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Dynamic Fair Dealing

Dynamic Fair Dealing: Creating Canadian Culture Online

Copyright Date: 2014
Pages: 456
  • Book Info
    Dynamic Fair Dealing
    Book Description:

    Dynamic Fair Dealingpresents a range of insightful and provocative essays that rethink our relationship to Canadian fair dealing policy.

    eISBN: 978-1-4426-6561-3
    Subjects: Language & Literature, Law, Library Science

Table of Contents

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  1. Front Matter
    (pp. i-iv)
  2. Table of Contents
    (pp. v-2)
  3. Introducing Dynamic Fair Dealing: Creating Canadian Digital Culture
    (pp. 3-40)

    The call for the papers that comprise this volume began as a manifesto: a call to arms for academics, artists, and activists to defend Canada’s emerging digital culture. We posed a series of queries, declarations, and provocations that distilled into a single question: given the legal, social, and practical contours of cultural life in a digital era, how can we collectively ensure that digital technologies best serve the creative and social needs of Canadians?

    To answer this question, we need to better understand the activities and aspirations that animate the work that Canadians actuallydoin digital environments. We are...


    • I Provocations:: Fair Dealing as Right, Speech, Duty, and Practice

      • 1 Copyright and Freedom of Expression: Fair Dealing between Work and Play
        (pp. 43-55)
        BITA AMANI

        Copyright, a creature of statute, provides explicit rights and remedies that are exhaustively defined in the Canadian Copyright Act. Copyright law has a dual purpose: to promote the creation and broad dissemination of works while expanding the “expressed universe” (McCutcheon 2007: 141). To this end, copyright protects original expressions rather than ideas. Owners have the exclusive right to reproduce a “work” (s. 3), but not the exclusive right to use it. Copyright is also subject to certain exceptions and limitations – including the fair dealing provisions – that implicitly acknowledge that the public needs to be able to use works...

      • 2 From the Right to Copy to Practices of Copying
        (pp. 56-64)

        The copy shop in Toronto where I have had course packages made for a number of years was busted recently, and the books used to make the copies, along with the copied packages (coursepacks) themselves, were confiscated. The store’s owner gave me the number of Access Copyright, the organization responsible for punishing this enterprise. When I called the number and spoke to one of the agents there, I was informed that the copy shop apparently lacked a licence to make coursepacks and that in the future I should only frequent copy shops that hold such licences. My books were shipped...

    • II Recognizing the Canadian Public Domain

      • 3 The Canadian Public Domain: What, Where, and to What End?
        (pp. 65-81)
        CARYS J. CRAIG

        What is the Canadian “public domain”? The short answer is that the public domain – like almost everything else in intellectual property (IP) law – is a metaphor. What does “the public domain” mean, then? This question, too, is difficult to answer: it means whatever we want it to mean. Far from being either trite or obtuse, this answer reveals the fundamental role of the public domain in IP policy: it represents a political concept that has been quite deliberately loaded, over the past decades, with sufficient normative significance and rhetorical force to be effectively employed in critical response to...

      • 4 Dynamic Fair Dealing with Orphan Works: Lessons from “Real” Property
        (pp. 82-89)

        The discourse of copyright overflows with colourful imagery meant to illustrate, define, and inflame. Teenagers who download music without authorization become “pirates,” and that label justifies all manner of harsh punishments. Decades ago, the movie industry told the US Congress that the videocassette recorder (VCR) was to the American filmmaker what “the Boston strangler is to the woman home alone” (Valenti 1982). In more recent times, the US Congress scheduled hearings on file sharing, organized crime, and terrorism (Gross 2003). A less bombastic but more persistent metaphor is the characterization of cultural goods as intellectual “property” (IP). This last image...

