As discussed by Anna in her post yesterday, fair dealing under Canadian law works as follows: a user is allowed a limited use of a copyrighted material without needing to get permission from the rights holder in specific circumstances; for the purpose of research or private study, criticism or review and for the purposes of news reporting. So long as a user abides by the specific requirements as set out in the Copyright Act and stays within a reasonable amount of use, the dealing is considered fair. However, often neglected is the other side of the debate, the argument for the rights holder, whom we should not forget.
Therefore, in the hopes of bringing attention to the other side of the debate, it is important to note just a few of the myriad assumptions, especially in the context of internet scraping, that may operate unfairly to the disadvantage of the content rights holders.
Assumption #1 - Just because there are attribution and linking requirements, users will abide by them
Although many users do abide by the requirements, to attribute and link back to sources as required, many don’t. There are many users who make use of articles without giving any credit or link to the original source. Then there are users that pay homage to the “original source” but that do so improperly. When arguing that Fair Dealing in the for the scraping of content should be welcomed, we should not neglect to pay attention to those that do not satisfy the requirements of this defence.
Assumption #2 - Amount of Dealing
On account of there being no specified quantitative limit in law as to what may be fairly used, users have come up with a variety of ways to justify what is used. A prevalent assumption often relates to quantity. However, it is the quality and not the quantity that is determinative in the analysis, and case law has long established this. Although not on the internet medium, in Hawkes & son v. Paramount Film service Ltd., infringement was found even though the defendants only used a 20 second clip of the plaintiff's song, as what was reproduced was deemed what anyone would recognize as a portion of the original sound.
Assumption #3 - Increased Exposure
Some argue that scraping actually opens up the “original sources” to other readers who would not have found them in the first place had they not followed a link from the blog/site doing the quoting. First, it is impossible to know how true this is and whether it ever overrides the amount of users who do not link back to the “original sources.” It also fails to take into account the situation when a scraper, although linking back, does so to a secondary source and not the original. This is problematic, for when it occurs, it is the secondary source and not the original that is receiving the increased exposure.
Policy Reasons
As one enthusiastic blogger pointed out, blogging is not going away and in fact will continue to grow. On account of this, we need to find a way to marry these two entities; the user and the creator of the original work so that they work in tandem and not against each other.
Unveiling some of these assumptions demonstrate that fair dealing is not so easy even though it is clearly set out in the copyright act and has been established by case law. In addition, they remind us that the Fair dealing defence was meant to strike a balance between users and authors/creators and not to err on either side too heavily. Information is most powerful when it is shared therefore a liberal attitude towards Fair dealing should be embraced. However, in our plight towards promoting this liberal attitude towards sharing information, we should still remain ever mindful to the original source of content and as such, remember the rights holder.