text:
Information identified as archived on the Web is for reference, research or recordkeeping purposes. It has not been altered or updated after the date of archiving. Web pages that are archived on the Web are not subject to the Government of Canada Web Standards. As per the Communications Policy of the Government of Canada, you can request alternate formats on the "Contact Us" page.
September 15, 2009
This submission is made on behalf of the following organizations, listed in alphabetical order. An updated list will be provided as more organizations add their support to this submission. Each organization may also provide additional submissions and supplementary information to expand on the analysis of the issues pertinent to its field of activity.
Access Copyright, The Canadian Copyright Licensing Agency
l'Association québécoise de l'industrie du disque, du spectacle et de la vidéo (ADISQ)
American Federation of Musicians (AFM)
ARTISTI (Société de gestion de l'Union des Artistes)
Association des journalistes indépendants du Québec
Association des professionnels des arts de la scène du Québec (APASQ)
Association of Canadian Publishers (ACP)
Association of Canadian University Presses (ACUP)
Book Publishers Association of Alberta (BPAA)
Canadian Actors' Equity Association (CAEA)
Canadian Artists' Representation (CARFAC)
Canadian Association of Photographers and Illustrators in Communications (CAPIC)
Canadian Authors Association (CAA)
Canadian Educational Resources Council (CERC)
Canadian Freelance Union (CFU)
Canadian Music Centre (CMC)
Canadian Music Publishers Association (CMPA)
Canadian Photographers Coalition
Canadian Publishers' Council (CPC)
Canadian Private Copying Collective (CPCC)
Canadian Society of Children's Authors, Illustrators and Performers (CANSCAIP)
Crime Writers of Canada (CWC)
Directors Guild of Canada (DGC)
Guild of Canadian Film Composers (GCFC)
L'Union des artistes
Le Centre de musique canadienne au Québec
L'Union des écrivaines et écrivains québécois (UNEQ)
Magazines Canada
Neighbouring Rights Collective of Canada (NRCC)
Organization of Book Publishers of Ontario (OBPO)
Playwrights' Guild of Canada
Professional Photographers of Canada
Professional Writers Association of Canada (PWAC)
Regroupement des artistes en arts visuels du Québec (RAAV)
Saskatchewan Writers Guild (SWG)
Society of Composers, Authors and Music Publishers of Canada (SOCAN)
Société des Auteurs de Radio, Télévision et Cinéma (SARTEC)
Société de développement des périodiques culturels québécois (SODEP)
Société québécoise de gestion collective des droits de reproduction (Copibec)
Society for Reproduction Rights of Authors, Composers and Publishers in Canada (SODRAC)
Société de gestion collective des droits des producteurs de phonogrammes et de vidéogrammes du Québec (SOPROQ)
The Writers' Union of Canada (TWUC)
Writers' Federation of Nova Scotia
Writers Guild of Canada
1. Introduction
2. International Standards for Exceptions and Limitations
3. Canada Has Already Thoroughly Studied and Rejected a Fair Use System
4. Importing Fair Use into Canada Would Risk Adverse Consequences
a. Fair use would undermine longstanding made-in-Canada copyright models
b. Fair Use Cannot Be Transplanted into Canada Without Creating Significant Uncertainty
c. The Proposed Reforms Risk Violating Canada's International Treaty Obligations
d. Canada Has and Should Continue Adding Exceptions to Address Specific Special Circumstances in Accordance with the Three-Step Test
5. Conclusion
This paper is jointly submitted by over forty prominent Canadian organizations, who represent hundreds of thousands of artists, choreographers, composers, directors, educators, illustrators, journalists, makers, musicians, performers, photographers, playwrights, producers, publishers, song writers, videographers, and writers working in Canada.2 We submit this paper because we believe Canada should not adopt a new fair use provision.
It is universally acknowledged that protections for copyright should not be absolute. There are circumstances dictated by justifiable policy considerations where exceptions and limitations to copyright are warranted.3 The Supreme Court has ruled that exceptions to copyright, including the fair dealing provision, are an integral part of the Copyright Act.4
In the latest round of copyright consultations, advocates of copyright liberalization have made calls to replace Canada's longstanding fair dealing provisions with a general fair use provision.5 Alternatively, these advocates have argued that the fair dealing provisions enumerated in the Copyright Act, such as the "research or private study" and the "criticism or review" provisions, should be treated as merely "illustrative" examples of allowable exceptions. The most common proposal to achieve this result is to insert the term "such as" into the current fair dealing provisions. This "expanded fair dealing" proposal would have a similar effect to implementing a fair use provision, as it would create an open-ended system allowing users to argue that any given purpose is "fair".6
These proposed amendments are not needed. Canada already has broad and flexible fair dealing provisions. Pro-reform advocates have acknowledged that the Supreme Court of Canada's landmark fair dealing decision in CCH "instantly ranks as one of the strongest pro-user rights decisions from any high court in the world."7
Moreover, these proposals would go in precisely the wrong direction. At a time when most stakeholders are calling for greater certainty and clarity in Canadian copyright law, these proposals to replace the specific fair dealing provisions that Parliament has established with broad, open-ended "user rights" would leave copyright owners and users guessing where copyright ends and "user rights" begin.
The fair use model is not a panacea for solving difficult problems resulting from digitization and the internet. "Fair use" has been described as an "astonishingly bad" system amounting to little more than "the right to hire a lawyer".8 Fair use and/or expanded fair dealing systems are models that many of our trading partners including the United Kingdom, the European Union, Australia and New Zealand have expressly rejected. So did Canada when it last considered introducing an expanded fair dealing or fair use provision into Canadian law. In fact, of the 164 countries that are members of the Berne Convention, only four have implemented it.9
Far from solving copyright problems, adopting fair use would only exacerbate them. Its drawbacks are numerous. Fair use would lead to uncertainty, expensive litigation and important public policy decisions made by courts instead of Parliament. It would reduce revenues available to the Canadian creative industries, revenues which are vital to their indigenous growth. It would undermine legitimate licensing models including collective licensing of copyrights.
By expanding what can be done without infringement, fair use could also significantly undercut the existing private copying levy as well as prospects for extending that levy to new media such as Digital Audio Recording Devices (DARs) and to content other than music. It would leave uncertain what uses of works are permissible in a variety of other settings as well, such as uses in libraries and educational institutions.
Creating an expanded fair dealing or fair use model could also put Canada off-side its treaty obligations, which require that exceptions comply with the three-step-test.10
The Government should not amend the Act to introduce a fair use or expanded fair dealing model into Canada. At the very least, it should not do so without further detailed consideration of its potential adverse effects.11
The dominant approach worldwide in creating exceptions and limitations to copyright is a closed approach that identifies specific special uses of works that do not infringe copyright. By contrast, under the open ended fair use model, any reproductions or other uses of a work can theoretically not be infringing if they are found by a court to be "fair". This model has been rejected or not adopted in almost every country or jurisdiction that has considered it, including recently in Australia, the United Kingdom, New Zealand, and the European Union.
While a number of major Commonwealth countries have considered the possibility of changing their long-established fair dealing systems to a fair use approach, each has rejected doing so in favour of incremental reforms achieved by way of targeted exceptions. In rejecting fair use, Australia, the United Kingdom and New Zealand have identified international treaty compliance, the introduction of uncertainty into longstanding relationships and the other reasons set out below for doing so.
i. Australia
Australia thoroughly debated and then rejected pressures to introduce a fair use or expanded fair dealing model. The 2005 government issues paper "Fair Use and Other Copyright Exceptions" (the "Issues Paper") sought public consultation on a copyright exceptions reform, including an expanded fair use right.12 The Issues Paper depicted the fair use system as an international anomaly and noted the following drawbacks of the system:
In a position paper considering the Issues Paper, the Intellectual Property Research Institute of Australia identified additional drawbacks to fair use, including:
The Issues Paper also identified the further risk that converting to a fair use model could cause considerable disruption to existing business and licensing arrangements. It warned that:
"if the Government were to consider amendments it may not be an appropriate solution to simply 'replace' the fair dealing exceptions or 'add on' an open ended fair use provision. The relationship of such a provision to other exceptions and statutory licences in the Copyright Act would [sic] be carefully considered to avoid problems arising from any overlap and consequent disruption to existing business and licensing arrangements."15
Following the release of the Issues Paper, the government rejected both the fair use and expanded fair dealing systems in favour of enacting a number of detailed and specific exceptions designed with particular institutions and purposes in mind. In so deciding, the government noted that:
"the present system of exceptions and statutory licences that apply to specific uses of copyright material […] has been maintained for many years because it gives copyright owners and copyright users reasonable certainty as to the scope of acts that do not infringe copyright."16
By contrast, it stated that adopting the specific exception method would:
"restore credibility to the Act by better reflecting public opinion and practices. It is consistent with current policy in providing specific exceptions that give certainty for copyright owners and users with respect to the scope of permitted acts."17
An extended fair dealing model was considered less desirable, as:
"this approach may add to the complexity of the Act. There would be some uncertainty for copyright owners until case law developed. Until the scope was interpreted by the courts, there may be disruption to existing licensing arrangements. Similarly, a user considering relying on this exception would need to weigh the legal risk of possible litigation."18
Australia also rejected the fair use and expanded fair dealing models based on concerns that they do not comply with the three-step-test mandated by the Berne Convention and TRIPS.19 It concluded that adopting either system: "is not consistent with treaty obligations to include such general uses in a flexible exception."20
ii. United Kingdom
The United Kingdom also considered moving to a fair use or expanded fair dealing model. The 1981 consultative document Reform of the Law Relating to Copyright, Designs and Performers' Protection specifically rejected a proposal to do so.21 The government's reasons remain valid today:
"The Government is appreciative of the Whitford desire to simplify the law where possible. However, for the reasons indicated above, it does not feel that there is a convincing case for amending … along the lines suggested and, in view of the difficulties already experienced by copyright owners in protecting their rights, the Government does not feel it would be justified in making an amendment which might result in further encroachments into the basic copyright."22
The issue was canvassed again in the UK very recently. In the 2008 report Taking Forward the Gowers Review of Intellectual Property: Proposed Changes to Copyright Exceptions, the UK government rejected moving to an open-ended fair use model favouring instead adopting specific exceptions thought to be desirable in UK law.23
In refusing to adopt fair use, the government pointed to the need for certainty in the law and ensuring that UK treaty obligations could be met:
"Identifying where the boundaries should lie is critical in ensuring that our copyright system remains fit for today's world. A system of strong rights, accompanied by limited exceptions, will provide a framework that is valued by and protects right holders and is both understood and respected by users."
