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

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

  1. Darryl Moore says:

    Mr. Sookman. Thank you for this post. I do not necessarily agree with much of it, but I do understand the position and how you arrive at the conclusions you do.

    One aspect however which does elude me, and I am sure would elude many of your critics, and probably allies as well, is your criticizing of fair use with respect to international treaties.

    I would be very grateful if you could explain how Canada adopting a fair use system could be considered counter to any treaties when we are party to the same international treaties as the United States which is the worlds biggest ‘fair use’ jurisdiction.

    I simply do not understand how you get there from here.

    Thank you.

  2. 1. How has fair use put a “chill on innovation” in the United States?

    2. If fair use is just “the right to hire a lawyer…” what rights do Canadians have without fair use?

    “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.”

    So, without more flexible fair dealing, we simple know that most uses are not permissible. It’s as if someone designed a car that, in most cases, you can’t even drive.

    That’s the solution that spurs innovation?

  3. Thank you very much for the comment. I refer you pp160-163 of the Joint Study which summarizes the reasons given by some academics and governments. its at http://ohrlp.ca/index.php/Previous-Journal/-Osgoode-Hall-Review-of-Law-and-Policy-Volume-2-Issue-2-2009.html

  4. Darryl Moore says:

    I’m sorry Mr. Sookman I still don’t get it. Basically all this document says is that the US is probably also in violation of Burne. Together with their lack of moral rights, I expect they probably are. So what?

    My point is that not a single government is actually making this accusation. The Americans themselves, who are the biggest trumpeters of treaty obligations these days are making no noises about changing this. This must mean that they consider themselves to be compliant. And others do as well. Why else would no one be demanding they change their laws. Heck look at the grief we get for having not changed out laws to confirm to WIPO after 10 years. Its been over 20 since the Americans supposedly did ratify Burne. Did they ratify it or not?

    I guess my basic point is this. If you are going to argue that we can’t adopt ‘fair use’ because it would violate our treaty obligations, should you not also (and even more vocally) be arguing for the US to drop fair use? Should not our ratification of WIPO and continued participation in ACTA be contingent on the Americans, making the necessary changes in their laws to be compliant with Berne? I mean WIPO uses Berne as a base.

  5. Three things:

    1.Thanks, Barry, for quoting my article. However, the link you put in is to my Copyright and Technology blog’s home page, not the actual article on Fair Use. The actual article is available at: http://copyrightandtechnology.com/2010/02/19/thoughts-on-fair-use/.

    2. As a naive south-of-the-border guy, I would be interested to know who is proposing to add “four principles” based Fair Use into Canadian law. Is it the entertainment industry? Leftist legal academics or advocacy groups analogous to Public Knowledge in the US? I gather from this article that actual content creators are not in favor. I find that so much can be determined by simply understanding where the lobbying is coming from. For example, the Public Knowledge proposal, and the Copyright Alliance response to it, that you cite are prime exemplars of the above. Public Knowledge is best considered as copyleft academia’s Washington DC branch office. The Copyright Alliance is a lobbying group representing a cross-section of media industry interests. Both have vested interests in keeping Fair Use vague and incomprehensible to non-experts.

    3. To Mr. Alleyne: To understand how Fair Use chills innovation in the US., read the entire article I wrote (link above). Briefly: I am a consultant who works with (among others) startups. They sometimes consider doing things with copyrighted content that someone with expensive lawyers (i.e., a media company) might consider to be a copyright violation while someone else (the startup company) might consider to be Fair Use. Given that it’s a startup company with limited funds and nervous investors, the usual outcome is that they just give up and don’t even try. That’s a chill on innovation. Users should absolutely have rights — notice that nowhere in the above discussion of interests behind proposed changes to copyright law are the interests of regular people represented — but my point is that flexibility is the wrong direction. Specificity is what’s needed, which is the diametric opposite of flexibility. That way not only do you get to drive the car, you will know what the speed limit is so that you can make your own choice about how fast to drive with knowledge of your risk of getting a speeding ticket. The way it is now, the speed limit is something that you have to hire a lawyer to get a court to decide, after you’ve already driven your car on the road.

  6. Thank you for the comment. The US has had fair use for over 150 years, and well before it joined the Berne Convention.

