Canada

Michael Geist points the way to an interesting Vancouver Sun article, reporting on the B.C. provincial government's inclusion of copyright notices in packets of documents turned over to journalists under B.C.'s Freedom of Information and Privacy Protection Act, a Canadian analog of our state FOI laws. Stanley Tromp, writing for the Sun, explains:

Soon afterward, I was perplexed to receive "notices" slipped inside packages of documents mailed to me in response to some of my FOI requests. These letters warned me that: "These records are protected by copyright under the federal Copyright Act, pursuant to which unauthorized reproduction of works is forbidden."

If I wanted to redistribute even a portion of these records, I would have to send a special request (which could be denied) to the IPP, and also pay up. The implicit threat that I could be sued for non-compliance was clear.

The notion that the media may not inform readers of harms to the public interest without first pleading for the state's permission and paying a copyright fee is deeply troubling.

After several years of this process, I complained to B.C.'s information and privacy commissioner, David Loukidelis, an inquiry was begun, and a ruling is expected.   read more »

Giuseppina D'Agostino, a law professor at Osgoode Hall Law School in Toronto, has a new paper coming out entitled "Healing Fair Dealing? A Comparative Copyright Analysis of Canadian Fair Dealing to UK Fair Dealing and US Fair Use." Here is the abstract:

As a result of the March 4, 2004 Supreme Court of Canada decision in CCH Canadian Ltd v Law Society of Upper Canada for the first time in Canadian copyright history, the court determined that Canadian law must recognize a "user right" to carry on exceptions generally and fair dealing in particular. This paper compares the Canadian fair dealing legislation and jurisprudence to that of the UK and the US. It is observed that because of CCH, the Canadian common law fair dealing factors are more flexible than those entrenched in the US. For the UK, certain criteria have emerged from the caselaw consonant to Canada's pre-CCH framework and in many ways there is now a hierarchy of factors with market considerations at the fore.

The real differences, however, ultimately lie in the policy preoccupations held by the respective courts, with Canada's top court alone concerned in championing user rights above all other rights. The paper concludes that Canadian fair dealing does not require too much healing but would benefit from some remedies outside (and complimentary to) the law and the courts. While doing nothing does not seem to be the appropriate response, legal intervention as many advocate may not be warranted either. Rather than, or at the very least together with, reforming the law, establishing fair dealing best practices is most promising. The parties directly affected in a specific industry can together develop these guidelines to ultimately aid in clearer and ongoing fairer fair dealing decision-making in the courts. It is here that US initiatives can serve as most fruitful to emulate.

It's nice to see some scholarly attention paid to the differences between the Canadian, U.K., and U.S. approaches to this important subject.

You can download the entire article from the Social Science Research Network.   read more »

This week, David Ardia previews our legal threats database, Colin Rhinesmith talks about a recent decision on First Amendment protections for anonymous bloggers, and Sam Bayard spotlights a defamation suit involving an Iranian blogger in Canada.

Download the MP3 (time: 9:30)

Music used in this podcast was sampled and remixed from a track titled "Jazz House" by the Wicked Allstars, available on Magnatune.

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Hossein Derakhshan, an Iranian-born blogger based in Toronto, reported yesterday that he had been sued for defamation in a Canadian court. Derakhshan is a prominent figure in the history of the Iranian blogosphere. In 2001, he developed the technological solution that enabled Iranian bloggers to blog in Persian and published a widely-used set of instructions on "How to make a blog in Persian" using Blogger.com's free service. (For more information on Derakhshan and the Iranian blogosphere, see Wikipedia's entry on "Iranian blogs" and Meron Rapoport's article, "King of the Iranian Bloggers," on Haaretz.com.)  read more »