"We also need to comply with the international legal framework … [and] also need to ensure that copyright law does not place unnecessary administrative burdens on business and can be understood and is respected by the general public."24
iii. New Zealand
In its recent comprehensive copyright review, New Zealand also specifically considered and rejected a fair use regime. The government's Internal Working Paper identified some significant problems with fair use, including:
The New Zealand government stated that no compelling reason had been presented to adopt any of the fair dealing/fair use international models raised (including fair use) and described its existing closed fair dealing system as technologically neutral and adaptable with minor changes for the digital environment.26
The European Union has implemented a closed model for exceptions and limitations.27 The exceptions and limitations mandated by various directives were the result of painstaking consultation processes lasting from 1995 to 2001.28
In the lead up to the passage of the Information Society Directive, the 1996 Follow Up Paper concluded that the most desirable approach was to: "set out closely defined fair use exceptions/limitations to the exclusive right destined to accommodate the interests of users or the public at large."29
Eight years after the passage of the Directive, Europe is continuing along the same path. In the current EU Green Paper process, the Commission has not revisited the question of whether closed exceptions are warranted. Rather, it is refining existing exceptions and considering whether further specific exceptions should be created.30
The Information Society Directive sets out twenty-one specific situations that may give rise to an exception or limitation in a member state.31 The targeted nature of these provisions is seen as essential to compliance with the Berne/TRIPs three-step test,32 which is also codified in the Directive itself.33
The United States has a significant history of using the fair use model. In that country, there is significant well-respected opinion that fair use has become ungainly and costly, and has led to significant uncertainty for both rights holders and users. Its "flexibility" has proven the converse of the certainty and clarity normally sought in a general law.
One academic stated: "[T]he doctrine seems ill-defined at best, and empty at worst."34 Another wrote: "Fair use has become too many things to too many people to be much specific value to anyone."35
Some of the problems with the fair use model were highlighted by Lawrence Lessig, one of the popular advocates for U.S. copyright reform. In his book Free Culture, he stated that fair use amounted to little more than "the right to hire a lawyer". He explained:
"And as lawyers love to forget, our system for defending rights such as fair use is astonishingly bad—in practically every context, but especially here. It costs too much, it delivers too slowly, and what it delivers often has little connection to the justice underlying the claim. The legal system may be tolerable for the very rich. For everyone else, it is an embarrassment to a tradition that prides itself on the rule of law.
Judges and lawyers can tell themselves that fair use provides adequate 'breathing room' between regulation by the law and the access the law should allow. But it is a measure of how out of touch our legal system has become that anyone actually believes this. The rules that publishers impose upon writers, the rules that film distributors impose upon filmmakers, the rules that newspapers impose upon journalists— these are the real laws governing creativity. And these rules have little relationship to the 'law' with which judges comfort themselves."36
Many other U.S. scholars have also concluded that there are significant problems with the fair use model.37
While Canadian advocates of fair use describe the United States as a bastion of flexibility, such a characterization risks inaccuracy to the extent that it treats exceptions and limitations as part of a single unified program. Rather, as scholars have pointed out:
"[B]efore a fair use defence is adopted as a model for change it is important to consider the context in which the fair use defence operates at present in the United States. This in turn requires an appreciation not only of practical arrangements and the specific environments in which the fair use defence operates, but also consideration of certain aspects of US legal culture.
In order to understand how the fair use defence operates in practice in the United States it is important to appreciate that a complex web of understandings, agreements and policy statements support the legislative provisions."38
Criticisms of fair use were summarized in a study by Professor Giuseppina D'Agostino of Osgoode Hall Law School. This study, which was commissioned by the Department of Canadian Heritage, highlighted major problems with fair use:
"[S]ome remarks must be made on the burgeoning body of scholarship, studies and reports criticizing US fair use. Fair use is said to be "ill, though hardly dead yet." Many have called on Congress to clarify fair use. There has been no shortage of solutions proposed. But to date Congress has resisted changing fair use. The courts have also failed to simplify fair use by attempting to establish bright-line presumptions (1) that commercial uses are unfair, (2) favouring plaintiff's unpublished works, and (3) more recently, that works must be transformative to constitute fair use. Moreover, it is increasingly expensive to mount litigation to clarify the scope of use and some users may be risk-averse to begin with. The American Intellectual Property Law Association estimates the average cost to defend a copyright case to be just under one million US dollars.
Although fair use's attention to context is certainly salutary, "it is so case-specific that it offers precious little to artists, educators, journalists, Internet speakers, other[s]" who want to use the copyrighted work. Google's digitization project of large library collections is a recent sign that in the digital age, issues of fair use have taken on urgency."39
The same study found that the fair use doctrine is not the "panacea approach" some have made it out to be, and noted that of the few other jurisdictions to adopt the U.S. model, Singapore is suffering considerable growing pains, as "its courts are reluctant to consider US fair use cases causing much disorder".40 The study concluded that adopting U.S. law without further study would be inadvisable, as:
This approach would cause more perplexity than currently exists. One must be very careful when importing legal devices from other jurisdictions.41
In 1985, the Sub-Committee on the Revision of Copyright specifically rejected replacing fair dealing with an open-ended expanded fair dealing or fair use system. It did so for two reasons. First, it concluded that Canada's fair dealing regime worked well and did not need such a major overhaul:
"This scheme of inquiry in connection with fair dealing has worked well. There has been very little litigation in Canada on this issue. Indeed, there has not been a great deal of litigation in any of the Commonwealth countries which have a similar provision. This alone is a good reason not to alter drastically the existing fair dealing provision. Submissions to the Sub-Committee attributed the success of the existing fair dealing scheme to the sequential tests used in applying the provision: infringement must first be established and then the dealing must be fair and for one of the enumerated purposes.
The Sub-Committee is of the view that this scheme should be retained. It settles many potential lawsuits at an early stage."42
Second, the Sub-Committee looked closely at the U.S. system and concluded that it would not be advisable to import this "substantially wider" concept to Canada:
"The wider approach in the United States has given rise to much litigation there, and has caused the issue to be raised as a matter of course in all copyright actions. It has created rather than curtailed the uncertainty surrounding the concept."43
In the 1986 Government Response to the Report of the Sub-Committee, the government of Canada specifically agreed that:
"the present fair dealing provisions should not be replaced by the substantially wider 'fair use' concept".44
In Canada, exceptions and limitations in the Act do not exist in a vacuum. The Act contains a set of interconnected provisions which operate together to achieve the policy objectives behind copyright. A shift to fair use could substantially undermine important provisions in the Act.
For example, collective administration of copyright has a long history in Canada and is essential for compensating copyright holders for their creative efforts and investments. As Normand Tamaro observes:
"collective administration can serve to offset the difficulty of protecting copyright in a world of ever-expanding means of communication. The copyright owner loses a certain amount of control over the communication of his work, but gains profits through the increased collecting power of the associations. More often than not, collective administration is the only effective way to exploit one's copyright."45
At present, there are more than three dozen collective societies operating in Canada. These entities benefit consumers by providing an easy way for them to obtain access to works or other subject matter. Collective licensing also produces royalties for Canadian composers, authors, and other creators.46 However, royalties can only be imposed on activities for which a licence from a copyright holder is required. If an open-ended fair use system were established, it would undoubtedly be relied upon by users to eliminate or reduce the scope of royalties that must be paid in private negotiations and in proceedings before the Copyright Board.47 It would make collective licensing more difficult and expensive as users would continually be able to raise new potential reasons not to pay based on the vague purposes of fair use. Further, licensing would become more difficult as users and right holders would be uncertain about what is within a collective licence.
The Act also contains specific exemptions which reflect a delicate balance between stakeholder interests that could be adversely affected by fair use. For example, the private copying regime provides a levy on audio recording media to compensate rights holders in musical works and sound recordings for the copying of music onto such media.48 A levy is only exigible on uses of music that would otherwise be infringing and in need of a licence. A new fair use provision could arguably exempt much of the current copying for which royalties are paid to Canadian rights holders.49
There have been many requests to expand the levy to include new media such as DARs and for new types of works.50 However, if fair use were introduced into the Act, it could significantly reduce the need for an expanded private copying exception and undermine any prospect of expanding the private copying regime.
The Copyright Act contains many detailed exceptions such as those for educational institutions, libraries, archives, and individuals with perceptual disabilities. Many new exceptions were also proposed in Bill C-60 and Bill C-61. A new fair use provision could be interpreted by the courts as an independent basis for determining acceptable non-infringing uses in all of these contexts.51 This could result in costly litigation to determine the scope of permissible uses in these important sectors. These vital policy questions would be determined by the courts and not Parliament.
Another potential adverse effect of making a wholesale change to the fair use system would be the uncertain effect on the vast number of contracts entered into between creators, rights holders and users respecting copyright. As the Heritage Study noted, it is:
"thus important to assess how the role of contract is embedded in the Canadian Copyright Act and how it is deployed in practice to promote and temper the desired results—presumably the objectives of balance where the interests of creators, users, rights holders and the general public are considered."52
Advocates of enacting a fair use model for Canada assume that this model would privilege purely personal uses and that this would be in the public interest. However, privileging purely personal uses could undermine the importance of the values currently protected by fair dealing which serve a much greater public purpose than personal uses of copyrights. There is a distinction between uses that serve a public purpose and purely personal uses. Certain exemptions under current fair dealing law further the public interest in the dissemination of works, through criticism, review, research and private study. To the extent there are specific needs for exemptions to deal with access problems resulting from digitization or the Internet, it would be preferable to create specific exceptions to address them rather than distorting fair dealing doctrines to accommodate pure personal uses of copyright materials.53
Those who argue in favour of adopting fair use seem to assume that this system can effectively and easily be transplanted into Canadian law. What they fail to recognize or address is that the doctrine had been codified into law in the U.S. after more than 150 years of judicial interpretation that gave the doctrine meaning and boundaries. 54 Adopting fair use into a legal system that lacks this backdrop would result in confusion, and unpredictable application, which would inhibit both users and creators from understanding what is permissible, and what is not.55 A new broad exception with unclear boundaries could also hamper effective enforcement against infringement, because violators would always attempt to argue that their acts were "fair".
