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AUCSM Fair Use Guidelines for Poetry

The American University Center for Social Media has published its Code of Best Practices in Fair Use in Poetry.  While the analysis is obviously US-centric, this continues the AUCSM’s practice of developing guidelines for industry participants regarding fair use analysis (see their previous Documentary Filmmakers’ Statement of Best Practices in Fair Use), and will be of interest for Canadian entertainment and copyright lawyers both for comparative purposes and for purposes of assessing the Documentary Organization of Canada’s Guidelines to Fair Dealing Practices for Documentary Filmmakers (for previous Signal coverage of the latter, see here).

AUCSM Fair Use Guidelines for Poetry

Canadian Copyright and Campaigns

The CBC is reporting about another copyright flare-up involving Canadian political parties:

The federal Conservatives are rejecting a demand by the CBC to withdraw file footage from the national broadcaster that appears in new Tory ads targeting their political opponents.

The Conservatives did not seek permission to use CBC content in three ads that were posted online and broadcast on TV on Monday, says CBC spokesman Marco Dube says.

This seems to be a bit of a recurring theme with the Conservatives: I had written earlier about the 2007 spat which arose because the Conservatives used footage from the 2006 Liberal leadership debates.  As I noted then:

The incident afforded an opportunity to reflect on a larger issue: should there even be a possibility of infringement in situations like this?  In Canada, this appeared to be a case of prima facie infringement – while American readers might have been thinking that there was at least a plausible argument that the use qualified as “fair use”.  But Canada lacks a “fair use” concept, instead having a more limited “fair dealing” concept.  The Copyright Act enumerates certain exceptions to infringement – and if you can’t fit yourself into one of them, you’ve infringed copyright.

I concluded then that the chances that the unauthorized use of footage in a political ad would constitute “fair dealing” under Canadian copyright law would be slim – but that such a conclusion was regrettable, since on freedom of expression grounds it almost certainly should be permissible to use short clips or stills, particularly from political debates and particularly from pool or public broadcaster footage, in the context of a political ad.  The 2007 copyright dispute does not appear to have ever had a publicly disclosed resolution – and I suspect the 2011 dispute will end in much the same way.

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Canadian Copyright and Campaigns

DOC Guidelines Commentary

Further to earlier mention of the release by the Documentary Organization of Canada (DOC) of its Guidelines to Fair Dealing Practices for Documentary Filmmakers, Vincent Doré has written a brief comment on the Guidelines at IP Osgoode’s IPilogue:

The Copyright Act thus adequately considers user rights and the public interest by allowing documentary filmmakers in Canada to bring to viewers a true depiction of reality without prohibitive and unnecessary copyright clearance costs. For instance, the Guidelines state that the use of copyrighted material “for the purpose of critiquing or reviewing the composition of the material, or the views expressed in the material,” does not require copyright clearance if the use meets the requirements of “fair dealing,” and the source and author of the material are mentioned (it is noteworthy that U.S. law does not require the mentioning of source and author). Therefore, the use of copyrighted material may not require clearance, even if it undermines the market of the original work. However, the creator of the original work can be comforted by the fact that a documentary that is a substitute for or competes with the market for the original work without copyright clearance is less likely to be held to be “fair”.

As alluded to in the earlier post here at the Signal, the DOC Guidelines themselves require some close interrogation as they tend to (understandably, given the DOC’s mandate for its members) adopt the most producer-favourable interpretation of various provisions in the Copyright Act and court decisions – hopefully Doré’s post will be the start of a wide-ranging discussion about the Guidelines and their efficacy.

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DOC Guidelines Commentary

Previews of Music as Fair Dealing

POST UPDATED

This post is somewhat curious to write – it is about a decision of the Canadian Federal Court of Appeal which, at the moment, appears not to be available online, thus limiting discussion of the appeal to what has been reported in other blogs and news outlets.  Here is what we know at this time (this post will be updated when the full decision is made publicly available – UPDATE May 25, 2010: the text of the decision is available here):

  • Barry Sookman has reported that at some point last week the Federal Court of Appeal issued a decision in the ongoing judicial review of the Copyright Board of Canada’s decision regarding SOCAN’s Tariff 22.A – according to Sookman, the Court of Appeal has, confirming the decision of the Copyright Board, ruled that offering an online “preview” of a song in order to enable a consumer to decide whether to purchase that song constitutes an example of “fair dealing” for research purposes, and hence no public performance royalty is payable to SOCAN in connection with that preview
  • The Copyright Board of Canada’s original decision (released on October 18, 2007) which was the subject of the appeal to the Federal Court, is available here.  The Board’s conclusion regarding “previews” begins at page 31 of the .pdf.
  • Michael Geist, in his post discussing the FCA decision, evidently has access to a copy of the decision (where does he get those wonderful toys?), and reproduces a passage from the decision which indicates that the FCA has vigorously adopted the Supreme Court of Canada’s guidance in the CCH Canadian Ltd. v. Law Society of Upper Canada, [2004] 1 S.C.R. 339, 2004 SCC 13 that the “fair dealing” provisions in the Copyright Act should be given a liberal and purposive interpretation

As Geist notes, the implications of the decision are “very significant”.  In declining to accord the word “research” a restricted interpretation (as Sookman notes, “SOCAN had argued before the Court that the term “research” applied to activities involving investigation, systematic research, critical analysis, scientific inquiry and factual discoveries arising and being carried out in a formal setting”), the FCA has affirmed that, in Geist’s words, “the door is open to creative uses of the fair dealing provision in Canada consistent with the Supreme Court of Canada’s view of a copyright balance between user rights and creator rights”.

What may be most significant about the decision is that it may work to undercut the arguments of those (including this writer) who have argued in the past that a “fair use” approach to user’s rights may be more beneficial than the “fair dealing” mechanism currently found in Canadian copyright law.  (“Fair dealing” provides for a prescribed and limited set of acceptable uses (research, private study, criticism or review and news reporting) which fall outside the ambit of a copyright owner’s exclusive rights, while “fair use” is an American concept which allows for an open-ended assessment of the purposes, and so is not limited to the five acceptable purposes found in Canadian law.)

Counter-intuitively, with respect to online “previews” of music, “fair dealing” has proved to be more accommodating than “fair use” – as Sookman notes, in the US decisions on this matter (United States v. American Society of Composers, Authors and Publishers, (In re AT&T Wireless), 599 F.Supp. 2d 415 (S.D.N.Y. 2009) and Video Pipeline v. Buena Vista Home Entertainment Inc. 342 F.3d 191) the US courts have held that offering an online “preview” is not fair use, and that a public performance royalty is payable.  A reassessment of the purported limits of “fair dealing” may be in order.

Though the issue appears settled in Canada, it continues to be live in the United States (at least one of the aforementioned decisions is currently on appeal). Greg Sandoval wrote a detailed article canvassing the various arguments surrounding whether online previews should be considered fair use, which is well-worth reading.

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Previews of Music as Fair Dealing