Fair Use by Stealth: The “Such As” Proposal in Canada

Last week (February 24-28) was “Fair Use/Fair Dealing” week in the US, Canada and some other countries. Many libraries, such as the Association of Research Libraries in the US (ARL has a few Canadian members) and a number of universities in Canada are active in promoting fair use and fair dealing week. It is the occasion to remind ourselves that an integral part of the copyright system is the fair use and fair dealing exceptions built into copyright law. As I have commented in the past, anyone who is an author almost certainly uses the flexibility offered by fair use or fair dealing to enable the creation of new works. Under fair dealing in Canada there are legitimate exceptions to copyright for a number of purposes. These include research, private study, education, parody, satire, criticism, review, or news reporting. For criticism, review, and news reporting, the source and author must be named to constitute fair dealing. (In addition there are other specified exceptions such as “non-commercial user-generated content”, “reproduction for private purposes” and “recording programs for later listening or viewing”, and so on.)

Not all these exceptions are without controversy, the two most contentious being education and user-generated content (the mash-up provision). It’s easy to see why; if an exception is too broad, it can defeat the basic purpose of copyright. As an example, the education fair dealing exception in Canada, introduced in 2012, has led the Canadian publishing industry and its collective rights management organization Access Copyright to challenge the more unrestrained, unlicensed copying practices of Canadian universities that have resulted from this new exception. In a landmark case (Access Copyright v York University), the courts restored some of the balance that had been eroded by the broad reproduction practices endorsed by Universities Canada and specifically employed by York University. (The mandatory nature of the reproduction tariff certified by the Copyright Board of Canada was also at issue). The court’s decision is now under appeal by York.

Fair dealing in Canada is based on the 1921 Copyright Act which in turn was based on the 1911 UK statute that established the concept of fair dealing within British law. The 1911 UK Act is the basis for fair dealing legislation in most Commonwealth countries, such as Canada, Australia, New Zealand, South Africa and India, and some others. Fair dealing exceptions have evolved over the years in response to changing needs and technology, and are no longer identical in all Commonwealth jurisdictions. In most countries there is a periodic review and update as needed. Indeed, as mentioned, in 2012 Canada added several new fair dealing exceptions, of which education was one, and the most recent review conducted by the Standing Committee on Industry, Science and Technology of the Canadian Parliament in 2019 made further recommendations (more below). This kind of periodic review allows Parliament to evaluate whether further exceptions are required, and/or whether existing exceptions have gone too far and should be narrowed or removed. It is important to note that fair dealing is not defined in the statute but the broad categories of what is a fair dealing are established by lawmakers in response to input from stakeholders. The courts have provided some interpretive guidelines.

In the US, the situation is somewhat different, although the objectives are similar. It is not just the term “fair use” that is different. It grew out of case law and has a long legal history in the US, being incorporated into legislation only in 1976. At this point, I should probably repeat myself and draw from last week’s blog post on the fair use vs fair dealing debate in South Africa in order to provide some baseline information on the differences between the two concepts. (Apologies to those who read these next two paragraphs last week. Just skip ahead).

In the US context, fair use is an affirmative defence against copyright infringement and is determined by the courts on a case by case basis, judged against several fairness factors (purpose and character of the use, the nature of the work copied, the amount and substantiality of the amount of the work used, and the effect of the use on the value of the original work). It is used in the United States, Israel and the Philippines. Fair use is not defined by law. Some examples are given in US law of areas where the use is likely to be fair (criticism, comment, news reporting, teaching, scholarship, research) but these are illustrative and not exhaustive. In short, it is the courts that decide. This in turn can lead to extensive litigation as to what is and is not fair use, and it is worth noting that different judicial circuits in the US have at times come up with conflicting interpretations.

Fair dealing is a specified exception to copyright infringement established by statute. The list of exceptions varies by country although most have a number of exceptions in common such as criticism, research, private study, review or news reporting and sometimes, in addition, parody, satire and education. Provisions are normally made for exceptions arising from technical issues such as format-shifting, data mining etc., through periodic updates. Even if a dealing (unlicensed use) falls within the listed exceptions, it must still be fair according to a number of factors, such as the amount and nature of the use, the alternatives to the dealing and the effect of the dealing on the original work. In other words, you can’t copy willy-nilly just because your use falls within the fair dealing exceptions. But while the courts can add interpretation, they don’t determine the definition of a fair dealing. That is the responsibility of elected legislators.

Both clearly have some similarities in terms of objectives, but the means of establishing the exceptions and their scope can be quite different. US companies of course are familiar with the fair use doctrine and the US tech industry (Google and the Internet Association in particular) is active in promoting its export to other jurisdictions. While they argue that fair use helps promote innovation, it seems that their main motivation is to weaken copyright law which they regard as getting in the way of how they want to freely use data and OPC (other people’s content). Their proxies in other countries actively promote adoption of fair use whenever the periodic review of copyright settings comes around. This has happened in recent years in the UK, Australia, New Zealand, South Africa and Canada. So far they have been unsuccessful in exporting the US model although in the case of South Africa, it appears that they may be coming close. In the case of Canada, they are seeking to achieve their goal through the back door.