Moreover, Canada's copyright law is considerably different from U.S copyright law.56 It is also based on a different constitutional footing,57 and operates within a much different cultural setting. Canada has a hybrid, dual-language market that combines a common law copyright tradition inherited from England with a droit d'auteur civil law tradition inherited from France.58 Given all these factors, it is very uncertain that Canadian courts would simply adopt all of the principles derived from the U.S. cases or that specific cases would be decided in the same way as in the U.S. In fact, there is good reason to think they would not.59
Even if Canada was able to import all facets of the U.S. system intact, scholars such as Nimmer suggest that no clear direction would be ascertainable from the U.S. example, with the statutory fair use factors providing no correlation whatsoever with the prospects of success in any given case.60
The Heritage Study enumerates the dangers of simply importing the fair use model to Canada without contemplation of the unanticipated effects that might ensue:
"Some commentators have championed that Canada adopt US fair use. This would entail "cherry-picking" from the US cadre of copyright laws and taking from it its fair use provision. There are problems with this approach. First, as noted from eminent US studies, fair use is "ill" and not the panacea approach that many, perhaps in Canada, proclaim. Because fair use is ill, it has by necessity engendered many fix-it approaches, some by the courts themselves attempting to impose bright-lines (eg presumptions on commercial uses) and by industry players attempting to institute best practices. Second, cherry-picking a law, likely also means taking from its jurisprudence (and neglecting other constitutive factors, such as a Constitution). Would Canadian courts apply US fair use cases? Would this application ignore the fact that property is not constitutionally entrenched in Canada?"61
Independent from the policy considerations raised in this paper is the risk that adopting a fair use system would violate Canada's obligation to enact its copyright legislation in harmony with its international treaty obligations.62 Under the three-step test imposed by the Berne Convention and the TRIPS Agreement, Canada agreed to confine limitations or exceptions to (i) certain special cases, (ii) that do not conflict with a normal exploitation of rights, or (iii) unreasonably prejudice the legitimate interests of authors or right holders.63 Each condition of the three-step test must be given a distinct meaning and treated as a separate and independent requirement.64
The first step of the test requires that (a) the scope of the exception must be "known and particularized" in order to guarantee a sufficient degree of legal certainty;65 and (b) the exception or limitation must involve "special" circumstances.66 A WTO panel considering the legitimacy of a U.S. copyright provision concluded that this step requires any exception or limitation to have "a narrow scope as well as an exceptional or distinctive objective".67
The second step of the test requires that the exception or limitation not conflict with the normal exploitation of the work, including "those forms of exploitation which, with a certain degree of likelihood and plausibility, could acquire considerable economic or practical importance."68
The final step of the test requires that the exception or limitation does not unreasonably prejudice the legitimate interests of the author (Berne) or right holder (TRIPS). The term "legitimate interests" is considered to encompass both economic and non-economic interests; the term "unreasonably prejudice" is thought to refer to disproportionate harm, damage or injury to such interests.69
Many authorities have reviewed the fair use system for compliance with the three-step test and have expressed the opinion that it is non-compliant.70 Writing for the WIPO Standing Committee on Copyright and Related Rights in 2003, the well respected Australian copyright scholar Sam Ricketson concluded that the "open-ended, formulaic provisions" contained in s. 107 of the U.S. Copyright Act were vulnerable to the three-step test. While it "was quite possible that any specific judicial application of Section 107 will comply with the three-step test as a matter of fact", he concluded that:
"the real problem, however, is with a provision that is framed in such a general and open-ended way. At the very least, it is suggested that the statutory formulation here raises issues with respect to unspecified purposes (the first step) and with respect to the legitimate interests of the author (third step)."71
As noted above, several governments including Australia, New Zealand and the UK have cited international treaty obligations as one of the reasons for not adopting a fair use system.72
Professor Daniel Gervais has suggested that the CCH decision brings Canada "dangerously close to a violation of the TRIPs Agreement and its 'three-step test' against which all copyright exceptions can now be measured".73 To rewrite our Act to expand it even further to include fair use could place Canada at greater risk of violating these international obligations.
In past consultation processes, Canada has taken the path of adopting exceptions and other limitations to the exclusive rights of copyright owners only where:
While not all exceptions proposed in previous copyright reforms have been perfect, the alternative of leaving these policy decisions to individual litigants and the courts would seem a far less effective, less democratic and less principled way to approach copyright reform. A fair use system would not permit policy decisions to be made in advance with appropriate consultation. It is designed to create guidelines for behaviour only after individual issues are tried in the courts. Given the length of time it would take to achieve a body of law that is specific enough to guide the decisions of users and right holders, it is questionable whether it could offer any objective guidance. Further, the U.S. experience has shown that even decided cases are not necessarily predictive of future outcomes, as facts specific to new cases have often dictated inconsistent results.75
In reform processes elsewhere, governments have recognized the critical importance of designing a copyright system that takes into account the realities of the size and geographical or cultural isolation of their marketplace. For countries like Canada which have a relatively small population, overbroad exceptions and limitations can have adverse effects on the ability to earn adequate remuneration from creative endeavours.76 This general concern is even further magnified for specific cultural marketplaces such as the Province of Quebec,77 First Nations and Métis communities.
In the government's call for submissions in the current copyright consultations, it stressed four major themes by which any future law would be measured. First, based on Canadian values and interests, copyright changes should be made in order to withstand the test of time. Second, our copyright framework needs to be updated to foster and take advantage of the multiplication of digital platforms, which has opened new markets, enabled new business models, and created new opportunities. Third, the new framework must strengthen Canada's global competitive position and allow us to attract investments and high-paying jobs to Canada. Last, any changes must best position Canada as a leader in the global, digital economy.78 The government has also stressed the need for amendments to copyright to be based on international standards and norms and clear, predictable and fair rules to support creativity and innovation. 79
Adopting fair use or an expanded fair dealing model would be a transposition of a foreign doctrine into our Canadian legal system and institutional arrangements that are ill suited for it. It could, in fact, undermine the Canadian values and interests already reflected in the Act's many exceptions and specific statutory regimes. There is also no reason to think that fair use would solve the difficult task of recalibrating copyright to deal with ever changing technologies so that it would withstand the test of time.80
Our copyright framework needs to be updated to take advantage of new markets and new opportunities in a way that strengthens Canada's global competitive position, allows Canada to attract investments, and positions Canada as a leader in the global, digital economy. However, "fair use" would not accomplish these objectives.
Fair use has been rejected by almost all our trading partners, with the exception of the U.S. where the doctrine had a special status and meaning when it was adopted. Our trading partners rejected it for good reasons, well beyond their legitimate concerns that fair use is not compliant with the three-step-test. Its enactment in Canada would result in unclear and unpredictable protection for creative products that would discourage investment. All stakeholders would be compelled to spend considerable money to clarify what is legal and what is not. Fair use would undermine present and future revenue streams including revenues associated with collective licensing and private copying levies, all at a time when our creative industries need help the most.
If new exceptions and limitations are warranted, Canada should take the road chosen overwhelmingly throughout the world. It should make a careful, focussed study of the needs of Canadians for access to works that the market has not met or is unable to meet and decide on the best policy vehicles for meeting those needs. Where required, new exceptions should be based on the three-step test mandated by the treaties and conventions Canada has agreed to honour.
For all of the above reasons, Canada should not adopt a fair use model.
Access Copyright, The Canadian Copyright Licensing Agency – www.accesscopyright.ca
l'Association québécoise de l'industrie du disque, du spectacle et de la vidéo (ADISQ) – www.adisq.com
American Federation of Musicians (AFM) – www.afm.org
ARTISTI (Société de gestion de l'Union des Artistes) -www.uniondesartistes.com/indexartisti.aspx
Association des journalistes indépendants du Québec – www.ajiq.qc.ca
Association des professionnels des arts de la scène du Québec (APASQ) – www.apasq.org
Association of Canadian Publishers (ACP) – www.publishers.ca
Association of Canadian University Presses (ACUP) – www.acup.ca
Book Publishers Association of Alberta (BPAA) – www.bookpublishers.ab.ca
Canadian Actors' Equity Association (CAEA) – www.caea.com
Canadian Artists' Representation (CARFAC) – www.carfac.ca
Canadian Association of Photographers and Illustrators in Communications (CAPIC) – www.capic.org
Canadian Authors Association (CAA) – www.canauthors.org
Canadian Educational Resources Council (CERC) – www.cerc-ca.org
Canadian Freelance Union (CFU) – www.cfunion.ca
Canadian Music Centre (CMC) – www.musiccentre.ca
Canadian Music Publishers Association (CMPA) – www.musicpublishercanada.ca
Canadian Photographers Coalition
Canadian Publishers' Council (CPC) – www.pubcouncil.ca
Canadian Private Copying Collective (CPCC) – www.cpcc.ca
Canadian Society of Children's Authors, Illustrators and Performers (CANSCAIP) – www.canscaip.org
Crime Writers of Canada (CWC) – www.crimewriterscanada.com
Directors Guild of Canada (DGC) – www.dgc.ca
Guild of Canadian Film Composers (GCFC) – www.gcfc.ca
L'Union des artistes – www.uniondesartistes.com
Le Centre de musique canadienne au Québec – www.cmcquebec.ca
L'Union des écrivaines et écrivains québécois (UNEQ) – www.uneq.qc.ca
Magazines Canada – www.cmpa.ca
Neighbouring Rights Collective of Canada (NRCC) – www.nrcc.ca
Organization of Book Publishers of Ontario (OBPO) – www.ontariobooks.ca
Playwrights' Guild of Canada – www.playwrightsguild.ca
Professional Photographers of Canada – www.ppoc.ca
Professional Writers Association of Canada (PWAC) – www.pwac.ca
Regroupement des artistes en arts visuels du Québec (RAAV) – www.raav.org
Saskatchewan Writers Guild (SWG) – www.skwriter.com
Society of Composers, Authors and Music Publishers of Canada (SOCAN) – www.socan.ca
Société des Auteurs de Radio, Télévision et Cinéma (SARTEC) – www.sartec.qc.ca
Société de développement des périodiques culturels québécois (SODEP) – www.sodep.qc.ca
Société québécoise de gestion collective des droits de reproduction (Copibec) www.copibec.qc.ca
Society for Reproduction Rights of Authors, Composers and Publishers in Canada (SODRAC) – www.sodrac.ca
Société de gestion collective des droits des producteurs de phonogrammes et de vidéogrammes du Québec (SOPROQ) – www.soproq.org
The Writers' Union of Canada (TWUC) – www.writersunion.ca
Writers' Federation of Nova Scotia – www.writers.ns.ca
Writers Guild of Canada – www.writersguildofcanada.com
Australia, "Fair Use and Other Copyright Exceptions: Issues Paper" (May 2005) www.ag.gov.au ].
Australia, "Copyright Amendment Bill 2006, Explanatory Memorandum" [legislation.gov.au/ComLaw/Legislation/ ].
Economic Council of Canada, "Report on Intellectual and Industrial Property" (1971).
Keyes, A.A., Brunet, C., "Copyright in Canada: proposals for a revision of the law", Consumer and Corporate Affairs Canada (1977).
Sub-Committee on the Revision of Copyright, Standing Committee on Communications and Culture, "A Charter of Rights for Creators" (1985).
"Government Response to the Report of the Sub-Committee on the Revision of Copyright" (1986).
Information Highway Advisory Council, "Copyright and the Information Highway" (1994).
