Japan Moving Towards Fair Use?

According to an article on Japan Today, an advisory panel in the Japanese government has approved “a plan to tolerate the unlicensed use of copyright works.”

Under the panel’s suggestion, copyrighted works caught in the background of a film or picture will not need to be licensed.  Photo credit: Japan Firefox DevCon 2006_4209 CC-BY-NC-ND Gen Kanai available at Flickr.

This tolerating attitude only applies to certain unlicensed uses and appears similar to fair use and fair dealing concepts.  Currently, the allowed uses are much more vague than a specific fair dealing list, and even a bit more obtuse than the US’s four-factor fair use test.  So far, the Japanese allowed uses seem to focus on the nature of the use:

“use of a copyrighted work may be tolerated if the use itself is not the main purpose and the dependence on it is light, if the use is minor and reasonably required in the course of a legal use, or if the use is not aimed at seeing or hearing copyrighted expressions.”

Commenter Mr. Dog - who has invested a lot of energy into explaining the difference between copyright and trademarks, patents and what-you-think-IP-is in the comment section – noted that a fair use type of protection would bring Japan more in line with the rest of the world.

This plan may see draft legislation as early as next month.

Georgia on my ... oh, never mind

It's not the technology that causes
the problems, but what you do with it ...

From a Jiscmail list, via the ever-vigilant Graham Titley (Subject Librarian and Copyright Advisor, Charles Seale Hayne Library, University of Plymouth), comes news that three publishers (Cambridge University Press, Oxford University Press and Sage) are busily suing Georgia State University (GSU) for copyright infringement following allegations that GSU staff are letting students make electronic copies of parts of copyright works without making payment to the publishers, encouraged by GSU's new copyright policy.  This offers a "Fair Use Checklist" to assist in determining whether material in question can be copied under the "fair use" provision in US copyright law.

The Atlanta District Court judge has so far ruled that GSU cannot be sued for direct infringement of copyright since it's the students who are doing the copying. Indirect infringement is however a possibility.  It's now up to the plaintiffs to establish an "ongoing and continuous misuse" of the fair use defence following the introduction of the new GSU policy. If they can do this, the burden of proof then falls on GSU to justify each otherwise-infringing copy.

The court's ruling in Cambridge University Press and others v Becker and others on the direct infringement issue can be read on Justia here. The 1709 Blog awaits the next developments with excitement.

Georgia on my mind here
Sweet Georgia Brown here
Unfair dealing with Georgia here

Canadian court says that music clips can be royalty free

In an interesting decison, Canada's Federal Court of Appeal has ruled that no royalty is payable for the use of thirty-second or less clips which are used by consumers to 'preview' potential purchases on digital music services. The court was hearing an appeal by the songwriter's collection society SOCAN from the Copyright Board of Canada which had applied the 'fair dealing' doctrine to preview clips - it seems by extending the exception for 'research' on the basis that these clips were used by consumers to research music that they might then want to buy. SOCAN had argued that research-based fair dealing exception only applied to proper academic or scientific research, the traditional interpretation of that provision. The Board disagreed and said research did include circumstances when a "consumer is searching for an object of copyright that he or she desires and is attempting to locate and wishes to ensure its authenticity and quality before obtaining it".

The Federal Court affirmed the Copyright Board's interpretation, saying:

The legislator chose not to add restrictive qualifiers to the word “research” in section 29. It could have specified that the research be “scientific”, “economic”, “cultural”, etc. Instead it opted not to qualify it so that the term could be applied to the context in which it was used, and to maintain a proper balance between the rights of a copyright owner and users’ interests.

If, in essence, the legal research such as that referred to in CCH has a more formal and rigorous aspect, the same is not necessarily true for that conducted by consumers of a work subject to copyright, such as a musical work. In that context, it would not be unreasonable to give the word “research” its primary and ordinary meaning. The consumer is searching for an object of copyright that he or she desires and is attempting to locate and wishes to ensure its authenticity and quality before obtaining it. I agree with the Board that “[l]istening to previews assists in this investigation”.

The court was also asked to consider whether the dealing itself was fair given the large number of previews at issue. The court confirmed that the Board's decision was not unreasonable or in error.

Michael Geist said this on his excellent blog (link below): "The implications of this decision are very significant. While fair dealing is still constrained by the current list of exhaustive categories (research, private study, news reporting, criticism, and review), the broad interpretation of research to include consumer research could be used a wide variety of other situations where consumers use a portion of a work as part of their buying decision making process. Moreover, the broad interpretation of research should be similarly applied to private study, news reporting, criticism, and review, which, with the exception of private study, also do not contain restrictive qualifiers. This does not mean the law is a free-for-all - the dealing itself must still be analyzed to determine if it is fair - but it does confirm that the door is open to creative uses of the fair dealing provision in Canada consistent with the Supreme Court of Canada's view of a copyright balance between user rights and creator rights".

http://www.michaelgeist.ca/content/view/5036/125/