misleading picture as to how other countries have developed a balance between exclusive rights and user interests in the rest of the world.
As a first example, Mr. Knopf suggests that there is not “much support for [my] views” in U.S. law. He of course ignores the U.S. Supreme Court’s leading decision in Harper & Row and its recent affirmation at the Fourth Circuit in the Bouchat case, each of which clearly state that the effect on the market factor was “undoubtedly the single most important element of fair use”. Though Mr. Knopf doesn’t disclose it, appellate courts in other circuits have stated the same view (see, e.g., here and here). He also doesn’t disclose that the Sony case at the U.S. Supreme Court set a test stating that “every commercial use of copyrighted material is presumptively an unfair exploitation of the monopoly privilege that belongs to the owner of the copyright” and that for non-commercial uses, a use will be unfair if “the particular use is harmful, or that if it should become widespread, it would adversely affect the potential market for the copyrighted work”.
In making his case, Mr. Knopf is also careful not to quote the leading U.S. text on copyright, the multi-volume loose-leaf Nimmer on Copyright, which describes the “effect on the market” factor in the following terms:
“If one looks to the fair use cases, if not always to their stated rationale, this emerges as the most important, and indeed, central fair use factor.” (§13.05[A])
Nimmer quotes numerous cases from many circuits explaining that:
“this factor… poses the issue of whether restricted or widespread conduct of the sort engaged in by the defendant (whether in fact engaged in by the defendant or by others) would result in a substantially adverse impact on the potential market for, or value of, the plaintiff’s present work.” (§13.05[A])
Readers of my recent post (or Mr. Knopf’s bolded excerpt from it) will recognize that the bolded portion of this quotation restates, in different words, the very same concept Mr. Knopf derides as “very inaccurate in many ways”. So I am not plucking my description out of thin air, but from Supreme Court decisions and leading texts on copyright law.
Nimmer also makes it clear that while the “effect on the market” factor is central, it “cannot substitute for an evaluation of each of the four statutory factors”, a hardly controversial point given that they are all written into law in s. 107 of the U.S. Copyright Act.
Because Nimmer on Copyright represents an inconvenient truth for Mr. Knopf, he resorts to the text authored by William Patry, now the senior copyright counsel at Google, who is himself quoting not decided case law, but a 1996 academic article (“Fair Use Rescued”) by Pierre Leval, a well-known judge formerly at the Second Circuit. The core point here is that Mr. Patry and Judge Leval are (as is their right) criticizing the logic behind the Sony and Harper & Row Supreme Court decisions as being circular or wrong in policy. Mr. Patry also clearly agrees with the user rights analysis of the CCH decision. Their views are an attempt to address, critique and change the law of copyright (as are those of Aufderheide and Jaszi), but they are not a statement of the law as it stands in the United States. They are a statement of the law as they would like to see it.
Mr. Knopf also fails to note that the “latest and controlling U.S. Supreme Court decision on fair use”, Campbell v. Acuff-Rose, applies the Harper & Row case in order to come to its conclusions on fair use in the context of parody. It does not overrule it, as (for example), the U.S. Supreme Court’s decision in Lawrence v. Texas, 539 U.S. 558 (2003) overruled its 1986 decision in Bowers v. Hardwick, 478 U.S. 186. Harper & Row, Sony and Campbell all stand together as statements of the law in the United States. Harper & Row makes it very clear that the “effect on the market” is the predominant factor, but Campbell (a parody case) reminds us of Nimmer’s non-controversial point that fair use is a case-by-case evaluation in which all four mandatory s. 107 factors must be considered. Where there is little or no proof that the effect of a dealing is damaging to the market or the potential market for a work, as in Campbell or in Canada’s CCH decision, the proper result is that the fair use or fair dealing defence is made out.
Mr. Knopf also seems to believe that the Three-Step Test applicable under Article 13 of the TRIPS Agreement and Article 9(2) of the Berne Convention allows Canada freedom to create an educational exception that is not limited to an institutional setting (as it is in the U.S.), and without comprehensive guidelines as to its application (as in the U.S.).
On the specific question of whether the educational fair dealing provision raises international trade issues, the most comprehensive assessment is provided within the recent article by Ysolde Gendreau of the University of Montreal in the Intellectual Property Law Review. This article deals with the C-11 language at great length and concludes that there is a “strong case” the fair dealing for education provision will fail the Three-Step Test and the Article 10(2) test for being too “broadly drafted”, with no limitations on the person making the copy or other criteria for limiting the kinds of use. Mr. Knopf spares us mention of this article because it does not advance his case.
Professor Gendreau’s account is confirmed by leading international scholars who have taken on Mr. Knopf’s suggestion that the Three-Step Test is illusory because the U.S. has never been sued for its fair use regime. One direct example is Sam Ricketson, co-author with Jane C. Ginsburg of the authoritative text International Copyright and Neighbouring Rights. Professor Ricketson has concluded in a WIPO study (link to Word version) that the U.S. fair use formula does not comply with the Three-Step Test from a drafting standpoint:
It is quite possible that any specific judicial application of Section 107 [of the U.S. Act] will comply with the three-step test as a matter of fact; the real problem, however, is with a provision that is framed in such a general and open-ended way. At the very least, it is suggested that the statutory formulation here raises issues with respect to unspecified purposes (the first step) and with respect to the legitimate interests of the author (third step).
Mr. Knopf is conveniently vague in raising his other international examples. Japan’s Copyright Act does not have a freestanding “fair dealing for education” right: Articles 33-36 of that Act provide targeted and restricted rights of copying that only apply in the non-profit institutional setting for specific considered purposes, such as creating a large-print textbook for visually impaired students (s. 33bis), or reproducing a limited portion of a work for examination purposes as long as “such transmission does not unreasonably prejudice the interests of the copyright owner in the light of the nature and the purpose of the work as well as the form of the transmission” (Art. 36)
So Mr. Knopf’s very example of Japan actually proves my point, not his – that Canada’s major trading partners have taken care not to destabilize publishing in order to promote education. Also happily, Mr. Knopf will recognize that Japan’s domestic law reproduces major components of the Three-Step Test internally, as does Article 5(5) of the European Copyright Directive, which is mandatory law in his other examples of the Netherlands and Germany. If these are great examples for Canadian copyright law, then Parliament might be best advised to follow these countries’ paths and incorporate the Three-Step Test into domestic law.
Mr. Knopf also resorts to his favourite rhetorical tactic of the ad hominem attack. Rather than address why he believes I am wrong that the Supreme Court’s decision in CCH misquoted English law, or take on the reasoning behind the Ashdown case which states that the substitution is “by far the most important factor” in English fair dealing law, he emphasizes my youth, implies that I have no views that belong truly to me, compares CCH to the Magna Carta, and recites the lengthy title of our Chief Justice. Mr. Knopf apparently believes that insult and insinuation qualify as reasoned argument. So much for respect and for any deference to a subject so very important to Canadian expression.
[i] While I respect that Mr. Knopf intensely believes in the views he espouses, it should be noted that he has acted for the Canadian Association of University Teachers and lobbied Parliament for the Retail Council of Canada (enter Mr. Knopf’s name into the “lobbyist” field here), amongst other clients who benefit directly from broad exceptions to copyright. It would be good if Mr. Knopf or Professor Geist could acknowledge for once that counsel on all sides of these issues can and do have views that are authentic and exist independently of the views of their clients. But I won’t hold my breath waiting for this to happen.