Fair dealing or no fair dealing

Copyright debate centres around what actually counts as infringement

Changes to Canada’s copyright law could make it harder for students to share information. Crystal Staryk

As consultations on updated copyright law end, the future of consumer access to movies, music, television and other media is now in the hands of the federal government.

Sept. 13 marked the end of nearly two months of nation-wide consultations on how to update Canada’s copyright law. The key issue is whether Canada should broaden “fair dealing,” the provisions that exempt certain acts from copyright violation.

Many are arguing for broadening fair dealing to protect researchers and students from severe copyright charges. Others see copyright as a necessity that shouldn’t be changed.

“We don’t advocate for the broadening of fair dealing, period,” said Carolyn Wood, executive director of the Association of Canadian Publishers. “We think that the parameters in place for fair dealing are adequate protections for our business and others.”
The problem is copyright means virtually nothing in a digitized world where the spread of information is more fluid and copyright holders require protection from that world, said Wood.

Another voice emerging from the consultations is calling for broadening fair dealing to include more provisions regarding digitization.

“Unlike the U.S., which treats some of these activities as fair use, we do not have the same [copyright] coverage in Canada,” said Michael Geist, a copyright law expert at the University of Ottawa. “It can change by adding some flexibility to fair dealing.”

The law does not clearly spell out what is and isn’t legal. There are no provisions regarding format shifting – the transfer of copyright material from one software format to another – which is a popular aspect of student research.

“[People] have to have the ability as users and students to make copies to distribute, whether it’s for research or private study, news reporting or archiving,” said Sid Rashid, a Winnipeg representative from the Canadian Federation of Students.

The consultations were due to the largely negative reaction to Bill C-61, tabled in Parliament last fall. The bill was controversial because it allowed certain leniency for downloaders, but imposed harsh fines for the circumvention of a digital lock. Many manufacturers place digital locks on copyright items. The bill was criticized for favouring copyright owners by granting them immunity to implement such locks.

A distinction could be made between circumvention that infringes copyright and non-infringing circumvention. For example, an infringing circumvention would be to pick a digital lock with the intention to burn and sell 1,000 copies of a CD. Non-infringing circumvention would be for research or study purposes, said Geist.

There are currently no such distinctions in copyright law and no provisions covering circumvention, so the legality is up in the air.

“Everything from buying a CD and burning it onto your iPod or downloading something off the Internet and sending it to your friends, having a back-up file on your computer at home – that would be copyright infringement [under C-61],” said Rashid.

Published in Volume 64, Number 5 of The Uniter (October 1, 2009)

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