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WHAT IS YOUR UNDERSTANDING OF RECENT CHANGES TO THE COPYRIGHT ACT?
- Canada's Copyright Act has recently been amended by the Copyright Modernization Act (C-11) to provide, among other things, educators and students greater use of copyright material. It does this by allowing use of the ‘Fair Dealing‘ exemption as a defense against copyright infringement.
- But the Copyright Act, does not define what is ‘Fair,’ leaving it to the interpretation of the courts, on a case by case basis, to balance the public’s interest and those of the creators. The Supreme Court of Canada, in CCH Canadian Ltd. v. Law Society of Upper Canada, has given us some direction and a list of factors as a guide to determining what is ‘Fair.’
- It is impossible to define what is ‘fair dealing’. It must be a question of degree. You must consider first the number and extent of the quotations and extracts. Are they altogether too many and too long to be fair? Then you must consider the use made of them. If they are used as a basis for comment, criticism or review, that may be a fair dealing. If they are used to convey the same information as the author, for a rival purpose, that may be unfair. Next, you must consider the proportions. To take long extracts and attach short comments may be unfair. But, short extracts and long comments may be fair. Other considerations may come to mind also. But, after all is said and done, it must be a matter of impression. As with fair comment in the law of libel, so with fair dealing in the law of copyright. The tribunal of fact must decide.
- At the Court of Appeal, Linden J.A. acknowledged that there was no set test for fairness, but outlined a series of factors that could be considered to help assess whether a dealing is fair. Drawing on the decision in Hubbard, supra, as well as the doctrine of fair use in the United States, he proposed that the following factors be considered in assessing whether a dealing was fair: (1) the purpose of the dealing; (2) the character of the dealing; (3) the amount of the dealing; (4) alternatives to the dealing; (5) the nature of the work; and (6) the effect of the dealing on the work. Although these considerations will not all arise in every case of fair dealing, this list of factors provides a useful analytical framework to govern determinations of fairness in future cases.
(i) The Purpose of the Dealing
In Canada, the purpose of the dealing will be fair if it is for one of the allowable purposes under the Copyright Act, namely research, private study, criticism, review or news reporting: see ss. 29, 29.1 and 29.2 of the Copyright Act. (The Copyright Modernization Act has subsequently added education and satire as allowable purposes.) As discussed, these allowable purposes should not be given a restrictive interpretation or this could result in the undue restriction of users’ rights. This said, courts should attempt to make an objective assessment of the user/defendant’s real purpose or motive in using the copyrighted work. See McKeown, supra, at p. 23-6. See also Associated Newspapers Group plc v. News Group NewspapersLtd.,  R.P.C. 515 (Ch. D.). Moreover, as the Court of Appeal explained, some dealings, even if for an allowable purpose, may be more or less fair than others; research done for commercial purposes may not be as fair as research done for charitable purposes.
(ii) The Character of the Dealing
In assessing the character of a dealing, courts must examine how the works were dealt with. If multiple copies of works are being widely distributed, this will tend to be unfair. If, however, a single copy of a work is used for a specific legitimate purpose, then it may be easier to conclude that it was a fair dealing. If the copy of the work is destroyed after it is used for its specific intended purpose, this may also favour a finding of fairness. It may be relevant to consider the custom or practice in a particular trade or industry to determine whether or not the character of the dealing is fair. For example, in Sillitoe v. McGraw-Hill Book Co. (U.K.),  F.S.R. 545 (Ch. D.), the importers and distributors of “study notes” that incorporated large passages from published works attempted to claim that the copies were fair dealings because they were for the purpose of criticism. The court reviewed the ways in which copied works were customarily dealt with in literary criticism textbooks to help it conclude that the study notes were not fair dealings for the purpose of criticism.
(iii) The Amount of the Dealing
Both the amount of the dealing and importance of the work allegedly infringed should be considered in assessing fairness. If the amount taken from a work is trivial, the fair dealing analysis need not be undertaken at all because the court will have concluded that there was no copyright infringement. As the passage from Hubbard indicates, the quantity of the work taken will not be determinative of fairness, but it can help in the determination. It may be possible to deal fairly with a whole work. As Vaver points out, there might be no other way to criticize or review certain types of works such as photographs: see Vaver, supra, at p. 191. The amount taken may also be more or less fair depending on the purpose. For example, for the purpose of research or private study, it may be essential to copy an entire academic article or an entire judicial decision. However, if a work of literature is copied for the purpose of criticism, it will not likely be fair to include a full copy of the work in the critique.