Testimony of Ms Susan Katz (Acting Director General, Cultural Industries, Department of Canadian Heritage) and Ms. Danielle Bouvet (Director, Copyright, Department of Industry), Senate Committee on Canadian Heritage on Bill C-32, (18 June, 1996) [www.parl.gc.ca/35/Archives ].
Industry Canada, "Supporting Culture and Innovation: Report on the Provisions and Operation of the Copyright Act", Copyright Act – Section 92 Report (2001) [strategis.ic.gc.ca/pics/rp/section92eng.pdf].
Heritage Canada, "The Canadian Music Industry: 2006 Economic Profile" (2006) [www.pch.gc.ca/pgm/fmusc-cmusf/pubs/prfl/index-eng.cfm ].
D'Agostino, Giuseppina, "Fair Dealing After CCH", Report prepared for the Department of Heritage (2007) [www.canadianheritage.gc.ca/ ].
Canada, "Reforming the Copyright Act – Backgrounder", Copyright Reform Process 2008 (June 2008) [www.ic.gc.ca/eic/site/crp-prda.nsf/eng/hrp01151.html ].
Canada, "Copyright Consultations" online: copyright.econsultation.ca (2009).
"Halifax – Round Table and Public Hearings on Copyright" (10 August, 2009) [www.ic.gc.ca/eic/site/008.nsf/eng/00893.html ].
"Vancouver – Round Table and Public Hearings on Copyright" (20 July, 2009) [www.ic.gc.ca/eic/site/008.nsf/eng/00060.html ].
Opinion of the Council of Copyright Experts, No. SzJSzT 17/06 (11 May, 2006).
EC, "Green Paper: Copyright in the Knowledge Economy", COM(2008) 466 final (16 July 2008) [eur-lex.europa.eu/LexUriServ/ ].
EC, "Communication on Copyright and Related Rights in the Information Society", IP/96/1042 (20 November, 1996) [europa.eu/rapid/ ].
New Zealand:
New Zealand, "Digital Technology and the Copyright Act 1994: A Discussion Paper" (July 2001) [www.med.govt.nz/templates ]
New Zealand, "Digital Technology and the Copyright Act 1994", Internal Working Paper (July 2002) [ http://www.med.govt.nz/upload/2429/working.pdf ].
New Zealand, "Digital Technology and the Copyright Act 1994", Position Paper (December 2002) [ http://www.med.govt.nz/upload/2334/digital-position.pdf ].
New Zealand, "Copyright (New Technologies) Amendment Act 2008" online: www.med.govt.nz/ .
Great Britain, "Copyright and designs law: report of the Committee to Consider the Law of Copyright and Designs", chairman, the Honourable Mr. Justice Whitford (London: HMSO, 1977).
Great Britain, "Reform of the Law Relating to Copyright, Designs and Performers' Protection", Dept. of Trade and Industry (London: HMSO, 1981).
Great Britain, "Gowers Review of Intellectual Property", submitted to HM Treasury by Andrew Gowers (Norwich: HMSO, 2006) [webarchive.nationalarchives.gov.uk ].
UK Intellectual Property Office, "Taking Forward the Gowers Review of Intellectual Property: Proposed Changes to Copyright Exceptions" (2008) [www.ipo.gov.uk/ ].
U.S., "House Statement on the Berne Convention Implementation Act of 1988", Congressional Record (Daily Ed.), ( 12 October, 1988) [ipmall.info/hosted_resources/lipa/copyrights ].
WIPO, "Berne Contracting Parties" online: www.wipo.int/treaties .
Ricketson, Sam, "WIPO Study on Limitations and Exceptions of Copyright in the Digital Environment", Standing Committee on Copyright and Related Rights, SCCR/9/7 (June 2003) [www.wipo.int/edocs ].
Agreement on Trade-Related Aspects of Intellectual Property Rights, Annex 1C of the Marrakesh Agreement Establishing the World Trade Organization, signed in Marrakesh, Morocco on 15 April 1994 [TRIPS].
Berne Convention for the Protection of Literary and Artistic Works, Sept. 9, 1886, completed at Paris (1896), revised at Berlin (1908), completed at Berne (1914), revised at Rome (1928), at Brussels (1948), at Stockholm (1967), and at Paris (1971), and amended Sept. 28, 1979.
Bill C-61, An Act to amend the Copyright Act, 2nd Sess., 39th Parl., 2008 [www2.parl.gc.ca/HousePublications ].
EC, Commission Directive 2001/29/EC of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society, [eur-lex.europa.eu/LexUriServ ].
North American Free Trade Agreement Between the Government of Canada, the Government of Mexico, and the Government of the United States, 17 December 1992, (entered into force 1 January 1994) [NAFTA].
American Geophysical Union v. Texaco Inc., 60 F.3d 913 (1994).
CCH Canadian Ltd. v. Law Society of Upper Canada, [2004] 1 S.C.R. 339.
Campbell v. Acuff-Rose Music Inc., 510 U.S. 569 (1994).
Canadian Private Copying Collective v. Canadian Storage Media Alliance (2004), 36 C.P.R. (4th) 289 (F.C.A.).
Canadian Private Copying Collective v. Cano Tech Inc., [2006] 3 F.C.R. 581 (F.C.T.D.).
Folsom v. Marsh, 9 F.Cas. 342.
Harper & Row, Publishers, Inc. v. Nation Enterprises, 471 U.S. 539 .
Reprographic Reproductions (Educational Institutions 2005-09) (26 June, 2009), Copyright Board of Canada Decision [www.cb-cda.gc.ca/decisions/2009 ].
Théberge v. Galerie d'Art du Petit Champlain inc., [2002] 2 S.C.R. 336.
WTO, Report of the Panel on Canada – Patent Protection of Pharmaceutical Products, WTO Doc. WT/DS114/R (2000).
WTO, Report of the Panel on United States – Section 110(5) of the US Copyright Act, WTO Doc. WT/DS160/R (2000).
Burk, Dan L. & Cohen, Julie E., "Fair Use Infrastructures for Rights Management Systems" (2001), 15 Harvard Journal of Law & Technology 41 [ http://jolt.law.harvard.edu/articles/pdf/v15/15HarvJLTech041.pdf ].
Burrell, Robert & Coleman, Alison, "Copyright Exceptions: The Digital Impact" (Cambridge, UK; New York: Cambridge University Press, 2005).
D'Agostino, Giuseppina, "Healing Fair Dealing? A Comparative Copyright Analysis of Canadian Fair Dealing to UK Fair Dealing and US Fair Use", CLPE Research Paper 28/2007 [ http://ssrn.com/abstractid=1014404 ].
de Beer, Jeremy & Geist, Michael, "Developing Canada's Intellectual Property Agenda", Canada Among Nations, Jean Daudelin and Daniel Schwanen, eds., (McGill-Queen's University Press, 2007) [ www.jeremydebeer.ca/ ].
de Zwart, Melissa, "Fair use? Fair dealing?", Faculty of Law, Monash University, Research Paper No. 2006/09, (7 December, 2007) [ papers.ssrn.com/ ].
Dworkin, Gerald, "Copyright, the Public Interest and Freedom of Speech", Copyright and Free Speech: Comparative and International Analyses, Jonathan Griffiths and Uma Suthersanen, eds., (2005).
Ficsor, Mihály, "The Law of Copyright and the Internet: the 1996 WIPO treaties, their interpretation and implementation" (Oxford; New York: Oxford University Press, 2002).
Friberg, Kristin, "The Swedish Implementation of the InfoSoc Directive", (May 2006) [www.adbj.se/2007/ ].
Gervais, Daniel, "The Purpose of Copyright Law in Canada" (2005) 2:2 UOLTJ 315 [www.rdtuo.ca/articles ].
Guibault, L., Westkamp, G., Rieber-Mohn, T., Hugenholtz, P.B. (et al.) "Study on the Implementation and Effect in Member States' Laws of Directive 2001/29/EC on the Harmonisation of Certain Aspects of Copyright and Related Rights in the Information Society", Report to the European Commission, DG Internal Market, (February 2007) [ ec.europa.eu/internalmarket ].
Hick, Darren Hudson, "Mystery and Misdirection: Some Problems of Fair Use and Users' Rights," (2009), 56 Journal of the Copyright Society of the U.S.A. 485.
Hugenholtz, P.B., Van Eechoud, Mireille M.M., Gompel, Stef Van, Guibault, Lucie and Helberger, Natali, "The Recasting of Copyright & Related Rights for the Knowledge Economy", Final Report (November 2006) [ www.ivir.nl/publications/other ].
Jehoram, Herman C., "Restrictions on Copyright and their Abuse" (2005) 27 E.I.P.R. 359.
Jones, Christopher M., "Quebec Song: Strategies in the Cultural Marketplace", (2001), 31 Quebec Studies 50 [ ml.hss.cmu.edu/facpages ].
Lessig, Lawrence, "Free Culture" (New York: Penguin Press, 2004)
Madison, Michael J., "Rewriting Fair Use and the Future of Copyright Reform," (2005-06), 39 Cardozo Arts & Ent. L.J. 391.
Netanel, Neil, "Asserting Copyright's Democratic Principles in the Global Arena" (1998), 51 Vanderbilt L. R. 217.
Netanel, Neil, "Copyright's Paradox" (New York: Oxford University Press, 2008).
Nimmer, David, "'Fairest of them All' and Other Fairy Tales of Fair Use" (2003), 66 Law and Contemporary Problems 263.
Parchomovsky, Gideon et al., "Fair Use Harbors" (2007), 93 Virginia Law Review 1483 [ http://papers.ssrn.com/sol3/papers.cfm?abstractid=1014436 ].
"Remuneration of Private Copying in Australia" (Aust. Report).
Ricketson et al, "International Copyright and Neighbouring Rights", Vol. I, 2d ed. (Oxford; New York: Oxford University Press, 2006).
Senftleben, M., "Copyright, Limitations and the Three-Step Test" (The Hague; New York: Kluwer Law International, 2004).
Sookman, Barry, "The SAC Proposal for the Monetization of the File Sharing of Music in Canada," (2008), 1 Osgoode Hall Review of Law and Policy 101 [www.ohrlp.ca/images/articles/Volume1 ]
Tamaro, Normand, "2008 Annotated Copyright Act" (Toronto, ON: Thomson Canada Limited, 2007).
Tushnet, Rebecca, "Copy this Essay: How Fair Use Doctrine Harms Free Speech and How Copying Serves It" (2004), 114 Yale L.J. 535 [www.tushnet.com/copythisessay.pdf ].
Urban, Jennifer & Quilter, Laura, "Efficient Process or 'Chilling Effects?'" [ static.chillingeffects.org/ ].
Weatherall, Kimberlee, Intellectual Property Research Institute of Australia, "Fair use, fair dealing: The Copyright Exceptions Review and the Future of Copyright Exceptions in Australia" (2005) [ www.ipria.org/publications ].
de Beer, Jeremy, "Respect and Reality Are Keys to Reform" National Post (6 August, 2009) [ www.jeremydebeer.ca ].
