The following analysis of a recent Canadian court decision discussing insubstantial copying and fair dealing was written by Authors Alliance Advisory Board member Michael Geist and originally appeared here on March 27, 2018. Geist is a law professor at the University of Ottawa, where he holds the Canada Research Chair in Internet and E-commerce Law and is a member of the Centre for Law, Technology and Society. His website, michaelgeist.ca, provides coverage of intellectual property, technology, and copyright issues in Canada. This article is reposted with permission.

The Federal Court of Appeal last week issued a long-delayed decision in a judicial review of a Copyright Board decision involving Access Copyright and copying by employees of provincial governments. I covered the initial board decision in 2015, noting that it delivered a devastating defeat to the copyright collective. Access Copyright filed for judicial review of the decision. Last week the Federal Court of Appeal upheld the Board’s decision.

While much of the decision involves a legal analysis of the standard of review, copyright watchers will be particularly interested in the discussion on insubstantial copying and fair dealing. The insubstantial copying aspect of the decision was very important, as board established a standard: 1 to 2 pages of a work, not constituting more than 2.5 percent of the entire work. For limited copying of this kind, fair dealing does not even enter into the analysis, since the Copyright Act only protects a work or a substantial portion thereof. Mirroring efforts to develop reasonable percentages for fair dealing, the Board developed a standard as a reasonable approximation of what constitutes insubstantial copying.

Access Copyright argued strongly against the use of a bright-line test for insubstantial copying (much like it argues against such a test for fair dealing). The court, however, was very supportive of establishing a standard:

There is much to be said for the Board’s adoption of a bright-line rule. It provides guidance to government employees concerning what copying is permitted because it is insubstantial. The respondents other than British Columbia suggest the following (at para. 107 of their memorandum) and I agree:

In the absence of the bright line rule adopted by the Board, individual government employees would obviously reach widely varying conclusions as to what is, and is not, a substantial part of a published work. One employee, for example, could consider 1% of a work to be substantial while another could set that threshold at 5%. To avoid such different, and likely conflicting, interpretations as to what the term “substantial” means, [we submit] that the bright line rule established by the Board is entirely reasonable.

Under the reasonableness standard, the Board is permitted a significant margin of appreciation in determining the method by which the tariff should be set. Based on the foregoing, I am not persuaded that the Board proceeded in an unacceptable or indefensible way.

This aspect of the decision is hugely important for three reasons. First, it confirms that 1 to 2 pages of a work, not constituting more than 2.5 percent of the entire work, can reasonably be viewed as insubstantial copying. That standard will be useful for short excerpts that do not even trigger a fair dealing analysis. Second, the insubstantial standard helps support the reasonableness of up to 10% of a work constituting fair dealing since it must obviously involve considerably more than 2.5% of a work. Third, the court’s support for a bright line rule undermines Access Copyright’s arguments against such an approach with fair dealing. Indeed, the court recognizes that standards benefit both creators and users by providing greater certainty and consistency in approach.

Access Copyright also argued against the Board’s interpretation of fair dealing. In my summary of the board’s decision, I noted:

Access Copyright tested the same fair dealing theories that it uses when contesting the education communities’ fair dealing approach. It lost on every claim. Indeed, the Board’s approach is consistent with the fair dealing guidelines that have been adopted by universities, colleges, and K-12 schools.

While Access Copyright was successful at trial in the York case, that case is now under appeal. In this case, Access Copyright had unsuccessfully argued before the Board that the fair dealing user is the government, not the individual employee making copies; the government was hiding behind the employees’ permitted purposes; and the need to consider aggregate copies as part of the character of the dealing. If these arguments sound familiar, they strongly echo arguments in the York case. The Board rejected Access Copyright’s arguments and the Federal Court of Appeal just upheld the Board’s conclusion:

in its assessment of fair dealing the Board faithfully applied the teachings of the Supreme Court to the particular evidence in this particular case, assigning weight to the evidence before it as it is entitled to do. It reached a conclusion that was acceptable and defensible.

As the York case winds its way through the appellate process, this Federal Court of Appeal decision could prove pivotal, upholding many of the arguments from the education community and providing further evidence of the mistakes made by the York trial court judge.

photo by Eddau | CC0

Last week, a bipartisan coalition in Congress introduced a bill to implement the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired or Otherwise Print Disabled. Adopted by the World Intellectual Property Organization (WIPO) in 2013, the goal of the Marrakesh Treaty is to create a set of mandatory limitations and exceptions for the benefit of blind, visually impaired, and otherwise print disabled readers. To date, the treaty has been ratified by 35 countries around the world.

The treaty requires that contracting states enact copyright exceptions that allow books and other creative works to be made available in accessible formats, such as braille and audiobooks, and to allow for the import and export of such materials. It is a tremendous step toward ensuring equal access for readers in participating countries, including many in the developing world, where the need for resources and access is especially acute. Although the United States already has exceptions in domestic copyright law to allow access to print-disabled readers, ratification of the Marrakesh Treaty will facilitate the exchange of works for the print-disabled across national borders and requires small changes to U.S. law.

As an organization that speaks out in support of the wide dissemination of knowledge and creativity to broad audiences—see, for example, our 2016 comment on Section 1201 of the U.S. Copyright Act, in support of copyright exemptions that benefit persons who are blind, visually impaired, or print-disabled—Authors Alliance fully supports Congress’ introduction of implementing legislation for the Marrakesh Treaty. And, as always, we will keep our members updated on these and other policy issues that directly affect authors and readers.

