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    Fair Dealing, Fair Use…and Fair Play

    • 23.02.2023
    • By Hugh Stephens
    Hugh Stephens Blogs

    Yes folks, it is Fair Use/Fair Dealing Week again (Feb 20-24, 2023). As I wrote last year at this time, the activity is promoted by the Association of Research Libraries in the US, with separate components labelled Fair Dealing Week in Canada and the UK. The Canadian version is organized by the Canadian Association of Research Libraries; in the UK the lead last year was taken by Institute of Advanced Legal Studies at the University of London. We will hear a lot about the benefits of exceptions and limitations to copyright, how permissionless use under specific circumstances promotes learning, creativity, free speech, public discourse. etc. The focus will be on the users of copyrighted materials rather than on the creators of works. As a user and consumer of copyrighted materials, I can identify with these views, as I wrote on this blog a few years ago. (“Why this Copyright Blogger likes Fair Use and Fair Dealing”.)

    Copyright creators are amongst the most prolific “users” of copyrighted materials, but I like to think that as creators we are also mindful of the rules surrounding appropriate use. We can, as users, quote from and link to copyrighted material, draw inspiration from it, parody it, even reproduce limited amounts of it for private study, research or educational purposes. That is all well and good and epitomizes the basic balance that has traditionally existed between the protection afforded authors to control the use of their works, and the ability of users to access those works.

    What fair use and fair dealing do not justify is the wholesale appropriation of copyrighted content through industrial-scale unauthorized copying that destroys any market for the author’s works. Unfortunately, that is what is currently happening in both Canada and the US–through broad-based uncompensated educational copying in Canada and through infringing digital copying by libraries (and “pretend libraries”, like the Internet Archive) in the US, and to some extent in Canada as well.

    In Canada, the “user’s right” referred to in the Supreme Court of Canada’s 2004 decision (CCH Canadian Ltd. v. Law Society of Upper Canada) has been interpreted so broadly in recent years that an institution, such as a university, can claim to exercise the student’s “user’s right” by mass producing learning materials copied willy-nilly and without payment or authorization from educational texts, and can then sell the copied course-packs to students through the university bookstore! This is not a case of an elementary school teacher photocopying a couple of pages from a textbook that is in short supply in order to provide their class with learning materials—which was the original justification for the practice of a teacher exercising the user right on behalf of students. (Alberta (Education) v Canadian Copyright Licensing Agency (Access Copyright). Even this non-digital example has led to situations where a school has ordered and paid for exactly one copy of a textbook, with teachers then scanning or photocopying to reproduce multiple copies for students. Is that fair to authors and educational publishers? And, in the long run, to students? Along with fair dealing we also need an element of fair play.

    The argument often advanced is that “cash-strapped” educational institutions, and “suffering students” who are having difficulty in making ends meet (owing in large part to hefty hikes in admission fees) are being expected to pay “wealthy publishers” for access to learning materials. I heard these arguments recently on a self-serving podcast from the Canadian Teachers’ Federation. If anyone is “cash-strapped” it is authors, and the current situation is making the situation worse. In a 2018 report, the Writers’ Union of Canada reported that;

    “Taking inflation into account, writers are making 78% less than they were making in 1998. In fact, writers are making significantly less from their writing than they did just three years ago: $9,380 in 2017 vs. $12,879 in 2014. That’s a 27% drop over a short period — the same period that has seen a massive increase in uncompensated educational copying.”

    The situation is undoubtedly worse today. As for all those “wealthy publishers”, the educational publishing market in Canada has been shrinking, with several publishers either ceasing to publish for the educational sector or closing up shop entirely. Fewer culturally specific educational materials for the Canadian market are now being published as there is no incentive to do so. The fix is relatively straightforward and narrowly targeted. It is to ensure that students can continue to exercise their educational fair dealing rights but to limit that right for educational institutions to situations where no licensed alternative is available. This approach works well in other countries, including the United Kingdom and Ireland. This will stop the wholesale plundering of copyright-protected content by institutions in the name of exercising their students’ user’s rights.

