Universalizing fair use: An important Argentinian proposal

The government of Argentina has submitted an important proposal in current negotiations towards an international instrument on limitations and exceptions to copyright at the World Intellectual Property Organization (WIPO).

Most international treaties seek to establish minimum standards.  In the case of the current WIPO negotiations, relating to exceptions and limitations to copyright for education and research institutions and persons with disabilities, this means that all countries would agree to permit a minimum set of things, such as permitting photocopying for classroom use or reproduction for classroom display.

As the Argentinian government notes, this often does not go far enough, especially in the online context, since countries invariably differ widely in their implementation of such minimum standards, and digital transactions often involve multiple country jurisdictions.

Many everyday actions done in the context of educational institutions potentially involve multiple jurisdictions, and could be legal in one jurisdiction but not in the other:

• playing an Internet video from a web site based in one country in the classroom of another;
• uses of works in distance education, where students may be based in a different country from the instructor;
• downloading works from a web site in another country for educational purposes;
• making available or sending articles, texts, or digital course packs from one country to another.

Understanding the legality of any of these actions, along with many others, currently involves expensive legal analysis of the copyright regimes of multiple countries--an untenable situation for educational institutions, as the Argentinian government notes.

Argentina therefore proposes that "within the scope of a treaty on limitations and exceptions, lawful conduct in one territory should not be illegal in another. If reproduction or making available is valid under the treaty, it cannot then be invalid under the rules of another State jurisdiction." (p. 4).  The exact wording of the proposal is as follows:

Where performed in accordance with the exceptions and limitations set forth in this agreement, the reproduction or making available of a work shall be governed by the law of the country in which the reproduction or making available occur, without precluding the reproduced work from being delivered to or used by a person or institution benefitting from exceptions and limitations located in another Member State, provided that such delivery or use is consistent with the terms and conditions set forth in this agreement. (p. 4).

The Argentinian government has proposed a solution worthy of serious discussion at the WIPO meeting to be held next week.

Delhi High Court issues historic decision for access to knowledge and education

In September, the Delhi High Court handed down a groundbreaking judgement dismissing Cambridge University Press, Oxford University Press, and other academic publishers’ copyright infringement suit against the Rameshwari Photocopy Service and the University of Delhi.  Read my full post about it here on the Cambridge University Press blog.

Fair dealing and course packs: Canadian and international challenges

A draft study presented last week at the World Intellectual Property Organization (WIPO) is of particular relevance to Canada.  The revision of the Canadian Copyright Act's fair dealing provisions in 2012 to include dealing for educational purposes, as well as a Supreme Court of Canada decision of the same year relating to classroom materials, have led many Canadian universities to conclude, and to adopt the policy, that the inclusion of articles or book chapters, for example, in hard copy and electronic course packs, is fair dealing that does not require permission or payment of copyright fees.  This interpretation is currently being challenged in a Canadian lawsuit against York University.

Is the Canadian universities' interpretation of fair dealing in line with the policies adopted in other countries?  Professor Seng's study should shed some light on this question.  He notes that "Educational anthology limitations and exceptions are found in 94 provisions from 85 member states" (Sheng, 22).  However, some states place restrictions on course pack copying; 12 provisions, according to Sheng, require equitable remuneration to be paid to copyright holders (Sheng, 22).

Seng's study was introduced in the context of discussions toward a possible international instrument on copyright provisions for educational and research institutions.  Numerous states have made proposals for new international norms, some of which relate to the question of course packs.  Finland, for example, has made the main proposal on course packs.  It is very restrictive, in that it would require payment of remuneration, restrict anthologies to print anthologies only, and would allow only the use of works more than five years old (p. 26; see also p. 14).

Many of the proposals currently on the table at WIPO  (relating not only to course packs, but also to the use of copyright works in the classroom, in distance learning, in research, and in reverse engineering) are far more restrictive than current interpretations of Canadian educational fair dealing.  They are, therefore, important to watch.

