Copyright and Trademark Laws

Fair Dealing, Copyright, and the Haggadah

Ariel Katz
Monday, December 12, 2011

This post is cross posted on Prof. Katz's blog. 

The Supreme Court of Canada heard five copyright cases over dense two-day hearings on Dec. 6-7.  One of the cases involved the application of the concept of fair dealing with copyrighted works in education.  At the heart of this appeal was a key distinction made by Copyright Board between copies of works made by students or at their initiative, which could be fair dealing, and copies made by a teacher for students with instructions to read them, which could not.  The distinction is summarized in para. 118 of the Board’s decision:

a copy made by a teacher with instructions to read the material, whether or not it was made at a student’s request, and a copy made for a group of students are simply not fair dealing.  Their main purpose is instruction or non-private study.

Universities and Copyright: Contrast and Compare

Ariel Katz
Sunday, February 5, 2012

Originally posted on Prof. Katz's blog on Feb. 1, 2012.

On Monday evening, Access Copyright and the Universities of Western Ontario and Toronto announced that they have entered into a new licensing deal.  The UofT agreement is available below, and I was told that the terms of the agreement with Western are identical.

Although the joint media release announcing the deal was gleeful, as a UofT Faculty member I am disappointed and concerned.  The agreement is one big step backwards for UofT, and one giant leap for Access Copyright.  Access Copyright could not have hoped for more, and UofT lost an opportunity to stand up, show leadership, and ensure that copyright law will be used for the encouragement of learning and not for suppressing it.

Copyright Taxation Without Representation

Ariel Katz
Thursday, June 21, 2012

The Copyright Board of Canada and that various tariffs that it certifies rarely attract media attention. But a tariff recently certified received coverage by most major media outlets. That tariff, mandating payments for playing recorded music in weddings and other events for the years 2008-2012, will be collected by Re:Sound, a private organization representing record companies and performing musicians. If the events include dancing, the fee is double. This unusual media attention, often describing the fees as a “wedding tax” or “dancing tax”, is not surprising because it reflects how undemocratic some aspects of Canada’s copyright system have become. If that is not enough, Re:Sound now contemplates a threefold increase in the “dancing tax” according to its newly proposed tariff for the years 2013-2015.

Response to McMaster's Q&As on Access Copyright

Ariel Katz
Tuesday, June 19, 2012

I received a copy of a document in which McMaster University provides answers to some of the questions arising out of its decision to sign the Model License with Access Copyright.

Since many universities are grappling with similar questions and answers, I have taken the liberty of providing some responses to this document. The document is in a Q&A form, so I added my responses in green below each answer.

You can read it here.

Originally posted on Prof. Katz's blog.

UofT Faculty Association Questions the Access Copyright Agreement

Ariel Katz
Tuesday, June 19, 2012

Originally posted on Prof. Katz's blog.

The University of Toronto Faculty Association (UTFA) has recently sent a letter to UofT's Provost and Vice President questioning the decision to sign a license agreement with Access Copyright. UTFA's letter raises many concerns that have already been shared on this blog and by others.

UTFA asks the Provost to "clarify the Administration’s interpretation of the scope of fair dealing rights and any plans by your office to advocate publicly for an expansive interpretation of these rights in higher education in Canada. This might include, for instance, any plans you have to revisit the new contract in light of pending developments in the interpretation and implementation of fair dealing rights and copyright law more broadly in Canada."

Keep Calm, Opt Out, and Carry On

Ariel Katz
Saturday, June 9, 2012

Originally posted on Prof. Katz's blog.

One of the questions that troubles many Canadian universities who need to decide whether to accept Access Copyright offer-that-they-can’t-refuse is what will be the consequences of not signing the AUCC-brokered Model License. One fear, which I have addressed in an earlier post, concerns the risk of being liable for copyright infringement in case that some infringing copies would be made on campus. The other fear is the possibility that the Copyright Board will approve Access Copyright’s Proposed Tariff, and that upon its approval, would become mandatory and retroactive.

The precise effect of an approved tariff is a novel question and there is very little, if any, binding case, and virtually no commentary, and admittedly, my own views on this question have evolved. Therefore, this post reflects some of my recent thinking on this question. In brief, my opinion is that the view that once approved, the tariff will be mandatory is not mandated by the Copyright Act and will be in contrast to basic legal principles. Parliament did not and could not have indented to allow such an outcome, and even if it did, it is doubtful whether this would be a constitutionally valid exercise of its legislative power.[1]

The GSU Copyright Case: Some Canadian Perspectives

Ariel Katz
Tuesday, May 15, 2012

This post was originally published on Prof. Katz's blog.

In April 2008, three publishers, Cambridge University Press, SAGE Publications, and Oxford University Press, filed a copyright infringement lawsuit against Georgia State University, alleging that GSU infringed their copyrights by allowing professors to upload excerpts from books onto the university’s electronic reserve system (ERes). The complaint alleged “systematic, widespread, and unauthorized copying and distribution of a vast amount of copyrighted works”, and argued that GSU “has facilitated, enabled, encouraged, and induced Georgia State professors to upload and post to these systems - and Georgia State students simultaneously to download, view, print, copy, and distribute - many, if not all, of the assigned readings for a particular course without limitation.” Unless GSU’s “infringing digital distribution practices are enjoined", the complaint asserted, "Plaintiffs, authors, and the publishing community at large will continue to face a certain, substantial, and continuing threat of loss of revenue, which will in turn threaten Plaintiffs' incentive to continue supporting and publishing the cutting-edge scholarship upon which the academic enterprise depends.”

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