Tag Archives: fair dealing

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.

Five Videos from ARL Libraries Celebrate Fair Use and 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.

Cross-posted from ARL News*

In honor of Fair Use/Fair Dealing Week 2016, five ARL member libraries have created videos celebrating the important doctrines of fair use and fair dealing—essential limitations and exceptions to copyright that allow 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 and facilitate balance in copyright law.

The University of Tennessee, Knoxville, Libraries highlights in a two-minute video its collection of Great Smoky Mountains postcards and digitization of this collection under fair use. Holly Mercer, associate dean for research and scholarly communication, notes that the University of Tennessee relied on the Code of Best Practices in Fair Use for Academic and Research Libraries to evaluate the fair use case to digitize and make the postcards available online. She clearly explains the transformative nature of making this special collection available digitally.

Ann Thornton, university librarian and vice provost of Columbia University, explains in a four-minute video how fair use has contributed to allowing “quality” access to scholarly materials. She discusses court cases from the past year that provide clear direction in allowing the robust application of fair use, including Authors Guild v. Google and Lenz v. Universal Music. Thornton also talks about the importance of open access and why it must act in tandem with fair use.

Texas A&M University Libraries has created a two-minute video explaining what fair use is and how, rather than creating strict rules about fair use, the university libraries has empowered faculty to determine what is fair use in the context of their own classrooms. The libraries thinks of fair use like a muscle—“if you don’t use it, you lose it.”

University of Massachusetts (UMass) Amherst Libraries highlights in a one-minute video its W. E. B. Du Bois collection as an example of one of its special collections that it has digitized and made available online relying on fair use. This collection is used in more than 30 courses at UMass alone. The Du Bois collection is just one of 100 other collections that are available via the libraries’ digital repository.

Gerald Beasley, vice-provost and chief librarian at the University of Alberta, emphasizes in a four-minute video the balance of rights in copyright. University of Alberta’s impact on Alberta’s economy is estimated at $12.3 billion and Beasley points out that access to copyrighted material is essential to scholarship because of the need to build upon works that came before. He also notes that a “liberal interpretation and application of fair use and fair dealing should be encouraged, especially for universities.”

Happy Fair Use/Fair Dealing Week!

Today, we’re kicking off Fair Use/Fair Dealing Week 2016!

While we believe every week is fair use and fair dealing week, February 22-26 is a time to celebrate the important doctrines that provide essential balance in copyright law.  ARL has a number of resources that will be released this week, so stay tuned!  Last year, a number of great resources were created and shared including an infographic, podcasts, a comic book, blog posts and more.  A summary of some of the highlights from Fair Use/Fair Dealing Week 2015 is available here.

Check out all the resources and events (which will updated as the week progresses) herel.  Don’t forget to follow ARLpolicy and FairUseWeek on Twitter.

Canadian Author’s Collective, Access Copyright, Dealt Major Blow; Future Uncertain

*This is a guest blog post by Bobby Glushko, Head of the Scholarly Communications and Copyright Office for the University of Toronto Libraries*

On May 22, 2015, the Copyright Board of Canada certified a surprisingly low tariff for copying undertaken by the full time professional staff of provincial governments, such as legislators, aides, and other provincial employees. The tariff, 11.56¢ per employee, per year, for the 2005- 2009 period and 49.71¢ per employee, per year, for the 2010-2014 period, is vastly lower than the $15 tariff initially proposed by Access Copyright. In its decision, the Board supported several interesting copyright theories which may have long term significance for libraries in Canada.

