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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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.

Comparison of Fair Dealing and Fair Use in Education Post-Pentalogy

I have just uploaded to SSRN a new working paper titled “Comparison of Fair Dealing and Fair Use in Education Post-Pentalogy”. In it I discuss the scope of Canadian fair dealing and American fair use since the five landmark decisions of the Canadian Supreme Court in 2012, and the amendment of the Copyright Act the same year.

A summary of this paper was presented as a work-in-progress at the 2013 IP Scholars Conference at Cardozo Law School.

Abstract:

While traditionally American fair use has been thought of as broader in scope than Canadian fair dealing, I claim that in 2013 this is no longer the case. I further argue that educational administrators and academic and library associations in Canada have yet to take full advantage of this expansion of users’ rights.

In Part I I give a brief and general overview of copyright in Canada and the United States. In Part II I compare the legislation and jurisprudence specifically with respect to fair dealing and fair use, using the fairness factors as a guide. Specifically, this part will examine differences with respect to the fairness factors in general, transformativity, amount and substantiality, market harm and licences, and institutional practice and policy. Part III is a discussion of the advocacy efforts of Canadian and American educational and library professional associations and the development of best practices and guidelines. I conclude that colleges and universities in Canada may now confidently develop copyright policies that reflect the rights of users, but educational administrators and associations in Canada are lagging behind their American counterparts in leveraging this opportunity.