Landing : Athabascau University

Copyright and fair dealing: A harangue

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By Rory McGreal January 16, 2011 - 5:09pm

In discussions with copyright officers/librarians this week, I was disheartened to see that some of them still see their role as being guardians of the vendors’ interpretation of copyright and fair dealing in particular.  There seems to be an attitude that they are more reasonable than their faculty and students so that a limited legalist view of copyright overrides a reasonable approach to the grey areas in copyright law.  The Canadian Supreme Court ruled that fair dealing must be given a “broad and liberal interpretation”. The vendors would like people to believe that this interpretation only affects fair dealing as far as photocopying in libraries is concerned. However, another possible interpretation, and the correct one in the opinion of many lawyers is that this “broad and liberal” approach now applies to fair dealing in a generic sense.  There is at least one court case now in the wings extending the decision to song previews, so there is no reason why one needs to adopt a limiting view, when it is in a grey area of law, where the open interpretation will probably win.  So, a strict interpretation could make sense and a liberal interpretation extended to other areas also makes sense. I think in this case, the liberal interpretation will prevail. So surely, it makes more sense for organizations that depend on fair dealing to choose the broad view for the benefit of their users until the issue is resolved.

Another argument that has been put forward on why we should take the legalistic view, is that if people use fair dealing too much, the producers of content will react against it and will hide their material behind passwords and some will charge for it. Actually, I fully agree with this. If you want to protect your content, the best way is to put it behind a password. If you want to earn money from your content then charge for it.  Just don’t try take away our fair dealing rights in protecting your property. I liken it to a property owner A, whose property contains a right of way through another property B. The person owning the other property B has every right to protect his property, but he has no right to put up a fence and block A’s right of entry.

It is also sad when those in our own university community argue that a liberal interpretation of fair dealing is an extreme position. Heritage Minister James Moore accused many of us of being “radical extremists”. This statement was thoroughly discredited and he had to back off, especially as the Supreme Court seemed to be in agreement with the "extremists".  Moreover, I would argue that educational professionals taking an excessively legalistic position could be interpreted as “extreme”. In our adversial justice system, why would we support the vendors’ view of copyright before a decision has even been made.

Another argument is that the copyright officers and librarians have to ensure that their institutions will not be sued. I guess that some think that our fair dealing rights are not worth fighting for even when you have less chance of being sued than being struck by lightning. And, if sued, the institution could win if it is in a grey area of law.  Arguably, the vendors would be very reluctant to challenge anyone unless it was a CLEAR point of law (And if it’s clear, I would assume that an institution would not infringe). The vendors took the law society to court and they lost badly. And I would never recommend to anyone to knowingly infringe. I would however continue to say, interpret the law for the benefit of your students and faculty and let the vendors interpret the law for their benefit. We should not be doing their job.

There is a huge grey area in copyright law. We can choose to interpret it strictly, supporting the vendors position or you can choose to do so liberally following the lead of the supreme court and supporting the interests of students and faculty AND in the spirit of the original copyright law AN ACT FOR the ENCOURAGEMENT OF LEARNING. And, there is nothing unethical about exercising your fair dealing rights liberally. Under the copyright law, I have the fair dealing right to take someone else's IP without their permission as long as it is fair. This is an important right and it is there to encouraging learning. Fair dealing is part of copyright law. Copyright is NOT about protecting IP. It is about giving some protection to authors in order to encourage learning.


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