Tag Archives: fair dealing

Fair Use/Fair Dealing Week 2017 Highlights Balance in Copyright System

*Cross-posted from ARL news*

The fourth annual Fair Use/Fair Dealing Week took place February 20–24, 2017, growing to 140 organizations—as well as numerous individuals—celebrating the important and flexible doctrines of fair use and fair dealing. This year’s event was organized by the Association of Research Libraries (ARL) and participants included universities, libraries, library associations, and many other organizations, such as Authors Alliance, Creative Commons, the Electronic Frontier Foundation, Public Knowledge, the R Street Institute, and Re:Create. Forty-five ARL member institutions contributed a wide range of resources this year. Fair Use/Fair Dealing Week was observed worldwide, with participants in such countries as Australia, Canada, Colombia, Israel, Korea, the Netherlands, New Zealand, and the United States.

Throughout the week, participants celebrated the essential limitations and exceptions to copyright that fair use and fair dealing provide, allowing the use of copyrighted materials without permission from the copyright holder under certain circumstances. While fair use and fair dealing are employed on a daily basis, Fair Use/Fair Dealing week provides a time to promote and discuss the opportunities presented, share successful stories, and explain these doctrines.

 Each day, new blog posts and other resources were produced and shared and institutions hosted a variety of live events, such as panel discussions, film screenings, button- and card-making stations, and more. Daily roundups and additional resources are available on the Fair Use/Fair Dealing Week website. There were over 100 news and blog posts, 13 videos, 3 infographics, and 2 podcasts shared over the week. Below are some highlights.

Fair Use/Fair Dealing Week 2018 will take place February 26–March 2. Plan to participate!

Resources

The Association of Research Libraries released the infographic, “Fair Use Myths and Facts.”

The University of Waterloo adapted ARL’s infographic for Canada to create, “Fair Dealing Myths and Facts.”

Kyle Courtney, Jackie Roche, and Sarah Searle of Harvard University published the comic book, “Fair Use of Unpublished Works.”

Video/Audio

Three ARL libraries created videos celebrating fair use, including Harvard University, Duke University, and the University of Virginia. Additionally, Brigham Young University created a video encouraging visits to the university’s Copyright Licensing Office to learn more about fair use.

The Association of College and Research Libraries has posted a video of its live webcast featuring Lillian Rigling and Will Cross of NCSU Libraries explaining “Using Fair Use to Preserve and Share Disappearing Government Information: A Guide for Rogue Librarians.”

Public Knowledge created a fun, mash-up, parody video, “Let Them Go: A Copyright Policy Song” with an accompanying blog post.

The Center for Media & Social Impact created this “Fair Use Video Code: Documentary Filmmakers’ Statement of Best Practices.”

Re:Create released the fourth episode of its Copy This podcast, this one featuring Corynne McSherry of the Electronic Frontier Foundation on “Fair Use: You Use It More Than You Realize.”

News/Blog Posts

The Canadian Association of Research Libraries (CARL) released a statement supporting Fair Use/Fair Dealing Week 2017.

Jim Neal, president-elect of the American Library Association and university librarian emeritus at Columbia University, wrote the editorial “Balance is Everything,” which was published in The Hill.

Harvard posted new blog posts each day of the week, as did the Center for Media & Social Impact. ARL Policy Notes, Authors Alliance, Dalhousie University, Duke University, Electronic Frontier Foundation, and Penn State University were among other organizations that also posted several times.

Michael Geist of the University of Ottawa covered fair dealing extensively in his post “The Copyright Lobby’s IIPA Report: Fake News about the State of Canadian Copyright.”

Ann Ludbrook of Ryerson University explained the importance of celebrating Fair Dealing Week in the context of the Canadian Copyright Review 2017.

Roundup From Day 3 of Fair Use/Fair Dealing Week 2017

*Cross-posted from Fair Use Week*

Check out all the great posts from Day 3 of Fair Use/Fair Dealing Week 2017! Don’t see yours? Contact us to get yours added! You can view previous roundups here.