    With regard to “cash-strapped” educational institutions, you should know that the cost per student at the K-12 level of a licence from Access Copyright was $2.41 per student per year in 2016 (I would say about the price of a cup of coffee, except that it is pretty rare these days to get a cup of coffee for that amount). Despite this, most Ministries of Education not only refuse to pay the tariff but have sued the copyright collective, Access Copyright, for the amounts that they had paid back in 2010-12. It is true that some School Boards and universities are “cash-strapped”, but does that stop them from paying their suppliers, their teachers, from running school buses, repairing school buildings. Of course not. So why should paying for the educational inputs they use be any different? Put another way, why should cash-strapped authors be subsidizing educational authorities in various jurisdictions across the country? That is not fair play.

    In the US (echoed in Canada) another egregious example of unfair play through unauthorized copying is taking place under the guise of fair use. This is the invented theory of “Controlled Digital Lending” (CDL) actively promoted by the Association of Research Libraries in the US and supported by its Canadian equivalent, the Canadian Association of Research Libraries as well as the Canadian Federation of Library Associations. CDL’s proponents claim that they should be able to make a digital copy of a physical work they hold, and then lend the digital copy, keeping the original work in its archive. But there is no basis in law for this theory.

    As I noted in a recent blog post on this topic (“Controlled Digital Lending: Could Canadian Universities Find Themselves Out on a Limb?”)organizations such as the Internet Archive and others that promote CDL (for copyrighted works) ignore the reality that it all hinges on the making and distribution of an unauthorized copy of a copyrighted work. That unauthorized digital copy then substitutes for any licensed e-version of a published work that exists or which might be produced, effectively destroying the market for the work and imposing economic injury on the rights-holder. Nevertheless, the Association of Research Libraries claims that “both the exhaustion doctrine and the fair use doctrine support CDL when properly implemented”. This is creative but just plain wrong on both counts, as the Association of American Publishers has pointed out.

    The first sale or exhaustion doctrine applies to physical works and allows a purchaser to dispose of a work without reference to the rights-holder once the work has been sold. However, although you own a copy of the work, you do not own the copyright. Thus, if you purchase a book you can resell it, lend it, give it to your dog to eat or burn it. But the one thing you cannot do is to copy or reproduce it without authorization, save for non-substantial portions or selective uses that conform with fair use or fair dealing. For a library to digitally scan an entire work and then lend out the digital copy is a clear violation of both the author’s reproduction right and distribution right. (The distribution right grants to the copyright holder the exclusive right to make a work available to the public by sale, rental, lease, or lending.) Given these realities. no matter whether “properly implemented” (whatever that means) or not, CDL cannot be fair use under US law and there is certainly no provision in Canadian law that would make it a fair dealing. Nor does exhaustion or the first sale doctrine apply in this case.

    The Association of Canadian Publishers (ACP) has recently released a statement highlighting for Canadian libraries the risks and realities of CDL in Canada. The ACP, which represents 115 independent English-language book publishing firms across Canada, underlines that copying and making available are exclusive rights of copyright holders. It notes that there are no provisions for CDL in the Copyright Act, and points out that with respect to fair dealing, there is no certainty that the copying is for an allowable specified purpose or that the dealing is “fair” with respect to the impact on rights-holders. Finally, the ACP notes that litigation is pending in the US. This is the case currently before the court of the Southern District of New York (Hachette v Internet Archive), a case which is likely to settle this question in the US definitively this year.

    Wishful thinking does not make something non-infringing or turn an unauthorized use into a fair use or dealing. Fair use and fair dealing have their rightful place as part of the overall system of copyright, allowing limited access without permission for specified purposes and subject to certain conditions. And of course, new situations will arise that will require either the legislature or the courts to apply fair use/fair dealing criteria to determine to what extent exceptions (or user’s rights) apply as technology evolves. (AI generated art will likely become a test case in 2023).

    While the means of delivery may change, the fundamental principles of copyright, including what is a fair use or dealing, continue to apply. As a principle, the determination of fair use/dealing should be fair to both rights-holders and users, although in recent years that has not always been the case when it comes to creators. For the ecosystem to work, it is important to play fair. Ripping off authors and educational publishers in Canada is not fair. Trying to bend the rules to invent a new lending doctrine that relies on unauthorized copying and distribution is not fair. When fair play prevails, everyone wins. That is what Fair Use and Fair Dealing Week should be all about.

    This article was first published on Hugh Stephens Blog