Geist, Michael, "Designing A Copyright Law That's Built To Last" Toronto Star (17 August, 2009) [www.thestar.com/ ].
Geist, Michael, "Low-tech case has high-tech impact" Toronto Star (22 March, 2004) [ www.michaelgeist.ca ].
Murray, Laura J., "Ottawa Roundtable" Blog: [www.faircopyright.ca] (31 August, 2009) [ http://www.faircopyright.ca/?p=217 ].
Canadian Internet Policy and Public Interest Clinic, Canadian Copyright Consultation Submission, [www.ic.gc.ca/eic ].
European Publishers Council, Response to the European Commission Green Paper Copyright on the Knowledge Economy (28 November, 2008) [ http://www.epceurope.org/issues/Copyright_Green
Paper_EPC_response_November_2008.pdf ].
[1] Written by Barry Sookman and Dan Glover of McCarthy Tétrault. The research assistance of David Deutsch and Ryan Prescott of McCarthy Tétrault is gratefully acknowledged.
[2] For more information on the mandates and activities of the signatory organizations, see Appendix A for a list of their web sites.
[3] Supporting Culture and Innovation: Report on the Provisions and Operation of the Copyright Act (2001) ("Section 92 Report") at 7, stating "Access to culture and the dissemination of information remain important public policy objectives for Canadians. Limitations and exceptions to copyright protection strive to balance the rights of copyright owners with the access considerations of certain users". Also see European Union, Copyright in the Knowledge Economy (2008) (the " EU Green Paper ") at 4; UK Intellectual Property Office, Taking Forward the Gowers Review of
Intellectual Property:Proposed Changes to Copyright Exceptions (2008) (" Taking Forward Gowers ") at para. 26; Australia, Attorney-General for Australia, Copyright Amendment Bill 2006, Explanatory Memorandum at 3; New Zealand, Digital Technology and the
Copyright Act 1994, Internal Working Paper (July 2002) at para. 241.
[4] CCH Canadian Ltd. v. Law Society of Upper Canada, [2004] 1 S.C.R. 339 at para. 46 ("CCH").
[5] See Michael Geist, " Designing A Copyright Law That's Built To Last ", Toronto Star, Aug. 17, 2009; Jeremy de Beer, " Respect and Reality Are Keys to Reform ", National Post, Aug. 6, 2009; Laura J. Murray, " Ottawa Roundtable ", www.faircopyright.ca (Aug. 31, 2009), as examples of the "fair use" or "expanded fair dealing" provisions being sought by user interest groups. Of position papers filed to date in the 2009 process, that of the Canadian Internet Policy and
Public Interest Clinic , affiliated with the University of Ottawa, is representative of the amendments sought.
[6] de Beer and Geist, " Developing Canada's Intellectual Property Agenda ", Canada Among Nations, McGill-Queen's University Press (2007) at 177.
[7] CCH ; quotation by Michael Geist, " Low-tech case has high-tech impact ", Toronto Star, March 22, 2004.
[8] Lawrence Lessig, Free Culture (2004) at 187. He is not alone among U.S. prominent reformists in concluding that fair use is a broken system. See Section 2(c) below.
[9] WIPO, Berne Contracting Parties . The only fair use regimes are the United States, Israel, Singapore, and the Philippines.
[10] Under the Berne Convention, TRIPS and NAFTA, Canada agreed to confine limitations or exceptions to certain special cases that do not conflict with a normal exploitation of a right or unreasonably prejudice the legitimate interests of authors or right holders. See section 4(b) below.
[11] In this paper we sometimes refer to "fair use" without referring to an expanded fair dealing model. Unless the context suggests otherwise ,the terms fair use and "expanded fair dealing" are used interchangeably.
[12] Issues Paper at 14.1-14.15.
[13] Issues Paper at 7.9, 7.12.
[14] Kimberlee Weatherall, Intellectual Property Research Institute of Australia, " Fair use, fair dealing: The Copyright Exceptions Review and the Future of Copyright Exceptions in Australia " (2005), at 8-9.
[15] Issues Paper at 13.6.
[16] Explanatory Memorandum at 7.
[17] Explanatory Memorandum at 9.
[18] Explanatory Memorandum at 10.
[19] Explanatory Memorandum at 7-8. Sam Ricketson also praises the predictability of the Australian exceptions and compulsory licenses, noting that "the very detail and precision of these provisions makes them more transparent and easier to analyze." Ricketson WIPO at 73.
[20] Explanatory Memorandum at 10.
[21] Although the Whitford Report recommended the general exception, it conceded that it was vulnerable to "dangers of producing uncertainty and misuse": Report of the Committee to Consider the Law of Copyright and Designs (1977), at para. 675.
[22] Secretary of State, Reform of the Law Relating to Copyright, Designs and Performers' Protection (July 1981) at 45-46.
[23] UK Intellectual Property Office, Taking Forward the Gowers Review of Intellectual
Property: Proposed Changes to Copyright Exceptions (2008), rejecting an earlier possibility raised by the 2006 Gowers Review of Intellectual Property , at 4.68-4.71.
[24] Taking Forward the Gowers Review , at 1, 6.
[25] Digital Technology and the Copyright Act 1994, Internal Working Paper (July 2002) at paras. 18, 246-497 (" Internal Working Paper "); Digital Technology and the
Copyright Act 1994: A Discussion Paper (July 2001) at paras. 192-194; 260.
[26] Internal Working Paper at para. 264; Position Paper at paras. 160-61. Also see the New Zealand Government's archive page for all studies on copyright reform.
[27] Knowledge Economy Study at 61. The exceptions and limitations appear in four of the eight copyright-related directives: the Computer Programs Directive, the Rental Right Directive, the Database Directive and the Information Society Directive.
[28] Communication on Copyright and Related Rights in the Information Society (1996: IP/96/1042).
[29] Communication on Copyright and Related Rights in the Information Society (1996: IP/96/1042).
[30] EU Green Paper at 4-20.
[31] Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society, Art. 5 (the " Information Society Directive "). Only one of the exceptions is mandatory, with the remaining twenty exceptions and limitations to be considered by each member on a case-by-case basis.
[32] Institute for Information Law, University of Amsterdam, "Final Report: Study on the Implementation and Effect in Member States' Laws of Directive 2001/29/EC on the Harmonisation of Certain Aspects of Copyright and Related Rights in the Information Society", February 2007, at 57 (" Implementation Study "), noting that the Czech Republic, France, Greece, Hungary, Italy, Luxembourg, Malta, Poland, Portugal and Slovakia have incorporated the test into substantive law and that the test was referred to and applied by courts in Austria, Belgium, Finland, and the Netherlands; also see Kristin Friberg, The Swedish Implementation of the InfoSoc Directive , May 2006, at 23-24, concluding that the specific language of the private use limitation in Art. 5(2b) of the Directive was necessary to ensure compliance with the three-step test, and Sam Ricketson, WIPO Study on Limitations and Exceptions of Copyright in the Digital Environment, SCCR/9/7 , (June 2003) (" Ricketson WIPO ") at 70, concluding that Art. 5 of the Directive is "at the other end of the spectrum" from the U.S. in terms of three-step compliance."
[33] Information Society Directive , Art. 5.5.
[34] Darren Hudson Hick "Mystery and Misdirection: Some Problems of Fair Use and Users' Rights," (2009), 56 Journal of the Copyright Society of the U.S.A. 485 at 500.
[35] Michael J. Madison, "Rewriting Fair Use and the Future of Copyright Reform," (2005-06), 39 Cardozo Arts & Ent. L.J. 391.
[36] Lawrence Lessig, Free Culture (2004) at 187. Apart from the direct costs to litigants, the high transaction costs incurred by rights holders in a fair use system would be passed indirectly to consumers in the form of higher prices.
[37] See Rebecca Tushnet, " Copy this Essay: How Fair Use Doctrine Harms Free
Speech and How Copying Serves It " (2004), 114 Yale L.J. 535 at 554, concluding that flexible, fair use requires case-by-case application and provides "no predictability for a publisher curious to know what it can do outside the barest minimum of quotation of literary works." Also see Neil Netanel, Copyright's Paradox (2008) at 16. This view is shared by the scholar David Nimmer, who calls "fair use" a "fairy tale" whose complexities have required four separate visits to the Supreme Court, and yet have resulted in a system whose "upshot would be the same … had Congress instituted a dartboard rather than the particular four fair use factors embodied in the Copyright Act": David Nimmer, "'Fairest of them All' and Other Fairy Tales of Fair Use" (2003), 66 Law and Contemporary Problems 263 at 280 ("Fairest of them All"); Gideon Parchomovsky et al " Fair Use Harbors " (2007), 93 Virginia Law Review 1483 at 1484-1486: "Fair use is at once the most important and most 'troublesome' doctrine in copyright law…the case law is characterized by widely divergent interpretations of fair use, divided courts, and frequent reversals. The state of affairs has prompted a leading commentator to conclude that the doctrine of fair use is impervious to generalization and that attempts to drive its meaning from careful analysis of specific cases are futile."
[38] Robert Burrell and Alison Coleman, Copyright Exceptions: The Digital Impact (2005) at 268 ("Burrell and Coleman"), including among these supports guidelines and agreements that were reached only after protracted negotiations, prominent cases, and out-of-court settlements, which "might prove impossible to replicate" in another jurisdiction. Also see Giuseppina D'Agostino, Healing Fair Dealing , CLPE Research Paper 28/2007, at 2 ("Healing Fair Dealing"), noting the critical importance in the U.S. of negotiated industry-specific guidelines in affecting fair use review by the courts.
[39] Giuseppina D'Agostino, " Fair Dealing After CCH ", report prepared for the Department of Heritage, June 2007, at 33-34 ("Fair Dealing After CCH"). Also see Jennifer Urban and Laura Quilter, " Efficient Process or 'Chilling Effects?' ", noting at 12-13 the "notorious" difficulty of defining a line for fair use and examining the difficulty of making such a claim in the notice-and-takedown context.
[40] Fair Dealing After CCH at 40-41.
[41] Fair Dealing After CCH at 40-41.
[42] Sub-Committee on the Revision of Copyright, A Charter of Rights for Creators, October 1985, at 64.
[43] A Charter of Rights for Creators at 63-66.
[44] Government Response to the Report of the Sub-Committee on the Revision of Copyright, February 1986, at 12-13.
[45] Normand Tamaro, 2008 Annotated Copyright Act, at 768.
[46] See, for example, Heritage Canada, " The Canadian Music Industry: 2006 Economic
Profile ", Part III.