(iv) Alternatives to the Dealing
Alternatives to dealing with the infringed work may affect the determination of fairness. If there is a non-copyrighted equivalent of the work that could have been used instead of the copyrighted work, this should be considered by the court. I agree with the Court of Appeal that it will also be useful for courts to attempt to determine whether the dealing was reasonably necessary to achieve the ultimate purpose. For example, if a criticism would be equally effective if it did not actually reproduce the copyrighted work it was criticizing, this may weigh against a finding of fairness.
(v) The Nature of the Work
The nature of the work in question should also be considered by courts assessing whether a dealing is fair. Although certainly not determinative, if a work has not been published, the dealing may be more fair in that its reproduction with acknowledgement could lead to a wider public dissemination of the work — one of the goals of copyright law. If, however, the work in question was confidential, this may tip the scales towards finding that the dealing was unfair. See Beloff v. Pressdram Ltd.,  1 All E.R. 241 (Ch. D.), at p. 264.
(vi) Effect of the Dealing on the Work
- Finally, the effect of the dealing on the work is another factor warranting consideration when courts are determining whether a dealing is fair. If the reproduced work is likely to compete with the market of the original work, this may suggest that the dealing is not fair. Although the effect of the dealing on the market of the copyright owner is an important factor, it is neither the only factor nor the most important factor that a court must consider in deciding if the dealing is fair. See, for example, Pro Sieben Media AG v. Carlton UK Television Ltd.,  F.S.R. 610 (C.A.), per Robert Walker L.J.
- To conclude, the purpose of the dealing, the character of the dealing, the amount of the dealing, the nature of the work, available alternatives to the dealing and the effect of the dealing on the work are all factors that could help determine whether or not a dealing is fair. These factors may be more or less relevant to assessing the fairness of a dealing depending on the factual context of the allegedly infringing dealing. In some contexts, there may be factors other than those listed here that may help a court decide whether the dealing was fair.
- Ultimately, the 'fair dealing' section of the legislation is trying to balance creator rights and user rights.
HOW DO YOU HANDLE STREAMING RIGHTS?
- As the adoption and implementation of streaming video resources evolves, so does the way we market them. Some of our customers require a DVD + streaming rights, others just the streaming rights, and yet others would prefer we host and stream titles for them directly from our server; http://www.mcnabbconnolly.ca/playlistdemo
- There are a number of published streaming prices on our site, but it is more often a negotiatied price dictated by the title, producer, year of production, running time, term, size of end user, etc. So please call us and we'll try to establish a fair price for your particular circumstances, that works within your budget.
WHAT IS 'PAY-PER-VIEW' AND HOW DOES IT WORK?
- 'Pay-Per-View' titles are intended for the 'fair use' by teachers and for private use at home.
- Once purchased, a 'Pay-Per-View' title will be available to start for 30 days. Once started, you will have 48 hours to use it.
WHAT IS YOUR PREVIEW POLICY?
- Funded media buyers from Canadian educational institutions may preview of our titles without charge. First, Create an Account so we know who you are, then simply Request a Preview on the title(s) web page, and give us time to verify your information. You will be notified by email as soon as access to the full program(s) has been approved.
- If you prefer, DVD copies can be forwarded to you for evaluation. First, Create an Account so we know who you are, then Contact Us with the title(s) you're interested in. Should you decide not to retain your preview, simply prepay its return to:
60 Briarwood Avenue
Mississauga, ON L5G 3N6
WHAT DO THE DIFFERENT LEVELS OF PRICING MEAN?
WHAT DO THE DIFFERENT LEVELS OF PRICING MEAN?
- The 'School Bd/College/University DVD' price is for educational organizations for multiple use in multiple locations. This price we charge to school districts, colleges, universities, public libraries and all other institution wishing to show the title publicly with no admission charged.
- The 'K-12 Single School DVD,' if available, is for single K-12 schools who wish to have their own copy.
- The 'Public Library (HUO) DVD', again if available, we use for public library circulating collections or individuals wishing to purchase a copy for their own private use.
- Pricing for duplication, streaming and downloading is available upon request.
WHY ARE THE DVDs YOU DISTRIBUTE SO EXPENSIVE?
- McNabb Connolly is primarily an educational / institutional distributor, as opposed to a consumer DVD or home video distributor. Our programs are sold for the 'fair use' by teachers and students. which gives the purchaser the right to show the film in a public forum provided no admission fee is charged. This does NOT include the right to show the film on television or online, without permission.
- Our main customers are educational institutions who will use the film repeatedly within the campus community. Faculty and teachers seldom require their students to buy DVD copies.
- When you buy these programs, remember that a good portion of the price is returned to the producer in royalties, helping them to recoup production costs or invest in a new project.