      • 5 Publicly Funded, Then Locked Away: The Work of the Canadian Broadcasting Corporation
        (pp. 90-99)

        Canadian citizens, artists, activists, and scholars often call for new intellectual property (IP) regimes that foster innovation and creativity, privilege the public domain, recognize the dialogic connection between creators and users in the digital age, and highlight creator and user rights over punitive punishments (Geist 2005). With a viable public domain that meaningfully responds to what the public needs from this sphere (see Craig, this volume), and an approach that frames the notion of fair dealing as a user right rather than an exception or defence, Canada’s digital media landscape could be a cultural commons where citizens are in a...

    • III Infrastructures for Fair Dealing

      • 6 Resisting Enclosure: Licences, Authorship, and the Commons
        (pp. 100-112)

        The eminent Harvard Law School professor Yochai Benkler wrote, in 1999, that “we are in the midst of an enclosure movement in our information environment” (354). Benkler’s metaphor invokes the land enclosure movement of the sixteenth to eighteenth centuries – in which formerly open (and, colloquially, “common”) fields in Britain were fenced and divided among private landholders. The metaphor is, as James Boyle (2003) notes, “too succulent to resist” by contemporary intellectual property (IP) commentators. In his article on this second enclosure movement, Boyle teases the metaphor out into its various threads:

        The critics and proponents of enclosure are locked...

      • 7 Weaving an Open Web: Innovation and Ethics in the Virtual Commons
        (pp. 113-123)
        ELIOT CHE

        The concept of openness is nothing new to modern computing. During the advent of mainframes in the period after the Second World War, software was distributed by means of source code printed on paper, whereby a programmer would manually input the code into the device, line by line. However, the rise of commercial applications for computing brought with it new types of non-technical (end) users and business models focused on maintaining control over the ways in which software was made. Today, two general approaches to software computing exist alongside one another: the closed source (CS) model, which maintains a degree...

      • 8 “This Content Is Not Available in Your Region”: Geoblocking Culture in Canada
        (pp. 124-132)

        For many people engaged in activities on the Internet, from the most committed users to casual surfers, the fact that cyberspace is no longer an open frontier is hardly breaking news. Sometimes this is as clear as day; in recent years, we have seen that in places like China, Iran, or Myanmar, the Internet can be turned off with a flick of the switch, forcing dissidents who want to get the word out to circumvent state censorship by employing tactics intended to mask a user’s location. In democratic countries like Canada, the situation is far less serious – the fencing...

      • 9 Net Neutrality and the Threat to Open Cultural Expression
        (pp. 133-143)

        When Vancouver-based RainCity Studios wanted to create a suite of innovative online services, they did not need to ask Internet service providers (ISPs) for permission, they simply set up shop online. Likewise, when the new, Toronto-based global independent news organization TheREALnews wanted to experiment with real-time online debate formats, they did not need to pay expensive distribution costs, they just began streaming their content. The open Internet is a communications platform that supports social, economic, and cultural innovation. It entails both a low barrier to technological innovation and open circulation of culture. The open Internet was designed to offer a...

    • IV Experiments in Pedagogy and Diversity

      • 10 Copyright and Access to Media for People with Perceptual Disabilities
        (pp. 144-153)
        J.P. UDO and DEBORAH FELS

        When accessing entertainment media, individuals who are blind or have low vision (B/LV) and those who are deaf or hard of hearing (D/HOH) face significant barriers, as they are partially or completely unable to access the visual or sound stimuli presented. Closed captioning (CC) and audio description (AD) are two sets of practices and processes that are being used to improve access to entertainment experiences for these users groups. CC endeavours to provide a verbatim translation of dialogue and important sound stimuli for individuals who are D/HOH, whereas audio description aims to provide individuals who are B/LV with spoken descriptions...

      • 11 If You’re Asking, It’s Not Fair Dealing: Animating Canadian Copyright Issues in a “Read-Write” Classroom
        (pp. 154-163)
        MATT SOAR

        Instructors and students in the humanities and fine arts are currently confronted by a peculiar paradox: we have access to a bewildering and ever-expanding range of on- and off-line digital tools to assist in the realization of our creative ideas, but this is often overshadowed by a pervasive and well-founded culture of fear with respect to copyright. In my own field – communication studies – this experience manifests as an uncertainty shared by instructors, teaching/research assistants, and students on at least three fronts: the existing media we quote or incorporate into exercises and assignments; our creative and personal work; and...