[47] In the Reprographic Reproductions (Educational Institutions 2005-09) case, the Copyright Board refused to extend fair dealing for research to educational uses. This would certainly be challenged if fair dealing were expanded.
[48] The courts have held that the levy was created to support creators and cultural industries by striking a balance between the rights of creators and those of users and to overcome difficulty in enforcing rights of reproduction connected to private use: Canadian Private Copying Collective v. Canadian Storage Media Alliance (2004), 36 C.P.R. (4th) 289 (F.C.A.) at para. 51; Canadian Private Copying Collective v. Cano Tech Inc., [2006] 3 F.C.R. 581 at paras. 4-6 (F.C.T.D.).
[49] In promulgating the levy system in the 1997 copyright reforms, the government recognized that one reason for instituting a levy was the interrelationship between private copying and fair dealing, thus meriting a levy to substitute for uncertain and wasteful litigation. Testimony of Ms
Susan Katz (Acting Director General, Cultural Industries, Department of Canadian
Heritage) and Ms. Danielle Bouvet (Director, Copyright, Department of Industry) before Senate Committee on Canadian Heritage on Bill C-32, Tuesday, June 18, 1996, at 1120-35.
[50] For example, at the current Halifax roundtable, the Canadian Private Copying Collective, American Federation of Musicians, and ACTRA sought to expand the levy to other media and works. Similarly, at the current Vancouver roundtable, the Writers Guild requested that the private copying levy be expanded to other media and other copyright subject matter, and the Canadian Film and Television Production Association requested that an ISP levy be imposed to the extent ISPs participate as broadcasters.
[51] See CCH at para. 49. where the Supreme Court held that the fair dealing exception for research was not constrained by the specific exceptions in the Act covering libraries.
[52] Fair Dealing After CCH at 7. Fair use is regarded as an affirmative defense under U.S. law which the putative infringer has the burden of carrying. Campbell v. Acuff-Rose Music Inc., 510 U.S. 569 (1994). In the CCH case the Supreme Court called the fair dealing defence a "user right".
[53] See Melissa de Zwart, " Fair use? Fair dealing? ", Faculty of Law, Monash University, Research Paper No. 2006/09, December 7, 2007 at 32. ("Zwart Fair use? Fair dealing?")
[54] The common-law doctrine of fair use in the United States is considered to originate in Folsom v. Marsh, 9 F.Cas. 342, an 1841 decision by Justice Joseph Story. The doctrine as developed by the courts was codified in s. 107 of the 1976 revisions to the U.S. Copyright Code.
[55] Zwart, Fair use? Fair dealing? at 33. In commenting on a proposal to enact a fair use regime in Australia, Zwart states: "The adoption or application of fair use laws without full consideration of what they bring to enhance existing Australian law is short-sighted. Copyright law is complicated enough; it does not need to be complicated further by grafting on laws from another copyright context. It is time to carefully consider amendments we actually need to our fair dealing law, especially in areas such as parody, to ensure that it continues to protect the interests and values of copyright owners and users in the 21st Century."
[56] See CCH at para. 22, where the Supreme Court stated that "U.S. copyright cases may not be easily transferable to Canada given the key differences in the copyright concepts in Canadian and American copyright legislation".
[57] Healing Fair Dealing , noting at 51 that even if Canada could selectively incorporate U.S. precedents into a Canadian setting, this approach could not import constitutional values. Similarly, Burrell and Coleman suggest at 269 that the fair use defence in the United States is closely bound up with constitutional guarantees of free speech, privacy, freedom from regulation, and free competition and that "it is beholden on us to think carefully about how a fair use defence would be likely to operate in a legal environment in which the principles that underpin and reinforce the fair use defence in the United States do not enjoy the same prominence".
[58] See Théberge v. Galerie d'Art du Petit Champlain inc., [2002] 2 S.C.R. 336 at paras. 12-16, 63-64 (majority), 116 (dissent), discussing the dual antecedents of Canadian copyright law. Also see Information Highway Advisory Council, Copyright and the Information Highway (1994), at 26, where the Parliamentary Sub-Committee rejected the importation of the U.S. fair use system in part because "The Canadian Act is based on very different principles [than the U.S. Act]: the recognition of the property of authors in their creation and the recognition of works as an extension of the personality of their authors."
[59] Canada and the United States have already diverged on the fairness factors. Compare, for example, CCH with the influential 2nd Circuit case American Geophysical Union v. Texaco Inc., 60 F.3d 913 (1994). In American Geophysical, the majority considered the availability of a licence to be relevant in concluding that the photocopying by Texaco of eight articles was not fair. In CCH , the Supreme Court came to the exact opposite conclusion at para. 70. Canadian courts also diverged in the weight assigned to the various fairness factors. Consider for example, the weight to be given to the effect of the dealing on the market for the work. In CCH , the Supreme Court said at para. 59 that "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." By contrast, in the case of Harper & Row, Publishers, Inc. v. Nation Enterprises, 471 U.S. 539 at 566 (1985), the U.S. Supreme Court called this "the single most important element of fair use." While other courts have suggested that no one factor should enjoy primacy, they have still identified this factor as "important" in comparison to "the nature of the work" and "the amount and substantiality of the portion used": American Geophysical at para. 83.
[60] 'Fairest of them All" at 267-81, assessing the analysis of sixty fair use cases from 1994 to 2002, finding no statistical correlations, and concluding that the s. 107 statutory test succeeded only in "injecting … a high degree of subjectivity and imprecision into each factor and their cumulative application."
[61] Fair Dealing After CCH at 40-41. Her view is echoed by Neil Netanel, who writes, "a legal rule or doctrine often operates quite differently, or carries very different symbolic content, when transplanted from the source to the host jurisdiction. Even if a rule is transplanted word-for-word, it may effectively be modified in substance or simply rendered irrelevant in the host country": "Asserting Copyright's Democratic Principles in the Global Arena" (1998), 51 Vanderbilt L. R. 217 at 274.
[62] Ricketson et al, International Copyright and Neighbouring Rights, Vol. I, 2d ed. (2006) ("Ricketson"), para. 10.31-10.34; Mihály Ficsor, The Law of Copyright and the Internet (2002) ("Ficsor"), §3.16; Opinion of the Council of Copyright Experts, No. SzJSzT 17/06 of May 11, 2006 (Hungary) ("Hungarian Opinion"), paras. 8-10; Remuneration of Private Copying in Australia ("Aust. Report") at 570-71, 582; Sookman, " The SAC Proposal for the Monetization of the File Sharing of Music in Canada ," (2008), 1 Osgoode Hall Review of Law and Policy 101 at 109-129.
[63] Article 9(2) Berne Convention; Part II, Article 13 TRIPS; Ricketson, at paras. 13.11-13.25. Under NAFTA, Canada agreed to extend application of the three-step test to sound recordings.
[64] WTO Decision at para. 6.97; WTO Patent Decision at para. 7, 7.21; Ficsor, at 91-92; WTO Decision, para. 6.74; M. Senftleben, Copyright, Limitations and the Three-Step Test (2004) ("Senftleben") at para. 4.3.; Ricketson, at paras. 13.11-13.25.
[65] WTO Decision at para. 6.108.
[66] WTO Decision at para. 6.109.
[67] WTO Decision at para. 6.112.
[68] WTO Decision at para. 6.180; Sam Ricketson, WIPO Study on Limitations and Exceptions of Copyright in the Digital Environment, SCCR/9/7, (June 2003) ("Ricketson WIPO") at 24.
[69] Ricketson WIPO at 27.
[70] See Herman C. Jehoram, "Restrictions on Copyright and their Abuse" (2005) 27 E.I.P.R. 359, stating at 360 that "[t]he open American 'fair use' system in fact violates the Berne Convention with its specific restrictions which serve to guarantee the rights of authors and the interests of users by providing them with legal certainty", and Burrell and Coleman at 270, citing numerous other studies concluding that the fair use regime is not TRIPS-compliant. Some academics have taken a different view and express the opinion that the U.S. fair use system can be interpreted in such a way to be in compliance with the three-step test. See, for example Senftleben at 162, arguing that the U.S. system is a "special case", and Gerald Dworkin, "Copyright, the Public Interest and Freedom of
Speech" in Jonathan Griffiths and Uma Suthersanen (eds.) Copyright and Free Speech: Comparative and International Analyses (2005) , at 162, suggesting that the United States also seems to believe that fair use and the three-step test are compatible, but concluding that the issue will go to a WTO panel. The question of whether the United States has ever tested its fair use regime to Berne also remains a matter of debate. When the United States acceded to Berne in 1988, both the House and the Senate took the position that Berne was not self-executing, meaning that the application of the treaty to the United States was limited to that in the implementing legislation: House Statement on
the Berne Convention Implementation Act of 1988 , Congressional Record (Daily Ed.), October 12, 1988 at PAGE H10095. Respected scholars have concluded that since none of the acts of legislation implementing Berne or TRIPS alters fair use, the United States may have relied on the international law principle to allow it to "reserve matters relating to fair use to the sovereign control of the United States." In the American context, this option may have been the only feasible outcome to avoid the chaos that would have resulted from a wholesale conversion of the fair use standard to a foreign model: Dan L. Burk & Julie E. Cohen, " Fair Use Infrastructures for Rights Management Systems " (2001), 15 Harvard Journal of Law & Technology 41 at 77; Burrell and Coleman, at 271, reviewing articles raising doubts about U.S. compliance with the three-step test but noting the "realpolitik view that given US dominance in international copyright matters it is highly unlikely that the Dispute Settlement Body of the WTO would ever declare the US fair use provision to be incompatible with TRIPS".
[71] Ricketson WIPO at 67-69. Although Ricketson focuses on the first and third steps, there remains an argument that s. 107 of the U.S. Act violates the second step as well. If each step of the test must be treated as a separate and independent requirement, language directing the courts to consider, among other factors, "the effect of the use upon the potential market for, or value of, the copyrighted work," would seem to fall short of the international standard, particularly since a review of the case law shows that court findings on this factor correlated with the eventual result in only fifty percent of cases. Nimmer, "Fairest", at 268, 280. Interestingly, even in the few cases in which all four factors appeared to line up in the same direction, either fair or unfair, they still had no predictive value: 282-84.
[72] In its Explanatory Memorandum , Australia stated at 7-8 that "it is necessary that any amendments to the Act comply with international copyright treaties", including the three-step test. In 2008, the UK government declined a recommendation that it develop a fair use model, stating as a rationale that "We … need to comply with the international legal framework": Taking Forward the Gowers Review , at 1, 6. Also see the New Zealand documents Digital Technology and the
Copyright Act 1994, Internal Working Paper (July 2002) at 61 and Digital Technology and
the Copyright Act 1994: A Discussion Paper (July 2001) at paras. 192-194, each discussing international obligations.
