10. Another Perspective
B.
Options
for Administration of Intellectual Property Rights in
CCCanadian Cultural Heritage Institutions
(continued)
Other Legal Factors Affecting Collective Administration (continued)
3. Fair Dealing. "Fair dealing" is an exemption allowed in Canadian copyright law that allows a work to be used without prior authorization for purposes of research, private study, criticism, review, or reporting, without violating copyright.19 The concept of fair dealing has been in existence since the Canadian Copyright Act was introduced in 1924. It is a defense that the user of copyright material can employ to justify use without prior authorization. Unlike its "fair use" counterpart in the United States, fair dealing does not generate a great deal of litigation, and there are no written criteria (such as the "four factors" of fair use) for assessing fair dealing in Canadian legislation.
Once a user establishes that the use of a work falls into one of the categories of use under fair dealing, he or she must determine whether his proposed use of the work is "fair." The test of "fairness" may be based on whether a substantial part of the work is being used, and whether that will diminish the quality of the work, or increase the quantity of the work in circulation so as to diminish the return to the author.20 While the criteria of substantiality and effect on the market are similar to two of the four factors used in U.S. copyright law’s fair use exemption, in Canada their interpretation has been much less precise. In the few court decisions that have interpreted fair dealing, what constitutes fair is based on a notion of "first impression." A leading court decision has described fair dealing as follows:
To take long extracts and attach short comments may be unfair. But, short extracts and long comments may be fair. . . . after all is said and done, it must be a matter of impression.21
The end result is that fair dealing is a vague concept that both users and copyright holders grapple with in order to determine how far a user can go in using a work before such use becomes unfair. Collective societies administering copyright inherit this dilemma. While collective societies do not try to define fair dealing in their licensing agreements, they do try to take fair dealing into account when setting royalty rates.22 The notion that fair dealing applies in a digital environment is contentious. What acts constitute fair dealing? Is browsing on the Internet fair dealing? The Canadian government’s Information Highway Advisory Council23 supports the conclusion that fair dealing applies to the electronic environment. The government will be addressing new media issues in its next stage of copyright reform, which will occur over the next few years. For collectives trying to determine their operational boundaries, the uncertainty of applying fair dealing in analog and print environments is compounded in an electronic one.24 The Status of the Artist Act.24 Canada’s Status of the Artist Act, which provides minimum terms and conditions for freelance artists contracting with the federal government and its agencies, imposes a regulatory scheme for certifying associations of artists entering into freelance contracts with the federal government. Cultural heritage institutions that are agencies of the federal government are thus affected by this Act. The Status of the Artist Act allows artists’ associations to negotiate collective agreements establishing minimum terms and conditions for individual artists in their freelance contracts. Under this Act, artists’ associations can collectively negotiate these terms and conditions on behalf of their members, but individual members must subsequently sign their own agreements with the contracting federal agencies.25 It is not clear whether artists’ associations authorized to operate under the Status of the Artist Act can include royalty rates among the terms and conditions they negotiate. (Under the Copyright Act, the Copyright Board determines rates.) It is clear, however, that there is potential for overlap in this area between the Copyright Board and artists’ associations authorized by the Status of the Artist Act.26 The Copyright Board stated that replacing the administrative scheme in the Copyright Act with a system of collective bargaining (as provided for under the Status of the Copyright Act) is illogical if copyright is assigned to collective societies that are not part of the artists’ associations and thus are not part of these associations’ collective bargaining process.27 The tribunal responsible for administering the Status of the Artist Act has concluded that an artists’ association can negotiate certain uses for artistic works in a collective agreement that includes copyrights. However, the element of exclusive representation, common in the accreditation process in labor law and under the Status of the Artist Act, does not have to apply to copyright negotiations. Therefore, even if an artists’ association is given the jurisdiction to negotiate copyright, each artist must have expressly assigned the copyright before the association can include copyright in its collective bargaining negotiations.28Collective Administration in Canada: A Legal Framework
Collective Administration of Performing Rights
Collective Administration of Retransmission Rights
Theory and Practice: The Operating Environment
The Relationship Between the Author and the Collective
The Relationship Between the Collective and the User