Afroditi Theodoridou is a PhD student at Osgoode Hall Law School.
At the 27th Annual Conference of the Visual Resources Association (VRA), the international organization of image media professionals, the opening plenary session entitled "Fair Use or Fair Dealing: Which Should Give You More Comfort?" was held at the Ontario College of Art & Design on March 18, 2009. The guest speakers were Dr. Kenneth D. Crews, Director of the Copyright Advisory Office, Columbia University, and Professor Giuseppina D'Agostino, Director of IP Osgoode. As images in the online environment easily cross borders, the question of which approach to copyright exceptions gives more comfort is a justified one. The Internet and the varying international approaches to copyright increase the already existing uncertainty by which VRA members are plagued.
Dr. Crews stressed that the growth in types of rights for copyright owners goes hand in hand with a concurrent change in the interpretation of fair use. He took the famous ‘hope' poster created by street artist Shepard Fairey for Barack Obama's presidential campaign as an example of an image that is currently at the centre of a copyright dispute between Fairey and the Associated Press. A brief overview of U.S. case law demonstrates the flexibility which is inherent in the fair use doctrine and which does not exist in other jurisdictions. According to Dr. Crews, it is this flexibility that allows courts to render more adequate decisions, when existing materials are used and changed by artists..
For Professor D'Agostino, neither doctrine gives comfort and since laws and courts do not have all the answers, we should embrace industry-specific guidelines and best practices (or, better put, "good practices") developed by the users themselves. She posited that despite increasing commodification, the extension of categories of protection, the extension of the copyright term, and the existence of civil fines and criminal penalties, it should not be forgotten that users have rights too, and that various stakeholder interests exist. Professor D'Agostino highlighted that in the landmark decision in CCH Canadian Ltd. v. Law Society of Upper Canada in 2004, the Supreme Court of Canada felt comfortable with the Great Library's Access Policy, in particular with its photocopy request form. Professor D'Agostino, however, finds that in general there is little comfort for any stakeholder and that the law and its application are unclear and leave users confused. Her preferred comfort option is therefore best practices and guidelines, where the Documentary Filmmakers' Statement of Best Practices in Fair Use provides a successful example. Users in other fields are already following suit. For instance, David Fewer is leading a similar initiative at the University of Ottawa with Canadian documentary filmmakers. Also, a conference is scheduled for June 2009 in Alberta where representatives of Canadian libraries and universities will be discussing good practices.
In the discussion that followed, Dr. Crews remarked that fair use guidelines did not prove successful in the United States, but both speakers agreed that good practices could be a good solution. As far as other jurisdictions are concerned, it was highlighted that there are countries where neither fair dealing nor fair use applies.