      • 12 Hacking Education: How Openness and Sharing Can Transform Learning
        (pp. 164-174)
        ALEC V. COUROS

        In January 2008, I led a graduate-level educational technology course at the University of Regina titled “Social Media and Open Education.” The course was developed, designed, and facilitated using primarily free, open source (OS), and social tools. More significantly, the course was taught using open pedagogies, teaching methods inspired by the OS movement. As a result, the context for learning was an engaging series of experiences where students freely interacted with educators and theorists from across the globe. Students redefined boundaries for learning, as they were encouraged to build online learning networks and to collaboratively explore, negotiate, and create authentic...


    • I Digital Publishing

      • 13 Open Access Publishing and Academic Research
        (pp. 177-188)

        The scoundrel, thief, probable spy, and publisher Robert Maxwell (Bower 1988: 222, 310; Prokesch 2008; Thomas and Dillion 2002) could well be credited with setting in motion a transformation of scientific, medical, and technical (STM) journal publishing from a service industry to a vastly profitable enterprise (Bower 1988: 77–87; Haines 1988: 169–79). Maxwell played this role by becoming a sales agent for German scientific journals in the aftermath of the Second World War (Bower 1988: 40). So great was the demand for access to German science of the time that Maxwell discovered that (almost) no price was too...

      • 14 Open Access Mandates and the Fair Dealing Button
        (pp. 189-200)

        Many disciplines have had a long history of distributing research findings by mail, even before the scholarly journal appeared. In a few fields, such as high-energy physics and computer science, preprints used to be systematically mailed to a set of collaborating universities even before refereeing and publication (Goldschmidt-Clermont 2002, Postel and Reynolds 1985). In these and many other disciplines, however, researchers would also mail a postcard to the author after publication to request a reprint of the published, refereed paper for research use. The author would then mail to the requester either a publisher-supplied reprint, or if such were unavailable,...

    • II Principles and Practices of Heritage Management

      • 15 The Evolution of Cultural Heritage Ethics via Human Rights Norms
        (pp. 201-212)

        The rights of peoples with respect to cultural heritage goods pose new and pressing challenges in terms of balancing the exercise of intellectual properties with individual freedoms of creativity, collective rights, and international human rights obligations. Digital technologies heighten anxieties around cultural appropriation because they enable the reproduction and publication of cultural forms at unprecedented speeds (Burri-Nenova 2008). If, as Michael Brown (2005) argues, digitization has accelerated the social decontextualization of cultural objects, it has also increased awareness of the exploitation of cultural heritage resources. Digitization has further enhanced political consciousness about the injuries these practices may effect, while fostering...

      • 16 Indigenous Cultural Heritage in the Age of Technological Reproducibility: Towards a Postcolonial Ethic of the Public Domain
        (pp. 213-224)

        InThe Past Is a Foreign Country(1985), David Lowenthal explored the degree to which objects, architectural motifs, and other manifestations of the past permeate the present. He concluded that contemporary Western society – from clothing styles to architecture to art and literature – is largely composed of elements derived from other times and places. Our access to cultures, both foreign and ancient, is the culmination of centuries of archaeological and historical inquiry, now facilitated by the ease of worldwide travel and electronic communication; never before has there been such ease of access to world cultural heritage.

        The idea that...

      • 17 Cultural Diversity: A Central Dimension of Canadian Cultural Heritage?
        (pp. 225-236)

        Culture is now internationally recognized as a valuable economic, social, and political resource. Consequently, it has become a terrain on which numerous struggles for rights and recognition take place. The protection of cultural diversity and intangible cultural heritage represent two such sites of struggle, and both issues have prompted intense international debates regarding the nature of cultural goods, the value of “living” cultural heritage, the limits of ownership, and the appropriate role of intellectual property (IP) rights in regulating the flow of cultural goods.