Videos

ACRL Presents Fair Use Week “Using Fair Use To Preserve and Share Disappearing Government Information: A Guide for Rogue Librarians” with Lillian Rigling and Will Cross, NCSU Libraries

Public Knowledge video “Let Them Go: A Copyright Policy Song

Brigham Young University Copyright Licensing Office on taking the fear out of fair use: “Fear Use

Let’s Talk Library video “Let’s Talk . . . Fair Use

Resources

New Media Rights, The Fair Use App

Blog Posts/News Articles

Leigh Beadon on Techdirt “Celebrate Fair Use With a New T-Shirt from Techdirt

Krista L. Cox on Copyright at Harvard Library. “Debunking Fair Use Myths” (Cross posted to ARL Policy Notes)

Cassie Deskus and Kristen Iglesias on Authors Alliance blog, “First Sale, Fair Use, And Digital Downloads: Capitol Records v. ReDigi

Copyright @ Western University, “Copyright Fair Dealing Analysis

Cory Doctorow on Boing Boing, “Let it Go, the Fair Use Week mashup version

Michael Geist, “The Copyright Lobby’s IIPA Report: Fake News About the State of Candian Coypright

Zan Gillies on CMSi blog, “Roger C. Memos: ‘Sweet Adversity’ and Fair Use

Julie Hare in The Australian, “Copyright laws ‘a hindrance to innovation’: Google

Marlo MacKay on The Libvine, “Fair Dealing: Why Is it Important?

Mike Masnick on Techdirt “The MPAA Versus Fair Use

Anali Perry on TeachOnline at Arizona State University, “Fair Use Week—Fair Use in Online Instruction

Shiva Stella on Public Knowledge, “Public Knowledge Launches Copyright Educational Video Based on Frozen’s ‘Let it Go’

Scholarly Communication @ Temple, “Fair Use from a Scholarly Publisher Perspective

Rebecca Tushnet on 43(B)log, “Reading list: aesthetic nondiscrimination and fair use

UCSF Library, “Four Factors of Fair Use—The First Factor: The Purpose and Character o the Use

UCSF Library, “Four Factors of Fair Use—The Second Factor: The Nature of the Copyrighted Work

University of Virginia Library News & Announcements, “Brandon Butler Suggests Simple Guideline for Celebrating Fair Use Week

Timothy Vollmer on Creative Commons blog “Copyright Filtering Mechanisms Don’t (and can’t) Respect Fair Use

Roundup From Day 2 of Fair Use/Fair Dealing Week 2017

*Cross-posted from Fair Use Week*

Check out all the great posts from Day 2 of Fair Use/Fair Dealing Week 2017! Don’t see yours? Contact us to get yours added! You can view previous roundups here.

Podcasts

Re:Create Copy This Podcast Episode 4: Fair Use: You Use It More Than You Realize with Corynne McSherry (EFF)

Videos

CMSi, Fair Use Video Code: Documentary Filmmakers’ Statement of Best Practices

Blog Posts

Authors Alliance,Fair Use Week: Our Best Practices Guide is Underway

Jonathan Band on ARL Policy Notes Blog,Copyright Notice and Fair Use

Brandon Butler on Copyright at Harvard University Blog,Fair Use and Open Access: Two Great Tastes That Taste Great Together

Canadian Association of Research Libraries,CARL Statement in support of Fair Use/Fair Dealing Week 2017

Melanie Clark on Visual Resources Association Blog,Fair Use Week: Image Sources

EDUCAUSE,Fair Use

Ellen Euler, Anne Klammt und Oliver Rack on Deutsch Digitale Bibliothek,Bereit zu teilen?” (translation: “Ready to Share?”)

David Hansen on Scholarly Communications @Duke,Fair Use For Authors

Brandy Karl on Penn State Copyright Portal,Penn State Celebrates Fair Use Week 2017 #WeAreFairUse

Brandy Karl on Penn State Copyright Portal,Fair Use Myths & Facts #WeAreFairUse

Joshua Lamel,Fair Use: You Use It More Than You Realize

Mayra Linares on CMSi,How to Use Copyrighted Material in Your Work: Fair Use Week

Jeremy Malcolm, Electronic Frontier Foundation,Australia’s Battle Over Fair Use Boils Over

Jim Neal in The Hill,Balance is Everything

Stakebait on Archive of Our Own, “In Defense of Fanfiction (a sonnet to Fair Use)

Rebecca Reznik-Zellen on LSL Now,Fair Use Week 2017

Adrian Sheppard on The QUAD Where UAlberta Meets Online,The Importance of Fair Dealing

Happy Fair Use/Fair Dealing Week 2017!

This week is Fair Use Week, an annual celebration of the important doctrines of fair use and fair dealing. It is designed to highlight and promote the opportunities presented by fair use and fair dealing, celebrate successful stories, and explain these doctrines.

