Since the U.S. is examining its fair use provisions, should Canada also review the scope of its fair dealing provisions and its relevancy to digital works?
CAPIC generally agrees with the Canadian approach to "fair dealing", where the three-fold test is scrupulously applied. Theinclusion of "newspaper summary" as a fair dealing is appropriate where a work is an integral part of the news. CAPIC members have reported a number of situations where news organisations have used copyright works as background, illustration or decoration of news and editorial material. This usage is not within the spiritof the law.
Typically the offended author is an individual who will be faced with
Lesser known or financially challenged artists are unable to effectively protect their own economic rights. Again we return to statutory damages as the most effective way to protect the author. Note that statutory damages in no way eliminate the requirement to prove infringement. They simply provide an equitable means for protection where loss and profit aredifficult or impossible to prove.
U.S. fair use provisions include guidelines for determination of whether a use is fair. Among these provisions is the effect of the use upon the potential market or value of the copyright work.
Consider photographers who are confronted by difficult decisions on a regular basis. If a photographer is commissioned to photograph the interior of a motel room, there will in all likelihood be copyrighted objects, photographs or illustrations decorating the room in question. These are not imported or introduced by the photographer. They exist. The subsequent photograph may include the whole of a copyrighted work by another creator, yet the use is incidental and an accurate representation of reality.
It is illogical to conclude that the photographer has infringed copyright yet they have reproduced the whole of another copyright work. The fair dealing provisions of the Copyright Act should be clarified to permit the inclusion of "found" or "in situ" copyrighted works in photographs or illustrations. The "in situ" works must form a non-substantial portion of the new work. This clarification would not hinder the necessary vagueness of an equitable defence, but would in fact add another dimension.
A photograph which copied a painting on a wall would not qualify as the purpose of the photograph is to copy and reproduce, therefore the copied painting forms a substantial part of the newwork.
Digital technology permits the extraction and enhancement of in situ photographs or illustrations which are included in a photograph. Where this occurs, the copyright of the author of the original in situ illustrations has been infringed as has the copyright of the architectural photographer.
Recommendation CAPIC recommends that the consideration be
given to greater clarity in the difference between "news" and items
reproduced in"news media".
CAPIC recommends the inclusion of "in situ" or "found"copyrighted works
as a non-substantial portion of a new work be specifically permitted
as a form of fair dealing in an amendedCopyright Act.