Copyright law is designed to strike a careful
balance between the property rights of authors in their original works and the
public interest rights to foster economic and social progress [1]. Historically,
copyright jurisprudence tended to favor the economic interest of authors by
narrowly defining the scope of available defences to copyright infringement
claims. Recently however the defence of
fair use has been the subject of heightened judicial analysis [2] in
CCH Canadian Ltd. v. Law Society of Upper Canada, where the Supreme Court of
Canada laid out a two pronged test for the determination of a valid fair
dealing defence to copyright infringement pursuant to section 29 of the
Copyright Act. The first prong of the
test is a determination of the purported infringing action – can it be
construed as “research or private study”, or “criticism or review” ,or does it
constitute “news reporting”? In the event that the impugned infringing activity
meets the first prong of the test then the second enquiry looks at factors such
as “the purpose, character, and amount of the dealing; the existence of any
alternatives to the dealing; the nature of the work; and the effect of the
dealing on the work” to determine if in fact the appropriation of the work may
be construed as “fair dealing”.
The increased focus on re-balancing competing
copyright interests is largely driven by the juxtaposition of globalization and
the growth of the digital economy[3] There
are those who argue[4]
that the current copyright regime is based on eighteenth century concepts of
property rights that advocated “artificial scarcity…and by analog limitations
on copying,”. The digital economy on the other hand makes copying infinitely
easier resulting in the “democratization” of content.
So
what constitutes fair use in the context of the fast paced and transformative
digital economy? The Supreme Court of
Canada has ruled on a series of five copyright cases that legal analysts believe
may re-balance copyright law by tilting it more toward the public interest. The
five cases address a wide spectrum of vexing problems that span copying
textbooks, music downloading and place limits on the application of tariffs
which regulators such as the Copyright Board may levy. Michael Geist a leading
legal expert commented that in these decisions [5] “the
court has delivered an undisputed win for fair dealing that has positive
implications for education and innovation, while striking a serious blow to
copyright collectives such as Access Copyright” and that” the court has
recognized that innovation...is crucial to the economy…” These cases have held
that cable companies and internet providers are not required to pay royalties
for music downloads as it is tantamount to sampling merchandize before
consumers decide on what to purchase, that school boards are not required to
pay tariffs on selective copying of materials from textbooks designed for study and research purposes.. Of
particular significance of these decisions is the liberal interpretation of the
meaning of “research” which “can include many activities that do not demand the
establishment of new facts or conclusions. It can be piecemeal, informal,
exploratory, or confirmatory. It can in fact be undertaken for no purpose
except personal interest…”
These decisions affirm that there is greater
good in expanding fair use to copying that may otherwise be protectable
copyright in light of the rapid advancement of the digital economy. A broader
interpretation of fair use can accelerate innovation and foster economic
opportunity. As the Oxford Economic
Report on the New Digital Economy observed “ the new digital playing field has
all but obliterated the old working models for the music, publishing and field
industries…With information becoming a commodity…firms are switching from
subscription fees to “freemium” pricing that combines free services with
paid-for subscription services…”
The Government of Canada is placing increased emphasis on the
strategic value of data characterizing it as
“Canada’s new natural resource”[6]. As an integral part of the Action Plan on
Open Government[7]
open data aims to provide “raw data available in machine readable format to
citizens, governments, not for profit and private sector organizations to
leverage it in innovative and value added ways.” This contemplates the implementation of a
licensing scheme that removes the current restrictive application of section 12
of the Copyright Act that protects Crown Copyright including compilations of
data. A proposed “universal open government license” is designed to remove such
restrictions and the recent Supreme Court of Canada decisions in expanding the
fair sue doctrine may further accelerate the process.
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[1] Théberge v. Galerie
d’Art du Petit Champlain inc., 2002 SCC 34, 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
[2] CCH Canadian Ltd. v. Law Society of Upper
Canada, [2004]
[3] The New Digital Economy How it will
transform business, Oxford Economics, 2011 the total size of digital economy is
estimated at $20.4 trillion, equivalent to roughly 13.8% of all sales flowing
through the world economy.
[4] How to Fix Copyright, Bill Patry Oxford
University Press
[5] ESAC v. SOCAN, Rogers v. SOCAN, SOCAN v.
Bell - song previews, Alberta v. Access Copyright, Re:Sound