It has long been the custom that Canadian institutions would hold licenses with one or many of the various rightsholder collectives to cover their uses of copyrighted content. These licenses were generally paid on a per employee basis, and were set by either negotiation or through the operation of the Copyright Board of Canada, an administrative body established by Parliament to, among other things, issue tariffs for the use of copyrighted content. One of the major collectives issuing these licenses is Access Copyright, a collective representing authors, publishers, and visual artists. Over the past decade, the costs of the Access Copyright license, a license which allows for institutions to copy significant portions of published works in their licensing repertoire, and the price of the tariff have risen dramatically, from a low of $3 per employee to as high as a proposed $45 per employee. With such uncertainty in the market, and a substantial realignment of the law, Canadian universities and colleges have been forced to re-examine the value of the Access Copyright license, and many of them have chosen to forgo purchasing a license or accepting the tariff, choosing instead to handle rights clearances in house, often in their libraries, and to license content on a transactional basis where necessary.

These changes have not gone unchallenged, however.   In April 2013, Access Copyright sued York University, claiming that by operating without an Access Copyright license or working under a tariff, York was “authorizing and encouraging copying that is not supported by the law.” In their claim, Access Copyright argued that due to the presence of copyright infringement at York, the University needed to be subject to the Board’s tariff, and could not operate outside a license arrangement. A similar suit was brought by Copibec, the comparable author’s collective from Quebec, against Université Laval as well.

While the litigations are still ongoing, this recent action by the Board calls into question their viability and even the continued existence of Access Copyright. Projected revenues from the proposed tariff were around twenty-five million dollars over the covered period; the issued tariff provides for approximately three hundred seventy thousand dollars over the same period, an amount that will likely not even cover the cost of Access Copyright’s action before the Board to obtain the tarriff. As devastating as the financial loss is, the loss on substantive legal arguments appears to be even worse. While the Board’s rationale is not binding on the courts, judges have tended to give deference to the Board as a finder of fact. In this current tariff proceeding, the Board ruled against Access Copyright on several legal arguments, two of which are expanded upon below.

First, the Board rejected the argument that Access Copyright had the capacity to license all published works from which it was not explicitly excluded from licensing, even in the absence of a formal arrangement with a rightsholder. While this may seem obvious in a non-extended licensing jurisdiction, that is, a jurisdiction where all types of published works are subject to a non-voluntary licensing regime, it was in fact a longstanding claim by Access Copyright that they had the capacity to do this. By rejecting this argument, the Board dealt a huge blow to any litigation involving Access Copyright’s repertoire, and essentially posed an existential threat to the organization.

Second, and equally as important, the Board flatly rejected Access Copyright’s interpretation of the scope of fair dealing in Canada. Since the Supreme Court of Canada’s series of rulings on copyright law in 2012, which have been termed the Copyright Pentalogy, the scope of fair dealing has been subject to a fairly fierce debate. Nearly all Canadian universities have adopted fair dealing guidelines which state that the copying of 10% or one chapter of a book, or one article from a journal issue, would generally tend to be fair for the purposes of education, teaching, or private study, given the assumption that the other fair dealing factors do tend towards fairness in the context of higher education. In this action before the Board, Access Copyright advanced a theory of the scope of fair dealing that was far more limited; a theory which the Board wholeheartedly rejected in favour of a scope of fair dealing closely aligned with the commonly adopted university guidelines. The implications of this for the ongoing litigation are tremendous, as a rejection of the fair dealing guidelines adopted across Canada is an essential element of Access Copyright’s legal strategy.

Given the current climate, where most Universities and Colleges are choosing to operate outside of a tariff or a license with Access Copyright, the Board’s decision comes as yet another huge setback in what has been a series of losses for the collective. Perhaps this decision, rather than being the next chapter for Access Copyright, may be an indication that its long story is coming to an end.

If you’re interested in these issues, come join us at the Copyright in Canada Conference on October 2nd 2015 in Toronto, Ontario.

Highlights from Fair Use Week 2015

From February 23-28, 64 organizations and institutions participated in Fair Use Week 2015, an annual celebration of the important (and flexible) doctrines of fair use and fair dealing. Participants included universities, libraries, library associations and a number of organizations such as the Electronic Frontier Foundation, Creative Commons, New Media Rights, Public Knowledge and the R Street Institute. These 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 Week provided 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. Daily recaps are available for each day of Fair Use Week and additional resources are available on the website. Over the course of the week, more than 90 blog posts, 13 videos, 2 podcasts, a comic book, an infographic, and several other great resources were released. Below are some highlights from the week:

Resources:

ARL released the Fair Use Fundamentals Infographic, explaining what fair use is, why it is important, and who uses fair use. It also provides several examples of cases where courts have upheld fair use. ARL also produced Fair Use: 12 Myths and Realities.