[73] Daniel Gervais, " The Purpose of Copyright Law in Canada " (2005) 2:2 UOLTJ 315 at 322; Fair Dealing After CCH , noting at 7 that "should the courts apply CCH expansively, this may trigger international scrutiny of the legislation".
[74] Canadian studies that discuss these criteria include Economic Council of Canada, Report on Intellectual and Industrial Property (1971) at 133; Keyes-Brunet, Copyright in Canada (1977) at 12-16, 144-46; A Charter of Rights for Creators at 63-64.
[75] See Nimmer, "The Fairest of them All".
[76] New Zealand, " Internal Working Paper " at paras. 18, 248-49. This point was also made by the European Publishers Council in the 2008 EU Green Paper process, with the EPC warning that "overbroad exceptions would lead to ever weaker offerings of versatile 'good quality' content.
[77] As Christopher M. Jones notes in Quebec Song: Strategies in the Cultural
Marketplace , (2001), 31 Quebec Studies 50, "The lack of penetration in the French market is due to a variety of factors. The simplest to identify is the high cost of "breaking" an artist on foreign soil (i.e. attaining a market presence which becomes financially self-sustaining in that territory). These costs include transportation, technical tour support and promotional expense if touring artists are to have any impact, as well as promotion of recordings for radio play, and in-store sales promotion. … The limited size of the Quebec market does not allow for any but the brightest stars to accumulate the necessary war chests on their own."
[78] Copyright Consultations Web Page (2009), consultation questions.
[79] Canada, Reforming the Copyright Act – Backgrounder (June 2008); Preamble to Bill C-61 "to adopt coordinated approaches to copyright protection based on internationally recognized norms".
[80] Zwart, Fair use? Fair dealing? at 33 arguing that fair use does not accommodate new technology any better than fair dealing in terms of balancing the rights, of owners and users.


text:
Well, on one hand you'll have to start drinking out of pots and pans, now that your ear-splitting squeals shattered all of your glassware. On the other hand, you had a completely appropriate human reaction to these photos of Ryan Gosling playing with a bulldog on the set of The Gangster Squad. He might be costarring next to big names like Gosling and Emma Stone, but that pup deserves top billing for that one crooked tooth alone. He deserves an Oscar for that crook tooth! Sure, we saw Ryan Gosling photos from the movie's set earlier this week, but somehow adding the fattest, grumpiest-looking bulldog in the world just turns this from a movie…into cinema.
[Photo: Splash News Online]
View Photo Gallery

subset: commoncrawl


text:
STEP1: Youth Booster Serum 30ml
Discover the new Youth Code Youth Booster Serum, 10x more concentrated in Pro-Gen™ than the Youth Code Day cream. Pro-Gen™ Technology helps support skin's ability to recover from daily aggressions.
Youth Code Youth Booster Serum has a luxurious yet refreshing and light texture. On application, the serum melts seamlessly into your skin leaving it feeling soft and smooth.
STEP2:Day 50ml
Mature skin and young skin behave differently when exposed to external aggressions. As you age, skin takes longer to recover and responds more slowly. The complexion loses luminosity, facial features appear tired and wrinkles deepen. Youth Code Rejuvenating Anti-Wrinkle Day Cream leaves your skin hydrated, smoother and more radiant. Skin behaves more youthfully: luminosity is improved and facial features appear rested.
*All the transactions in eShop will be settled in "HK$" or "US$" only. The other currencies are for reference only.


text:
The Constant Valentine: Focus on the Uplifting, Positive
The Constant Valentine is a glimpse of things just beyond the foreground; positive and frequently uplifting stories of people, places, and things overlooked in our area and, occasionally, other places.
Monthly Archive for July, 2011
Matt Hasselbeck: Class, Dismissed
I have this perverse kink in my DNA that makes me give a rat's azz about professional sports. I know it's crazy and I'm definitely not proud of it. I'm a grown man and I should know better. But, for nine seasons, now, I've hauled my skinny hillbilly rump down to Qwest Field and endured […] [Read More]


text:
High School Football - Page 4
El Paso High School Sports Will Soon Have A 6-A District
Del Valle Finally Defeats Andress In The Bi-District Playoffs
Football Friday Night: Week Ten
Las Cruces Mayfield Upsets Las Cruces High To Win The District 3-5A Title
Football Friday Night: Week Nine
Football Friday Night: Week Eight
We have come to the final two weeks of the regular season in high school football. Week Eight-- the ninth of the season-- provided clear evidence of the top teams in each district. It also made the playoff races a lot more clearly, making it almost impossible for some teams to qualify now


text:
Academics . Painting . Faculty . Amber Kempthorn
Amber Kempthorn
Title Adjunct Faculty
Department Painting
Phone 216.421.7000
Courses 100 Drawings | Drawing Beyond Observation | Drawing I | Drawing: Style Context | Image + Form I | Sculpture: Aesthetic + Functional Structure
Get started here.
While at CIA, you'll learn from the masters through our rigorous, world-class curriculum and connect with working professionals to begin your career.


text:
This cosy three bedroom villa uniquely situated in the middle of the lovely countryside just outside Maçanet de la Selva offers you a lot of privacy in peaceful surroundings. At the same time you reach the beaches of LLoret de Mar within a 15 minutes drive only and a golf course within 10 minutes.
Please note that the distances above are as the crow flies.
We will send you the route description to the house with your rental documents after you confirmed the booking. For security reasons, we do not provide exact address details up-front. Sorry for the inconvenience.


text:
Skip Top Navigation Skip to Content
The Pavement Notebook is a series of reports about the performance of the Washington State pavement network. The reports are designed to be informative and accessible to the Governor, Legislators and the public. If you have questions or comments, or are interested in more detailed data or data in other formats, please contact the WSPMS Administrator at (360) 709-5473 or email@example.com .
Economic Evaluation of Pavement Management Decisions (750 kb)
The Washington State DOT (WSDOT) was an early pioneer in the implementation of pavement management, starting with pavement condition data collection in 1969, and the establishment of a computerized pavement management system in the late 1970's. WSDOT performs a Life Cycle Cost Analysis (LCCA) for all new pavement structures, and existing pavements requiring reconstruction. A 50-year analysis period is used to consider all maintenance and/or rehabilitation activities anticipated over the life cycle analysis period. The LCCA performed when selecting a pavement type for a new pavement structure is a long-term analysis, based upon the best available information at the time the decision is made. But, it is not an operating plan that lays out the pavement treatment decisions for the next 50 years. The focus of this paper is the economic evaluation of pavement management decisions made in year-to-year operations, which are based on analyses at the performance period level. The use of economic evaluation techniques such as Cost Effectiveness Analysis, Replacement Analysis, and Break-Even Analysis is essential in making pavement management decisions, and can result in substantial cost savings. Even a one-year extension in pavement life through the use of cost-effective pavement treatments can have significant benefits. The information provided by the economic performance measures are shown to be critical for the efficient planning, prioritizing, and programming of pavement asset management activities.
Last Updated: 2/10/2015
Visualizing Pavement Management Data at the Project Level (2,259 kb)
As a Pavement Management System increases in maturity, so does the amount of information powering it. As the level of information grows, efficiently communicating the data becomes difficult. The Washington State Department of Transportation (WSDOT) has a long history of collecting and storing data that is electronically accessible and referenced against a Linear Referencing System (LRS). This data includes pavement surveys, contracts , capital projects, roadway configuration, maintenance activities, and more. This data has been successfully integrated from its many sources into the Washington State Pavement Management System (WSPMS). Data visualization is a key tool to utilize this vast amount of information when making pavement management decisions at the project, network and strategic levels. Commonly recommended data visualization techniques, such as bar charts, pie charts and GIS maps, lend themselves well to network and strategic analysis, but are difficult for efficient use at the project level. This paper provides an overview of the implementation and advantages of the Segment Viewer, the primary tool used for project level analysis in the web-based WSPMS software.
Last Updated: 2/9/2015
TRB 14-3468 - Evaluation of Maintenance Effectiveness for WSDOT (608 kb)
Any economical extension of pavement service life has a significant benefit for long-term life-cycle costs. Pavement maintenance activities can substantially extend the pavement service life or keep it from prematurely failing. The simple concept of higher costs due to deferred maintenance becomes more complicated when the objective is quantifying the cost tradeoffs, and selecting among maintenance alternatives. Current budget constraints in Washington State necessitate the development of new strategies with regard to pavement maintenance and preservation. Even if the optimum long-term rehabilitation plan for a particular section of roadway calls for a rehabilitation project, there may not be funds available to program the construction. This situation has resulted in the development of maintenance strategies for the purpose of delaying or avoiding pavement rehabilitation spending. These strategies include: (1) addressing early distress, (2) correcting short distressed sections, (3) maintaining and "holding" sections that are currently due for rehabilitation, and (4) integrating maintenance with rehabilitation strategies. The focus of this paper is to evaluate the cost-effectiveness of different pavement maintenance strategies, and improve the procedures for analyzing maintenance tradeoffs. To illustrate the impacts of the maintenance strategy on a network level, three pavement preservation alternatives are compared, and prospective costs are estimated for the Washington State highway network.
Last Updated: 1/2/2014
TRB 14-2716 - Modeling and Analyzing Budget Constrained Pavement Preservation Strategies (TRB Publication Index)
The Washington State Pavement Management System (WSPMS) has a long and well known history of describing network condition, predicting necessary rehabilitation and guiding the Washington State Department of Transportation (WSDOT) to the best possible value for pavements meeting an acceptable Level of Service (LOS). By definition, Lowest Life Cycle Cost (LLCC) is the most economical way to manage roadways to a required LOS. What does an Agency do when it is currently, and projected to be, funded at less than half of what LLCC calculations recommend? This is a deceptively difficult question and the situation WSDOT currently faces with its preservation budget. To assist the agency in answering this question, a Forecaster has been developed within the WSPMS that allows definition of a Forecast Scenario that allows the user to define yearly budget with optional allocations, preservation techniques, prioritization of roadways and activities, and more, and analyzes the results of the forecast using several different performance measures. This paper provides an overview of (a) the new WSPMS tool to create forecasts, (b) a general overview of the forecast process, and (c) the performance measures WSPMS presents for users to analyze the results of a forecast. Finally, several funding scenarios are compared by the expected performance measure outcomes and a specific prioritization methodology is recommended for the severely constrained WSDOT preservation budget.
