Another Day, Another Call to Expand Canada’s Fair Dealings

Barry Sookman might not like the idea of expanding Canada’s fair dealings regime, but the increasingly large chorus of calls have been to expand Canada’s fair dealings regime in one way or another. The latest call comes from the Canadian Federation for the Humanities and Social Sciences (CFHSS) which seems to coincide the growing trend in submissions by others as well.

Note: This is an article I wrote that was published elsewhere first. It has been republished here for archival purposes

The CFHSS has issued a call to action on the copyright consultation.

“Representing as it does scholars who cherish and produce copyrighted works,” the CFHSS says, “the Canadian Federation of Social Sciences and Humanities certainly supports efforts to reduce the commercial‐scale piracy. However, we call for a law that balances the economic rights of creators and/or owners with society’s right to gain access to knowledge. Access to knowledge is a crucial stage in the life cycle of new creativity and innovation. The rights of scholars, students, universities, libraries, taxpayers and consumers must be preserved in order that this cycle can continue to generate novelty, critique, meaning, and collective cultural experience. Scholars in the humanities and social sciences work primarily with human creations, human ideas and human interaction — much of which falls under copyright. Our work in turn, once fixed in print or other media and shared with the academic community and the public at large, falls under copyright. Copyright thus to a large extent determines the conditions of possibility for our research and knowledge sharing. Many legislative amendments proposed and even introduced over the past several years would severely impede the ability of scholars to carry out their work, and the ability of Canadians to share with and learn from one another: we must be wary, creative, and outspoken about the next stages of copyright reform.”

Right here, the CFHSS makes a very important and critical distinction here. Very few, if any, support commercial piracy. Taking content, burning hundreds of copies and selling it on the street is something that will not lend you very much sympathy both from the industry and file-sharers alike. That doesn’t mean Technical Protection Measures (TPMs) or digital locks, as they have seemingly become most commonly known as in Canada, should somehow trump all forms of fair dealings. Commenting, critiquing and parody are among one of the most effective means of spreading culture around – something that benefits content creators, both who are getting critiqued and by creators who are doing the critiquing. Exceptions to copyright law that allow society to respond to creative works greatly enriches society as well as the original creative works.

CFHSS also comments, “It has been said that digital technologies create a necessity for greater protection for rights‐owners in order that the economic effects of the tech sector can be maximized. In our view, it is short‐sighted and narrow‐minded to think of new rights for creators or publishers as the only way to increase activity in the cultural and cyber industries.”

There is little doubting the kind of opportunities new technology has provided. The internet has helped connect artists to their fans in ways that was unheard of before. In fact, one musician has already commented how file-sharing has become a very valuable learning tool for artists. Now, artists are able to go through different genre’s of music and learn about what is out there to enrich their own creative pallets. There are even the odd person here and there now that would go so far as to say p2p is creating content creators. On a personal note, I should know as I am one of those people.

In short, here are the core arguments CFHSS are making:

1. Make the concept of fair dealing more clear and flexible to encompass the reality of teaching, learning and research in the context of digital technology by integrating the Supreme Court’s tests for fair dealing from CCH v. LSUC (2004) into the Copyright Act.

2. Forbid the circumvention of digital locks (DRM) only if the locks are broken for infringing purposes.

3. Avoid specific exceptions, such as those in C‐61 for digital interlibrary loan and educational use of the internet: fair dealing already covers many educational uses, and specific exceptions are often entirely

4. Work towards format neutrality in the Act, so that various media are treated in an equivelent way.

5. Add a provision that contract law may not trump fair dealing.

6. Refrain from lengthening copyright term.

7. Make provision for more practical access to orphan works

8. Eliminate crown copyright.

Already, the DOC has called to expand fair dealings for people who make documentaries.

Currently, a lot of this seems to coincide with what many are already submitting to the copyright consultation. Michael Geists latest update shows that the submission trends are continuing.

According to updated numbers, there are now 465 submissions against anti-circumvention or in favour of limiting DRM/Digital locks, 431 submissions in favour of stronger personal use/copying and backup protections, 400 submissions against another Bill C-61, 389 submissions that favour a “notice and notice” approach and 388 submissions in favour of establish a good-faith defence that the user believed their use of a work was fair and non-infringing. On the other side of the debate, there are 2 submissions in favour of stronger penalties for copyright infringement, 2 submissions in favour of implementing WIPO, 1 submission in favour of limiting file sharing, 44 submissions against works being available in digital or other forms for free and 1 submission in favour of turning copyright into a crime. With supporters of loosening copyright laws ranging between 10 times to about 400 times the submissions that ask for restricting copyright, the chances of successfully arguing that most Canadians want to follow positions expressed by the pro-copyright restricting camp, who have argued for a three strikes law, has grown increasingly bleak.

Drew Wilson on Twitter: @icecube85 and Google+.

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