As publishers try to solidify their online business models, they aim to distribute and republish content widely while monetizing it wherever it travels. This can conflict with fair use (U.S.) and fair dealing (Canada) which gives readers legal rights to reuse limited amounts of content in certain circumstances without compensation.
What publishers often don’t realize is that the best way to resolve this conflict is to make your website licensefriendly. Make it easy for folks to license your content easily, instantly, and at a reasonable price. At the same time, take steps to prevent piracy.
The Legal Connection between being LicenseFriendly and Fair Use / Fair Dealing
US courts connect being licensefriendly with how they determine the application of fair use.
For instance, in Cambridge University Press v Georgia State University (May 2012) the US District Court said:
[W]here permissions are readily available … for a copy of a small excerpt of a copyrighted book, at a reasonable price, and in a convenient format (in this case, permissions for digital excerpts), and permissions are not paid, [fair use] factor four weighs heavily in Plaintiffs’ favor. Factor four weighs in Defendants’ favor when such permissions are not readily available.
In AP v Meltwater (March 2013), the court cited a prior Second Circuit decision:
[I]t is not unsound to conclude that the right to seek payment for a particular use tends to become legally cognizable under the fourth fair use factor when the means for paying for such a use is made easier. This notion is not inherently troubling: it is sensible that a particular unauthorized use should be considered more fair when there is no ready market or means to pay for the use, while such an unauthorized use should be considered less fair when there is a ready market or means to pay for the use.
The court went on to explain that this reasoning -- that being licensefriendly narrows fair use -- is not “circular”. Rather, the reasoning would be circular “only if the availability of payment is conclusive against fair use.” In Canada in 2004, the Supreme Court of Canada was more bothered by the circular reasoning potential, and took a different view saying:
The availability of a licence is not relevant to deciding whether a dealing has been fair. As discussed, fair dealing is an integral part of the scheme of copyright law in Canada. Any act falling within the fair dealing exception will not infringe copyright. If a copyright owner were allowed to license people to use its work and then point to a person’s decision not to obtain a licence as proof that his or her dealings were not fair, this would extend the scope of the owner’s monopoly over the use of his or her work in a manner that would not be consistent with the Copyright Act’s balance between owner’s rights and user’s interests.
But it’s unclear if that view would persist today in light of new Canadian copyright law passed in 2012, which gives site owners themselves the ability to impact the availability of fair dealing exceptions from a licensefriendly part (ii) perspective rather than the licensefriendly part (i) perspective discussed in the above quotes. The law created the concept of a “technological protection measure,” and appears to eliminate fair dealing exceptions to copyright law when a site employs a “technological protection measure:”
Subsection (1) [granting exemptions to copyright law for educational institutions] does not apply if the work … – or the Internet site where it is posted – is protected by a technological protection measure that restricts access to the work … or to the Internet site.
Subsection (1) does not permit a person to do any act described in that subsection in respect of a work … if (a) that work … – or the Internet site where it is posted – is protected by a technological protection measure that restricts the doing of that act; or (b) a clearly visible notice – and not merely the copyright symbol – prohibiting that act is posted at the Internet site where the work … is posted or on the work … itself.
Section 30.04 refers specifically to exemptions for educational institutions, but then the topic is addressed for everyone in Sections 41 and 41.1:
No person shall … circumvent a technological protection measure
“technological protection measure” means any … technology … that … controls access to a work … or … restricts the doing of any act
“circumvent” means … to avoid, bypass, remove, deactivate, or impair the technological protection measure
This appears to mean that the fair dealing exceptions do not apply in Canada when the website is protected by a technological protection measure that restricts access to the content or the reuse of the content.
This new statute makes one wonder if the Supreme Court of Canada would still stand by its 2004 view that a content owner’s actions don’t influence whether a dealing is “fair”, and even if so may render it moot for sites that are licensefriendly from a part (ii) perspective.
A Continuum of LicenseFriendly...ness
Let’s take a simple case: a website with a paywall. A paywall “controls access to a work”. So do paywalled sites have a “technological protection measure” that means Canadian fair dealing exceptions don’t apply?
How about a site that employs iCopyright’s Toolbar and EZ Excerpt service? When someone tries to copy/paste from an iCopyright-enabled site a pop-up appears which inhibits the copy/paste and offers to sell a license:
You can see this in action by trying to copy/paste a couple paragraphs from this blog. Is that a technological protection measure?
Let's raise the bar. How about a site that employs both a paywall and iCopyright’s Toolbar and EZ Excerpt service? The combo both “controls access” to content and “restricts the doing” of a reuse. Is that a technological protection measure?
And, at the same time, the iCopyright Toolbar makes the licensing easy, instant, and inexpensive, satisfying the US test referred to above.
My point is that both US and Canada give more leeway to publishers monetizing content, and less leeway to users taking the fair use or fair dealing exception to copyright law, when their sites are licensefriendly. There is a continuum here, with the more licensefriendly sites being those that:
- Use a paywall, asserting their content has value;
- Make licensing easy and reasonably priced (example: iCopyright Toolbar);
- Offer copy/pasters a license (example: iCopyright’s EZ Excerpt); and
- Catch content pirates and ask them to obtain a license (example: iCopyright's Discovery).
The Right Balance Between Business Models and Public Policy
If your site is licensefriendly it achieves the public policy goal of fair use / fair dealing by making content available to society easily and inexpensively. If sites are licensefriendly enough, conflicts between publisher business models and fair use / fair dealing public policy goals can just melt away.
Whether you agree or disagree, we hope you'll chime in!
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