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Eben Moglen to give a series of public talks on "Snowden and the Future"
If you'd like to catch me while I'm there, your best bet is my evening presentation with Nico Sell at the SFPL main branch (100 Larkin Street) at 6PM on Oct 2. I'm also doing a presentation at Borderlands Books (866 Valencia St) on Oct 3 from 12:30-1330h. I hope to see you there!
Reports over the past week have indicated that the government plans to unveil a "consumer first" agenda for its upcoming Speech from the Throne. The speech, which will set out the federal legislative and policy agenda for the next two years, is widely viewed as the unofficial start of the 2015 election campaign.
My weekly technology law column (Toronto Star version, homepage version) notes there is little doubt that the battle over wireless pricing, which hit a fever pitch over the summer in a very public fight between Industry Minister James Moore and the incumbent telecom companies, will figure prominently in any consumer agenda. The government is convinced that it has a winner on its hands - consumer frustration with Canadaâs high wireless prices suggests that theyâre right - and will continue to emphasize policies geared toward increasing competition.
Yet a consumer first agenda should involve more than just taking on the telcos on spectrum (or the airlines over their pricing practices). A digital consumer first agenda should prioritize several other issues that have similar potential to strike a chord with Canadians across the country. At the heart of those digital issues are two ongoing consumer concerns: pricing and protections.
On the pricing front, monthly wireless bills are only part of the high price Canadians pay for communications services. The Canadian Radio-television and Telecommunications Commission has embarked on a review of wireless roaming fees, which studies have found rank among the highest in the world.
Broadband Internet services would also benefit from a more aggressive, consumer-first regulatory approach. The government previously objected to usage-based billing schemes, but its emphasis on facilitating competition through independent providers has encountered resistance in recent months. For example, some customers of TekSavvy, a large Ontario-based independent ISP, have been stuck for days without service as Rogers has been slow to address problems that arise from its network.
Inflexible and costly television packages should also come under closer scrutiny. The history of broadcast distribution through cable and satellite providers is one in which consumer interests were largely ignored. A consumer first approach would increase choice by opening the market to greater competition (eliminating foreign investment restrictions would be a start), mandating the availability of pick-and-pay services so that consumers could shift away from large bundles of channels they donât want, and requiring providers to offer broadband Internet services without television packages, so that consumers can "cut the cable cord" if they so desire.
Lower wireless, Internet, and cable bills would be a welcome change, but Canadians also need better digital protections against online harms. The long-delayed anti-spam law, which provides safeguards against spam and spyware, should be brought into effect by finalizing the necessary regulations. The law has been delayed by intense corporate lobbying, however, it enjoys strong support from consumer groups and was passed by Parliament in 2010.
Consumers similarly require better privacy protections since Canadian private sector privacy legislation is now woefully outdated. Reforms arising out of hearings on the law that date back to 2006 died with the prorogation earlier this month, leaving Canadian consumers with a law that no longer meets international standards. Putting consumers first should mean that businesses are obligated to disclose security breaches and face tough penalties for violations of the law.
Canadian consumers would also benefit from protections against misuse of intellectual property rights. That includes safeguards against patent trolls that threaten small businesses and increase consumer costs as well as provisions to ensure that thousands of Canadians do not get caught up in questionable lawsuits over copyright claims that seem primarily designed to pressure them into expensive settlements.
A consumer first agenda is long overdue in the digital environment, where the interests of individual Canadians have often been forgotten. The next Speech from the Throne offers the chance to change course by promoting policies that result in fairer pricing and stronger online protections.
Industry Canada released the names of the bidders for its forthcoming spectrum auction yesterday with the disappointing news that no major new entrants will be using the auction to enter the Canadian market. That is rightly viewed as a big win for the incumbents, who should have little trouble acquiring the spectrum they want in the upcoming auction and will not face any new competition from deep-pocketed global wireless players. Instead, despite the persistent efforts of the federal government to convince new competitors to enter the market, the Big 3 will continue to dominate Canadian wireless services for the foreseeable future. With prices high by global standards and mobile broadband penetration lagging compared to other countries (an ITU study released over the weekend ranked Canada 32nd worldwide for mobile broadband penetration), consumers are the immediate and obvious loser for the moment.
