[Ed.: If you read this, you clicked...]

Some time ago, I had started working on some notes on the right of review under Canada's law (its not like I could blockquote this much this early without coffee and figured that it was one of the important exceptions to the bar on use of copyrighted material is found in section 29.1 of Part III of the Copyright Act R.S.C. 1985, c. C-42, entitled "Infringement of Copyright and Moral Rights and Exceptions to Infringement".

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.

This provision ought to be used and explored in the context of discussion of music on the web. S ection 29.1(b)(iii) clearly includes sound recording. If a dubbing artist sampling the work of another were to cover off all the needs of section 29.1 would it not be able to show that the dubber is reviewing the dubbee through art? If not, if it goes beyond that, there is always the ability to pay for the license under the Act. Paying for the license does not constitute a racist act anymore than using the right of review, not anymore than not paying the license is a statement for anti-racism. [Ed.: did I get the double or triple negs right?]

What have our good courts said? Nothing on the point of sound (in my brief study) but what good lawyer would not miss the opportunity to lard an opinion with glancing references from ze rulings? Beats the hell out of bad sociology. Here is a portion of the ruling in Hager v. ECW Press Ltd., a case before the Canadian Federal Court, Trial Division in 1998 on section 29.1.

I turn then to the meaning of "for the purpose of criticism" in section 29.1. I note first, that "criticism" is coupled with "review". The principle of statutory interpretation noscitur a sociis [Ed.: literally-ish "you know something by its friends"] would suggest that the two words are likely related. One relationship is that for the criticism or review to occur there need to be excerpts from and references to the works being criticized or reviewed. Also, when criticizing or reviewing any given work it may be necessary to use quotes from others for comparative purposes.

Among the definitions of the word "criticism" found in the Oxford English Dictionary , 2nd ed. (1989) are:

Criticism:...

The art of estimating the qualities and character of literary or artistic work; the function or work of a critic. . . . spec. The critical science which deals with the text, character, composition, and origin of literary documents...

The jurisprudence has established that it is not merely the text or composition of a work that may be the object of criticism but also the ideas set out therein. Hubbard v Vosper, [1972] 1 All ER 1023 (C.A.) is most often cited as setting out the relevant tests.

Here is a website with the text of the Hubbard ruling. Interesting Hubbard is L. Ron Hubbard and he was complaining before the court about someone copying his text. Interesting that the ruling is one of Lord Dennings. Look how DJ Mixmaster Lord D leaves a very wide door open:

It is impossible to define what is 'fair dealing'. It must be a question of degree. You must consider first the number and extent of the quotations and extracts. Are they altogether too many and too long to be fair? Then you must consider the use made of them. If they are used as a basis for comment, criticism or review, that may be a fair dealing. If they are used to convey the same information as the author, for a rival purpose, that may be unfair. Next, you must consider the proportions. To take long extracts and attach short comments may be unfair. But, short extracts and long comments may be fair. Other considerations may come to mind also. But, after all is said and done, it must be a matter of impression. As with fair comment in the law of libel, so with fair dealing in the law of copyright. The tribunal of fact must decide. In the present case, there is material on which the tribunal of fact could find this to be fair dealing."

So "review" as a part of fair use is entirely broad and context specic. Could a dubbing hip-hop artist be doing that? It is entirely possible withing the wide range of the meanings of "expression" and "review". Sure it could. Do you think that anyone is going to reject an innovative well-founded argument against DRM where review in hip-hop is the defence? Here is a page from Heritage Canada's web site in which the effect of Digital Rights Management (DRM) technology is discussed including on the exceptions to copyright protection, including the section 29.1 right of review:

Canadian copyright legislation also contains a fair dealing defence to claims of copyright infringement when a work is used for the purpose of private study, research, review, criticism, or news reporting and the manner of the use is fair. Other specific exceptions exist in the case of educational institutions, libraries, archives and museums, computer programs, incidental inclusions, ephemeral recordings, and sound recordings. It is true that Canadian courts have tended to apply exceptions to copyright infringement narrowly. Still -- and this is the crucial point -- the exercise of any exception presumes the ability to access a work. DRMs that prevent or severely limit access to a digital work render impossible an ability to exercise and enjoy the benefits of any exceptions allowed by law.

The right is there according to Heritage Canada and it can and should be exercised in this dub-tastic remixerific era. So in the end, while this is more a note than an opinion, I just do not see an bar from the review exception for sound recorded material - so, at least in Canada but likely too elsewhere, I think Lessig is incorrect. What does that mean for his claim on racism? Hip-hop artists of any culture or no culture can use the right to do certain things like any artists could if they were aware of it. However, that does not justify plagerism or taking. Licensing ought to be as much as part of hip-hop culture (even if through a creative commons license) as any other aspect of that genre. A dubbing licensee can offer a dubbing license as much as a dubbed licensor can.

See the opportunity. Find the answer. Stop complaining.