Recently, I've learned from others that I fully support Bill C-32, that I favour a late 20th Century model of creator’s rights, that I want content locked up against fair dealing, that I support censorship, and so on. Step into this debate and you could spend so much time defending yourself from ridiculous assertions, your actual opinion may never be heard.
Which, I guess, is the point.
So, yesterday I reported about Access Copyright's legal victory at the Federal Court of Appeal, and about their concern that this win for creators could be cancelled out by ill-defined changes to copyright law. I wrote "the introduction of an overly broad exception to copyright for educational use would all but eliminate fair compensation for this established use."
Bill C-32, the federal government's Act to Amend the Copyright Act does indeed contain new educational exceptions, and they are not defined as clearly as many creator groups, Access Copyright and I would prefer. If interpreted in an overly broad manner, they could provide a legal leg-up for the kind of tariff challenge Access Copyright has just finished defending. I am certainly not the only one who thinks this way. Lawyer and publishing consultant, Gary Rodrigues, writes:
"Based on an amended Copyright Act, the Ministers of Education might ask for a review [of] the new tariff before it is fully implemented."
I have mentioned my own concern about overly broad interpetation, informally, to both federal ministers responsible for C-32 (on Twitter!) and have been reasonably assured definitions will tighten up through committee work. I think that would be a great outcome, and I have hope that this recent Court of Appeal ruling will help with the tightening process.
Today, I am informed by the prominent consumer advocate, Michael Geist, that my concerns about an overly broad exception to copyright "bear little relation to reality," and that the recent Court of Appeal ruling proves I'm worrying for nothing. Well... good, then. I hope Dr. Geist advocates strongly for that interpretation at the C-32 committee.
But wait, I'm mistaken -- Dr. Geist actually wrote "fears that the extension of categories will wipe out all revenues bear little relation to reality." I see the problem. When I wrote the introduction of an overly broad exception to copyright for educational use, Dr. Geist read the extension of fair dealing categories.
Of course these two things are NOT the same, nor did I ever mean for them to be. I have called for better definition around fair dealing for a long time (in my copyright consultation submission, for instance), and am happy to talk about category extension - I think parody, for instance, is an important freedom. Yet somehow, I find myself prominently advocating a position I do not hold on this country's central site for consumer-focused copyright discussion. And this... let's call it a misunderstanding... is, I guess, how the copyright debate maintains its momentum.
Meanwhile, three comments into the discussion of my newfound opinion on Dr. Geist's blog, we find this gem:
"I just don't get the need to be compensated for ones work being used to teach kids or others. If I had a school teacher pick up my work and use it to teach kids about the world I'd be more then happy to see my work get used for free. Why the hell could you not want that?"
Clearly, concerns about overly broad exceptions to copyright are completely unfounded. I will stop worrying.
17 comments:
John,
There is no misunderstanding and no massaging of the message. We are both talking about a broad exception for education. You say:
"the introduction of an overly broad exception to copyright for educational use would all but eliminate fair compensation for this established use."
I respond:
“While there is no doubt that extending fair dealing to education (the law currently covers many educational activities under research, private study, criticism, and review) will bring more potential copying within the scope of fair dealing, this case reinforces the fact that fair dealing is a fair for all, not a free for all and that fears that the extension of categories will wipe out all revenues bear little relation to reality.”
My reference to extension of categories is a direct reference to extending fair dealing to education (it’s in the same sentence).
The K-12 case is very clear. You can have a very broad fair dealing exception for education and it will still not all but eliminate fair compensation. The reason – I repeat – is that fair dealing is a two-part test. The first is whether the dealing falls within a fair dealing category. If it is, this merely gets you in the door to be able to argue fair dealing. Part two of the test – which Access Copyright won – is whether the actual use is fair. In other words, a broad exception for education does not automatically mean that compensation is lost. It only means that educational institutions can now make the case that the use (or dealing) meets the fair dealing standard.
But don’t take my word for it. Rather than the Access Copyright press release, read the decision. The court itself says that the education exception in C-32 – which is rightly broad in my view – would not alter its analysis of this case. For you and Access Copyright to suggest that C-32 would "cancel out" the win in this case is fundamentally at odds with what the court said.