Yet the incumbent victory did not come easily, coming at the cost of a scorched-earth public relations war with the federal government that the incumbents are already trying to downplay. However, having failed to address market concerns through new competitors, it may now fall to the government to shake things up through increased regulation. There are no shortage of options, with two big steps (the consumer wireless code that limits contract length and potential CRTC regulation of wireless roaming pricing) already underway. After yesterday's release, Industry Minister Moore stated that "in addition to this auction, our Government will continue to aggressively pursue policies that ensure consumer interests are at the core of all Government decisions."
What policies might Minister Moore have in mind?
There should be little doubt that the mere threat of regulation can lead to lower prices and market reforms (witness Bell's decision to slash U.S. roaming prices in half weeks after the CRTC roaming initiative). In fact, just as the incumbents sought to delay the spectrum auction when it appeared that Verizon was going to enter the market, we can expect calls to delay any further policy action until there are further studies or opportunities to take stock of recent developments.
In this case, the government need not hand the incumbents another victory by delaying much-needed policy reforms. Full pricing regulation is rightly viewed as a last resort, yet there are other possibilities. For starters, the elimination of foreign investment restrictions in both the telecom and broadcast distribution sectors as well as tougher tower sharing requirements and domestic roaming rules to make it easier for smaller players to expand their networks.
Another mechanism to generate more competition would be to create a regulated mobile virtual network operator market, a vehicle that Verizon reportedly explored using as part of a potential Canadian entry. MVNOs typically do not own spectrum or network infrastructure. Instead, they purchase network access at wholesale rates from existing operators and offer it to consumers with their own retail pricing. MVNOs such as Canadian-owned Ting have become a hit in the U.S. but are not even available in Canada. By setting the wholesale price, the government could use regulation to create a new batch of MVNO competitors in Canada, much as it has tried to do with Internet access services.
The other big alternative step is full structural separation. Peter Nowak has been advocating this approach for some time, arguing for splitting the incumbents into companies that manage phone and Internet networks and companies that offer services to customers. It is unquestionably a major market change, but with the Canadian wireless environment seemingly stuck in neutral, the government would receive well-deserved plaudits for taking bold action to address the ongoing competitiveness concerns.
In Capitol Records v. Vimeo, LLC, the Court has partially granted and partially denied both sides' summary judgment motions, holding that Vimeo is protected by the DMCA "safe harbor", but that there are factual issues over certain videos:
-as to 10 of the videos, whether they were stored "at the direction of the user"; and
-as to 55 of the videos whether Vimeo had either "red flag" or actual knowledge.
September 18, 2013, Memorandum Decision and Order, Partially Granting and Partially Denying Summary Judgment Motions
While I purchased the Into Darkness DVD and saw 3D in theatres, I wasn't happy with the movie. These seem to be Star Trek themed action movies -- great visual effects, but none of the story or character complexity that I enjoyed within the Trek franchise. I found the references back to Star Trek II: The Wrath of Khan seemed forced, and the soundtrack sounded nearly the same as the first of the reboots.
Will another director make a difference? Should I be excited about the next, or should I remain bored -- my current feeling is I may not bother to see the next in theatre and maybe only watch a borrowed DVD is someone else bothers.
Last week Howard Knopf alerted us to the latest movement by Access Copyright to impose blanket copyright fees across universities and colleges in Canada, regardless of ongoing work by educational institutions to ensure that legitimate copyright fees are paid and that legitimate fair dealing is not denied. In his post of 17 September 2012 Knopf provides Access Copyright’s statement of case to the Copyright Board of Canada, and draws attention to a number of details including the collective’s position that:
… the fair dealing policy… promoted by the Association of Universities and Colleges of Canada and the Association of Canadian Community Colleges and adopted by many Educational Institutions, which purports to characterize as fair dealing amounts of copying essentially identical to that licensed by Access Copyright, is unfair and results in copying that is not fair
The statement of case explains in detail what Access Copyright will do (arguments to be presented, witnesses to be called, evidence to be produced, etc.) when the Copyright Board hears this case on 11 February 2014. The Board will then either signal a shift in thinking on their part, or offer Canadian education yet another opportunity for further strengthening of fair dealing by the Supreme Court of Canada. Unpacking that sentence will take several paragraphs; I ask for patience from readers.
