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While in Hong Kong last week for a workshop on implementing the WIPO Development Agenda, I also took part in a panel discussion on copyright reform. One of the most interesting things I heard came from Hong Kong copyright expert Kevin Pun, who spoke about an educational amendment just introduced into HK copyright law last summer. I immediately thought to myself whether a similar reform might work in Canada. My answer: I doubt it. Here's why.
In July of '07, the HK Special Administrative Region enacted the Copyright (Amendment) Ordinance 2007. Included in the reform package was the addition of section41A, which covers "fair dealing for purposes of giving or receiving instruction." While such an open-ended fair dealing defence may sound like a promising solution to the issues facing students and educators, the new section is in fact filled with technicalities, caveats and limitations on the limitation.
In practice, this is likely to mean there is little real flexibility for anyone wishing to use copyright protected works for educational purposes. The HKSAR's Intellectual Property Department guidelines, FAQs and various other publications demonstrate just what can and cannot be done under HK law, though I'm not quite clear whether all of these documents were created before or after the recent reforms.
I don't think this is a model Canada should follow. In fact, it reminds me of the very problematic "free dealing" proposal coming from a few camps within the Canadian educational community. Commentators like Trosow (posts here, here and here) and Knopf explain many of the reasons why a special exception for educators is a bad idea. I agree with their concerns and would add my worry that any such exception is destined to be bogged down in minutia just like the HK Ordinance.
Far better, in my view, is a simple tweak to Canada's existing fair dealing provisions that makes the categories of permissible dealings illustrative not exhaustive. If educators want clarification that their activities are covered by the exception, then go ahead and add the words "for purposes of giving or receiving instruction," and leave it at that. Instead of government intervention to spell out the details, let
educators and industry come up with best practices for themselves.
In sum, the best part of the section 41A of the HK Ordinance is its title. If Canada wants to take anything from there, take only 7 simple words: "for purposes of giving or receiving instruction." That's all educators need to negotiate the contours of fair -- not free -- dealing.
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