The Supreme Court of Canada has done us all a favour and defined the "research" exception under section 29 of our Copyright Act and, wudduyano, we are a great country to be a researcher in - as provided for by "a large and liberal interpretation" of the word. The ruling in CCH Canadian Ltd. v. Law Society of Upper Canada can be found here. Section 29 of the Copyright Act states:
Fair dealing for the purpose of research or private study does not infringe copyright.
The Supreme Court found that you have to review both the meaning of "research" and "fair" when considering this section. The fairness of dealing is considered to have five components:
- purpose of the dealing - it must truly relate to research or one of the other protected areas.
- character of the dealing - is the work used in a way that does not reflect the norms of the trade?
- amount of dealing - is the amount of the work quoted reasonable for the goals intended?
- alternatives to the dealing - if another route was available, it should be considered?
- nature of the work - was there a confidential aspect to the work?
- effect of the dealing on the work - if the reproduced work competes with the original in the marketplace that may act against "fairness".
This is interesting stuff and very relevant to bloggers if we consider the interesting and similar wording in section 29.1 and its use of the words "criticism" or "review":
Fair dealing for the purpose of criticism or review does not infringe copyright if the following are mentioned:
(a) the source; and
(b) if given in the source, the name of the(i) author, in the case of a work,
(ii) performer, in the case of a performer's performance,
(iii) maker, in the case of a sound recording, or
(iv) broadcaster, in the case of a communication signal.
So, if a lawyer is a "researcher" under the CCH ruling and therefore generally covered by 29, who are critics and reviewers for purposes of section 29.1? I am coming to think that bloggers must be. If I am right, you can post a work or bits of a work and then review or criticize it, set out all the material you have to under s.29.1 and respect the rules for fairness that the court has defined...and may not be subject to allegations of copyright infringement. This is big news. It does not allow for wide-spread file sharing of music but may well protect the intellegent review in a blog of the copyrighted works - including musical works - of others if done properly.
So...consider the case of Chumptastic v. The Toronto Star. Was that review or criticism? Was it fair?