One oft asked question is whether fair dealing and fair use are the same? Fair use exists in the US Copyright Act; and fair dealing in the Canadian Copyright Act. Share your thoughts on this issue by posting your comments below.
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There is an interesting quotation in Intellectual Property: The Law in Canada (Elizabeth Judge, Daniel Gervais — Thomson/Carswell, 2005) which follows.
“The net result of CCH is that, under Canadian law, there is a flexible list of six criteria to determine fairness, but an exhaustive statutory list of acceptable purposes, while under the U.S. fair use doctrine,there is a mandatory list of criteria to determine criteria, but an open list of permissible purposes.” (p. 86) I recommend the discussion of fair dealing and fair use in this text (p. 84-)
I was struck by Library Dude’s experience. Since the Canadian Act gives the copyright holder the right to “reproduce the work, or any substantial portion thereof” (s.3)the right to reproduce insubstantial portions falls into the public domain where fair dealing is irrelevant.
I have also been considering the matter of “research or private study” and its juxtaposition with the exemptions for Educational Institutions in the Act (s. 29.4-).It appears that these exemptions facilitate group consideration of a work. That the classroom meets the definition of a “public” place is reason for the performance rights portion of these exemptions. If you will, this is a case, either by group listening, or by a teacher copying text to the blackboard or presenting it via an overhead, of public study as distinct from private study.
One then comes to materials distributed in class. Are they meant for public study or private study? Does the distribution serve the purpose of the overhead projector, keeping all minds on the same page, or is it an invitation to study the material privately, outside the context of the public classroom?
Regarding fair use of web content, I have a question. I asked for, and received, permission to copy DVD summaries directly from CBC’s education division into the summary field of my cataloguing program. Is it fair use to copy publishers’ summaries without permission, as long as you indicate the source of the summary? I work in a school with an OPAC system. I like to do more than put subject headings in records. I want the staff and students to be able to sift through choices from the comfort of their home computers, and I want to them to be able to do that directly from the library records. As with most of us, I don’t enough time to skim read every book and write my own summary. Thanks for any opinions, information, whatever, that you care to provide.
I’m a librarian as well as a publisher, and I perceive a difference in attitude between librarians and writers/publishers toward the concept of fair dealing.
Recently, in the process of editing a manuscript, my co-editors and I came up against the issue of an author having used very short quotations from other authors’ works as epigraphs in his text. My co-editors, all of whom are creative writers, insisted that we needed to seek permission from the copyright holders for the use of the quotations, while I argued that their use would almost certainly be considered fair dealing. I lost the argument, we sought permission, and at least one of the copyright holders is now demanding payment for use of a short quote.
I wonder, are my colleagues just more sympathetic with their fellow writers when it comes to being compensated for one’s work, or are they suffering from a mild case of copyright creep? Or is it the case that the omission of “scholarship” from the Canadian concept of fair dealing means that my colleagues are right?
First of all the primary negative of fair dealing. Canadian fair dealing is for five purposes: research, private study, review, criticism or news reporting. Even if the Supreme Court does state that fair dealing should be broadly and not narrowly interpreted. Fair use on the other hand is “for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research.” Because of the “such as” clause US courts have more room to read in new rights such as satire. That tends to be the big positive of US fair use compared to fair dealing.
On the flip side, the big advantage of Canadian fair dealing is our six factors versus the four factors in the US. It has always been explained to me that the US four factors serve as a checklist. If you fail even one factor like economic effect, it isn’t a fair use. In Canada, if you pass the first factor “purpose”, then you only have to win a majority of the remaining five factors. So economic effect cannot be used as a bludgeon to prevent a fair dealing in Canada.
When you add up the “four factors” and the DMCA, I think Canadians are better off with fair dealing than with fair use.
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