Copyright industries and creators, including those in the US, are opposed to the introduction of US-style fair use into jurisdictions where fair dealing has a long history, and works well. On the other hand, fair use is a known concept in the US, is fairly well understood there and is built on a large body of legal precedent. However litigation and uncertainty as to what is, or is not, a fair use is a common by-product of the system, with conflicting judgements not uncommon. Because of this inherent uncertainty, the US Copyright Office offers a “Fair Use Index” of court decisions and an explanation of the basic principles of fair use in an attempt to help users, based on the four fairness factors. Here is an example of an explanation of one of those factors;

“Amount and substantiality of the portion used in relation to the copyrighted work as a whole:  Under this factor, courts look at both the quantity and quality of the copyrighted material that was used. If the use includes a large portion of the copyrighted work, fair use is less likely to be found; if the use employs only a small amount of copyrighted material, fair use is more likely. That said, some courts have found use of an entire work to be fair under certain circumstances. And in other contexts, using even a small amount of a copyrighted work was determined not to be fair because the selection was an important part—or the “heart”—of the work.”

Clear? Probably not. Fair use could be a little or a lot; it could be all of a work, or none at all. If this is puzzling to Americans, whose legal profession is long steeped in the intricacies of fair use, can you imagine how this would translate to a jurisdiction like South Africa? Introduction of a hybrid fair use/fair dealing regime is currently under active consideration in that country with the battle lines drawn between South African and US protagonists on both sides of the debate, as I noted in last week’s blog.

In the UK, the introduction of fair use was examined by the Hargreaves Report, and rejected. Professor Hargreaves noted that;

“Most responses to the Review from established UK businesses were implacably hostile to adoption of a US Fair Use defence in the UK on the grounds that it would bring: massive legal uncertainty because of its roots in American case law; an American style proliferation of high cost litigation; and a further round of confusion for suppliers and purchasers of copyright goods.”

Hargreaves also discounted the argument that changing the basis of exceptions in the UK would help spur the creation of a new Silicon Valley on the European side of the Atlantic.

Australia came to similar conclusions for similar reasons, and New Zealand in its current ongoing copyright review appears to have ruled out consideration of introducing fair use. According the Copyright Issues paper put out by the Ministry of Business, Innovation and Employment;

“we need a much better understanding of the problems with the current exceptions regime before we consider alternative options…Submitters should therefore focus on the problems or benefits with the current situation…rather than on reasons why New Zealand should incorporate a fair use exception.”

It is clear that fair use is not getting the traction internationally that Google and others have been hoping for but closer to home, in Canada, the campaign continues—although in this case by stealth. Recognizing that holus-bolus introduction of a US-style fair use regime into Canada is a non-starter, its supporters have adopted a back-door approach. This approach, which would add the words “such as” to the list of specified fair dealing exceptions, has been advocated primarily by anti-copyright crusader Michael Geist of the University of Ottawa. According to Geist, “fair dealing purposes should be expanded, ideally by adopting a “such as” approach to its list of enumerated purposes”. He continues; “The increased flexibility would make the Canadian fair dealing provision closer to the U.S. fair use model…”

This proposal was regrettably picked up by the Standing Committee reviewing the Copyright Act last year and included in its report as a Recommendation. The Committee claimed that an illustrative fair dealing provision would make it more “flexible” and “technology neutral”. Its Recommendation 18 stated:

“That the Government of Canada introduce legislation amending section 29 of the Copyright Act to make the list of purposes allowable under the fair dealing exception an illustrative list rather than an exhaustive one.”

One man’s flexibility is another man’s loophole. If Parliament were to enact this unwise change, one wonders to what creative uses the phrase “such as” would be put. “Such as” puts no limits on potential exceptions. It is merely “illustrative”, not definitional. Although the word “illustrative” means to make something clear, the intent of this proposal is just the opposite. If it is illustrative, anything could be added since it is clear from the Committee’s recommendation that they view illustrative as being the opposite of “exhaustive”. In other words, it would be non-exhaustive or open-ended. Already the terms “research” and “education” are wide enough to drive a truck through, and such a change would be an invitation to even more litigation and uncertainty. If the intent is to muddy the waters, increase litigation, give powers to the courts that should be reserved for Parliament, and make it less certain what a fair dealing is—then this is the ideal vehicle!

For the moment, the Committee’s recommendation remains just that—a recommendation, and let’s hope that it remains in the domain of the theoretical. Meanwhile anti-copyright elements from cyber-libertarians, to self-interested tech platforms to academic theorists (and combinations thereof) will continue to push fair use anywhere and everywhere and where they can’t get it in through the front door, they will try to go through the back. Fair use by stealth. This would open a Pandora’s box of issues for copyright in Canada. Supporters of fair copyright in Canada need to stay alert.

© Hugh Stephens 2020. All Rights Reserved.