Conservatives, CBC and the Limits Of Fair Dealing

The Conservative Party of Canada and the CBC have recently found themselves in confrontation, as the Tories have seen fit to use CBC news footage in constructing their most recent round of political advertisements attacking their opponents, particularly Michael Ignatieff.

The CBC immediately complained about the use of their footage in the advertisements, arguing that their journalistic integrity had been compromised.

The Conservatives responded that they felt their use of the footage in the advertisements fell within fair dealing doctrine in Canada, pointing out that when they ran an advertisement in 2009 using footage from C-SPAN, the director of C-SPAN responded to the Liberal Party's notification by saying that the Conservative use of their footage fell within fair use guidelines.

The problem with the Conservatives' response is that in many ways it's not really relevant to the legal issue at hand. Ignoring for the moment that C-SPAN and the CBC both have the right to determine what their own response should be when their footage is used without permission (regardless of whether that response is legally correct), it is worth remembering that Canada and the United States operate under differing copyright regimes.

There is no explicit exemption for political speech in either Title 17 of the United States Code (the statutory source of copyright in the United States) or in the Copyright Act in Canada. From a statutory standpoint, Canada only allows fair dealing exemptions for use of copyrighted material when the intended use is for research, public study, criticism/review, or news reporting.

Unlike the United States, which explicitly outlines other factors by which a given use of copyright material could be considered a fair use, in Canada most people accused of copyright infringement and pleading a fair dealing defense must rely on CCH v. Law Society of Upper Canada, which outlines a set of similar factors, including among others the purpose of the dealing, the character of the dealing, the nature of the original work and the effect of the dealing on the original work. Although this common-law precedent has been used in Canada for much the same purpose as the statutory fair use provisions in place in the United States, a common-law precedent is by definition more transient than a statute.

Which then leads one to the other problem with the Conservative Party's response to the CBC, which is not simply that they are claiming a fair dealing right that does not exist under statute, but that they're claiming a fair dealing right which the Conservatives specifically did not include in Bill C-32, the bill updating outdated provisions copyright law - which they wrote.

- Christopher Bird, Toronto

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3D Printing: The Next Great Copyright Headache

The next great challenge in intellectual property law is already here in its infancy, and it is 3D printing.

For the uninitiated, 3D printing is very much what it sounds like: devices which "print" three-dimensional objects by laying down layer after layer of material until the object is completely constructed. 3D printers are already being used to build custom-made lamps, artwork and prosthetics, among other things. 3D printers can even make most of the parts to make other 3D printers.

The really fascinating thing about 3D printers is that right now, the technology is new and fresh, and early adopters are only beginning to scratch the surface of what's possible to do with them (much as how when the internet was relatively new, people mostly only used it for direct communication, and all of the other aspects that the net has taken on were barely imagined). The problematic thing about 3D printers, though, is that they may essentially require that we rethink many aspects of intellectual property law.

Michael Weinberg elaborates in his white paper "It Will Be Awesome If They Don't Screw It Up" (PDF link):

Copyright protects many works that are long and complex, and can take the form of a variety of expressions. As a result, it was relatively unlikely that two people would create the exact same work without the second copying the first. In contrast, many people working on a practical problem at the same time may create similar solutions. For patents to be worthwhile, they had to cover all identical devices, no matter how they were developed. It was assumed that parties vying for a patent were sophisticated and would do a patent search before trying to solve a problem. Everyone playing the game understood that it was a race to file, and took necessary precautions.

3D printing could change that. By democratizing the precision creation of physical objects, 3D printing may make the creation of physical objects nearly as widespread as the creation of copyright-protectable works.

Traditionally, copyright law's intersection with the design of physical objects has been problematic. The Copyright Act stipulates that a "utilitarian function" of an item cannot be copyrighted: the idea of armrests on a chair, for example. However, a unique utilitarian work - for example, a one-of-a-kind chair with special swooping armrests that look like diving birds - can attract copyright in its uniqueness as being both a utilitarian item and also a work of art.

3D printing makes all of this much more problematic because until now the reason unique utilitarian works have remained so is that they largely had to be completely hand-made, which encourages uniqueness. But if you can make your unique chair (or lamp, or what have you) and then scan it with a 3D scanner and just print out copies of it? At that point, you're mass-producing the item, and thus losing your copyright in it, because once an item becomes mass-produced its aesthetic features are deemed to change from being artistic in nature to being industrial, which does not attract the protection of copyright.

Similarly troublesome is that copyright protects that original chair because copyright is predicated on complexity of the creative process. As Weinberg pointed out, it's not very likely that two chairmakers will make the same diving-birds-armrest chair, because there aren't a lot of chairmakers in the world who would take the time to craft wood and springs and cushions in such a way. But think forward ten years down the road, when you can purchase a $200 3D printer and a copy of 3D Chairmaker 2020, software which will help you design a chair on your computer, giving you guidelines to make sure that your chair can support weight properly and be comfortable and then letting you make all the aesthetic swooping armrests you like: at that point, the chance that you will duplicate another person's work near-exactly suddenly becomes a lot more likely, especially if Chairmaker 2020 is a popular program.

In short, copyright law is currently almost entirely unprepared to deal with the coming legal issues surrounding 3D printing. Of course, if current trends in copyright law are any indication, Canada will come up with a legislative platform designed to deal with the implications of 3D printing approximately fifteen years after it begins to matter.

- Christopher Bird, Toronto

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Canadian Copyright Reform

Professor Michael Geist has been rapidly mobilizing opposition to Canada's pending copyright reform legislation.

Watch his video:

Michael Geist is Canada Research Chair of Internet and E-commerce Law at the University of Ottawa.

- Garry J. Wise, Toronto

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