MG
Here's the judgement.
And here is the statement from the judge
---
I am also aware that Bill C-32, An Act to amend the Copyright Act, 3rd Session, 40th Parliament, 59 Elizabeth II, 2010, section 21 would amend section 29 to state that ―Fair dealing for the purpose of research, private study, education, parody or satire does not infringe copyright (changes underlined). However, this amendment serves only to create additional allowable purposes; it does not affect the fairness analysis. As the parties agree that the dealing in this case was for an allowable purpose, the proposed amendments to the Act do not affect the outcome of this case and no more will be said about Bill C-32.
-----
I think this makes it pretty clear that this judge also does not agree with John or AC.
I believe there was a previous example used to illustrate this before, which I will reiterate. A teacher making a single copy of a work to post or display would be fair. A teacher copying a class set for individual distribution would not.
As such, the bulk of the "3 million books" copied would still be subject to licensing. A small amount would not be.
This is just another example of some organization blowing things out of proportion and fear mongering because they want to have their cake and eat it too, and John blowing the horn for them.
How's the foot John? Tasty?
hey john,
here are my two cents: i think the proposal to add 'education' to s.29 needs to be evaluated in light of the supreme court of canada's decision in cch, not the lower, federal court of appeal's recent K-12 decision. if bill c-32 were to become law, using copyright protected material for the purpose of education would be broadly and liberally construed by canadian courts following cch as a 'user's right'. to determine whether a user has fairly exercised his, her or its right against a professional creator like you john, the supreme court of canada states that "[while] the effect of the dealing on the market of the copyright owner is an important factor, it is neither the only factor nor the most important factor that a court must consider in deciding if the dealing is fair". in other words the effect on your livelihood is neither the only factor nor the most important factor the court must consider in evaluating whether a user right has been exercised against you fairly. this of course begs the question what is the most "important factor". your guess is as good as mine. perhaps education for the sake of education is. who can argue with education, particularly if it's a user's right. should Canada's self-employed creators have pause for concern about this new proposed, currently unstructured user's right and its potential impact on what are typically their subsistence-level incomes? i certainly think so. Warren Sheffer
Warren,
I'm surprised with your lack of confidence in the Federal Court of Appeal decision. Perhaps you would advise the education groups to appeal.
Regardless, of course a court examining the fairness of an education use will have regard for the CCH language as it works through the six-part fairness test. The point is that claims like John's that the exception would all but eliminate fair compensation assume that user rights trump creator rights such that every use would be regarded as a fair dealing. That is not what the Supreme Court in CCH said (the exact opposite in fact given its emphasis on balance) nor what the Federal Court of Appeal has said. It also mistakes part one of the fair dealing analysis (does the work qualify for a category of fair dealing) with part two (is the use itself a fair).
MG
Hi all,
I understood your point about the ruling and the two-part test in your original posting, Michael. As I said in my posting - good. It's an encouraging precedent to have, especially while there is still time to amend C-32.
I'm glad you support the interpretation of the Court of Appeal, and I feel encouraged that the creator community can count on you making strong representation in favour of creator compensation and continued educational licensing at the C-32 committee hearings. Shall I blog about your intention to do so? It sounds like Darryl would be happy to accompany you in your testimony.
On the other hand, I think both Warren Sheffer and Gary Rodrigues (and a lot of other smart folks) have valid concerns about the way new exceptions to copyright might be interpreted. If we all agree on how this one should be interpreted, then there's no harm in making that interpretation explicit in the definitions within C-32. Why put everyone through seemingly endless court challenges to establish definition, when we can set a firmer foundation in the framing stage?
I lean toward Warren's interpretation of the CCH decision as a disturbing fly in the creator-rights ointment. I don't think that shows lack of confidence on the CofA decision; but rather an understanding (and admission) that there are other factors in play.
Of course, I'm no fancy, big-city lawyer.