2012 Statewide Pavement Performance (PDF 969kb)
A report detailing the overall condition of the Washington State Routes, as categorized from Very Good to Very Poor, and based on data collected from July through October 2012. Information about general condition is provided in groups by Surface Type, Region, County and Legislative District. Last Updated: 8/21/2013
Previous Versions: 2011 Statewide Pavement Performance (PDF 969kb) 2010 Statewide Pavement Performance Report (12/20/2011)
State Highway Pavement Performance Trends 1984 - 2012 (PDF 293kb)
A chart detailing general condition for the last 30 years. A similar chart appears yearly in the Gray Notebook. Last Updated: 8/21/2013
Previous Versions: State Highway Pavement Performance Trends 1983 - 2011 (PDF 293kb) State Highway Pavement Performance Trends 1981 - 2010
WSDOT IRI Report (2013) (668 kb)
A report detailing the statewide pavement performance using International Roughness Index (IRI), using both WSDOT and FHWA categorizations. Last Updated: 2/11/2015
Previous Versions: WSDOT IRI Report 2012 (PDF 657kb) WSDOT IRI Report 2011 (PDF 671kb) WSDOT IRI Report 2010
WSDOT Surface Type Summary (2013) (443kb)
A series of charts and tables summarizing highway miles, lane miles and annual vehicle miles traveled (AVMT) for each surface type, as based on the State Highway Log. Last Updated: 2/9/2015
Previous Versions: WSDOT Surface Type Summary (2012) (PDF 421kb) WSDOT Surface Type Summary (2011) (PDF 435kb)
WSDOT Preservation Miles Paved by Year (2014) (PDF 321kb)
A chart containing the lane miles paved, or projected to be paved, by project type - asphalt (ACP), chip seal (BST) and concrete (PCCP) - from 2001 through 2013. Last Updated: 8/21/2013
Previous Versions: WSDOT Preservation Miles Paved by Year (2013 Update) (PDF 320kb) WSDOT Preservation Miles Paved by Year - 2012 Update (PDF 334kb) WSDOT Preservation Miles Paved by Year - 2011 Update
Average Pavement Life (2014) (PDF 485 kb)
A brief overview of average pavement life for ACP, BST and PCCP in Washington State. Last Updated: 2/17/2015
Previous Versions: WSDOT Average Pavement Life - 2013 Update (PDF 471kb) WSDOT Average Pavement Life - 2012 Update (PDF 501kb) Average Pavement Life - 2011 Update


text:
- Home
- News
- Sports
- Classifieds
- Obituaries
- Entertainment
- Special Sections
- Games
- June Real Estate Guide
- Summer Life in Whitley County
Does your blood pressure go up as soon as the stores begin piping Christmas melodies over the sound system?
Are you dreading the tradition of baking trays of cookies and preparing another family meal?
Does the thought of decorating give you hives?
Or are you looking forward to the baking, but have found your family and friends are all dieting or diabetic and don't appreciate your sweet efforts?
The solution to all these pressing issues can be found at the 4-H Holiday Celebration, set to begin at 5:30 p.m. Nov. 20 at the 4-H Center.
Formerly the 4-H Purple Ribbon Holiday Wreath and Tree Auction and Cookie Bar, organizers have changed the name to Holiday Celebration and added a pork chop dinner to the event.
The event begins at 4 p.m. with the cookie bar where you can buy homemade cookies by the pound, in all the varieties popular to our community, by the best bakers in the county.
"We have 1,800 (cookies promised) so far, and need at least another 30 dozen," said Cathy Heritier, one of the organizers of this popular event.
Heritier suggests cookie enthusiasts come early, as they go fast.
Then stick around for the pork chop dinner from 5:30 to 7 p.m. where you and your family can feast on inch-thick pork chops and all the fixings for $8 a plate. Additional chops may be purchased for those big appetites.
Tickets for the dinner will be available at the door, but may be pre-purchased at the Extension Office, Bravo Baskets or J & J Insurance, or from any 4-H Inc. board member. Or call Cathy Heritier at 609-9427 or Tara Van Houten at 609-0773 to reserve your place at the table.
As your meal digests, the wreath and tree auction will entertain beginning at 7 p.m. This is a live auction, but bids can be left with the auctioneers for a chance to take your pre-decorated items home.
Those wanting to bake can bring their cookies to the 4-H Center Friday evening after 7 p.m. or make arrangements for delivery by calling Heritier at 609-9427 or Van Houten at 609-0773.
It's almost too good to be true, one stop gets you your holiday supply of fresh-baked cookies, decorates your house and feeds your family.
Truly a holiday event to celebrate.
All proceeds from the Holiday Celebration event will benefit the 4-H programs in Whitley County.


text:
Matt Hurley, 17, and Steven McIntyre, 18, pose at Torchlight Productions in Fort Myers. They started the business at 15 years old and now employ about 20 people.
- Filed Under
Matt Hurley and Steven McIntyre are the youngest people at Torchlight Productions, but they're also the ones calling the shots.
Hurley, 17, and McIntyre, 18, opened the online marketing business when they were 15 years old after seeing how the economic downturn affected their parents' industries.
"We wanted to create something that we could have a direct impact on the market and try to grow businesses and help create jobs," Hurley said. ...


text:
There is an urgent need for blood platelets and O, A negative, and B negative blood types. The American Red Cross provides about 40% of the nation's blood. Because of the snow and severe cold this winter, the number of donations is down by 8200. And with another storm system affecting much of the country that number is expected to increase.
There are three important blood drives left in Bulloch County this month…one at S E Bulloch High today (Wednesday, January 22) and two at EGRMC Blood Center on the Thursdays, the 23rd and 30th.
Today's blood drive at Southeast Bulloch High School will be in the ROTC Classroom from 9 a.m. till 2 p.m. You are urged to donate a unit blood at one of these drives this month or in the future.
If you would like to donate blood at a drive but time is limited you can make an appointment to get in and out quickly. To make an appointment by phone, call: 1-800-733-2767 (1-800-Red Cross). To make an appointment online, go to www.redcrossblood.org and click on Make a Blood Donation Appointment.


text:
Discover the meaning of your name.
Please confirm that the link referenced below is the one that is broken or needs to be updated. If confirmed, please complete the remaining boxes in the form below, then click on the button to send the update to us.
Title of the LinkFold3 - Historical Photographs
URL (address) for the Linkhttp://www.tkqlhce.com/click-1029688-10934994?url=http://go.fold3.com/results.php?category=photos&type=option&link
Copyright © 1996-2015. All Rights Reserved. CyndisList.com
Designed and developed by fusionSpan


text:
Bradenton, Florida- In less than three hours, a Manatee County Jury returns a guilty verdict in the First Degree Murder case of a Palmetto' doctor's wife. 41-year-old Delmer Smith faces a possible death sentence.
Shortly after the verdict was handed down, Briles' widower, Palmetto doctor James Briles, hugged his family and friends inside the courtroom. Manatee County's Sheriff Brad Steube spoke on behalf of the family. Steube said the family calls the verdict "just."
In August 2009, Dr. James Briles found his wife's bludgeoned body in their home. 48-year-old Kathleen Briles, a mother of three, a college student and animal rescuer, had been gagged, wrists and ankles tied using duct tape and beaten to death with an iron cast sewing machine.
The defense gambled on the state having a weak case. Delmer Smith did not take the stand in his own defense, nor did his attorneys call any witnesses and they barely cross examined state witnesses.
"Reasonable doubt" was their defense, but in the end, it was a strategy that did not pay off.
"The defendant is guilty of murder in the first degree," announces the jury's foreman.
It's the decision Briles' widower and his family have waited three years to hear.
Smith is already serving a life sentence for another home invasion, and the murder conviction means Smith faces a possible death sentence by lethal injection.
Sheriff Steube says, "I think it's a just verdict. This is a predator that has been in our community in the Sarasota community and that predator is now off the street."
"In this case we have evidence upon evidence upon evidence," Suzanne O'Donnell told the jury during her closing arguments.
State prosecutors reminded jurors of the seven stolen items from Briles' Terra Ceia home.
She showed the men's and ladies' two tone Geneva watch set. O'Donnell says, "He took a watch off a dead woman's wrist and gave it to his girlfriend."
There is the gold necklace, a coin set, Minnie Mouse pewter key chain and medical encyclopedia book with Smith's fingerprint on it. Deputies found most of these items, also belonging to Briles, in a red and white duffle bag.
Prosecutors played Smith's jail house phone call where he asked his girlfriend to get rid of the bag in his storage unit. Smith said, "It's very important to get the red and white bag. I need you to get that out of there."
Defense attorney David Hernandez told the jury the state's evidence is circumstantial and all they've proven is Smith had stolen property.
Hernandez said the prosecutors left reasonable doubt Smith beat Briles on the head with an iron sewing machine. They said, according to the medical examiner, Smith struck Briles in the head with the 23 pound machine at least eight times while she laid on her living room floor gagged, ankles and wrists tied with duct tape.
"There is no forensics evidence linking Smith at the Briles home, no DNA, no fingerprints," says Hernandez. He added, "Knowledge of stolen property does not mean involvement or knowledge of murder."
In the end, the evidence was proof enough for the jury of 12 men and women. O'Donnell said to the jury, "Today you tell him he has to pay for that crime."
On Tuesday, the jury returns to court to begin the sentencing phase. Smith faces death by lethal injection.
Smith is already serving life for another home invasion. He is also a suspect in another unsolved murder, two rape cases and several home burglaries.
Isabel Mascarenas


text:
SPSU Sports Medicine
The SPSU Sports Medicine staff would like to welcome you to our website. We hope that by visiting our site you are able to learn more about SPSU and its sports medicine staff along with gathering any information that you may need.
The SPSU Sports Medicine staff consists of One full-time certified athletic trainer (ATC) that assists with coverage needs as well as a variety of other tasks.
The staff ATC works under the auspices of the National Athletic Trainer's Association (NATA) and the Georgia Athletic Trainers Association (GATA). The program is also greatly assisted by Dr. Michael Kuczmanski M.D., our team physician and liaison with Pinnacle Orthopedics, and Dr. Heather Davis, our team chiropractor with The Wellpath Center. We also have the privilege of working with a team of highly qualified medical professionals in the area that give top quality care to the athletes we refer.
The athletic training facilities at SPSU provide care for all injured SPSU athletes. The athletic trainer is on duty for three seasons a year (Fall, Winter, and Spring). The athletic trainer uses their skills and knowledge to prevent, evaluate, treat, rehabilitate, and perform functional exams on athletic injuries incurred by our student-athletes during practices and games.
For more information about the SPSU Sports Medicine staff, please browse the links to your left and/or call us at (678) 915-7350.
Thanks again for visiting our site and we hope you come again soon!
Josh Martin, MA, ATC, LAT
Head Athletic Trainer
Monday - Friday -- 9:00 AM - 6:00 PM, closed 12:00 PM - 1:00 PM
Weekends and Holidays -- Varies based on varsity competition schedule
Morning athletic training room hours are by appointment only for treatment and rehabilitation. Please contact the Athletic Training Office at 678-915-7350 if you will be late or if you need to cancel/reschedule an appointment.