Canadian universities' current interpretations of fair dealing as it relates to course packs could face two challenges: the first arises from the York University lawsuit, which may take ten years to wind its way to the Supreme Court of Canada.  The second comes from a possible WIPO international treaty or instrument that could reinforce or, just as possibly, restrict educational user rights in Canada.

Canada should take an active role in the negotiations, promoting robust and fair user rights for education.


--
NB: Chapter 4 of my book International Copyright and Access to Knowledge (discount code:Bannerman2015) addresses the history and present politics of copyright in educational works.  Titled "Access to education, libraries, and traditional knowledge," the chapter notes that while, at national levels, the history of Western copyright is strongly tied to the principle of access to education, the same is not true of the international copyright system, Rather, the international system, with its mission civilisatrice, served to restrict copyright provisions for the encouragement of education.

New Book: International Copyright and Access to Knowledge

My new book, International Copyright and Access to Knowledge,  is now available from Cambridge University Press.

The principle of Access to Knowledge (A2K) has become a common reference point for a diverse set of agendas that all hope to realize technological and human potential by making knowledge more accessible. This book is a history of international copyright focused on principles of A2K and their proponents. Whilst debate and discussion so far has covered the perspectives of major western countries, the author's fresh approach to the topic considers emerging countries and NGOs, who have fought for the principles of A2K that are now fundamental to the system. Written in a clear and accessible style, the book connects copyright history to current problems, issues and events.

"Sara Bannerman's thoughtful and compelling book is a must-read for all of those interested in the challenges of increasing access to knowledge. She offers historical perspective on the narrowing of the knowledge commons and identifies opportunities for positive change going forward."
-Susan K. Sell, George Washington University

 International Copyright and Access to Knowledge is available through CUP, Amazon, on Wordery. An excerpt is available here.  Purchases through CUP can make use of 20% discount code Bannerman2015.

WIPO to discuss library and archive copyright provisions

Some interesting proposals will soon be under discussion at the World Intellectual Property Organization that could free libraries, archives, educational and research institutions, and people with disabilities from copyright provisions that hamper their ability to make use of copyright works.  Read my full post about the upcoming meeting on WIPOMonitor.org here.

GoldiBlox "Girls" Video: Fair dealing?

I have been asked what I thought about the GoldiBlox "Girls" video recently covered by Rolling Stone Magazine, and I have given my short answer here.  Here's my long answer.

If this were taking place in the Canadian court system, the courts would walk through a six-step test to determine whether the video was fair dealing.  The YouTube video gone viral makes use of a parodied version of the Beastie Boys's song 'Girls' while portraying girls rejecting pink feminized toys in favour of GoldiBlox's "toys for future engineers".  It is necessary to walk through all six factors; the 2012 revision of Canada's Copyright Act added parody to Canadian fair dealing provisions, but the purpose of the work (parody), while an important factor, is not the final factor in fair dealing determinations.

The Supreme Court of Canada has laid out six factors which must be considered when deciding what qualifies as fair dealing in this landmark decision (starting at paragraph 53).  We can also look to this decision for further elaboration on the six factors, which are:

1. the purpose of the dealing; 
2. the character of the dealing;
3. the amount of the dealing;
4. alternatives to the dealing;
5. the nature of the work; and 
6. the effect of the dealing on the work. 

Let's walk through them and think about how they might apply to the GoldiBlox video. 