The starting point is the work of law professor Graham Reynolds (previously at Dalhousie University, now at the University of British Columbia). In his chapter “Of Reasonableness, Fairness, and the Public Interest, Judicial Review of the Copyright Board’s Decisions in Canada’s Copyright Pentalogy,” Reynolds illustrates that, when certifying the Access Copyright tariff for educational institutions with respect to photocopies of excerpts in K-12 schools spanning 2005-2009, the Copyright Board applied a very narrow interpretation of the principles enunciated by the Supreme Court of Canada in CCH Canadian v. Law Society of Upper Canada. The Copyright Board’s decision was appealed and finally settled by the Supreme Court (favorable towards fair dealing) in one of the famed pentalogy decisions, Alberta (Education) v. Canadian Copyright Licensing Agency (Access Copyright). The difference of opinion between the Board and the Court leads, as Reynolds suggests, to the conclusion:
[T]hat fairness (in the context of fair dealing) is not as discretionary a concept as it appears to be. [Alberta(Education) … clarifies] that the purpose of the Copyright Act requires a broad, liberal approach to fairness. By implication then, fairness is not broad and open-ended; rather it is infused with certain expectations with respect to the way in which it is to be applied (namely, in a large and liberal manner).
Reynolds makes plain that the purpose of the Copyright Act is evolving, moving away from an author-centric approach to an instrumental-public interest approach. Reynolds is equally specific that such a move is not an abandonment of owners’ rights; instead, the shift only ensures that limitations upon those rights are upheld as necessary to invigorate and maintain the public domain. In their examination of the K-12 situation of excerpts, the Copyright Board aspired to the earlier approach, even though the Supreme Court had consigned that approach to history.
The evolution of purpose of copyright in Canada illustrates a well-functioning system of laws and courts. Those authorities have made it abundantly clear that legal precepts are not immutable; they evolve in concert with developments in society. Evolution may take time, but is infinitely preferable to revolution.
The delay on the part of the Copyright Board can be explained with recourse to its very function; the Board’s mandate begins with:
The Board is an economic regulatory body empowered to establish, either mandatorily or at the request of an interested party, the royalties to be paid for the use of copyrighted works …”
This is not to imply that the Board is solely concerned with setting market prices. Yet it is hardly an accessible venue for discussion of exceptions; the lengthy and expensive process tends to discourage representations of public interest. As Knopf pointed out, even the Association of Universities and Colleges of Canada, in their wisdom, “abruptly withdrew its objections and withdrew from the Copyright Board hearing of April 2012, leaving its member universities unrepresented after having spent about $1.7 million.”
The Board’s past discomfort with endorsing a large and liberal interpretation of fair dealing (in both purpose and fairness) was quite evident; when reviewing the K-12 situation of excerpts, the Board wrote: “CCH now is the unavoidable starting point (para 75).” The connotation of “unavoidable” does not suggest the Board relished the task at hand. However, as Reynolds writes:
The end result is that post-Alberta (Education), the Copyright Board is significantly constrained in its ability to shape Canadian copyright law. Abella J’s reasons for judgment clarify that the Copyright Board does not have unlimited discretion under fairness (and fair dealing more broadly) to implement policy goals or promote values that are inconsistent with the purpose of the Copyright Act, as interpreted by the Supreme Court of Canada.
The difficulty for Canadian educational institutions, and Canadians in general, is that Access Copyright seems happy to play the game of “heads-I-win, tails-we-play-again”. In repeated and continued efforts to roll back the decade-plus evolution of copyright’s purpose — through lobbying, litigation and tariff applications – they display a lack of logic, as well as a questionable use of their members’ resources.
