copyright

Notes on Dr. Geist’s Plenary Talk on the 2017-8 Copyright Act Review

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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?

Nope.

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.

 

Book Review – The Comprehensive Guide to Legal Research, Writing & Analysis

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By Alan Kilpatrick

book9Sept2014The Comprehensive Guide to Legal Research, Writing & Analysis
By Moira McCarney, Ruth Kuras, Annette Demers, and Shelley Kierstead
Toronto: Emond Montgomery Publications, 2013
472 pp.

 

Are you struggling with legal research?  Check out this wonderful new guide in the library.  The Comprehensive Guide to Legal Research, Writing & Analysis is readable and easy to understand.  Emond Montgomery Publications describes this book on its website,

The Comprehensive Guide to Legal Research, Writing & Analysis focuses on developing the required competencies emphasized by the Federation of Law Societies in legal research, writing, and analysis and using those skills in both law school and professional environments.

The Comprehensive Guide to Legal Research, Writing & Analysis offers systematic, practical instruction, taking readers through context-based research problems. The book highlights examples and research tasks graphically and in full colour to facilitate the pedagogic experience. Screen captures of online resources are also included, assisting the researcher’s understanding.

Developed by an authoritative and experienced team of legal research instructors and librarians, this text covers a range of writing styles, including academic, objective, and persuasive, with an emphasis on legal analysis.

In addition to addressing researching federal resources, detailed provincial chapters written by a truly national group of contributors cover jurisdiction-specific techniques and content. Three jurisdictional two-volume editions are available: Ontario & Quebec, Western Canada, Atlantic Canada, as well as a one-volume national edition, covering all provinces.

Please stop by the Law Society of Saskatchewan Library in Regina if you are interested in checking out this item. Call Number: KF 240 .M12 2013.  

 

In the Legal Sourcery book review, new, thought-provoking, and notable library resources are reviewed. If you would like to read any of the resources reviewed, please contact our library at reference@lawsociety.sk.ca or (306) 569-8020. Let us know if there is a book you would like reviewed.

 

Book Review – Internet Legal Research on a Budget

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By Alan Kilpatrick

BkRevLegalResearchInternet Legal Research on a Budget: Free and Low-Cost Resources for Lawyers
By Carole Levitt and Judy Davis
Chicago: American Bar Association, 2014
321 pp.

Are you researching American case law and not sure where to start?  Check out this new resource in the library, Internet Legal Research on a Budget: Free and Law-Cost Resources for Lawyers.  The American Bar Association describes this American legal resource on its website,

With cost-conscious clients scrutinizing legal bills, lawyers cannot afford to depend on expensive legal research databases, especially when reliable free resources are available. Internet Legal Research on a Budget will help you quickly find the best free or low-cost resources online and use them for your research needs. The authors share the top websites, apps, blogs, Twitter feeds, and crowdsourced resources that will save you time, money, and frustration during the legal research process. This book will help you locate and use: 

  • Legal portals and directories (government, academic, and commercial)
  • Case law databases (government and commercial)
  • Casemaker and Fastcase
  • Cite-checking cases
  • Dockets
  • Federal Statutory research
  • Federal, legislative, and congressional materials
  • Starting points for state, local, territorial, and tribal law
  • Practice area research using websites, blogs, Twitter, and more
  • Background information about attorneys, judges, and legal professionals
  • Foreign, international, and comparative law resources

Please stop by the Law Society of Saskatchewan Library in Regina if you are interested in checking out this item. Call Number: KF 240 .L65 2014.  

In the Legal Sourcery book review, new, thought-provoking, and notable library resources are reviewed. If you would like to read any of the resources reviewed, please contact our library at reference@lawsociety.sk.ca or (306) 569-8020. Let us know if there is a book you would like reviewed.

 

Book Review – The Copyright Pentalogy

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By Alan Kilpatrick

pentalogyThe Copyright Pentalogy:  How the Supreme Court of Canada Shook the Foundations of Canadian Copyright Law
Edited By Michael Geist
Ottawa: University of Ottawa Press, 2013
456 pp.

