A staring contest between libraries and electronic resource providers

Today, on the last day of Fair Use Week, Prof. Samuel Trosow and I got to speak with members of the University of Western Ontario law and library communities about potential conflicts between the law of copyright and the law of contract, where the terms of a subscription licence seemingly abrogate the user’s right of fair dealing. Some of the audience wondered whether, in a situation where a user “contravenes” the contract by using the materials in a way consistent with a copyright exception, a database provider or publisher would take the subscribing library or institution to court. This has not yet been an issue in Canadian courts, and at this point it would be difficult to predict.

Teresa Scassa has written a blog post about copyright and municipal transit data (bus route maps and real-time GPS data) in which she makes a very important observation: “Being in a position to make a claim to IP rights was in many ways more important than actually having a good claim.” The same can be said about contractual entitlements (or at least the appearance of entitlements). As long as the risk of a breach of contract suit exists, this could be enough to ensure compliance with the licence, despite that there might be no such obligation in law, and despite that there may be a loss to the library community and its patrons in the short and long term. On the other hand, if a licensor did bring such a suit and lost, the precedent set could be more damaging to the industry than simply ignoring it. I wonder who is going to blink first?

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Happy Fair Use/Dealing Week

February 23-27 is Fair Use Week, a “community celebration of fair use coordinated by the Association of Research Libraries.”

Here in Canada, we’re celebrating the equivalent (but not exactly the same, of course) Fair Dealing Week. The Scholarly Communications and Copyright Office at the University of Toronto are initiating a nation-wide discussion on fair dealing in Canada, via the Twitter handle @UofTSCCO and the hashtag #FairUseWeek2015.

Here at the University of Western Ontario, on Friday, February 27, Prof. Samuel Trosow and I will be discussing fair dealing and how it relates to contract law. Details are below:

Fair dealing is a exception to copyright infringement that is granted by the Copyright Act. In 2004, the Supreme Court characterized fair dealing as not only an exception, but as a user’s right that should be interpreted broadly. In 2012, it reiterated that position. That same year, Parliament extended the scope of this user’s right by adding “education, parody and satire” to the list of fair dealing purposes in the Copyright Act. However, copyright owners and database publishers can attempt to limit the reach of fair dealing in contracts granting subscriptions to electronic information. Are these contract terms valid? Professor Samuel Trosow and Lisa Di Valentino will discuss the intersection between copyright law and contract law that has become a significant issue in a world of digital access to knowledge.

Friday, February 27, 2015
12:00pm – 1:20 pm
North Campus Building, Room 293

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Do Licence Agreements Trump Users’ Rights?

I’ve just posted a new working paper on SSRN: “Conflict between Contract Law and Copyright Law in Canada: Do Licence Agreements Trump Users’ Rights?” It’s available for download at http://ssrn.com/abstract=2396028. The paper was written under the supervision of Prof. Samuel Trosow, and portions of it were presented at the Ontario Library Association Super Conference on January 31, 2014.

Abstract:

I argue in this paper that it is not a settled issue in Canadian law that copyright exceptions provided in the Canadian Copyright Act can be trumped by contractual agreement, and that a strong argument can be made that they cannot. I first frame the issue by discussing the increasing use of digital rather than print materials in academic libraries, and the potential conflict between subscription agreements and the Copyright Act. I then address three approaches (jurisdictional, purposive, and statutory right) that can be taken to determine whether contractual terms are preempted by statutory provisions, and conclude that, in Canada, copyright exceptions are statutory rights that cannot be removed by contract. Finally, I briefly discuss technological protection measures and argue that their recent inclusion in the Copyright Act does not necessarily indicate legislative support for private ordering.

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