        The promotion and protection of cultural diversity is central to Canada’s internationally developed cultural policy platform....

    • III The Work of Poetics

      • 18 Parodists’ Rights and Copyright in a Digital Canada
        (pp. 237-250)

        On 29 June 2012, Bill C-11, An Act to Amend the Copyright Act, received royal assent. Among other reforms, this Act expands the fair dealing defence through the addition of three new fair dealing categories, two of which are parody and satire. This legislative reform represents a significant expansion in parodists’ rights. This chapter discusses the scope of parodists’ rights both under the Copyright Act as it was prior to being amended and under the amended Copyright Act. Specifically, it focuses on the impact of fair dealing on parodists’ rights. As the broadest defence to copyright infringement and a user’s...

      • 19 Robin Hood of the Avant-Garde
        (pp. 251-260)

        UbuWeb can be construed as the Robin Hood of the avant-garde, but instead of taking from one and giving to the other, we feel that in the end, we’re giving to all. UbuWeb is as much about the legal and social ramifications of its self-created distribution and archiving system as it is about the content hosted on the site. In a sense, the content takes care of itself; but keeping it up there has proved to be a trickier proposition. The sociopolitical maintenance of keeping free server space with unlimited bandwidth is a complicated dance, often interfered with by darts...

      • 20 Remixing bpNichol: Direct Dealing and Recombinatory Art Practices
        (pp. 261-270)

        For artists to produce the kind of culturally complex recombinatory art or remixing (Amani, this volume) that is fundamental to contemporary digital art practices, they need to either engage in acts of plunder or go through an onerous bureaucratic process to obtain the rights through middle men such as clearance agencies. Alternatively, they can do the work of dealing with the rights holders directly. I argue that this third way of dealing, through negotiations with authors or original rights holders – what could be called “direct dealing” – is the most practical and arguably the most advantageous way for digital...


    • I Documenting Pasts and Assessing Virtual Futures

      • 21 Copyright Dramas: Theatre Archives and Collections Online
        (pp. 273-283)

        The mandate of libraries, archives, and museums (LAMs) is to preserve and provide access to cultural resources to research communities and the public. In digital communications environments, copyright law is among the greatest challenges facing LAMs in the fulfilment of this mandate. At stake in whether or not a cultural institution can make cultural resources accessible in online, non-commercial, educational contexts is its relevance for a public increasingly accustomed to seeking and finding information online. As communication and research practices evolve, LAMs must adapt in order to meet changing expectations. Licensing initiatives have become the most common and most frequently...

      • 22 Streaming a Digital Scream: Archiving Toronto’s Barbaric Yawp
        (pp. 284-293)

        For Shakespeare’s characters, this “habitation” is a woodland setting outside of Athens, and “the airy nothing,” all the potency of a dream. This same conflation of imaginative virtuality and the physicality of the forest was central, in 1993, to the creation of what was, until its conclusion in 2011, Canada’s largest single-day poetry festival: Scream in High Park (later, the Scream Literary Festival). Conceived by the enterprising twenty-one-year-old poet Matthew Remski, the Scream took place on the site of the Canadian Stage Company’s annual productionDream in High Park. The lush hillside amphitheatre was essential to figuring the artistic democratization,...

      • 23 The NFB, Canada’s Experimental Documentary Tradition, and Found Futures
        (pp. 294-304)

        To anyone who has perused the online listing of freely available films produced by Canada’s National Film Board, the institution’s recently adopted (but always practised) motto – “The World Changes. Our Stories Live On” – surely appears as a true blessing. For seventy years now, the NFB has embraced a mission of facilitating the production of Canadian film and video works, mediating between the filmmaking community and the movie-going public, and archiving the results of its activities for broad access and both educational and recreational purposes. However, as a result of current copyright licensing practices, not all NFB-produced stories can...