According to Access Copyright’s website, the following portions of the funds collected are withheld before distribution:
An administrative holdback of 20% to cover Access Copyright’s administrative and operational costs.
An allocation of 5% of copyright licensing royalties has been made toward costs for current and future tariff proceedings before the Copyright Board of Canada. These tariff proceedings help us ensure fair compensation for creators and publishers when their works are copied.
An allocation of 1.5% of copyright licensing royalties collected has been made for a cultural fund approved by Access Copyright’s board of directors.
The administrative holdback (20%) is high enough, leading to the question of why a further 5% must be withheld for future days in court. But that is not all; the information for title specific distribution indicates that an additional 25% of royalties collected through the fee increase covering 2005-2009 has been reserved to “support current and future tariff proceedings held before the Copyright Board of Canada.”
Access Copyright is gambling (with its members’ money) that the Board’s decision will be favourable to copyright holders. But, if the Supreme Court of Canada should be called upon to revisit the issue, Access Copyright would do well to remember that each adjudication of fair dealing at the Court within the last ten years has only raised the profile of fair dealing and strengthened its application.
for Global Memo
US Congresswoman Zoe Lofgren has released a bipartisan letter calling on US Secretary of State John Kerry to oppose the re-election of WIPO Director General Francis Gurry over concerns relating to the WIPO export of computers to Iran and North Korea.
Lofgren has been an activist on intellectual property issues in the United States, opposing the Stop Online Piracy Act, promoting the broadening fair use provisions through the Unlocking Technology Act (see also), advocating open access to taxpayer-funded research, and drafting Aaron's Law to reform the Computer Fraud and Abuse Act, under which internet activist Aaron Swartz, who committed suicide after undergoing prosecution under that act, was charged.
Intellectual property "supporters" such as Tom Giovanetti are, on the other hand, lining up in support of Gurry. Giovanetti has said, in 2012:
I’ve been troubled by what I think is an unwise and ill-informed reaction on the part of some in the United States, especially from folks on my side of the aisle, who are rightly skeptical and critical of the United Nations as a whole, but who miss the important fact that WIPO is a different kind of UN agency—indeed, is unique among UN agencies in at least one important respect.
The Lofgren letter, on the other hand, calls Gurry's behaviour "erratic and secretive". It appears that the technology export issue may continue to dog Gurry as the WIPO election process goes forward, and that the larger issues of WIPO transparency and accountability may be important in the race.
The Globe and Mail reports that Rogers Communications is trying to distance itself from this summer's spectrum auction/Verizon battle. Edward Rogers apparently told an investor conference:
"It's been like watching a bit of a soap opera. Rogers has tried to be not as engaged in the dramatics of it and tried, as best we can, [to] offer more of a practical alternative for government, for industry."
Uh huh. So Vice-Chair Phil Lind claiming in July that "everything that they could possibly ask for they're doing for Verizon" was staying out of the fray? Or CEO Nadir Mohamed warning in August that the government's approach could result in slower wireless speeds was offering a practical alternative? Sending a company-wide pre-written email urging employees to write to the government and registering 13 board members to lobby the government was not engaged? Running advertisements about employees losing their jobs in Moncton wasn't dramatic? Arguing that a fourth carrier won't work in Canada was another practical alternative? The record speaks for itself and no amount of spin will change the fact that Rogers, Bell, and Telus will have to live with the consequences of behaving like "raving lunatics" (in the words of Wind Mobile CEO Anthony Lacavera).
for Global Memo
The process of considering nominations to the post of WIPO Director General began earlier this month, following the issue of a circular (Annex II) by WIPO on 6 September inviting nominations from member states.
Possible contenders for the top post, incumbent Francis Gurry (left) and Geoffrey Onyeama
Two names have thus far been raised as serious contenders to the position: incumbent Director General Francis Gurry of Australia, whose first term concludes 30 September 2014, and Geoffrey Onyeama of Nigeria, currently WIPO Deputy Director General (Cooperation for Development). The deadline for nominations to be received is 6 December.
