Ariel Katz - Civilization is an open-source project

South Africa’s Proposed Copyright Fair Use Right Should Be a Model for the World

Sean Flynn, American University Washington College of Law
Michael W. Carroll, American University Washington College of Law
Peter Jaszi, American University Washington College of Law
Ariel Katz, University of Toronto, Faculty of Law
Leandro Mendonça, Universidade Federal Fluminense (UFF), Cultural Production Department
Diane Peters, Creative Commons Corporation (HQ)
Allan Rocha de Souza, Federal University of Rio de Janeiro (UFRRJ)

Copyright laws the world over are under massive pressure to reform to fit the digital environment. One key area often in need of reform is in the exceptions to copyright that enable the digital practices. Without exceptions, common practices may be illegal, such as sharing photos on social media, making technical copies to send and stream, and uploading excerpts to closed networks for student access.

None of these and dozens of other digital issues were considered when most of our laws were drafted in the 1970s. South Africa is on the cusp of reforming its law with a new hybrid exception that contains both a set of modern specific exceptions for various purposes and an open general exception that can be used to assess any use not specifically authorized.

The Public Interest Advocacy Centre (PIAC) has requested me to prepare a Report in connection with the application by the FairPlay Coalition to the CRTC and its proposed website-blocking mechanism. PIAC asked me to assess the Applicants’ claims in light of the best available theoretical and empirical evidence. More specifically, to determine whether the academic literature and the Application itself substantiate the alleged harms of piracy and the efficacy and benefits of the proposed website blocking remedy.

If you’d like to read my Report, here it is. If you’d like to read only the introduction and the conclusion, keep reading. Read more ›

Debunking the Fair Use vs. Fair Dealing Myth: Have We Had Fair Use All Along?

It is Fair Dealing Week and I’m happy to share a draft of my new forthcoming chapter “Debunking the Fair Use vs. Fair Dealing Myth: Have We Had Fair Use All Along?“. Here’s the abstract:

According to conventional wisdom, a fundamental difference exists between the American fair use doctrine and the Canadian (or Commonwealth) fair dealing doctrine: while American fair use can apply potentially to any purpose, Canadian fair dealing could only apply to those purposes enumerated in the statute. Accordingly, fair dealing cannot apply to dealings for other purposes even if they would otherwise be fair.

This conventional wisdom is false. When the UK Parliament codified the doctrine of fair use a century ago and enacted the fair dealing provision, it had no intention to restrict or limit its application, adaptation and adjustment by the courts. The UK Parliament (and that of Canada ten years later) sought to codify a principle, an open, flexible, and general standard, not precise rules, and had no intention to prevent its application to purposes beyond those specifically mentioned in the statute. Unfortunately, the English courts, in a series of early post-codification decisions, failed to recognize this point have sentenced fair dealing to a hundred years of stagnation.

Fortunately, at the turn of the twenty-first century the Supreme Court of Canada declined to follow that restrictive path. The Canadian Parliament’s decision to explicitly recognize additional purposes in 2012 and add other specific exceptions moves Canadian law in the same direction. The Court’s rulings and Parliament’s action have entrenched fair dealing and provided a necessary correction that allows fair dealing to resume the role it was always supposed to play. However, if conventional wisdom is correct, some uses, present or future, are still categorically excluded.

This is not a recipe for progress. In a legal environment that outlaws novel ways of using, reusing and disseminating works outright, fewer new forms of expression will emerge. Fortunately, there is no serious indication that this is what Parliament intended when it legislated fair dealing, and there are very good reasons to challenge the view that it did have such intentions. This chapter, adapted from an earlier piece written in 2013, explains why and includes additional evidence to that discussed in the earlier piece. It debunks the Fair Use vs. Fair Dealing Myth and shows that an open, flexible, and general fair dealing is already here. It always has been.

Read it here. Comments are welcome.

Access Copyright v. York University: An Anatomy of a Predictable But Avoidable Loss

Two weeks ago, Justice Phelan of the Federal Court handed Access Copyright a huge victory in its lawsuit against York University.^[1] I have followed the case closely and read the parties’ submissions and I have been constantly concerned that York risked snatching defeat from the jaws of victory. Unfortunately, this is what happened. The good news is that many of the Court’s fundamental findings rest on very loose foundations, that I am confident that York’s loss is only temporary, and that if York appeals the decision and handles the appeal appropriately, most, if not all, of the Court’s major findings will be reversed. One way or another, and possibly with interveners assisting the court, one hopes that all essential arguments will be made on appeal. Therefore, this post provides an anatomy of York’s predictable yet totally avoidable loss. Read more ›

Google v. Equustek: Unnecessarily Hard Cases Make Unnecessarily Bad Law

When lawyers say that hard cases make bad law, they usually mean that extreme or unusual circumstances provide poor basis for making legal rule that would have to be applicable to a wider range of more common cases. Sometimes the phrase describes cases that involve a party whose hardship draws sympathy even if its legal case is weak. But sometime hard cases can make good law, when they present smart judges with difficult dilemmas and force them to think hard and deep on their ruling and its broader consequences. Yet courts don’t always choose the cases that come before them and the possibility of a hard case making bad law is an occupational hazard of the legal system. Read more ›