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The inimitable Michael Geist has a comprehensive blog post which “pulls together the Supreme Court’s own language on how to assess fair dealing.”

Geist points out that even before the current round of copyright bill attempts, the courts here already had protections for both content creators and for consumers, but insisted that any defense involving ‘fair dealing’ (what Americans refer to as ‘fair use’) be decided using a six-part analysis to determine whether the use is really ‘fair.’

The six-factor analysis includes:

  1. The purpose of the dealing
  2. The character of the dealing
  3. The amount of the dealing
  4. The nature of the work
  5. Available alternatives to the dealing
  6. Effect of the dealing on the work

Geist goes into detail, citing Supreme Court rulings on each issue, in illustrating that the issue of copying for education as ‘fair dealing’ is not as clear-cut as either side thinks. It is not automatically infringement for a teacher to copy materials for his or her students; nor is being a teacher an automatic free pass to copy what you please in whichever manner you please.

To use some examples from my own teaching, I have many materials I use which explicitly give permission for copying. The unit kits I buy for a certain program I teach, for instance, include books of ‘blackline masters’ that are worksheet books designed to be photocopied for student use. They way they compensate for the reality that I will copy these books—every year—for the new kids I teach, is to charge a $500 fee for the unit! The understanding, of course, is that it would be wrong of me to share these books with teachers at other schools. And the price offers some protection from that; my principal paid the $500 per book, so she’ll understandably be protective of her exclusive right to it.

But what about something like a music CD? We paid for these music CDs, we own them and they are the school’s property. Is it a ‘public exhibition’ for me to play these CDs for my students? Geist would argue that it is not; that this use qualifies under fair dealing. He argues that a recent ruling involving SOCAN, referring to music sampling, argued that samples were fair dealing because they were ‘streamed, not downloaded,’ and that no copy was kept by the user after it was heard. If I made copies of every CD and distributed them to students, that might be a different story. But playing a few songs during a live class—where the students have no access to the song once the playing in class is done—is almost certainly not infringement.

There’s a lot more to it; those interested in these issues should definitely check out the full post.

 
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