While a second term is usual for WIPO Directors General, there is said to be dissatisfaction with Gurry on the part of high-income members states in WIPO (Group B in the organization’s categories). Controversies have surrounded allegations that WIPO exported US technology to Iran and North Korea. There has also been concern raised regarding the addition of new external offices for WIPO which some Group B countries argue may not be necessary or cost effective. A report from Third World Network notes,
“in 2009, the creation of an external office in Brazil conveniently relocated the competing candidate from Brazil for the head of WIPO (then an employee of WIPO), against whom Gurry won only by a mere one-vote margin in the 2008 elections.”However, it is interesting to note some of the broader politics at play. WIPO has recently been an effective forum for interest groups (such as the visually impaired) and developing countries to have a voice in international intellectual property norm-setting. This has been due to the organization being a relatively transparent and more thoroughly multilateral forum than many other forums, such as ACTA or the TPP, recently used for IP negotiations.
Campaigns to challenge Gurry may have the effect of putting pressure on Gurry and on WIPO, which have together recently been effective in “signing, sealing, and delivering” new IP norms–including a new Treaty to Facilitate Access to Published Works by Visually Impaired Persons and Persons with Print Disabilities. In this, WIPO has accomplished the first WIPO treaty ever to focus on access, rather than on granting new rights to intellectual property holders.
Chris Friend, with World Blind Union, lobbies WIPO on a treaty to improve access for the visually impaired (Photo: KEI)It is worthwhile to note that Onyeama, as Deputy Director General for Cooperation and Development, would seem likely also to focus on developing countries–as much or more than Gurry has. Onyeama’s focus as Deputy Director General has been, in part, on creating intellectual property strategies to meet development goals (see feature interview here).
Some see a shift occurring at WIPO, and rights holders, having captured the governments of many Group B countries, may consider WIPO to be moving in the wrong direction. Further access-related treaties are currently simmering at WIPO, which may feel like an organization out of control to some rights holders. This, perhaps even more than issues surrounding WIPO exports or external offices, may be part of the larger framework around those forces calling Gurry’s second term into question.
Cross-posted with the European Public Policy Blog and Inside Search Blog.
Last year, we launched two improvements to Google Patents: the Prior Art Finder and European Patent Office (EPO) patents. Today we’re happy to announce the addition of documents from four new patent agencies: China, Germany, Canada, and the World Intellectual Property Organization (WIPO). Many of these documents may provide prior art for future patent applications, and we hope their increased discoverability will improve the quality of patents in the U.S. and worldwide.
So if you want to learn about a Chinese dual-drive bicycle, a German valve for inflating bicycle tires, attach a Canadian trailer to your bike, or read the WIPO application for pedalling with one leg, those and millions of other inventions are now available on Google Patents.
Thanks to Google Translate, all patents are available in both their original languages and in English, and you can search across the world’s patents using terms in any of those languages. When there are multiple submission languages, you can move between them with a single click on the tabs at the top of the page, as shown in the screenshot below:
Happy patent searching!
Posted by Jon Orwant, Engineering Manager
As the tidal wave of disclosures on widespread U.S. surveillance continues - there is now little doubt that the U.S. government has spent billions creating a surveillance infrastructure that covers virtually all Internet and wireless communications - the question of Canadaâs role in these initiatives remains largely shrouded in secrecy.
The Canadian government has said little, but numerous reports suggest that agencies such as the Communications Security Establishment Canada (the CSE is the Canadian counterpart to the U.S. National Security Agency) are engaged in similar kinds of surveillance. This includes capturing metadata of Internet and wireless communications and working actively with foreign intelligence agencies to swap information obtained through the data mining of Internet-based surveillance.
My weekly technology law column (Toronto Star version, homepage version) notes the active connection between Canadian and U.S. officials moved to the forefront last week with reports that Canadian officials may have played a starring role in facilitating U.S. efforts to create a "backdoor" to widely used encryption standards. That initiative has been described as "undermining the very fabric of the Internet."
