#fairdealing

Like there are two sides of a coin, copyright also has two faces the good and the bad. On one hand copyright protects the work of an author and ensures that they don’t lose profit unfairly and on the other hand copyright limits the creativity and potential of other equally successful artists. It limits the creation of good material.

Under the protection of Copyright an individual can’t use the creation of another person without the consent of the author. Whereas there are certain exceptions to this rule and one of them is the concept of “Fair Dealing”. Today I will be talking about the concept of Fair Dealing and how people escape from infringing a copyrighted work because of fair dealing.

Fair Dealing can be understood as the copy of a copyrighted material that is used for transformative and limited means. The concept of Fair Dealing permits the usage of copyrighted material in few circumstances without seeking the permission from the creator or without providing payment to the copyright owner. It also includes within its ambit parodies, critiques and commentary. For using the copyrighted work without permission of the creator there are certain requirements that are to be met for the usage to come under the umbrella of fair dealing. Section 30  of the Copyright and Protection Act provides the conditions that must be met to legitimately fair deal a copyrighted work.

Taking parodies into consideration they are humorous comments. Parody can be defined as “a literary or musical work in which the style of an author or work is closely imitated for comic effect or in ridicule.” Parodies require mimicking of an original work which is an infringement of copyright but they also require a certain amount of imagination and intellectual creation to make that work comic in nature which allows a person to escape from the liability of copyright infringement. But in case there is a parody created of a song and a huge portion of that song is copied and very less original creativity is put into the parody and as a final outcome the song still sounds like the original version for most of the part, this would be a copyright infringement.

In my opinion I believe that even though parodies, critiques and commentaries may be in line with the copyright act and may not be infringing any copyrighted material but using someone’s hard work just for the sake of making fun of it or giving critical comments about it, it may demotivate the creator or author and may lower his moral down which may result in to a barrier for innovation and invention of new work which is the sole purpose of creation of copyright act. By allowing creativity in parodies we might be limiting the creation of original work. The question here arises that do we need more of parodies or do we need more original work or can parodies be made without playing with the sentiments of the creator?

Sources : https://onlinelibrary.wiley.com/doi/abs/10.1087/20150309

Fair use in theory vs fair use in practice

Mashup, Remix, and Fair dealing | What you need to know

o amor é como uma flor,

nasce, pode começar simples,

mas com o passar do tempo se torna algo grandioso, 

ou como a flor, belo

pode ser cada vez mais intenso, ou cada vez mais amargo,

a rosa pode ter seus espinhos, assim como o amor

tudo é diferente, nenhum amor é comum, 

assim como nenhuma flor é igual, 

mas a escolha de qual flor vai ser seu amor vem de você,

e ai, seu amor é colorido? violeta... rosa.. lilás? 

qual o tipo de amor é o seu?

não se prenda, se liberte, entregue a flor que tem em você, para ao menos poder dizer, eu vivi o amor, e hoje compartilho das minhas flores,

e quando todas elas cairem, quando todas elas ficarem apenas na raiz,

relaxe, as flores brotarão novamente, e tudo recomeça, 

by Bobby Glushko, Head, Scholarly Communications and Copyright, University of Toronto Libraries

Friday February 22, 2016 was a great day for fair dealing in Canada. 

Last Friday, the Copyright Board of Canada, an administrative body that sets royalty rates for collective licenses, issued a decision on the rate for copying undertaken in K-12 educational settings.  Access Copyright, a collective licensing organization that represents Canadian writers and publishers, had originally proposed a tariff of $15 per student for the initial phase of the tariff.  The Board, after hearing all of the evidence, certified a tariff of $2.46 for the initial phase, dropping to $2.41 after three years.  This was not only a substantial reduction from Access’ request; it was also half of the previous tariff certified by the Board. 

This ruling, came as a welcome confirmation that the Canadian copyright balance has become increasingly user positive.  In recent months Access Copyright has suffered significant defeats as the Board and the courts have become increasingly comfortable with fair dealing and the vital role it plays in Canadian society.  The role of the collectives in facilitating the use of copyrighted works has fallen in importance as a more robust understanding of fair dealing has come to be understood.

Fair dealing has not always been so strong in Canada.  For many years fair dealing had been seen as an affirmative defense to copyright infringement, as a “loophole” that could enable someone to get away with bad behavior.  However, in the 2004 landmark Supreme Court decision CCH Canadian Ltd. v. Law Society of Upper Canada, the Court demolished that theory, stating that

The fair dealing exception, like other exceptions in the Copyright Act is a user’s right.  In order to maintain the proper balance between the rights of a copyright owner and users’ interests, it must not be interpreted restrictively.  As Professor Vaver, supra, has explained, at p. 171:  “User rights are not just loopholes.  Both owner rights and user rights should therefore be given the fair and balanced reading that befits remedial legislation.”

This ruling, the basis of a newly awakened fair dealing, was resoundingly strengthened by the Court in 2012.  2012 was a big year for Canadian Copyright, as noted academic Michael Geist wrote, the Court “shook the foundations of Canadian copyright law” by issuing five decisions on copyright on one day; these decisions have been called the “Copyright Pentalogy” and showed the Court’s commitment to robust fair dealing.  On the legislative side, 2012 also saw the passage of Bill C-11, the Copyright Modernization Act.  Of particular importance in the Act was the inclusion of “education” as a class of activity that can be seen as fair dealing.  This change, alongside the Pentalogy, led many Canadian colleges and universities to adopt fair dealing guidelines that treated fair dealing like a user’s right.

However, these guidelines were subject to some controversy; fearing an erosion of their influence, Access Copyright sued York University for copyright infringement, stating that their guidelines were “authorizing and encouraging copying that is not supported by the law.”  In Quebec, a similar suit was brought by Copibec, the Quebec author’s collective, against Université Laval as well.  However, with the Board’s latest tariff decision relying so heavily on fair dealing, it seems that a strong culture of fair dealing is here to stay.  As Michael Geist recently stated “the Board Minced no words in explaining the reduction:

‘The main reason for that decrease is the fact that as a result of the decision of the Supreme Court in Alberta v. Access Copyright…This 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. These copies therefore do not generate remuneration.’”