1. the purpose of the dealing must be for one of the purposes defined under the Copyright Act.  Here, GoldiBlox claims that the video is a parody, which is one of the given purposes.  If we agree that the video is a parody, then we've passed step one.  On the other hand, the dealing might have multiple purposes.  Here, there is also a second purpose - to advertize GoldiBlox, which is not an allowable purpose for fair dealing in Canada. The court notes that one can't use an allowable purpose to hide a non-allowable purpose.  Does GoldiBlox try to "hide behind" parody to make what is really an advertisement?  Or is parody one of the legitimate purposes of commercial expression?  My hope and expectation is that the courts would view the parody as a true purpose of the video, and not a false purpose behind which to hide.
2. the character of the dealing: Here, the court asks whether multiple copies were made of the original work, or whether only a single copy made for personal use. The GoldiBlox video has certainly been disseminated widely.  It also has a commercial character.  These factors might tend to make the dealing less fair.
3. the amount of the dealing: Was the whole work copied, or only a small part?  Here, the entire song is parodied, taking many of the core identifiable elements of the song, but leaving out many of the original words and including a new recorded performance of the music.  The Court has acknowledged that it is sometimes necessary to copy the entire work.  Certainly it is often necessary to reproduce elements of an entire work to create a parody of that work, as GoldiBlox has done here.  It is my hope and expectation that the Court would see the amount of copying, in this case, as fair given the purpose of parody.
4. alternatives to the dealing: Here, the Court might ask whether GoldiBlox could have parodied the song without including the core elements of the song in their video.  Hmmmm.  Probably not. This would tend to make the dealing more fair.
5. the nature of the work: Here, the Court directs us to ask about the nature of the original work.  Was the original work confidential? Certainly not. The original work was a popular song.  This would tend to make the parody more fair than if it were a confidential work, for example.
6. the effect of the dealing on the work. Here, the Court asks us to consider whether the parody might compete in the market with the original work.  I think the answer, here, is clear: probably not.  This would tend to make the dealing more fair.

The other question that we might ask is about the moral rights of the creator of the original work.  Apparently  Adam Yauch prohibited the use of his music in ads in his will.  Here, the moral rights of the author of the work must be balanced against the fair dealing exception, and must take into account the right of freedom of expression through the vehicle of parody.  Marc Belliveau has posted the following thoughts on this question:

There is virtually no case law in Canada interpreting moral rights in the context of fair dealing and it is therefore unclear to what extent any fair dealing user rights (other than perhaps parody and satire) could be relevant or present an exception to the infringement of moral rights. Clearly, one can reasonably speculate that the expansive view taken by the Supreme Court of Canada in CCH will likely result in a rebalancing between an author’s moral rights and the rights of users so as to achieve the public interest goals of the copyright system. Accordingly, new jurisprudence in this particular area will be very welcomed by copyright practitioners.

So, to answer the question, my bet is  on GoldiBlox.

There is virtually no case law in Canada interpreting moral rights in the context of fair dealing and it is therefore unclear to what extent any fair dealing user rights (other than perhaps parody and satire) could be relevant or present an exception to the infringement of moral rights. Clearly, one can reasonably speculate that the expansive view taken by the Supreme Court of Canada in CCH will likely result in a rebalancing between an author’s moral rights and the rights of users so as to achieve the public interest goals of the copyright system. Accordingly, new jurisprudence in this particular area will be very welcomed by copyright practitioners. - See more at: http://stewartmckelveyblogs.com/TheMedium/parody-satire-into-canadas-copyright-act-a-birth-or-merely-a-confirmation/#sthash.Jcdghjtf.dpuf

There is virtually no case law in Canada interpreting moral rights in the context of fair dealing and it is therefore unclear to what extent any fair dealing user rights (other than perhaps parody and satire) could be relevant or present an exception to the infringement of moral rights. Clearly, one can reasonably speculate that the expansive view taken by the Supreme Court of Canada in CCH will likely result in a rebalancing between an author’s moral rights and the rights of users so as to achieve the public interest goals of the copyright system. Accordingly, new jurisprudence in this particular area will be very welcomed by copyright practitioners. - See more at: http://stewartmckelveyblogs.com/TheMedium/parody-satire-into-canadas-copyright-act-a-birth-or-merely-a-confirmation/#sthash.Jcdghjtf.dpuf