John,
If I have the opportunity to appear before committee, you can count on me to say what I’ve consistently said. First, that a “such as” approach to fair dealing is preferable to the specific exceptions. Second, that notwithstanding my support for a flexible fair dealing provision, I think the exceptions in C-32 strike a reasonable compromise. Third, that claims that expansion of the fair dealing categories – including a broad education category – spells the end of collective licensing as some (including you in your original post) have suggested is inaccurate. Fourth, that fair dealing with an education exception will, like all fair dealing exceptions, require the court to conduct a six-part fairness analysis that seeks to balance creator and user rights. That will likely mean that there will be cases that education groups don’t get what they want and there will be instances where creators don’t either. That’s a copyright balance – not a free for all that all but eliminates fair compensation. Fifth, that changes to the anti-circumvention provisions to accommodate fair dealing are essential to ensure that this balance is reflected in the digital environment.
As for how fair dealing might be interpreted, it seems to me that post the K-12 decision, it is the education groups who have just as much reason (if not more) to fear how the law will be interpreted. The addition of education to the list of fair dealing categories will not change that. All the more reason to keep things sufficiently flexible to accommodate changing technologies and uses, while keeping a framework that encourages compensation for uses that extend beyond the fair dealing fairness analysis.
MG
so, is this what john means by massaging the message? i don't recall stating or implying anything about my confidence in the k-12 decision, michael.
my point, again, is that the proposed new education exception under bill c-32 needs to be evaluated by lawmakers in the context of what the scc stated in cch.
i don't see the two steps of the fair dealing test to be mutually exclusive. indeed, i think the nature and scope of a statutory exception (and the way in which it is characterized i.e. as a right) can't help but impact the analysis conducted under the second step, and indeed what non-exhaustive factors courts may be tempted to create and consider and/or emphasize, in the absence of clear legislation.
in any event, i am sure we'll all have plenty more to say about the bill in the coming months.
WS
Michael,
Somewhere in there, I'm sure, I could find the answer to the questions I'm pondering... does Michael Geist agree with the Court of Appeal decision? Does he support a strong defence of educational licensing for copyright protected material?
Your responses are so artfully worded, I just can't tease out my answers.
How about a straight Q&A approach?:
Do you agree with the ruling by the Court of Appeal?
Do you support the position of Access Copyright in that challenge?
Do you support the idea that institutional educational use of copyright protected material is a use that must be compensated?
Do you envision a future in which creators and publishers are compensated for the use of their work and intellectual property through robust educational licensing of content?
Do you think C-32 should better define proposed educational exceptions to ensure compensation for institutional use?
When you have a moment. I'm sure I'm not the only one wondering.
Ok John, I'll play along:
1.Do you agree with the ruling by the Court of Appeal?
I agree with the court that fair dealing is a two part test. I also agree that C-32 would not change the analysis.
2.Do you support the position of Access Copyright in that challenge?
I haven't read their position (nor the educators position, nor any other court filings) so I can't say. I strongly disagree with Access Copyright on their position on C-32 fair dealing reforms.
3.Do you support the idea that institutional educational use of copyright protected material is a use that must be compensated?
Where the works are subject to copyright and included in the repertoire, not openly licenced (ie. open access or cc licenced), and use of the works fall outside fair dealing, yes.
4. Do you envision a future in which creators and publishers are compensated for the use of their work and intellectual property through robust educational licensing of content?
Yes. I think that flexible fair dealing and educational licencing can absolutely co-exist. As I've said repeatedly, it is fair dealing not free dealing.
5. Do you think C-32 should better define proposed educational exceptions to ensure compensation for institutional use?
No. As I noted in the earlier response, I think Canadian law already provides a good test for defining fair dealing and a flexible approach is preferable. The fairness analysis already ensures permission (and likely compensation) if the use extends beyond fair dealing.
Now how about you:
1. Do you support an exception in the C-32 anti-circumvention provisions to allow circumvention for legal purposes?
2. If not, do you support an exception in the C-32 anti-circumvention provisions to allow circumvention for fair dealing?
3. Do you support the C-32 notice and notice approach?
4. Do you support the Access Copyright position of scaling back the CCH decision by limiting the scope of fair dealing to non-commercial copying?
