Canadian Communication Association position on C-61

Sorry for this June 14 letter (local PDF copy) from the Canadian Communication Association only being posted now, but when the bill was first tabled things got a little busy.

The letter makes a very obvious point: "What is remarkable is that while you seem to have adopted wholeheartedly the more draconian aspects of American legislation evident in their DMCA, you have ignored its most democratic element: fair use."

This is why, despite the statements of a few uninformed Ministers statements in the House of Commons, that C-61 is a "made worse in Canada" copyright bill. The educational, time and device shifting exceptions are not exceptions at all as they are so narrow and complex that they are pretty much useless.

Under Canadian Copyright law section 29 defines Fair Dealings (29 research and private study, 29.1 criticism or review, 29.2 news reporting -- most of the rest of section 29 are complex details tied directly to educational institutions, and aren't the same as "teaching (including multiple copies for classroom use), scholarship")

The far better counterpart in US law is their section 107. This is relatively simple and if adopted in Canada would modernize Canadian law in the right direction to allow the courts to interpret copyright law appropriate to the times. While there are improvements we could make to clarify things like time and device shifting which is only precident thus far in the USA, starting with their section 107 would be far better than remaining with our section 29 with the backward-facing additions in Bill C-61.

The CCA letter quotes from section 107 of the US Copyright Law.

§ 107. Limitations on exclusive rights: Fair use

Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include — 

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.

The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.

Along with many stakeholders from many sides of this debate, we have also been calling for a living fair use regime to be adopted in Canada. (See CLUE's Copyright Policy Summary)