There is virtually no case law in Canada interpreting moral rights in the context of fair dealing and it is therefore unclear to what extent any fair dealing user rights (other than perhaps parody and satire) could be relevant or present an exception to the infringement of moral rights. Clearly, one can reasonably speculate that the expansive view taken by the Supreme Court of Canada in CCH will likely result in a rebalancing between an author’s moral rights and the rights of users so as to achieve the public interest goals of the copyright system. Accordingly, new jurisprudence in this particular area will be very welcomed by copyright practitioners. - See more at: http://stewartmckelveyblogs.com/TheMedium/parody-satire-into-canadas-copyright-act-a-birth-or-merely-a-confirmation/#sthash.Jcdghjtf.dpuf

There is virtually no case law in Canada interpreting moral rights in the context of fair dealing and it is therefore unclear to what extent any fair dealing user rights (other than perhaps parody and satire) could be relevant or present an exception to the infringement of moral rights. Clearly, one can reasonably speculate that the expansive view taken by the Supreme Court of Canada in CCH will likely result in a rebalancing between an author’s moral rights and the rights of users so as to achieve the public interest goals of the copyright system. Accordingly, new jurisprudence in this particular area will be very welcomed by copyright practitioners. - See more at: http://stewartmckelveyblogs.com/TheMedium/parody-satire-into-canadas-copyright-act-a-birth-or-merely-a-confirmation/#sthash.Jcdghjtf.dpuf

There is virtually no case law in Canada interpreting moral rights in the context of fair dealing and it is therefore unclear to what extent any fair dealing user rights (other than perhaps parody and satire) could be relevant or present an exception to the infringement of moral rights. Clearly, one can reasonably speculate that the expansive view taken by the Supreme Court of Canada in CCH will likely result in a rebalancing between an author’s moral rights and the rights of users so as to achieve the public interest goals of the copyright system. Accordingly, new jurisprudence in this particular area will be very welcomed by copyright practitioners. - See more at: http://stewartmckelveyblogs.com/TheMedium/parody-satire-into-canadas-copyright-act-a-birth-or-merely-a-confirmation/#sthash.Jcdghjtf.dpuf

Discussions of possible new WIPO treaties for schools, libraries, visually impaired underway

This week at WIPO member-states are gathering for the twice-yearly meeting of the Standing Committee on Copyright and Related Rights (SCCR).  The SCCR is one of the most important bodies at WIPO, since it is tasked with the early work in the formulation of possible copyright-related treaties. 

The SCCR's work recently led to the conclusion of a new Audiovisual Performances Treaty (the Beijing Treaty) which ended speculation that WIPO was no longer able to conclude treaties.  (It had not done so since the conclusion of the WIPO Internet Treaties in the 90s.)  In fact, as Michael Geist observes, WIPO was able to conclude this treaty in a far more transparent manner than has been the case for other recent treaties, such as ACTA and the TPP, which have recently hit roadblocks. 

The Beijing Treaty was in fact only the first of a suite of new treaties under discussion at WIPO.  (See IPW's coverage.)  Those next on the agenda include treaties on copyright limitations and exceptions, or what are referred to in Canada as 'user's rights'.  Specifically, three new possible treaties are under discussion:

1. a treaty for the visually impaired and print-disabled users; 
2. a treaty for educational and research institutions; 
3. and a treaty for libraries and archives. 

Any one of these would represent the first time that a WIPO treaty has been primarily focussed on ensuring that a minimum set of rights are granted to users of copyright works, as opposed to the rights of copyright holders. 

Canada's recent Supreme Court Decisions on copyright, released July 12, have reportedly come under discussion at the SCCR meetings.  While the Canadian delegation has repordedly not yet spoken on the issue at the SCCR, the recent decisions of the Canadian Supreme Court have been raised by other actors.  The African Group, according to IPW, suggested - in a proposal that seems inspired by and in line with the Canadian Supreme Court's K-12 ruling -  that individuals and institutes should be authorised "to distribute a copy or copies of all or part of the work, including making available to pupils or students, the originals or copies thereof the work, or copies when these are necessary to illustrate the teaching." 