Today marks the start of Fair Use/Fair Dealing Week 2017!

Fair use and fair dealing are essential limitations and exceptions to copyright, allowing the use of copyrighted materials without permission from the copyright holder under certain circumstances. Fair use and fair dealing are flexible doctrines, allowing copyright to adapt to new technologies. These doctrines facilitate balance in copyright law, promoting further progress and accommodating freedom of speech and expression.

While fair use and fair dealing is employed on a daily basis by students, faculty, librarians, journalists, and all users of copyrighted material, Fair Use/Fair Dealing Week is a time to promote and discuss the opportunities presented, celebrate successful stories and explain the doctrine.

The level of participation in Fair Use/Fair Dealing Week is entirely up to each participant. Some will publish a blog post on fair use on one day during the week, while others might host events each day of the week. Below are some examples of ways to participate in Fair Use Week:

  • Write a blog post on fair use/dealing.
  • Publish an op-ed.
  • Host a live panel on fair use/dealing at your campus, institution, or organization.
  • Host a webcast or webinar.
  • Create a video about fair use/dealing.
  • Publicize fair use/fair dealing on social media using the hashtag #fairuseweek2016.
    (On Twitter, you can also follow and tag @fairuseweek.)
  • Write to your member of Congress highlighting the importance of fair use and how you, your members, or institution/organization rely on fair use.
  • Create resources or share existing resources. (See http://fairuseweek.org/resources/ for a great collection of resources developed during last year’s Fair Use/Fair Dealing Week celebration.)

To find out more, get resources, post news items or see a calendar of events for the week, please visit the Fair Use/Fair Dealing Week website.

Fair Use/Fair Dealing Week 2016 Highlights Balance in Copyright System

*Cross-posted from ARL News*

On February 22–26, 136 organizations and numerous individuals participated in Fair Use/Fair Dealing Week 2016, an annual celebration of the important—and flexible—doctrines of fair use and fair dealing. This year’s event was organized by the Association of Research Libraries (ARL) and participants included universities, libraries, library associations, and many other organizations, such as Creative Commons, the Electronic Frontier Foundation, Public Knowledge, the R Street Institute, Re:Create, and Wikimedia.

More than double the number of organizations participated in 2016 compared to 2015. Fifty ARL member libraries contributed this year, producing blog posts, comic books, and other resources, including five videos on fair use and fair dealing.

Participants celebrated the essential limitations and exceptions to copyright that fair use and fair dealing provide, allowing the use of copyrighted materials without permission from the copyright holder under certain circumstances. While fair use and fair dealing are employed on a daily basis, Fair Use/Fair Dealing Week provides a time to promote and discuss the opportunities presented, celebrate successful stories, and explain these doctrines.

Each day, new blog posts and resource materials were produced and shared. Daily roundups are available for each day of Fair Use/Fair Dealing Week and additional resources are available on the Fair Use/Fair Dealing Week website. Below are some highlights of the materials shared over the course of the week.

Fair Use/Fair Dealing Week 2017 will be held February 20–24. Plan to participate!

Resources

The Association of Research Libraries released the infographic “Fair Use in A Day In the Life of a Student.” The Center for Media & Social Impact posted the infographic “Teaching About Art.”

Kyle Courtney, Sarah Searle, and Jackie Roche of Harvard University published two comic books on two prominent fair use cases, one covering Bill Graham Archives v. DK and one on Campbell v. Acuff-Rose Music.

New Media Rights highlighted its Fair Use App for filmmakers and video creators and an accompanying blog post.

The Organization for Transformative Works collected questions over social media early in the week and compiled a Q&A about fair use.

The Youth and Media team at the Berkman Center for Internet and Society created several resources, including an infographic on the four fair use factors.

A collection of fair dealing stories from students and instructors in Canada is available at Fair Dealing Canada.

Video/Audio

Five ARL libraries—University of Tennessee, Knoxville; Columbia University; Texas A&M University; University of Massachusetts Amherst; and University of Alberta—created videos celebrating fair use and fair dealing. Additionally, University of New Brunswick produced a video explaining fair dealing.

Radio Berkman released “How Fair Use Works in Six Minutes or Less.”

MIT and Harvard held a joint panel discussion on fair use in scholarly publishing. The archive of the video is available online.

Additionally, an archived radio interview at The Ohio State University focusing on how libraries reinforce fair use is available on the WOSU website.

