Fair Use or Fair Dealing: Which Should Give You More Comfort?

Afroditi Theodoridou is a PhD student at Osgoode Hall Law School.

At the 27th Annual Conference of the Visual Resources Association (VRA), the international organization of image media professionals, the opening plenary session entitled “Fair Use or Fair Dealing: Which Should Give You More Comfort?” was held at the Ontario College of Art & Design on March 18, 2009. The guest speakers were Dr. Kenneth D. Crews, Director of the Copyright Advisory Office, Columbia University, and Professor Giuseppina D’Agostino, Director of IP Osgoode. As images in the online environment easily cross borders, the question of which approach to copyright exceptions gives more comfort is a justified one. The Internet and the varying international approaches to copyright increase the already existing uncertainty by which VRA members are plagued. 

Dr. Crews stressed that the growth in types of rights for copyright owners goes hand in hand with a concurrent change in the interpretation of fair use. He took the famous ‘hope’ poster created by street artist Shepard Fairey for Barack Obama’s presidential campaign as an example of an image that is currently at the centre of a copyright dispute between Fairey and the Associated Press. A brief overview of U.S. case law demonstrates the flexibility which is inherent in the fair use doctrine and which does not exist in other jurisdictions. According to Dr. Crews, it is this flexibility that allows courts to render more adequate decisions, when existing materials are used and changed by artists..

For Professor D’Agostino, neither doctrine gives comfort and since laws and courts do not have all the answers, we should embrace industry-specific guidelines and best practices (or, better put, “good practices”) developed by the users themselves. She posited that despite increasing commodification, the extension of categories of protection, the extension of the copyright term, and the existence of civil fines and criminal penalties, it should not be forgotten that users have rights too, and that various stakeholder interests exist. Professor D’Agostino highlighted that in the landmark decision in CCH Canadian Ltd. v. Law Society of Upper Canada in 2004, the Supreme Court of Canada felt comfortable with the Great Library’s Access Policy, in particular with its photocopy request form. Professor D’Agostino, however, finds that in general there is little comfort for any stakeholder and that the law and its application are unclear and leave users confused. Her preferred comfort option is therefore best practices and guidelines, where the Documentary Filmmakers’ Statement of Best Practices in Fair Use provides a successful example. Users in other fields are already following suit. For instance, David Fewer is leading a similar initiative at the University of Ottawa with Canadian documentary filmmakers. Also, a conference is scheduled for June 2009 in Alberta where representatives of Canadian libraries and universities will be discussing good practices.

In the discussion that followed, Dr. Crews remarked that fair use guidelines did not prove successful in the United States, but both speakers agreed that good practices could be a good solution. As far as other jurisdictions are concerned, it was highlighted that there are countries where neither fair dealing nor fair use applies.

One Comment
  1. Afroditi, here is some interesting background information on VRA and their initiatives around copyright outside of this conference.

    Since 1982 when the it was first founded, The Visual Resource Association (VRA) has grow into an 800 members strong organization with the mandate to further research and education in the field of image management within the educational, cultural heritage and commercial environments. The organization is composed of a diverse set of individuals who all share an interest in supporting the primacy of visual information in documenting and understanding humanity’s shared cultural experience. This includes visual resources specialists, librarians, museum curators; archivists; art historians, artists, and scientists.

    As with many organizations, technology has had a significant impact on the VRA’s membership. Though computers, databases, and the internet may have facilitated the collection, archiving, preservation and sharing of visual resources, it has also raised a number of copyright issues. One of the VRAs initiatives has been to assist their membership with these issues.

    As was highlighted in your post Afroditi during this year’s annual conference IPOsgoode’s Professor D’Agostino, and Professor Crews from the Columbia University , were invited to compare and contrast Canada’s Fair Dealings and the US’s Fair Use doctrines, and provide guidance to the membership on what should give them more comfort. Given the increase in cross border licensing, and the potential sharing of visual resources via data centers and institutions which may be located in opposite jurisdictions, understanding the differences in the exceptions to Copyright is important.

    Though it was not specifically highlighted at this year’s copyright plenary session, one of the other activities undertaken by the VRA to assist their membership with copyright, is the Digital Image Rights Computator (DIRC) http://www.vraweb.org/resources/ipr/dirc/page_1.html
    DIRC is a web tool developed by the VRA that provides a step-by-step guide for members to assess the legality of the potential use of a visual resource. The guide is broken into 5 levels and tries to ascertain:
    1. The Copyright status of the underlying work represented in the image
    2. The Copyright status of the photographic reproduction
    3. The Specific source from which the image was obtained
    4. Any terms of use or contract that may govern the uses of the image
    5. The intended uses of the image

    Within each of the levels there are a series of questions accompanied by information and links to resources that educate and provide further guidance to members.

    Crews – Risk Matrix
    Though it is not a legal opinion, the DIRC is a great resource for familiarizing VRA members with issues and helping to assess risk – especially when there are budget and time constraints. During his presentation, Professor Crews recommended assessing risk using a four-quadrant approach:

    1) Risk – What are the potential risks of using a particular visual resource?
    2) Good Faith – What are the good faith components of the use of the visual resource?
    3) Reasoning – What is the purpose of using the resources and how may it be subsequently used?
    4) Experience – What experience does the individual have in assessing and using this type of visual resource?

    The DIRC certainly appears to be a useful tool in facilitating this assessment.

    Orphan works is another important copyright issue VRA members encounter on a frequent basis and which should be considered in assessing risk. Christine Sundt, this year’s moderator for VRA’s plenary session on copyright, defines an orphan works as:

    “[W]orks that are still formally protected by copyright, but where a potential user is unable to clear rights because a) there is no copyright information associated with the work; b) the information is inadequate or inaccurate; or c) attempts to contact possible rights holders have proved futile.”

    Ms Sundt has been involved in number of initiatives around copyright and orphan works in the US and maintains a website http://darkwing.uoregon.edu/~csundt/copyweb/ that tracks certain legislative developments for orphan works in the US. There are also a number of links archiving the historical developments and conferences for Fair Use.

    As technology changes how visual resources are managed, VRA members are faced with a new landscape of challenges that requires a different set of expertise and knowledge. Though absolute comfort cannot be guaranteed, it certainly appears that VRA members are well served and have a number of tools available to them to identify and mitigate risks in copyright.

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