PRIORITIZE FREE EXPRESSION 2: PROTECT FAIR USE AND/OR FAIR DEALING
Participants in the “Our Digital Future” crowdsourcing project were also strong believers in a range of rights to re-use and modify aspects of a creative work. The majority of our respondents – 84.8 percent of 9,020 – agreed that users should “be able to create parodies, remixes and fan fiction without having to break the law and face penalties.” A similar number – 86.2 percent - agreed users should “be able to excerpt from works to share commentaries and reviews without fear of legal penalties.”28
Copyright laws typically protect these rights through provisions like fair dealing (Canada, the UK, Australia, New Zealand, Singapore) or fair use (the US, Poland, and South Korea) (see Box 4). Unfortunately, the Internet community has a very legitimate cause to be coming together to speak out about the importance of these rights at this time, as takedown notices are also used to remove content that should be protected under fair use or fair dealing. For example, in June 2013 the Church of Scientology forced a domain registrar and website host to take down cheerupwillsmith. com, a parody site that used satire to make fun of the Church, its relationship to the actor Will Smith, and its alleged control over its members.29 The website was pulled down without challenge, despite the fact that it had no commercial purpose and was clearly permitted within the fair use doctrine.30
Box 4: Fair Dealing versus Fair Use
Under the fair dealing system (found in Canada and the United Kingdom), use of a work must fall into a specific category of purpose for the exception to apply, such as education, parody, research, news, or criticism. Only once the use qualifies for one of these categories does the analysis move on to decide if it was actually fair, through a six-factor test. If an instance of copying cannot fit into one of the set out categories, then it is not exempt under fair dealing.
By contrast, fair use (such as in the United States and Israel) does not require fitting the use into an explicit category before analyzing its fairness. While U.S. copyright law also sets out categories, or purposes, they are listed as mere examples of fair use, not its boundaries. Courts may add any other purpose they see fit, if they find that the use is fair. This leads to much greater flexibility than fair dealing offers, though some argue that Canadian courts’ increasingly expansive approach to fair dealing has shifted its system towards the open-ended model of fair use.31
Because of the dominance of US-based distribution channels like YouTube, even Canadian-based entities that might otherwise be under a notice-and-notice regime have attempted to censor parodies and other content that offends their sensibilities. In two examples related to the highly politically charged issue of oil sands development, Tourism Alberta used Canadian law firm Dentons (which also represents energy company Enbridge) to deliver a takedown notice directed at a parody video that spoofed a vacation to Alberta to visit the oil sands.32 Canadian-headquartered energy company Encana also used the DMCA to file a takedown notice directed at an audio file of one of its executives swearing. In this case, however, the owner of the hosting company Chirbit refused by citing fair use provisions.33 34
These examples point not only to the importance of modifying notice-and-takedown regimes (and preventing their proliferation) but also to the importance of protection for fair use and fair dealing. Fair use and fair dealing need to be given a broad scope within the domain of copyright, as they are intended to protect an incredibly wide range of crucial modes of cultural expression (everything from satire to private study). For this reason, copyright holders should be required to consider fair use before sending takedown notices.35 Given the results of the “Our Digital Future” crowdsourcing process, we join London- based human rights organization Article 19 in supporting their sixth principle on free expression and copyright in the digital age:
Limitations and exceptions to copyright, especially fair dealing, should be interpreted broadly so as to give greater protection to the right to freedom of expression...Creative and transformative uses of original works subject to copyright should benefit from broad protection under the fair dealing exception to copyright.36
“Sharing is caring – not piracy. We must reject copyright censorship and profiteering for almost the entirety of human history ‘ideas were free’, but the growing dominance of the ‘market economy’ – where our intellectual ideas are bought & sold as ‘products’ – has resulted in greedy monopolies, stifled creativity, innovation, impeded progress, censorship and other terrible consequences. Our draconian system of patent & copyright laws don’t acknowledge the derivative nature of creativity.”
Cultural creators are always participating in the vast legacy of creative work that has come before them. Original works are enriched by allusion, homage and reference to works from the past; therefore, it is important to leave as much room as possible within copyright law for fair use and fair dealing that protects creators (an issue we explored in our first recommendation, Respect Creators). Outside of the creative uses of copyright material, fair use and fair dealing rights are also essential elements of free expression, given that they afford protection for such politically and socially important modes of discourse as critique, parody and education. Provisions that allow for fair use/fair dealing of copyright works, interpreted broadly,40 are the correct approach to protecting the rights of content creators without harming free expression.
28. See “Appendix: Methodology” for full results for this question.
32. http://www.huffingtonpost.ca/steve-horn/alberta-oilsands-dentons-youtube... oil_b_3768661.html
37. http://www.scribd.com/doc/47089238/Remix p. 254
38. “Transformative use refers to the use of existing expression as an input into the creative process, resulting in the creation of new expression that, while still embodying elements of the original work, is original in its own right. This type of creativity is beneficial for society and should be encouraged. Individuals should have the ability to express themselves, and participate in the interpretation of their culture.” http://nic.suzor.net/wp-content/uploads/2010/12/2006-Suzor-Transformativ... p. 1
40. As Canada and American courts have been doing. See http://fairduty.wordpress.com/resources/ notable-supreme-court-decisions/ and http://fairduty.wordpress.com/2014/06/15/second-circuit- stays-on-message/