News/Blog Posts

Re:Create posted on Buzzfeed “19 Reasons to Be Thankful for Fair Use.”

Wikimedia provided a history of fair use on Wikipedia.

The American Library Association (ALA) posted several times throughout the week, including “Congress Stands Still; Technology, the Courts and Fair Use Marches Onwards!” and a summary of “Everyday Fair Use in Libraries.

Both Harvard and the Authors Alliance posted a new blog post each day during Fair Use Week. The Authors Alliance explained why it supports a broader view of fair use than the Authors Guild.

News also broke that the Robert Rauschenberg Foundation announced a new fair use policy to make its images more accessible to the public.

Bobby Glushko of the University of Toronto and Wanda Noel each explained a recently released decision by the Copyright Board of Canada on rate setting and fair dealing.

On the international front, the Australian Digital Alliance posted on “Why Do We Want Fair Use in Australia?” The Authors Alliance commented on international developments in fair use. EIFL (Electronic Information for Libraries) discussed the issues of fair use and fair dealing for new technologies in various countries.

Roundup from Day 5 of Fair Use Week 2016

Check out all of the great posts from Day 5 of Fair Use Week 2016! Don’t see yours? Contact us to get yours added!

Comics

Kyle K. Courtney and Sarah W. Searle, authors, and Jackie Roche, illustrator and author, “Bill Graham Archives v. DK: Music Promoter’s Archives vs. Publisher” (PDF)

Kyle K. Courtney and Sarah W. Searle, authors, and Jackie Roche, illustrator and author, “Campbell v. Acuff-Rose Music: Hip Hop Musicians vs. Music Publishers” (PDF)

Q&A

Janita Burgess, Organization for Transformative Works (OTW), “OTW Legal Answers Your Fair Use Week Questions!”

Quizzes

Brigham Young University, single-question quiz to test your understanding of whether 2 Live Crew’s parody of Roy Orbison’s song “Oh, Pretty Woman” is fair use

Blog/News Posts

ArtfixDaily Artwire blog, “The Robert Rauschenberg Foundation Announces Pioneering New Fair Use Image Policy”

Australian Digital Alliance, “Fair Use Week: Why Do We Want Fair Use in Australia?”

Casey Fiesler on Computing, Copyright, Community blog, “Remixers’ Understandings of Fair Use Online (CSCW 2014)”

Raoul Grifoni-Waterman on Authors Alliance blog, “International Fair Use Developments: Is Fair Use Going Global?”

Elliot Harmon on Electronic Frontier Foundation blog, “Content ID and the Rise of the Machines”

Tom Lipinski on District Dispatch blog, “Congress Stands Still; Technology, the Courts and Fair Use Marches Onwards!”

Meera Nair on Fair Duty blog, “Fair Use Denied—Part V”

New Media Rights blog, “Fair Use = Millions of Individuals Exercising Their Freedom of Expression Every Day. Happy #fairuseweek2016!”

Mary Beth Quirk on Consumerist blog, “Fairly Used: Why Schools Need to Teach Kids the Whole Truth about Copyright”

Matthew Rimmer on Copyright at Harvard Library blog, “Malcolm Turnbull, Copyright Law Reform, and the Innovation Agenda”

Jacob Rogers on Wikimedia blog, “Fairer than Fair: A History of Fair Use on Wikipedia”

Carrie Russell on District Dispatch blog, “Negativland and Fair Use”

US National Telecommunications and Information Administration blog, “The Need for Fair Use Guidelines for Remixes”

Roundup from Day 4 of Fair Use Week 2016

Check out all of the great posts from Day 4 of Fair Use Week 2016! Don’t see yours? Contact us to get yours added!

Images

Swarthmore College Libraries, Warhol-esque soup can reading “Using old art to make new art is fair use,”promoting a library event for users to create transformative art

Radio

Radio Berkman, Berkman Center for Internet & Society, “How Fair Use Works, in Six Minutes or Less”

Resources

Amanda Wakaruk, copyright librarian, University of Alberta, “Canadian Crown Copyright Conundrum” (PDF), paper discussing inconsistent approaches to copyright for works published by the Canadian government and advocating following the model of the US government, most of whose works are in the public domain

Youth and Media, Berkman Center for Internet and Society, “Fair Use Resources,” three new resources: a Radio Berkman podcast on the basics of fair use, a guide for teachers to help students understand fair use, and an infographic to explain the fair use doctrine and provide examples of applying the four factors