Jonathan Band highlighted just how often fair use is employed on a daily basis through a sample day in the life of a legislative assistant.

Kyle Courtney of Harvard University released a comic book entitled, “The Origin of U.S. Fair Use.”

Public Knowledge hosted a Reddit AMA with cartoonist Nina Paley discussing how art is made and the role of fair use.

Videos:

Professor William Fisher (Harvard Law School) released two lectures from his Copyright X course: Lecture 9.1, Fair Use: The History of Fair Use and Lecture 9.2, Fair Use: Fair Use Today. These are excellent lectures explaining the doctrine.

Several videos were produced during the week. Fred von Lohmann explains how fair use enables technologies used every day. The Media Education Lab posted a fair use music video.

The Association of College and Research Libraries hosted a webinar featuring Kevin Smith of Duke University, “Does Fair Use Really Work?” The archive of the webinar is available here.

American University Washington College of Law’s Program on Information Justice and Intellectual Property hosted an event, “Presenting the Statement of Best Practices in Fair Use of Collections Containing Orphan Works.” The archived video of the event is available here.

Duke University, hit by inclement weather, delayed its event Fair Use of Art & Beyond, but the video of the event (including slides) is now available here.

In Canada, Bobby Glushko (University of Toronto) produced several videos, including one on the “Copyright Pentalogy,” providing an overview on five Canadian Supreme Court cases that clarified copyright law. Christine Jewell (University of Waterloo) has a great explanation on what fair dealing is.

Podcasts:

Two podcasts were released during the week. TechDirt devoted an entire episode to the topic, “Fair Use Protects Culture from Copyright, Not the Other Way Around.” Radio Free Culture released a special episode, “Wishing You A Happy Fair Use Week with Ellen Duranceau.”

Blog Posts:

The Authors Alliance posted three times during the week, including Pamela Samuelson’s “Why is Fair Use Good For Authors?” Samuelson explains the many ways that authors rely on fair use, noting, “Authors and artists are likely to make and benefit from fair uses in every phase of the creative process and long thereafter.”

The Electronic Frontier Foundation stated, “Congress’s Copyright Review Should Strengthen Fair Use—Or At Least Do No Harm,” explaining that Congress could 1) clarify that statutory damages do not apply where a user relies on a fair use defense in good faith, and 2) fix Section 1201 of the Copyright Act to ensure that technological protection measures, or digital locks, cannot be used to take away fair use.

Creative Commons celebrated Fair Use Week with an explanation of how the creative commons license interacts with fair use.

The Organization for Transformative Works highlighted 10 Fair Use Misconceptions.

Mike Masnick of TechDirt issued this “Reminder: Fair Use is a Right—And Not ‘An Exception’ or ‘A Defense.’

Harvard released blog posts each day of the week with expert guest bloggers Kenny Crews (consultant), Kevin Smith (Duke University), Laura Quilter (UMass Amherst), Niva Elkin-Koren (University of Haifa, Israel), and Dr. Matthew Rimmer (ANU College, Australia).

Georgia State University has a short piece explaining the four fair use factors. The Ohio State University explains Fair Use in Digital Storytelling. University of Texas Austin explains Fair Use and the Jazz Appreciation MOOCs.

Numerous universities across Canada joined in by celebrating Fair Dealing Week 2015. The University of Toronto coordinated these efforts and collected blog posts for the week here.

The week wasn’t exclusively celebrated in the U.S. or Canada, either! The University of Haifa in Israel also took part, with a series of blog posts (NB: most of these posts are in Hebrew).