Canadian copyright law has been rocked by dramatic and revolutionary changes over the past two years.  Leading scholars, law professors, and lawyers have collaborated to create an exciting new work discussing these dramatic changes – The Copyright Pentalogy:  How the Supreme Court of Canada Shook the Foundations of Canadian Copyright Law.  The collection is edited by the renowned Michael Geist.  Geist is a law professor at the University of Ottawa and an author of several public policy and intellectual property books.

The Hill Times’  placed this item on a prestigious top 100 list for 2013 books in the area of politics, public policy, and history.  The University of Ottawa Press succinctly describes this book on its website,

In the summer of 2012, the Supreme Court of Canada issued rulings on five copyright cases in a single day. The cases represent a seismic shift in Canadian copyright law, with the Court providing an unequivocal affirmation that copyright exceptions such as fair dealing should be treated as users’ rights, while emphasizing the need for a technology neutral approach to copyright law.

The Court’s decisions, which were quickly dubbed the “copyright pentalogy,” included no fees for song previews on services such as iTunes, no additional payment for music included in downloaded video games, and that copying materials for instructional purposes may qualify as fair dealing.

The Canadian copyright community soon looked beyond the cases and their litigants and began to debate the larger implications of the decisions. Several issues quickly emerged. This book represents an effort by some of Canada’s leading copyright scholars to begin the process of examining the long-term implications of the copyright pentalogy.

Please stop by the Law Society of Saskatchewan Library in Regina if you are interested in checking out this item. Call Number: KF 2995 .G31 2013.  This item is also available online for free on the University of Ottawa website.

In the Legal Sourcery book review, new, thought-provoking, and notable library resources are reviewed. If you would like to read any of the resources reviewed, please contact our library at reference@lawsociety.sk.ca or (306) 569-8020. Let us know if there is a book you would like reviewed.

Book Review – Canadian Copyright: A Citizen’s Guide

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By Alan Kilpatrick

Canadian Copyright: A Citizen’s Guide
Second Edition
By Laura J. Murray and Samuel E. Trosow
Toronto: Between the Lines, 2013
286 pp

copyrightbookrevDoes copyright law baffle you?  Does anyone understand what it means when they click I agree?  Do you have to be a detective to figure out who the copyright owner is?  Canadian Copyright: A Citizen’s Guide lays out the foundations of basic copyright law and discusses practical applications of copyright in a variety of contexts.  Simply put, this book is for everyone.  “Whether you are a parent, artist, business person, blogger, teacher, student, or music fan, questions about copyright have popped into your head or landed in your lap.”  The authors address the momentous changes that rocked the world of Canadian copyright in 2012, including the Copyright Modernization Act (SC 2012, c 20) and five major Supreme Court of Canada decisions.  Written in a comprehensible style, the second edition of this book was long overdue and eagerly anticipated by many.

The book is skillfully arranged into four parts:  ideas, law, practice, and contexts.  The book begins with a brief discussion of the philosophy and history of copyright law in part one and then proceeds to copyright scope, owner’s rights, and user’s rights in part two.  Civil and criminal infringements are touched upon as well.  Part three of the book “covers more specific terrain, considering the issues that copyright presents for people” who work in specific fields like music, digital media, or education.  The book concludes with a discussion of copyright counterparts and the future of copyright law in Canada.

Both authors bring a wealth of diverse knowledge and authority to this subject.  Samuel E. Trosow, a former professor of mine, is an associate professor at the University of Western Ontario, where he teaches in the Faculty of Law and the Faculty of Information and Media Studies.  Laura J. Murray is an associate professor at Queen’s University, where she teaches English and Cultural Studies.

Canadian Copyright: A Citizen’s Guide is recommended without reservation.  Please stop by the Law Society of Saskatchewan Library to check out this valuable legal resource. Call Number: KF 2995. M98 2013 R.

In the Legal Sourcery book review, new, thought-provoking, and notable library resources are reviewed.  If you would like to read any of the resources reviewed, please contact our library at reference@lawsociety.sk.ca or (306) 569-8020.  Let us know if there is a book you would like reviewed.