Encryption standards play a crucial role in Internet security by allowing parties to communicate in a secure manner over open networks. The technologies are used for electronic banking, medical records, e-commerce transactions, and online communications.
Earlier this month, new reports indicated that the NSA had secretly managed to defeat Internet privacy and security by cracking widely used encryption technologies. The revelations sent shock waves throughout the Internet security community and raised doubts about the security of millions of transactions that take place online.
While the NSA reportedly uses several techniques to break encryption, including deploying super-computers and working with technology companies to weaken the security embedded within their products, the most important factor may have been the creation of several international encryption standards that made it easier for the agency to crack encrypted messages.
As reported by the New York Times, the encryption standards involve the use of mathematical algorithms to generate random numbers. Those randomly generated numbers play an important role in creating encrypted messages by making it virtually impossible to crack the code. Yet behind-the-scenes, it turns out the NSA wrote the standard, granting itself the capability to break the resulting encryption.
The Canadian role in these developments is linked to how the NSA managed to gain control over the standard setting process. In 2006, the CSE ran the global standard setting process for the International Organization for Standardization. The NSA convinced the CSE to allow it to re-write an earlier draft and ultimately become the sole editor of the standard.
The CSE claims that its relationship with the NSA during the standard setting process was merely designed to support the Canadian governmentâs effort to secure its technological infrastructure. However, it is now clear that Canada worked with the U.S. to ensure that the backdoor was inserted into the encryption standard and that it may have gained access to decryption information in the process.
In fact, Canadaâs work with the U.S. on surveillance issues has even included financial compensation. Bill Robinson, who actively tracks CSE activities, recently reported "that a specific account exists within the government's Financial Reporting Accounts to record payments that CSE receives from foreign governments." Government documents indicate that the account "is used by Communications Security Establishment to record funds received from foreign governments, to cover expenditures to be made on their behalf, in accordance with the provisions of agreements with the Government of Canada."
In other words, Canada may not only have played a key role in facilitating one of the most significant incursions into the Internet privacy, but it may even have been paid for its work.
In this week's podcast, I read aloud a recent Guardian column, "How to foil NSA sabotage: use a dead man's switch, which proposes a "dead-man's switch" service that'll tip people off when the NSA serves a secret order demanding that Web operators sabotage their systems.
No one's ever tested this approach in court, and I can't say whether a judge would be able to distinguish between "not revealing a secret order" and "failing to note the absence of a secret order", but in US jurisprudence, compelling someone to speak a lie is generally more fraught with constitutional issues than compelled silence about the truth. The UK is on less stable ground – the "unwritten constitution" lacks clarity on this subject, and the Regulation of Investigatory Powers Act allows courts to order companies to surrender their cryptographic keys (for the purposes of decrypting evidence, though perhaps a judge could be convinced to equate providing evidence with signing a message).
Mastering by John Taylor Williams: firstname.lastname@example.org
John Taylor Williams is a audiovisual and multimedia producer based in Washington, DC and the co-host of the Living Proof Brew Cast. Hear him wax poetic over a pint or two of beer by visiting livingproofbrewcast.com. In his free time he makes "Beer Jewelry" and "Odd Musical Furniture." He often "meditates while reading cookbooks."
In the UK there will be much more than the 50'th episode and the 50'th "An Adventure in Space and Time" documentary. How much of this will be aired (and made available online) in Canada?
Did I miss announcements about the other stuff? Is there a schedule made for the 23'rd yet for SPACE?
If you're not a Londoner, don't despair! Forbidden Planet has a great mail-order service and will ship signed copies anywhere.
