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Re: [Fwd: [d@DCC] B.2.3 Contractual limitations on exceptions and uses] (fwd)

From: Russell McOrmond <russell _-at-_>
To: General Copyright Discussions <discuss (at)>
Date: Mon, 20 Oct 2003 13:51:49 -0400 (EDT)

  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: <> 
 Governance software that controls ICT, automates government policy, or
 electronically counts votes, shouldn't be bought any more than 
 politicians should be bought.  --

---------- Forwarded message ----------
Date: Sat, 18 Oct 2003 13:16:35 -0400
From: Samuel Trosow <>
To: Russell McOrmond <>
Subject: Re: [Fwd: [d@DCC] B.2.3 Contractual limitations on exceptions and

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 

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 

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.


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