Video

Common Sense Media, animated video encouraging students to think about copyright law and appropriate ways to use original work responsibly

Dalhousie University Libraries, interview with assistant professor Mike Smit, School of Information Management, for Fair Dealing Week

Dalhousie University Libraries, interview with instructor Sasha Kondrashov, School of Social Work, for Fair Dealing Week

Blog/News Posts

Laura Burtle on Georgia State University Library blog, “Recent Developments in Fair Use Litigation”

Kyle K. Courtney on Copyright at Harvard Library blog, “Fair Use Week 2016: Day Four Interview With #WTFU Founders”

Nora Dethloff and Stephanie Lewin-Lane on University of Houston Libraries News blog, “Fair Use vs. Public Domain”

Teresa Hackett on EIFL blog, “Copyright for Today and Tomorrow (and Is There Life on Mars?)”

Heather Hughes in Western News, “Copyright Education Process Continues for Adam”

Brandy Karl on Penn State Copyright Portal blog, “Transformative Fair Use: A Mashup T-Shirt Roundup”

Lydia Pallas Loren on Authors Alliance blog, “Fair Use as More Than Just a ‘Defense’ to Infringement”

Meera Nair on Fair Duty blog, “Fair Use Denied—Part IV”

Megan O’Donnell on Scholarly Communication @ Iowa State University Library blog, “President Obama Nominates Dr. Carla Hayden for Librarian of Congress”

Tammy Ravas on District Dispatch blog, “Everyday Fair Use in Libraries”

Roxanne Shirazi on City University of New York (CUNY) Graduate Center Library blog, “Fair Use Week: Copyright and Your Dissertation”

Anna Simon on Ars Hoya blog, “Nostalgia Critic Defends Fair Use YouTube Clips”

Maira Sutton on Electronic Frontier Foundation blog, “The Murky Waters of International Copyright Law”

Peggy Tahir on UCSF Libraries In Plain Sight blog, “Fair Use Week, Day Four: Stream It!”

Roundup from Day 3 of Fair Use Week 2016

Check out all of the great posts from Day 3 of Fair Use Week 2016! Don’t see yours? Contact us to get yours added!

Radio

WOSA Public Radio: interview with Sandra Enimil, head of The Ohio State University Libraries Copyright Resources Center, about how to interpret and apply fair use

Resources

Brigham Young University, Copyright Licensing Office: Fair Use Week 2016 Questions & Answers

Center for Media & Social Impact: Infographic: Teaching About Art | Fair Use Week

New Media Rights: The Fair Use App: An Interactive Guide for Filmmakers and Video Creators

Video

Harvard Library, Office of Scholarly Communication: Rebekah Modrak, associate professor at the University of Michigan School of Art & Design, recounts challenges she encountered after creating artwork incorporating third-party copyrighted material

MIT Libraries: panel of publishers, authors, and librarians discuss fair use and reusing content in scholarly journals and books

Blog Posts

Lila Bailey on Internet Archive Blogs, “Fair Use & Access to All Human Knowledge”

Brandeis Library & Technology Services blog, “CopyRIGHT or CopyWRONG: Understanding the Basics of Fair Use”

Brandon Butler on Copyright at Harvard Library blog, “In Defense of Fair Use: The Slow Food Movement Tells Us Something Important about Our Fair Use Rights”

Denise Dimsdale on Georgia State University Library blog, “Why Is Fair Use Important?”

Fair Use Week blog, “Fair Use Stories: Prof. Rebekah Modrak and Re-Made Co.”

Ellen Finnie on MIT Libraries News & Events blog, “An Antidote to Copyright ‘Pain’”

Eric Harbeson on District Dispatch blog, “A Non-transformative Argument for Orphan Works”

Martha Meacham on AEA365: A Tip-a-Day by and for Evaluators blog, “Navigating Copyright Issues: When Should We Be Concerned?”

Meera Nair on Fair Duty blog, “Fair Use Denied—Part III”

Wanda Noel on ARL Policy Notes blog, “Canada’s Copyright Board Finds Most Educational Copying Is Fair Dealing”

Re:Create on BuzzFeed: “19 Reasons to be Thankful for Fair Use”

Ryerson University Library & Archives News blog, “Celebrate Fair Dealing Week—Celebrate User’s Rights”

School of Visual Arts NYC, In the Loupe: Visual Resources Center Blog, “It’s Fair Use/Fair Dealing Week!”