We are grateful to Dr. Kylie Pappalardo of the Queensland University of Technology in Brisbane, Australia, for contributing the following guest post, which highlights the results of her recent work with Patricia Aufderheide, Jessica Stevens, and Nicolas Suzor on copyright and creative incentives in Australia.

Australian creators struggle to understand copyright law and how to manage it for their own projects. A new study has found that copyright law can act as a deterrent to new creation for many Australians, rather than an incentive for it.

Interviews with 29 Australian creators, including documentary filmmakers, writers, musicians and visual artists, sought to understand how creators reuse existing content to create new works. The study considered issues such as whether permission had been sought to reuse copyrighted content; the amount of time and cost involved in obtaining such permissions; and a creator’s recourse if permission was either denied or too expensive to obtain.

Confusion about copyright exceptions

The study highlights creators’ confusion about the scope and application of Australian copyright law. Creators were especially confused about legal exceptions to copyright infringement. Once participant remarked: “Everybody is out there flying a bit blind about this.”

Australian creators seeking to reuse existing content are in a different legal position to U.S. creators, because Australia does not have a fair use exception. Instead, Australia has limited “fair dealing” exceptions, which require the use to fit within a specific purpose—criticism and review; research or study; parody or satire; or reporting the news. Any uses that fall outside one of the designated purposes, such as lengthy quotes or remixes that are not parodies or critiques, require permission from the copyright owner.

In recent years, the Australian Law Reform Commission and the Australian Productivity Commission have recommended that Australia adopt a U.S.-style fair use exception. These recommendations attracted significant criticism from much of Australia’s creative sector, who thought that such an exception would be too broad and too uncertain. However, the new study suggests that these criticisms may be largely unfounded.

Australian creators in the study frequently confused fair use and fair dealing, and used the terms interchangeably. Rather than following the strict letter of the law, the creators interviewed used their own strong sense of morality and fairness to guide what reuse they considered to be acceptable. Creators most commonly focused on the creative elements that they added to a work, rather than what they had taken from an existing work. This is a norm that aligns more closely with the factors that courts use in assessing fair use, including whether a use has been transformative, than with the Australian law approaches to fair dealing.

Problems with seeking permission

For the majority interviewed, seeking permission to reuse copyrighted content was a source of great frustration and confusion. The process was variously described as “incredibly stressful,” “terrifying,” and “a total legal nightmare.”

Problems mostly centered on time delays and financial expenses. Creators found that the paperwork required to request permission was often long, complex and not standard across publishers and other rights-holder bodies. Many waited months for a response to a request; some never received one at all. Many reported feeling ignored and disrespected.

License fees were also an issue for the creators interviewed. License fees can be expensive, even for very small samples. Many creators thought that copyright fees demanded for reusing small samples were unfair and stifling.

Responses to copyright roadblocks

Common reactions to the restraints imposed by copyright law included avoiding and abandoning projects. A very small number of creators proceeded with their projects anyway, hoping to “fly under the radar,” but these were the minority. Some creators change projects to try to circumvent copyright restrictions. For example, filmmakers might degrade the sound on their films for scenes where background music might be playing, such as those filmed in a pub or restaurant.

Ideas were filtered out early at the brainstorming stage because they were “too risky” or licensing would be “too expensive.” Some people avoided entire areas of creativity, such as appropriation art, music sampling or documentaries about music or musicians, because it was all just “too hard.”

Lessons from the study

The Australian study suggests that more flexibility in the law might actually help to spur the creation of new Australian work. Australian creators could benefit from broader copyright exceptions that allow them to reuse small amounts of existing works in new creations, and from clarity and consistency around licensing procedures. The study indicates that there is a misalignment between creative norms and copyright law in many cases, and that law reform may be needed to meet the needs of Australia’s creative community.

More detail and specific examples of “imagination foregone” are in the full report: Kylie Pappalardo, Patricia Aufderheide, Jessica Stevens and Nicolas Suzor, Imagination Foregone: A qualitative study of the reuse practices of Australian creators (Nov 17). Funded with support from the Australian Digital Alliance.

Dr. Kylie Pappalardo researches in intellectual property and innovation law, focusing primarily on the intersection between copyright and creativity and the rights of copyright users. She is a Lecturer in the Law School at the Queensland University of Technology (QUT) in Brisbane, Australia, where she leads the research program on copyright law and creative communities.

What do Wikipedia, 19th-century Italian opera, Bollywood movies, and fan fiction have in common? According to NYU law professor (and Authors Alliance founding member) Christopher Jon Sprigman, more than you might think. In a recent article in the Houston Law Review, Sprigman explains that these creative endeavors are all examples of how copyright principles can work in unexpected ways across different genres and audiences.

Conventional wisdom about copyright holds that it is a spur to creativity and provides financial and moral incentives for creators to produce new content. This may sometimes be the case—but does (and should) this core assumption always hold steady across a variety of contexts and creative communities? Sprigman suggests that the answer is no. Citing the examples above, he points to empirical studies which indicate that the link between copyright and creative incentives doesn’t always conform to theory in the ways we might expect. In some cases, a lack of stringent copyright norms seems to stimulate creative production, rather than hampering it. Research in this area is relatively new, and Sprigman’s work shows the way to intriguing new areas of inquiry that help broaden our understanding of how and when current copyright rules work in favor of creators and audiences—and when they don’t.

Read (or download) the full article on SSRN.