WHAT IF I'M ORDERING FROM OUTSIDE CANADA?
We are primarily a Canadian distributor. Most of the rights we hold, allow us to sell our programs exclusively throughout Canada.
Occasionally, a producer will also grant us world rights.
Regardless, you should not hesitate to place your order, as we make every effort to locate the legal rights holder in your country and pass that information on to you and the legitimate distributor.
WHAT DO THE NUMBERS AFTER THE TITLES MEAN?
- Ascent of Money, The (6) means 'The Ascent of Money' is a 6 part series
- Risky Business (4/6) means 'Risky Business' is the 4th program in a 6 part series
THE DVD-R I RECEIVED WILL NOT PLAY IN MY DVD PLAYER.
- Many of our older titles have been made available as DVD-Rs. Though the manufacturing process differs, the –R media functions in the same way as a regular DVD disc. DVD players manufactured before a certain date (generally prior to 2001) and many bargain consumer models are not able to “read” the DVD-R format. We recommend that you research the DVD player model you or your institution will be using to anticipate any compatibility issues.
THE DVD/DVD-R I RECEIVED SUFFERS FROM SKIPS, FREEZES, OR OTHER PLAYBACK ISSUES. WHAT SHOULD I DO?First and foremost, we want to ensure that your viewing experience is as trouble-free as possible, and so we encourage customers to inform us of any problems they experience when viewing our films on DVD. We do recommend that before contacting us about defective media issues, customers take the following steps:
- Research the DVD player model you are using to identify any compatibility issues that could be responsible for the problems you are experiencing.
- If you are playing the DVD on a computer, try using a different software program.
- Carefully examine the data (non-label) side of the disc. Often times gently wiping the surface of the disc with a clean soft cloth or rag can remove minor dirt from the disc surface and correct the problem. Always wipe the disc surface from the center hole to the outer edge. Don't follow the concentric circles while cleaning. Avoid using paper products or materials with an abrasive surface, as they will scratch the disc. It is also advisable to refrain from touching the data side of the disc, as fingerprints can also cause playback errors.
- If there are fingerprint marks on the CD surface, dip a soft cloth in rubbing alcohol and gently wipe the surface. Never use a petroleum-based solvent like acetone as that will permanently damage the DVD surface. Ordinary water, or better yet mineral water, can be used as a substitute.
- If the DVD surface feels sticky or greasy, mix some baby shampoo in lukewarm water and use cotton or soft cloth to gently rub the DVD surface with this solution. Make sure the DVD is completely dry (no water drops) before attempting to play it again.
- If you still experience poor playback, make a note of what type of playback error you experienced and where on the disc it occurred (supplying the time code info from your DVD player display is best) and contact McNabb Connolly. In most cases we will immediately replace the title free-of-charge or offer a refund if the customer so desires. We will provide a return-shipping label for the problematic media and test it for defects.
ARE YOUR DVDS/DVD-RS REGION ENCODED? ARE THEY PAL OR NTSC?
- All our DVDs are “all-region” (but often referred to as “region free” or “Region 0”), meaning they should be compatible with any DVD player in any country. Region codes do not apply to the recordable DVD-R format.
- Our DVDs are formatted for NTSC. For customers in areas that use PAL this is generally not an issue, as most DVD players sold in countries using the PAL standard are able to read both PAL and NTSC-formatted DVDs and DVD-Rs*. However, the majority of players sold in areas using the NTSC standard will not play PAL-formatted media. According to DVD Demystified, NTSC discs will play on over 95% of DVD players/systems worldwide.
- Customers who require PAL-formatted DVDs should contact us via phone or email with your requests.
- *Viewers in PAL regions may encounter a problem when attempting to watch an NTSC-formatted DVD/DVD-R via a PAL-only television set.
WHAT IS YOUR REPLACEMENT POLICY?
- To safeguard your investment in McNabb Connolly DVDs, we will replace any damaged, stolen or misplaced DVD for $25 within the first year of purchase and at 50% of the current price for the first three years. This warranty applies as long as the program is offered for sale. Please notify us of the circumstances. In the case of defective media, we will replace the item free of charge.
I AM A FILMMAKER/PRODUCER INTERESTED IN WORKING WITH MCNABB CONNOLLY. HOW DO I SUBMIT MY FILM FOR DISTRIBUTION CONSIDERATION?
- Filmmakers who wish to have their films considered for distribution are encouraged to browse through our online catalogue to be sure your production fits our collection. If you believe it does, email a description of your film to email@example.com. Please include any links to your film’s website, photo galleries, and online trailers.