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Figuring Out Fair Use

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Issue: 75 Section: Arts Geography: Canada Topics: copyright, education

January 26, 2011

Figuring Out Fair Use

As Canada updates its copyright laws, a new clause is stirring debate among creators

by Norma Jean MacPhee

illustration by Aimee van Drimmelen

SYDNEY, NS—A House of Commons committee will resume hearings this month to consider Canada's copyright fate as laid out in Bill C-32, the Copyright Modernization Act. While public discussion of this bill—and of copyright in general—often centres around on-line and digital rights, many are concerned about the bill's impact on written material.

“If Bill C-32 passes, I stand to lose 85 per cent of my income,” says Douglas Arthur Brown. Brown has published five books, and is one of the 140,000 creators in Canada’s $46 billion arts and cultural industry.

Bill C-32 is a sweeping attempt to bring Canada’s copyright act up-to-date, touching on everything from performance art to digital music to photography.

If passed, Bill C-32 will legitimize that little red "record" button on VCRs tucked away in people’s attics and in electronic recycle heaps across the nation. As it stands, it's still illegal for Canadians to record TV shows. C-32 will also give legal permission to those folks already on the other end of the technological spectrum who use DVR televisions to digitally record television content.

Overall, it would bring Canada’s copyright regulations up-to-date on many aspects of day-to-day life. But the bill includes elements that some feel aren't favourable to all Canadians.

Brown says that a new phrase included in the update to the copyright act will lead many authors to lose part of their income, some significantly. Bill C-32 includes "education" as a clause for “fair dealing” purposes.

Fair dealing means it's not an infringement of copyright to use work for fair purposes. Until now this has included using materials for work related to research, private study, criticism, review or news reporting; the changes would add educational uses to this list.

Brown argues that he and many others in the creative community (the changes would apply just as much to filmmakers, musicians and visual artists as it would to writers) fear the implications of such an exemption, mainly because "education" is undefined in the bill.

“Our issue is simply just putting the word "education" there—what does that mean?” says Executive Director of Access Copyright, Maureen Caven.

Access Copyright is a collective agency representing individual writers, playwrights and composers whose works have been copyrighted. Educational institutions purchase licenses from Access Copyright authorizing the copying of a specified amount of printed copyrighted material.

Likened to the way musicians receive a cheque each time their music is played on the radio from the Society of Composers, Authors and Music Publishers of Canada (better known as SOCAN), Access Copyright collects license fees from educational institutions and then pays this revenue back to writers—and this can amount to substantial income. In the case of Brown, these payments total the 85 per cent in revenue he fears he will lose.

With these licenses, educational institutions are allowed to copy a section of a novel—say, a chapter—so long as the chapter is less than 20 per cent of the completed work.

Caven says including education as fair dealing will mean there are no parametres around what and where the term "education" applies.

“Is it restricted to classrooms?" he says. "What about training in other areas, training within corporations, educating clients?”

The inclusion of education in the fair dealing clause would not eliminate the fee payments educational institutions make to Access Copyright. However, Caven says the fear is the specified amount covered by the license will be ignored because the term "education" is ambiguous.

Some industry watchers say Caven's fears are unfounded. David Fewer, a lawyer who has written and taught about copyright law for many years, says there is no way educational institutions would have carte blanche to photocopy however much they want merely because of the clause “fair dealing for education” is included.

“If you tell a story and it sounds unfair, then it probably is unfair,” says Fewer, who is also the director of the Canadian Internet Policy and Public Interest Clinic. “Copying entire copies of books? How is that fair? It’s not fair, so it wouldn’t be allowed.”

Fewer says this new provision will allow students to make legal use of others' content. He says he’s in favor of students using pre-existing work to create new videos or stories—commonly known as mash-ups. Fewer says encouraging students to create mash-ups might work in authors’ favor, as students will then be able to bring writers into the curriculum who might not have been there otherwise.

The Canadian School Boards Association (CSBA) has long lobbied for education to be considered fair dealing. Their website states, “These proposed amendments would provide a legal framework for students and for teachers regarding the use of freely-available Internet materials for educational purposes without fear of infringing copyright.”

The CSBA further adds that it would balance the rights of educational users of copyrighted material with that of the creators.

Brown holds firm, however, that, since the phrase itself is undefined, writers cannot be assured that excessive and uncompensated copying won’t happen. Only the Supreme Court of Canada can decide if something is fair dealing, and each incident is decided on a case-by-case basis. Brown says writers don’t have the resources if they needed to take a case to court.

This is the third time the Conservative government has attempted to pass a bill to update Canada’s copyright rules. The first attempt died on the table when an election was called in 2005; the second when Harper’s proroguing of parliament dissolved all bills under consideration in 2008.

Bill C-32 has already passed Second Reading. It now sits at the legislative committee level. Comprised of 12 members of parliament, these individuals will hear from more than 400 witnesses over the next few months. No new elements can be added to the bill; amendments alone are permitted.

Brown was among the first individuals to present to the committee in mid-December. “They asked me if there was anything in the bill that I as a creator could support, and I told them no.”

Brown told the committee that, if passed, the bill would mean far more copying by teachers, while publishers and writers produce less work for schools. “You will be making my life’s work much more difficult to sustain.”

Fewer doesn't agree creators will lose any compensation with this provision. “It streamlines the process of getting content into the classroom,” he says. “It doesn’t let you get away with content without paying for it. However, it lets you get the best use of content you have paid for.”

He says writers should be more concerned about other aspects of Bill C-32, including digital locks being placed on their on-line work and ensuring they receive fair rates from publishers for on-line rights.

Fewer will be among at least 400 witnesses set to testify before the legislative committee considering Bill C-32. Amendments will be suggested and drafted during that time.

Maureen Caven of Access Copyright maintains that the bill cannot be passed without a clearer explanation of how the term fair dealing relates to education.

“A definition would be nice,” says Caven. “That’s the amendment that would be nice.”

Back home in Cape Breton after presenting in Ottawa, Brown says he doesn’t plan to stay quiet. “I’ll continue to get the word out there, because not being compensated for my copyrighted work is anything but fair.”

Norma Jean MacPhee lives in Sydney, Cape Breton where she continues her journey as a freelance writer and broadcaster.

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I think this bill is going to have implications that could affect more than just Canada. I believe there will be creators all over the world who will stand in danger of losing money, rights to their work, and many other things.

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