By Ken Fox
I guess we all breathed a sigh of relief in 2012. The Supreme Court of Canada issued a pentalogy of judgments supporting user rights, and the federal government passed a copyright amendment that, despite some serious flaws, strengthened fair dealing and added a few needed user exceptions.
So, having gone through all that, fair dealing and balanced copyright should be a done deal – from here’s it’s just a matter of ironing out the details, right?
Not according to Dr. Michael Geist, Law Professor at University of Ottawa and renowned expert in copyright law. Dr. Geist gave a plenary talk at the 2017 CALL/ACBD Conference in Ottawa, and issued a wake-up call to anyone who feels complacent that copyright matters were settled in 2012.
The copyright debate is not going away. Ever.
And it is getting bigger. The online world has enabled and expanded the creation of copyrightable works, and greatly accelerated the means to reproduce and distribute them. The fair dealing provisions won through the SCC’s decision in CCH v. LSUC are obscured in the increasingly complex of web of online licensing.
The current field of battle is section 92 of the Copyright Act, which mandates a Parliamentary review of the legislation to begin no later than November 2017. So far, the battle has been one-sided. Slide after slide after slide of Dr. Geist’s presentation revealed the efforts of a powerful rights holders’ lobby, determined to roll back the balance achieved in 2012.
Fair dealing has been characterized as a “free for all” policy in what Geist describes as a fake panic. Notably, lobbyists on behalf of the academic textbook industry blame fair dealing for declining sales, despite the changing ways the education sector obtains materials, which includes consortia database licensing, open access, transactional licensing, and de minimis (copying so minimal that a fair use analysis is not warranted), as well as book purchases and fair dealing.
Geist outlined a basic laundry list of positive reforms. For example, prefacing the list of fair dealing exceptions in section 29 with the phrase “such as” would make the exception open-ended, like the “fair use” provision in paragraph 107 of the American Copyright Code. Geist also proposes a clear exception to the anti-circumvention provisions around technological protection measures (TPMs aka “digital locks”), as the government proposed in 2012, but never delivered. TPMs make many activities that would be legal with analog technology illegal in the digital realm. The proposed exception would legalise circumventions that are otherwise legal under copyright law.
The law needs to be clarified on the relationship between contract law and copyright law. Do license provisions trump user rights? This question becomes increasingly important as more and more of our content is accessed by way of online licensing agreements.
For Crown Copyright, Geist would like to see more open-ended licensing for non-commercial use – or even better, abolish Crown Copyright altogether.
But for the most part, Geist advocates for a defensive position against challenges to balanced copyright. He opposes, for example, the notion that Canada is a “piracy haven,” and needs to institute a notice-&-takedown system to replace our internationally-lauded notice-&-notice system. Aside from a few weaknesses noted above, Canada’s current law seems to strike an effective balance between the rights of industry and users. Therefore, he envisions the review as a benchmarking exercise, to assess the progress of cultural industries under the current legislative regime, rather than an occasion for another major overhaul.
Geist ended his presentation with a reminder that the fight for balanced copyright is not over, and that thus far, very few have spoken out on behalf of user’s rights, or even of maintaining the current balance. As such, he calls for CALL/ACBD members to add their ideas, evidence and voice to the debate.
2012 was not the end, it was the beginning.