The possible treaty on limitations and exceptions for educational and research institutions currently under discussion at WIPO should be of particular interest not only to Canada's educational and research institutions as they grapple with the post-Supreme Court-decision environment, but also to those worldwide.  It would seem important for such institutions to follow what is happening at WIPO and to ensure that their proposals and interests are brought forward to the discussions.While many groups and international NGOs have been involved in the WIPO discussions of a possible treaty for the visually impaired and print-disabled, it is equally important for educational and research institutions, and library and archives communities, to be involved in ensuring that their concerns and environments are taken into account in discussions that could eventually set new norms worldwide.

Meeting documents are available here.  The current session, now webcasting is here, along with webcasting/recorded video link and links to documents containing possible treaty language.

Update: new IPW post here

New Cdn Copyright Act: The future of teaching and learning in Canada

Canada's new Copyright Act passed third reading (158 to 135) in the House of Commons and first reading in the Senate yesterday, and is expected to receive final approval soon.

What does Canada's new bill mean for the future of teaching and learning in Canada?

1. Fair dealing. The new act creates a fair dealing exception for education: "Fair dealing for the purpose of research, private study, education, parody or satire does not infringe copyright."  For educational institutions, this is the most powerful provision of the new act, and has been one of the most controversial.  In the past, courts have ruled that copies made for the purposes of research were legal.  Copies made for the purposes of education, where deemed to be fair, will also now be legal.  Geist notes that in the United States, fair use includes making multiple copies for classroom use.  However, some universities may sign on to copyright agreements that restrict the new fair dealing rights of their educational communities.
2. Digital copies. The new act clarifies that digital copies of works - scans or digital files - can be made in the same manner that one might make photocopies of a work, with royalties being paid as they were with photocopies.  However, the new act only allows a person under an educational institution to print this copy once.  Lost your copy?  Spilled your coffee?  The act requires universities to prevent a second copy from being made.
3. Works available on the Internet.  The new act allows educational institutions to use works available on the Internet without fear of infringement, unless they should have known that the work was put up on the Internet without consent of the copyright holder.
4.  Displaying works, news programs, and showing movies and documentaries.  The new act ensures that it's legal to display a work in the classroom, and removes some of the onerous requirements that had been placed on teachers and professors under the old act, making it easier to play a news program or news commentary program for the class.  It also ensures that it's legal to show a movie or a documentary, as long as the copy itself is legit.
5. Distance education.  The bill ensures that it's legal to reproduce works in the context of distance education.  In this, Canada catches up to the United States, which provided similar provisions in 1976 (the same year that it encoded fair use).  In this, Canada rounds out an era of reforms begun in the '80s, addressing an issue that had been on the table for a long time and had not, until now, been addressed.  A distance learning student can now, for example, record a lesson to listen to later.  This comes with the incredible requirement that reproductions of lessons be later destroyed by both the student and the educational institution. 
6. Digital locks.    Unfortunately, e-book texts that students may have purchased may die with the technology they were purchased for.  Moving on from your kindle?  If your text is locked to the kindle, it will not be legal to circumvent the locks to transfer the book onto your new device.  Much of the knowledge that students gain comes from their textbooks, and some good textbooks are references for life.  Unfortunately, students will lose the e-book texts they purchased, wich often cost just as much as regular print versions.  Goodbye lifetime reference and life-long learning.

With some very significant exceptions (destruction requirements, single copy restriction, digital locks provisions), the new measures, and especially the expansion of fair dealing, should help to bring Canada's educational institutions into the digital age.  The expanded fair dealing provisions should give students and teachers more confidence that fair copying and use is an acceptable and important educational right.

Some Canadian universities are, however, not yet displaying such confidence as they sign on to pay higher copyright fees to Access Copyright, seemingly paying more where less is now required. They do this despite arguments from a number of prominent lawyers that "such a license is unnecessary, because educators are already permitted to copy approximately that amount without a license under existing Canadian law, or at least they will be upon the passage of Bill C-11." 