5. Do you support the C-32 changes to statutory damages that distinguish between commercial and non-commercial infringement?
MG
Michael, I didn't ask you to play along with anything. I asked questions, hoping for good faith answers.
Here's what good faith answers look like:
1. Do you support an exception in the C-32 anti-circumvention provisions to allow circumvention for legal purposes?
I don't think an exception (which could be interpreted in an overly broad manner, you see) is necessary. I think other mechanisms can be used to allow legal uses that don't involve lock breaking. I think you mentioned a bunch of possible solutions somewhere on your blog once -- none of which needed a broad exception. I'd rather see those used, to preserve the principle of legal protection for locks.
2. If not, do you support an exception in the C-32 anti-circumvention provisions to allow circumvention for fair dealing?
As above. Also, see my earlier discussion about how I feel completely unrestricted by digital locks in my own exercise of fair dealing - in one of my early writer/reader posts. Other mechanisms please.
3. Do you support the C-32 notice and notice approach?
I can live with it. What's the recourse for an ignored notice? And a second ignored notice? When does this law have teeth against obvious infringers?
4. Do you support the Access Copyright position of scaling back the CCH decision by limiting the scope of fair dealing to non-commercial copying?
You mean my interpretation of it or yours? I think the CCH decision carries with it the danger of overly broad (there's that phrase again) intepretation that could damage creator rights. If that's a yes to your question, then yes.
5. Do you support the C-32 changes to statutory damages that distinguish between commercial and non-commercial infringement?
I've never really been in this for statutory damages. I want clear rules that define and protect the rights of hard-working creators. As with digital locks, I don't particularly need a damage amount that will "work" in every circumstance. Just one that preserves an important principle... "please don't trespass."
So, different amounts for different "kinds" of infringement? Meh. To me, the take home point is -- hey, don't infringe. Isn't that your take-home point as well?
Let me know when you're ready to take another go at my questions.
John,
I did answer in good faith.
You asked if I agreed with the court's decision and I pointed to the elements that I did.
You asked if I agreed with the Access Copyright position and I responded in good faith that I never read their arguments (much less the evidence before the Copyright Board) to provide a definitive answer.
You asked if I supported compensation for educational uses and I said yes under the appropriate circumstances (and identified what those were - I don't think there should be compensation for fair dealing).
You asked if I envisioned a future for collective licencing and I said yes.
You asked if C-32 should better define the education exceptions and I said no and explained why.
Sorry if that didn't satisfy you.
MG
Did you enjoy your lunch?
I agree with you that there was lunch, and that it had the innate potential to be enjoyable. I also confirm that I ate a lunch.
Did I miss the bus?
I can say that there are a number of buses in the system. Had you just arrived at the bus stop three blocks from here, you would have missed that bus; though, presumably another bus will arrive at some time to be determined upon its arrival.
Wow, the sky sure is blue today.
Blueness is one of the attributes of skies in general, though only through the interaction of light with the optical sensors of each individual and, of course, only with the proper atmospheric conditions. I am willing to say that under the right circumstances, one could make a convincing argument that the certain physical properties of the day have produced an element commonly understood as the colour blue by those capable of seeing that colour.
Wow, John. You seem to think that Geist should be able to give a simple unqualified binary answers to these questions. Please note that your answers to Geist's questions were no less qualified than the answers he gave to yours.
I think he provided pretty clear responses. I'm curious about how you think he was avoiding anything in his answers. Please tell.
Darryl,
I am perfectly satisfied with the answers Michael Geist has given.
They are absolutely in line with my understanding of his positions on the topics discussed, and they show the same levels of forthrightness, intellectual honesty and clarity I have come to expect from all of his advocacy on copyright.
John your response drips with sarcasm despite its truth. It is a pity your own responses are not as clear and honest as many others and that one usually needs to read through the sarcasm, analogies, and innuendo in order to decipher exactly what YOU are saying.
Darryl,
I'm sorry my response didn't satisfy you.
LOL, John stop it. It's becoming so much more then a drip now.
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