Rebecca Tushnet on Authors Alliance blog, “Fair Use and the DMCA’s ‘Anticircumvention’ Provisions”

Ultimate Oddball Blog, “Fair Use and #WTFU on Youtube”

Roundup from Day 2 of Fair Use Week 2016

*This week is Fair Use Week, an annual celebration of the important doctrines of fair use and fair dealing. It is designed to highlight and promote the opportunities presented by fair use and fair dealing, celebrate successful stories, and explain these doctrines.  Cross-posted from fairuseweek.org*

Check out all of the great posts from Day 2 of Fair Use Week 2016! Don’t see yours? Contact us to get yours added! 

Quizzes

Brigham Young University: single-question quiz to test your understanding of whether Google Books is fair use

MIT Libraries, quiz to test your knowledge of how to weigh the four factors of fair use

UCLA Library, quiz on whether five famous works inspired by other sources are fair use or foul play (PDF)

Reddit Ask Me Anything (AMA)

OverClocked ReMix, a fan community creating free video game music (VGM) arrangements, answers questions, especially questions about whether creating fan-made VGM remixes is fair use

Videos

Gerald Beasley, vice-provost and chief librarian at the University of Alberta, emphasizes the balance of rights in copyright, noting that access to copyrighted material is essential to scholarship because of the need to build upon works that came before

Gary Price, editor of infoDOCKET, and Peter Suber, director of the Harvard Open Access Project and the Harvard Office for Scholarly Communication, discuss key issues in the open access movement

Texas A&M University Libraries explains what fair use is and how the university libraries has empowered faculty to determine what is fair use in the context of their own classrooms

Ann Thornton, university librarian and vice provost of Columbia University, explains how fair use has contributed to allowing “quality” access to scholarly materials

University of Massachusetts Amherst Libraries highlights its W. E. B. Du Bois collection as one of its special collections that it has digitized and made available online relying on fair use

University of New Brunswick Libraries presents an overview of the fair dealing provisions of the Canadian Copyright Act

University of Tennessee, Knoxville, Libraries describes its consideration of fair use while digitizing its collection of postcards from the Great Smoky Mountains

University of Waterloo Library discusses what fair dealing is, why it matters, and campus resources for help using the fair dealing exception

Blog Posts

Stan Adams on Center for Democracy & Technology blog, “Fair Use in Art, Politics, and Babies Going Crazy”

Patricia Aufderheide on Center for Media & Social Impact Fair Use blog, “Fair Use Week: Plenty to Celebrate”

Hillary Corbett on Northeastern University Libraries SNELL Snippets blog, “February 22–26 is Fair Use Week!”

Krista Cox on Copyright at Harvard Library blog, “Thankful for Fair Use”

Nora Dethloff on Fair Use Week website, “Welcome to Fair Use Week 2016!”

Melissa Green on University of Alabama Libraries’ Academic Technologies blog, “Accessible Formats and Fair Use”

Julie Grob on University of Houston Libraries News blog, “Three Famous Fair Use Cases”

April Hathcock on At the Intersection blog, “Fair Use for Social Justice”

Janet Landay on College Art Association News blog, “CAA Celebrates National Fair Use Week”

Mayra Linares on Center for Media & Social Impact Fair Use blog, “How to Use Copyrighted Material in Your Work | Fair Use Week”

Russell McOrmond on his blog, “Fair Use/Fair Dealing Week”

Kathryn Michaelis on Georgia State University Library blog, “Fair Use: The Four Factors”

Meera Nair on Fair Duty blog, “Fair Use Denied—Part II”

Vicky Ludas Orlofsky on Stevens Library blog, “I Haz Rights! Memes and Fair Use”

Marta Palacio on Safe Creative blog, “¿Qué es el “Fair Use” y qué está pasando en YouTube?”

Carrie Russell on District Dispatch blog, “Fair Use Déjà Vu”

Peggy Tahir on UCSF Library In Plain Sight blog, “Fair Use Week, Day Two: Court Cases”

Timothy Vollmer on Creative Commons blog, “The Flip Side of Copyright”

Sara Maurice Whitver on University of Alabama Instruction Adventures blog, “How The Citation Project Helps Librarians Promote Fair Use”

Canada’s Copyright Board Finds Most Educational Copying is Fair Dealing

*This week is Fair Use Week, an annual celebration of the important doctrines of fair use and fair dealing. It is designed to highlight and promote the opportunities presented by fair use and fair dealing, celebrate successful stories, and explain these doctrines.  

