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Re: [Fwd: [d@DCC] B.2.3 Contractual limitations on exceptions and uses] (fwd)
From: Russell McOrmond <russell _-at-_ flora.ca>
I am forwarding this with permission as it contains quite a bit about the philosophical strands to fair-dealing/fair-use which I was not yet aware of. --- Russell McOrmond, Internet Consultant: <http://www.flora.ca/> Governance software that controls ICT, automates government policy, or electronically counts votes, shouldn't be bought any more than politicians should be bought. -- http://www.flora.ca/russell/ ---------- Forwarded message ---------- Date: Sat, 18 Oct 2003 13:16:35 -0400 From: Samuel Trosow <email@example.com> To: Russell McOrmond <firstname.lastname@example.org> Subject: Re: [Fwd: [d@DCC] B.2.3 Contractual limitations on exceptions and uses] Russell McOrmond wrote: > On Fri, 17 Oct 2003, Samuel Trosow wrote: > > >>"It should not be possible to have a contractual license agreement that >>takes rights away from the user of a work that they hold under copyright >>that relate to a limitation on an exclusive right. If there is a >>statutory exception to copyright, it should not be derogated through >>contract law. > > > Many people have tried to tell me over the last few years that fair > dealings is not a right, but a defense against an infringement claim. The nature of fair-dealing /fair-use is highly contested. At the risk of oversimplification, there are basically two philosophical strands to fair-dealing/fair-use. The first, favored by vendors and those wishing to broaden owner rights sees fair dealing as a means for correcting some degree of inevitable market failure, as a necessary, though limited corrective. Under this view, as the means for greater enforcement at a more fine grained level is established (through, for example, technological advances that allow finer metering of more transactions), the instances of market failure and hence the need for the defense diminishes. under this view, anything that could be licensed should be licensed and the defense recedes in importance. The second strand sees fair-dealing/fair use as an inherent component of the copyright bargain. Under this "substantive" theory (or it's often called the "constitutional" theory in the US), the doctrines are not simply in place because of some inherent leakage, but they exist as important policies designed to mediate the scope of the copyright monopoly. Our perspective is in line with the latter ivewpoint. While the Copyright Act itself is silent, and it's left for the courts to decide controversies in particular instances, user advocates take the position that fair-dealing/fair-use is not a doctrine that can be diminished simply because better enforcement mechanisms become available. And the fact that fair dealing and fair use are both defined in the respective statutes as "defenses to infringement" does not derogate from the later claim. As technological systems (and laws that back them up) create the possibility of finer grain metering, payment and enforcement mechanisms, the battle over the correct definition of fair-dealing/fair-use intensifies. The question of how these user rights should migrate to the digital environment is at the heart of contemporary policy disputes over the scope of copyright and the relative importance of owners vs users rights in works. > I would like to phrase it like how you have suggested but I would then be > saying two things at the same time: > > a) that contract law should not be able to be used to grant a copyright > holder exclusive rights that are not granted to them by the copyright act. > b) that fair dealings should become more of a right rather than a > defense. > > It's fine to say this although the latter is implicit in the former. To get an idea of the direction of the Canadian courts, look at some of the language in the recent Theberge case from the Supreme Court <http://www.lexum.umontreal.ca/csc-scc/en/pub/2002/vol2/html/2002scr2_0336.html>. While the court was talking about the scope of the reproduction right, not a limitation on that right in the fair dealing context, it is still useful to look at the language. The court said: para 30: "The Copyright Act is usually presented as a balance between promoting the public interest in the encouragement and dissemination of works of the arts and intellect and obtaining a just reward for the creator (or, more accurately, to prevent someone other than the creator from appropriating whatever benefits may be generated)." para 31: "The proper balance among these and other public policy objectives lies not only in recognizing the creator's rights but in giving due weight to their limited nature. In crassly economic terms it would be as inefficient to overcompensate artists and authors for the right of reproduction as it would be self-defeating to undercompensate them. Once an authorized copy of a work is sold to a member of the public, it is generally for the purchaser, not the author, to determine what happens to it." Now while the Theberge case was about the scope of the 3(1) right and not about the importance of the defenses, the court continues, in para 31: "Excessive control by holders of copyrights and other forms of intellectual property may unduly limit the ability of the public domain to incorporate and embellish creative innovation in the long-term interests of society as a whole, or create practical obstacles to proper utilization. This is reflected in the exceptions to copyright infringement enumerated in ss. 29 to 32.2, which seek to protect the public domain in traditional ways such as fair dealing for the purpose of criticism or review and to add new protections to reflect new technology, such as limited computer program reproduction and "ephemeral recordings" in connection with live performances." Industry Canada/Canadian Heritage should take this language from the SCC as an important submission for their section 92 exercise. We don't know how far this language will be applied in the future but we do know that the SCC has granted leave to hear the appeal in CCH vs Law Society of Upper Canada (to be heard next month). In this case, the court will have another opportunity to address the issue of owners rights vs exceptions (as well as again a threshold issue of the scope of the owners rights) So, I think taking an aggressive position in terms of the scope of and the underlying centrality of the exceptions is quite a valid position. Sam -- For (un)subscription information, posting guidelines and links to other related sites please see http://www.digital-copyright.ca
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