UBC President Stephen Toope has written an important letter responding to criticism from the Writers' Union of Canada over his university's reliance on fair dealing. Consistent with many universities across the country, UBC has moved away from the Access Copyright licence, focusing instead on a combination of fair dealing, open access, and site licences. The Toope letter notes how much the university community still pays for copyright materials and how little course pack sales are in relationship to overall spending:
UBC pays in the neighbourhood of $25 million to publishers and authors every year. In fiscal 2011/12, UBC spent approximately $2 million on book acquisitions, $2 million on print serials, and $10 million on digitally licensed subscriptions for students and faculty to access through its library system. UBC also sold approximately $14 million of books directly to students and faculty (for which UBC paid publishers about $10 million). In the same period, total course pack sales were about $1 million, less than 4% of the total spent on learning materials. Responsive to the needs of today's students, UBC's faculty members are increasingly utilizing online modes of content delivery, which means that course pack production volumes will form an even smaller percentage over time.
The declining economic importance of course pack sales is important, given that economic impact is one of the six fair dealing factors. UBC has been a national leader on the intersection between copyright and educational use and the Toope letter further confirms that the university's policies are well-considered and fall comfortably within the law. If the issue is of interest, a reminder that on October 4, 2013, the University of Ottawa will host a free conference on copyright in Canada. Register here for the Copyright Pentalogy: How the Supreme Court of Canada Shook the Foundations of Canadian Copyright Law.
Earlier this week, I joined Jesse Brown for an online discussion on the Trans Pacific Partnership. The event, which was hosted by Canadian Journalists for Free Expression, focused on the free speech implications from the deal, particularly in light of the copyright and privacy provisions. Moreover, we spent some time talking about the secrecy associated with the talks. The full transcript can be found here.
In continuation to my last post, it is important to address concerns that AUCC’s proffered guidelines would lead to the limiting of fair dealing. Such limiting presents itself through two questions: (i) Would unauthorized copying inevitably be severely constrained and only occur as fits AUCC’s stipulated amounts? (ii) Does the very presence of such pedantic guidelines suggest that courts will limit their interpretation of fair dealing to match the approach taken within the postsecondary community? At stake is the currently robust, flexible provision that evolved through a decade of measured activity elicited from both the Supreme Court of Canada and the Government of Canada.
There are good reasons for establishing general guidelines of copying at postsecondary institutions – not the least of which is that these educational institutions have the opportunity to educate their communities about a realm of law that is pivotal to daily life. However, setting down guidelines, without history, without explanation, and without showing the importance of context to decisions of future copying, will not lead to broader understanding of fair dealing. Nor will it safeguard the measure as we know it today.
In my last writing, I gave the Supreme Court background to this discussion—the history that allows postsecondary communities to engage with confidence in some unauthorized copying for teaching and research. Readers are likely familiar with the six factors laid out by the Court in CCH Canadian as illustrative of the way an inquiry into fair dealing should occur. (The Court also stipulated that not all factors may apply all the time, and that other factors might be relevant to individual situations.) In evaluating the third factor, the character of the dealing, the element of practice came up:
In assessing the character of a dealing, courts must examine how the works were dealt with. …. It may be relevant to consider the custom or practice in a particular trade or industry to determine whether or not the character of the dealing is fair (para. 55).
Practice should be the precursor to guidelines. Esoteric rules are not easy to understand or accept; a recognizable activity adds credence to the process. Certainly, not all practices may be desirable. But discussion of existing practises is a necessary conversation if legitimate practices are not to be stunted. Out of the gamut of all practices will come the institutional option to facilitate the best of them.
Canada would do well to study the work of the Center for Social Media at American University; Patricia Aufderheide, Peter Jaszi and their colleagues lead the field in development of fair use best practices for a range of communities.* One of the more recent projects involves fair use for Academic and Research Librarians. (Via the link is an info-graphic which includes a concise comparison between guidelines and best practices; it would not be out-of-place to the current Canadian situation.) The collections of practices address dance, film studies, journalism, media literacy, open-courseware, poetry, … It is an impressive array of work and all recommendations begin by examining the field in question through its own participants.
For instance, the development of best practices in the field of communication was led by twenty scholars of the International Communication Association with participation from 387 members. It became evident that: “… copyright ignorance and misunderstanding hamper distribution of finished work, derail work in progress, and most seriously, lead communication researchers simply to avoid certain kinds of research altogether” (emphasis added). With the grassroots input, four situations were identified as needing guidance and a fair use practice for each was devised. All practices were reviewed by a legal team before publication of Best Practices for Scholarly Research in Communication (2010).