    • II Recombinant Creativity

      • 24 Chipmusic, Out of Tune: Crystal Castles and the Misappropriation of Creative Commons–Licensed Music
        (pp. 305-316)

        A recent controversy surrounding the internationally successful Toronto-based band Crystal Castles provides unique insight into emerging intellectual property (IP) norms. Throughout 2008, it became evident that the band had repeatedly and unapologetically sampled Creative Commons (CC)–licensed music without seeking permission from the original creators, and without crediting them appropriately. Two points complicate this issue in interesting ways: first, the sampled works were protected by licences designed to enable, rather than prevent, the creation of derivative works; second, the band’s illicit sampling involvedchipmusic, an experimental type of electronic music created by repurposing sound chips from electronic devices and using...

      • 25 “My Real’ll Make Yours a Rental”: Hip Hop and Canadian Copyright
        (pp. 317-326)

        At the heart of current debates about “copyrights” and “copywrongs” is the hope that copyright will protect and promote the best interests of both artists and the public, but also fears that it will simply promote corporate interests, undermining artistic practices and stifling audience participation and access to culture in the public sphere. Such discussions about who owns culture and who has access to it are particularly loaded in the context of hip hop music. Hip hop’s history as a black cultural form, its early social location as a cultural movement for disenfranchised black youth in the United States, and...

      • 26 Friction over Fan Fiction
        (pp. 327-335)

        In October 2007, J.K. Rowling startled the world with the revelation that Albus Dumbledore was gay. Although this announcement was widely reported, the remark she made following that revelation is less well known: “Oh my God, the fan fiction now, eh?” Fan fiction? Unknown to many people, there is a burgeoning online community of Harry Potter fans who amuse themselves by writing their own stories set in Rowling’s fictional world. And this phenomenon is not confined to Hogwarts. Fascination with the imaginary worlds of television shows, films, and books has prompted many fans to respond with their own amateur creations....

      • 27 Child-Generated Content: Children’s Authorship and Interpretive Practices in Digital Gaming Cultures
        (pp. 336-346)
        SARA M. GRIMES

        The Internet offers users of all ages opportunities to collaborate in the creation of shared cultural artefacts and experiences. But, while children’s use of information communication technologies (ICTs) has been the subject of numerous policy and legal debates in recent years, the emerging role of children as creators of digital content continues to slip under the regulatory radar. In contrast to high-profile issues such as videogame violence and copyright infringement, very little attention is paid to the contributions children make to online cultural production. Yet, ICTs provide children with increasingly important opportunities to create and distribute content across a variety...


    • Deal with It
      (pp. 349-353)

      “Fair dealing” is an odd phrase, when you think about it. The word “fair” drops us into childhood, to sudden betrayals at dusk just before the streetlights come on, or to the sound of a parent’s footsteps coming down the basement stairs to break up a fracas. We can all remember times when we said, “It’s not fair!” and the big kids laughed in our face. And we can remember times when somebody else said, “It’s not fair,” and the adult took the football or candy away from us,ourfootball or candy, thatwe deserved. If we’re lucky, we...

    • Pull Up the Stakes and Fill in the Ditches: The Materiality of Intellectual Property
      (pp. 354-360)

      Pierre-Joseph Proudhon’s 1840 anarchist masterpiece,What Is Property? Or, an Inquiry into the Principle of Right and of Government, is most famous for the answer its author gives to the volume’s titular question. “La propriété,” Proudhon declares, “c’est le vol!” Property is theft. Aside from (or, perhaps, because of) its manifest clarity, the claim famously became a target in Marx’s ongoing battle with anarchist thinkers for proprietary control over the revolutionary program in nineteenth-century Europe. In a letter to J.B. Schweizer, published in 1865 in DerSocial-Demokrat, Marx praises Proudhon for his “muscular style” and “revolutionary earnestness,” while chiding him...

  8. References
    (pp. 361-416)
  9. Acknowledgments
    (pp. 417-418)
  10. Contributors
    (pp. 419-424)
  11. Index
    (pp. 425-442)