    Some academics have taken the view that the U.S. fair use system can be interpreted in such a way to be in compliance with the three-step test, arguing that the U.S. system is a ―special case. The question of whether the United States has ever tested its fair use regime to Berne also remains a matter of debate. When the United States acceded to Berne in 1988, both the House and the Senate took the position that Berne was not self-executing, meaning that the application of the treaty to the United States was limited to that in the implementing legislation: U.S., ―House Statement on the Berne Convention Implementation Act of 1988‖, Congressional Record (Daily Ed.), October 12, 1988 at PAGE H10095. Respected scholars have concluded that since none of the acts of legislation implementing Berne or TRIPS alters fair use, the United States may have relied on the international law principle to allow it to ―reserve matters relating to fair use to the sovereign control of the United States. In the American context, this option may have been the only feasible outcome to avoid the chaos that would have resulted from a wholesale conversion of the fair use standard to a foreign model: Dan L. Burk, Julie E. Cohen, ―Fair Use Infrastructures for Rights Management Systems― (2001) 15 Harvard Journal of Law & Technology 41 at 77. The realpolitik view is that given US dominance in international copyright matters it is highly unlikely that the Dispute Settlement Body of the WTO would ever declare the US fair use provision to be incompatible with TRIPS. See footnote 73 of the Joint Submission which deals with this point in more detail.

  7. A Telco Security Dweeb says:

    Mr. Sookman, there is a fundamentally misleading aspect to the document that you have participated in creating, in this matter.

    I am a Canadian writer and I do not endorse the wildly over-reaching, absolutist statements made in the position paper signed by (among others), SOCAN, the Crime Writers Association of Canada, and so on.

    These groups advertise themselves as representing the constituencies reflected in their names, but in fact, there is little real evidence that the majority of (in these cases) Canadian recording artists, writers or other creative content artists, would agree with the highly American-oriented view of “intellectual property protection” that you seem to be promoting, if the facts on both sides of the issue were honestly related to them.

    In summary, sir, “you don’t speak for me”. It is very frustrating to hear someone constantly representing himself as so doing, when in fact our philosophies are so at variance with each other.

  8. Thank you for your comment. I do not sure your view, but respect your right to form your own opinion on the matter.

  9. C Ferguson says:

    Mr. Rosenblatt:

    I’m not sure I understand your argument that fair use is a chill on innovation. Assume you remove the fair use provisions from U.S. copyright law, then it is certain whatever use your startup was proposing would be infringement. There would be absolutely no possibility of using works in the way the startup is proposing. It seems better, in my opinion, that there be a possibility that a use is fair rather than being absolutely certain it is infringing. Presumably, if the startup was willing to create a business based on this use, then it sees that use and the technology that enables it as having some value.

    The obvious retort is licensing. In a Coase-compliant world, this is always good argument; in the real world it is much less so. First, what are the chances a startup is ever going to be able to negotiate favorable terms from large content companies? Second, there is always the possibility that rights owners will want to veto innovative ways to consume works – history is almost unanimous is baring this out.

    Ex ante certainty is not always workable or desirable. Certainly, with constitutions, ambiguity is necessary and good. While lawyers, lobbyist and activists are prone to be captured by their clients or causes, we must always remember that copyright laws, like constitutions, are striving for balance. No one is entitled to any particular business model or revenue stream, regardless of whether you’re a rights owner or a user. With technology and new uses evolving at the clip they do, it would be wise to leave in some flexibility for the law to adapt to changing circumstances. Parliament does not move fast – how many years has copyright reform been in the works?

    As a sidenote, thank you Barry for the interesting journal articles in your comments.

  10. C says:

    Barry, your arguments against fair use are baffling. I do not disagree with your fundamental premise that states that,

    “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.”

    But what happens in the interim period – i.e. there is an “untested” use that Parliament has not yet considered? The very fact you talk about “special cases”, means you do feel that the list of specific “fair uses” cannot be all encompassing ex-ante – even though some of those uses are justifiably “fair”. This means that until such time parliament acts, the presumption is that that *every* use that is not *already* marked as a “special exception” is NOT “fair use” and therefore an illegal violation of copyright. This is a bizarre position to take. Therein lies the problem.

    I certainly agree that “uncertainty” is not good and the more “clear” guidance on what is fair and what is not “fair use” is required. But your method is not the way to go about it. The best way would be to have “special cases” constantly updated by parliament in order to eliminate legal ambiguity, but ALSO allow general fair use determinations by the courts (based on the 4 factor test), until parliament takes a view that contradicts with the courts, in which case the laws can effectively be adjusted retroactively.

    The benefit of the method I propose is that it would allow more certainty in terms of what uses are fair, but also not crush innovative untested ideas that don’t fit neatly into the specially carved out exceptions.

  11. Thank you for your comment. I agree that revisiting the list is a good thing. But, a general category of whatever a judge, appellant judges, and then the Suprme Court thinks is fair creates an expense and uncertainty I believe we should avoid. Also, some “fair” dealings should be paid for in some manner; so that not all “fair” uses should be necessarily be “free” uses.

  12. Matrimonio says:

    I’m following Charlie Angus from a lot of time and I believe he is a great person!

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