For example, one situation is described as:
Quoting Copyrighted Material For Illustration: Communication scholars often reproduce copyrighted material in their term papers, conference papers, academic presentations, journal articles, books, theses, and audiovisual media productions as illustrations or examples of an economic, social, or cultural phenomenon with which their scholarship is concerned. Depending on the illustrative context, these reproductions may be partial or complete.
How the principle of fair use supports such work is then explained:
Scholars may invoke fair use to reproduce copyrighted material where it serves to explain or illustrate their scholarly insights or conclusions about communications in relation to social, cultural, political, or economic phenomena. Generally speaking, such uses transform the material reproduced by putting it in an entirely new context; thus, a music video clip used to illustrate trends in editing technique or attitudes about race and gender is being employed for a purpose entirely distinct from that of the original, and is typically directed to an entirely distinct audience from that for which it originally was intended. This is true even in situations where the media object in question is not subjected to specific analysis, criticism, or commentary.
The resolution to the question of copying is to be determined by each scholar; the best practices explain what factors will limit the copying:
–A scholar should determine the nature of the excerpt (or the use of a work in its entirety) based on the scholar’s academic objective in choosing the illustration; merely decorative or entertaining uses of copyrighted material, under the guise of illustration, are inappropriate. However, should a work chosen for its significance to a scholarly argument also be entertaining, that fact should not disqualify the use from being considered fair.
–A scholar should determine the extent of use (both as to the number of illustrations employed and the amount excerpted from each) based on the scholar’s illustrative objective. Scholars should provide citations in a form and manner typically used in communication scholarship for the material used in any publication of shared results of the study.
[As an aside; throughout all of the Center’s best practices documents is a constant reminder that best practices form neither the floor nor the ceiling on legitimate activity.]
Canada does not have an institutional body on the scale of the Center for Social Media; more’s the pity. However, that need not preclude each institution from shaping its own best practices. At the end of the day, institutions might use some of the suggestions provided by AUCC. But it would serve fair dealing, and Canadians, far better if the guideline is genuinely supportive of teaching, research and learning practices instead of giving the appearance of shaping teaching, research, and learning practices along the lines of very conservative, oh-so-safe, behavior. Because, in this situation, safety is an illusion. As Knopf pointed out, there is no assurance that unnecessary concessions on the part of Canadian educational institutions will lead to an absence of mischievous litigation.
A better pre-emptive defense is an informed community. And that returns us to CCH Canadian. At that time (2004) the Court stated:
[Is] it incumbent on the Law Society to adduce evidence that every patron uses the material provided for in a fair dealing manner or can the Law Society rely on its general practice to establish fair dealing? I conclude that the latter suffices. Section 29 of the Copyright Act states that “[f]air dealing for the purpose of research or private study does not infringe copyright.” The language is general. “Dealing” connotes not individual acts, but a practice or system. This comports with the purpose of the fair dealing exception, which is to ensure that users are not unduly restricted in their ability to use and disseminate copyrighted works (para.63).
Thus, if each institution upholds fair dealing as a practice which ensures that users are not unnecessarily restricted in their uses, this may usher in safety of a different nature – the confidence that future Courts will not be constrained to reduce the scope of fair dealing on the grounds that institutions were indifferent to fair dealing’s situational, contextual, or flexible nature.
* Reclaiming Fair Use by Aufderheide and Jaszi (University of Chicago Press, 2011) is well worth reading.
There's a whole ton of events, from screenings of movies like Sneakers, Source Code and Existenz to a "LED Robot Plushie Workshop + Little Brother Book Discussion" and Lego robotics workshops, and I'm doing a public event in conversation with Wickr/DEFCON's Nico Sell, at the Main Library's Koret Auditorium on Oct 2. I'm totally, utterly thrilled!
Other key sites