Fair Dealing: Passage to the Common Within

Printer-friendly version

Meera Nair (Doctoral Student)
School of Communication, Simon Fraser University
The Commons Conference Presentation, June 2006

On 20 June 2005 the Federal Government of Canada unveiled Bill C-60, An Act to Amend the Copyright Act, ostensibly necessary to modernize copyright for the digital age. The discourse that preceded the tabling of this bill showed a clear bias to extend the depth and breadth of copyright, at the expense of the public’s right to access creative endeavour. In this paper I examine the issue of educational licensing of the Internet. A contentious matter, it was removed from Bill C-60 but appears poised* to return. As Canada sits at the policy crossroads, it would be prudent to draw attention to the environment of the proposal at its inception, rather than be critical after implementation.

Creative endeavor implicitly relies on cultural borrowings—as Northrop Frye wrote, “Poetry can only be made out of other poems, novels out of other novels ….” The source of these borrowings is often identified as an intellectual common—the public domain—where past copyrighted work lies available for public use. What lies unseen is the common within ourselves—our individual creative efforts provide fodder to others, while still protected by copyright. Passage to this common is granted by the current, legitimate, copyright exception of fair dealing. Fair dealing ensures that we reciprocate for our own cultural borrowings, and share accordingly.

Educational licensing, tantamount to commodifying passage to the common within, can only introduce unnecessary fiscal strain to education in Canada and will erode the meaning of fair dealing. A meaning which has been recognized for more than two hundred years; in 1802, in Cary v. Kearsley, Lord Ellenborough said, “[A] man may fairly adopt part of the work of another: he may so make use of another’s labours for the promotion of science, and the benefit of the public.”