Drassinower on User Rights

I was at an interesting talk on Friday, sponsored by the Centre for Media and Culture Education at OISE. Abraham Drassinower of U of T’s Faculty of Law spoke about his chapter, entitled Taking User Rights Seriously that appears in Michael Geist’s edited collection, In the Public Interest. My notes are incomplete, as the conversation got too darn interesting, but the chapter (as are all the chapters) is available for free download under a Creative Commons license (see? Together we are all smarter).

In Canada, there is a doctrine under copyright law known as “Fair Dealing,” that is different than the “Fair Use” doctrine in the U.S. Fair dealing has been considered a defence against a charge of copyright infringement, essentially laying out five uses (hence intentions) that are considered exculpatory, were one to be charged with infringement. Recently, the Supreme Court of Canada found fair dealing to be a user right, which gives it a different hue under the law. Drassinower begins to examine what this means in terms of the relationship between users, authors and the public in general.

He is philosophically interested in restoring what he calls the “dignity” of the public domain. As it is currently constituted under the law, public domain comprises the “leftovers” – all that is not protected by copyright. He wants to begin to replace this notion with one that is positively conceived, beginning by asking the question, in what sense is the exception of fair dealing not an exception to the author’s exclusive right of reproduction of a work? The answer he proposes is drawn from former U.S. Supreme Court Justice Louis Brandeis, who wrote in 1918 that “the noblest of human productions – knowledge, truths ascertained, conceptions, and ideas – become, after voluntary communication to others, free as the air to common use” – namely, if the general rule of expressed knowledge is indeed common use. But in this case, the copyright pendulum swings the other way: authors’ rights, instead of users’ rights, become the exception. How then can we resolve the dichotomy of exclusive claims?

The approach that Drassinower suggests is comprised of three constructs (that are explained and developed in great detail in the chapter:

• Consider authors as users;
• Consider users as authors;
• Use the doctrine of copyright to negotiate the tension between the two

Simply put, one of the tests of whether a work is copyrightable is its originality, but not necessarily its novelty. For this test, one considers the source: did the actual work – as differentiated from the ideas of the work – come from the nominal author. This doctrine recognizes that very little of human cultural and creative production comes from the proverbial whole cloth. Authors as users take others’ ideas to create new, original works. On the other hand, fair dealing recognizes that uses can become authors when they use the work of authors where that use is incidental to their own creation; according to Drassinower, irrespective of the quantity of the use. An interesting way to understand this is to consider browsing online. Since browsing necessitates making a complete copy of a work, it could be considered an infringement. However, since the copy is incidental to the “creation,” that is, the reading of the page (which, after all, is what was intended when the page was put online), the infringement is “incidental” and hence is a fair use.

This concept raises an interesting question (actually raised by Roger Simon) concerning education. Currently, the dissemination of copyright materials in class is considered to be covered by copyright protection; as teachers. Under such consideration, we cannot (legitimately) put a scan of the work online for students to download, or make copies of an article for the students, and so forth. However, one might argue that the “creation” is the educational environment in which new knowledge is being constructed, and the use of the copyright work is “incidental” to that creation, and hence should be considered fair dealing. Although Drassinower cautions against attempting to fight this in court, he does consider this an interesting, and potentially useful line of reasoning. Also, when copyright is invoked to stifle free speech, he points out that there must be a clear distinction in the conflation of the (copy)rights of an author, and the (charter)rights of a citizen.
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