Copyright Corner (March 2024)

Abstract

1 Copyright Corner, March/April 2024 “All Rights Reserved” Statements in Books Every so often I come across someone who is troubled by the starkly worded copyright notice found in a published book declaring that absolutely nothing—not one scrap of text—from the book may be copied or used without permission of the copyright owner. This happened recently when a copyright specialist at another Canadian university sought guidance via a copyright listserv on whether fair dealing could apply to a licensed e-book whose copyright statement contained a warning that any reproduction without permission was prohibited. By the time I saw the question, Meera Nair, copyright specialist at NAIT had already posted an excellent response that set the matters straight. In case you have wondered about such notices yourself, here is a summary of the main points made in the posted response: • The “all rights reserved” notices in books often exaggerate rights owners’ actual rights by a long shot. Quoting from the posted response, “Copyright owners cannot pick and choose which parts of the Copyright Act they want to adhere to. For them to argue that exceptions do not exist is as weak as users arguing that copyright’s measures of control do not exist.” • Copyright owners have long been allowed to misrepresent the extent of their ownership rights and unfortunately, we seem to lack the means to dissuade such overreach in Canada. • The post provided contrasting copyright statements from two different editions of a book authored by Margaret Atwood. o The edition entitled Negotiating With the Dead: A Writer on Writing published in the UK by Cambridge University Press offers an appropriately worded statement that acknowledges the existence of exceptions to infringement (user’s rights) such as fair dealing as well as the possibility of applicable license agreements: This book is in copyright. Subject to statutory exception and to the provisions of relevant collective licensing agreements, no reproduction of any part may take place without the written permission of Cambridge University Press. o The reprint edition entitled On Writers and Writing published in Canada by McClelland & Stewart contains a traditional “all rights reserved” statement that fails to mention any basis for lawful use of the book besides publisher consent: All rights reserved. The use of any part of this publication reproduced, transmitted in any form or by any means, electronic, mechanical, photocopying, recording, or otherwise, or stored in a retrieval system, without the prior written consent of the publisher – or, in case of photocopying or other reprographic copying, a licence from the Canadian Copyright Licensing Agency—is an infringement of the copyright law. 2 I have said much in earlier columns about the user’s right of fair dealing in Canadian copyright law and its frequent, strong relevance to scholarly uses in academe (e.g., here and here), so I won’t go there today. But at least once a year, during international Fair Use/Fair Dealing Week celebrated in February, it is worth reflecting for a moment on the fact that fair dealing is an exception to the rights granted to authors and copyright owners under the Copyright Act. This means dealings with works such as copyright-protected books that can be shown to be, on the whole, fair, are lawful uses that do not require permission or authorization from rights holders. New Canadian Code of Best Practices in Fair Dealing Speaking of fair dealing, to coincide with Fair Dealing Week 2024, the Canadian Association of Research Libraries hosted a public webinar to showcase its recently released Code of Best Practices in Fair Dealing for Open Educational Resources. This new code is an adaptation of a code developed in the U.S. for applying fair use in the development of open educational resources. It is a welcome addition to a small but growing collection of best practices codes for relying on fair dealing in Canada. Crown Copyright Bill On February 8, 2024, NDP MP Brian Masse introduced (another) private member’s bill, C-374, that proposes to remove s. 12 from the Copyright Act. This section grants crown copyright in works that are “prepared or published by or under the direction or control of “Her Majesty or any government department.” The University of Alberta copyright librarian, Amanda Wakaruk, maintains a website that details what crown copyright is and explains its problematic nature. The Act protects published government documents for 50 years, which is arguably unnecessary, but by default also protects unpublished government documents in perpetuity, which defies reason. I encountered this loophole while assessing permissions for materials selected by an instructor for use in an upcoming course. One item was an unpublished transcript of evidence taken at a 1922 preliminary Alberta court hearing, which is protected by copyright despite being more than 100 years old. In this case, however, we have strong grounds for relying on fair dealing to cover students’ educational use. Without Precedent: The Supreme Life of Rosalie Abella The Supreme Court’s hugely significant decision in York v. Access Copyright (2021) was penned by Justice Rosalie Abella, whose last day on the Supreme Court bench was, in fact, the hearing in this case which confirmed that York University (and Canadian universities in general) are not mandatorily required to pay royalties under an approved tariff. Justice Abella also wrote the Supreme Court decision in Alberta (Education) v. Access Copyright (2012), which determined that teachers’ classroom copying of short excerpts can qualify as fair dealing, which led to a mass exit from blanket licensing by almost the entire Canadian public education sector. If you’re interested in learning more about Justice Abella’s remarkable and distinguished legal career, I recommend this recently released film, currently freely available on CBC Gem. There’s no mention of any of Justice Abella’s copyright decisions, but there are clips from the address she gave at the start of her last day as a Supreme Court justice in July 2021 (the York v. Access Copyright case) which are truly memorable. 3 As always, feel free to reach out if you would like some help with a copyright conundrum in your teaching or research. Other articles in this column are available here. Rumi Graham University Copyright Advisor E-mail: [email protected] Phone: 403-332-4472 Website: library.ulethbridge.ca/copyrigh