Today’s post is by guest blogger, Wanda Noel, a Canadian lawyer with a practice focused exclusively on copyright. Noel was legal counsel in three recent Supreme Court of Canada and Canadian Copyright Board decisions interpreting the fair dealing provision in the Canadian Copyright Act, including acting as counsel to the objectors in this matter.* 

On February 19, 2016, the Canadian Copyright Board issued a decision setting the Access Copyright Elementary and Secondary School Tariff, 2010-15. With its decision, the Copyright Board set a tariff rate of $2.46 for 2010-2012 and $2.41 for 2013-2015 per full time equivalent student per year to copy print materials such as books, magazines and newspapers.

The announced tariff rate is substantially lower than the per-student rates requested by Access Copyright, a copyright collective representing educational publishers and authors. Access Copyright initially requested rates of $15.00 for the years 2010-12 and $9.50 for the years 2013-15. These rates were a significant increase over the prior rate of $4.81 set by the Copyright Board in 2009. The Copyright Consortium of the Council of Ministers of Education, Canada (CMEC), representing the ministers of education in every Canadian province and territory, except Quebec, and the school boards of Ontario objected to the proposed Access Copyright rates and requested much lower rates.

This Copyright Board decision is the first application of fair dealing in educational institutions since two significant events in 2012 altered the copyright landscape in Canada. First, the Copyright Act was amended to add “education” as a new purpose in the fair dealing provision. Second, the Supreme Court of Canada issued a landmark decision interpreting fair dealing to permit teachers to copy and use short excerpts from published works for students in their classes.

The Board attributed the decrease from the prior rate of $4.81 to the decision of the Supreme Court of Canada in Alberta v. Access Copyright, [2012 SCC 37.] That decision established that copying short excerpts of copyright-protected works for student instruction, assignments or class work did not require royalty payments because the copying was fair dealing. This conclusion resulted in the Board’s finding that a significant proportion of copying by elementary and secondary schools was fair under the fair dealing provisions of the Copyright Act. Based on data available from a large-scale copying study in Canadian schools, the Board found that 97.2% of copying from books, 98.1% of newspapers and 98.5% from periodicals was fair dealing. This large volume of copying therefore did not require a licence from the owner of the copyright.

The royalty payments of $2.46 and $2.41 set by the Board relate primarily to the copying of consumables. Consumables are works that are intended for one-time use and contain a statement that copying is not permitted. An example is a workbook with questions and answer sheets to be completed by students. The Board found that none of the dealings with consumables were fair. Over three quarters (79% for 2010-2012, and 81% for 2013-2015) of the tariff value is attributable to consumables.

This Copyright Board decision is noteworthy because of the Board’s findings relating to fair dealing. For a dealing to be fair, two tests established by the Supreme Court of Canada in 2004 in CCH v. Law Society of Upper Canada 1 SCR 339 must be met. First, the dealing must be for one of the purposes set out in the Copyright Act. The Board found that the vast majority of copies being considered passed the first test because they were made for one of the following purposes captured by the copying study: research, criticism, review, future reference, private study or student instruction. Only copies made for entertainment and administration did not pass the first test.

The second test is that the dealing must be fair. To determine fairness, the Board applied six fairness factors established by the Supreme Court of Canada in its CCH decision: purpose of the dealing, amount of the dealing, character of the dealing, nature of the work, alternatives to the dealing, and effect of the dealing. These six factors were applied separately to books, newspapers, periodicals and consumables. The Board’s fairness analysis for consumables differed from the other genres particularly on the factors of the nature of the work and alternatives to the dealing.

The Copyright Board also accepted the position of the CMEC Copyright Consortium with respect to several issues besides fair dealing, including the fact that significant amounts of copying are not substantial (and therefore do not trigger any royalty payments under the Copyright Act), the limited nature of Access Copyright’s repertoire, and Access Copyright’s inability to adequately licence the copying of sheet music.

The present Copyright Board’s decision follows another recent tariff decision relating to Access Copyright issued in May of 2015 covering copying by provincial and territorial government employees, where a number of the legal issues were similar. Access Copyright had sought rates as high as $24 per full-time employee, but the highest rate certified was only $0.49. This government tariff decision is currently the subject of a judicial review application in the Federal Court of Appeal brought by Access Copyright.