Educational institutions should stand up not just as defenders of copyright, but also as defenders of the freedoms and rights granted to educators and students under the newly updated copyright law.

Nair on Fair Use

Meera Nair writes about some Canadian universities' decisions to drop Access Copyright's blanket copyright agreements; said universitites will now negotiate copyright agreements independently, making use of fair dealing where it applies, and paying for uses beyond that directly to publishers. She outlines the fascinating history of fair use in the United States, its evolution, and the recent developments on fair dealing in Canada.

Nair points out that we are now, in Canada, standing at a crossroads. Universities are deciding how they will interpret fair dealing in Canada, and she fears that univerities will interpret it too narrowly. Universities, Nair points out, have a tremendous influence on students. She fears that, in taking a conservative interpretation of fair dealing, universities will influence students, shaping their ideas of fair dealing and causing them to forget the full scope of their rights as copyright users. This could diminish the shape and scope of Canadian fair dealing for generations to come.

Fair Use contributes to US economy

Wired reports on a new study that sees fair use as contributing "$4.7 trillion in revenue and $2.2 trillion in value added" to the US economy, "roughly one-sixth the total gross domestic product of the United States."

World Fair Use Day-International aspects

Events were held in Washington DC this week to celebrate World Fair Use Day. Canadian filmmaker Brett Gaylor noted that the name of the day is a bit of a misnomer, since only the US and Israel have "fair use" provisions in their law; the Canadian counterpart, and the principle in many countries around the world, is called 'fair dealing'. Michael Geist makes an important note on this today. Many of the discussions at the Washington events were focused on fair use in the US, but international aspects arose on a few occasions.

Panelists at a discussion on ACTA Monday night noted the importance of exporting not only protections for copyright holders, but also the exceptions and limitations to copyright that ensure copyright law encourages innovation, that it is balanced, that it reflects how people want and need to use works, and that it is respected. They expressed concern that ACTA, if it focuses only on ratcheting up the rights of copyright holders without focusing also on exceptions and limitations, might set a narrow path going forward that would be detrimental to not only balance in copyright around the world, but also to the current and future flexibility of American law. See Rebecca Tushnet's' blog for more of the discussion.

At a lunchtime discussion with Peter Jaszi and Anthony Falzone, I asked the question: should fair use be internationalized, and if so how? The discussion was blogged here ("Sarah Bannerman from GWU"). The panelists gave a thoughtful response, expressing caution about exporting a US-based approach and fears that the harmonization process might actually impose limits on the flexibilities and limitations that countries can include in their law. However, they also noted, as did the panelists Monday night, the importance of including balance and room for limitations and exceptions in any harmonization process.

World Fair Use Day

Public Knowledge invites people around the world to organize events on January 12 2010 to celebrate World Fair Use Day. [more]

Dear All,
On January 12, 2010, Public Knowledge, based in Washington D.C., US, will
host the World’s Fair Use day – an event that will bring together artists,
innovators, and policy advocates to celebrate fair use. I am writing to
request your help in spreading the word about the event. Also, it would be
great if you could organize your own events celebrating the many benefits of
fair use or similar copyright limitations and exceptions. The idea is to
have co-ordinated events in different parts of the world all organized under
the same theme. The events don't have to be on the same day. If you let us
know about your event, we will help spread the word about it. To give you a
better idea about our event, here’s a link to the event website: wfud.info

In a few days, we will put together a party packet providing ideas about the
types of events you can organize. Of course these are just suggestions and
anything you do to celebrate fair use would be great.

We would also be delighted if any of you can attend our event.

If you are interested in pursuing this further, please contact my colleague,
Mehan Jayasuriya, who is organizing our event at mehan@publicknowledge.org.
Please don’t hesitate to contact Mehan or me if you have any further
questions.

Thank you.
Rashmi Rangnath
Director, Global Knowledge Initiative
Public