L9OBL said:
we dont have our own but we canucks go under the international fair use act!(so technically everyone does) and i would call tpp legal here and illegal there less restrictive but what evs what evs (that and our law enforcement doesn't really care, almost every canadian uses sharing like limewire. lol)
Let's clear some things up here, regarding Fair use, because I suspect you are referencing an element of copyright law you aren't actually versed in. (portions taken from wikipedia)
Fair Use: Fair use is a doctrine in United States copyright law that allows limited use of copyrighted material without requiring permission from the rights holders, such as for commentary, criticism, news reporting, research, teaching or scholarship. It provides for the legal, non-licensed citation or incorporation of copyrighted material in another author's work under a four-factor balancing test. The term "fair use" originated in the United States. A similar principle, fair dealing, exists in some other common law jurisdictions.
The Fair use balancing test requires that use of copyrighted material conform to 4 criteria:
1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; - The first factor is regarding whether the use in question helps fulfill the intention of copyright law to stimulate creativity for the enrichment of the general public, or whether it aims to only "supersede the objects" of the original for reasons of personal profit. To justify the use as fair, one must demonstrate how it either advances knowledge or the progress of the arts through the addition of something new. A key consideration is the extent to which the use is interpreted as transformative, as opposed to merely derivative.
2. the nature of the copyrighted work; - the availability of copyright protection should not depend on the artistic quality or merit of a work, fair use analyses consider certain aspects of the work to be relevant, such as whether it is fictional or non-fictional, whether it was previously published or unpublished, etc.
3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; - The third factor assesses the quantity or percentage of the original copyrighted work that has been imported into the new work. In general, the less that is used in relation to the whole, e.g., a few sentences of a text for a book review, the more likely that the sample will be considered fair use. However, small portions can violate fair use if they compromise the original work, and whole works can be copied under fair use if they do not substantially harm the original.
4. the effect of the use upon the potential market for or value of the copyrighted work - The fourth factor measures the effect that the allegedly infringing use has had on the copyright owner's ability to exploit his or her original work. The court not only investigates whether the defendant's specific use of the work has significantly harmed the copyright owner's market, but also whether such uses in general, if widespread, would harm the potential market of the original.
Fair Dealing: (Canadian Eqivalent):
The Canadian concept of fair dealing is similar to that in the UK and Australia. The fair dealing clauses of the Canadian Copyright Act allow users to engage in certain activities relating to research, private study, criticism, review, or news reporting. With respect to criticism, review, and news reporting, the user must mention the source of the material, along with the name of the author, performer, maker, or broadcaster for the dealing to be fair. It is important to note that unlike fair use in the United States, which recognizes that parody can be fair, fair dealing in Canada has not definitely been found to contain exceptions for parody. A Quebec Court of Appeal in Les productions Avanti Cine Video v. Favreau (4 Aug 1999) recognized that parody could potentially be a 'critique', however it refused to recognize the exception in that circumstances as the defendants had tried to 'capitalize on' the popularity of the original work.
The 2004 ruling by the Supreme Court of Canada in CCH Canadian Ltd. v. Law Society of Upper Canada has gone far in clarifying the concept of fair dealing in Canada. In considering fair dealing the Court makes the following general observation:
It is important to clarify some general considerations about exceptions to copyright infringement. Procedurally, a defendant is required to prove that his or her dealing with a work has been fair; however, the fair dealing exception is perhaps more properly understood as an integral part of the Copyright Act than simply a defence. Any act falling within the fair dealing exception will not be an infringement of copyright. The fair dealing exception, like other exceptions in the Copyright Act, is a user's right. In order to maintain the proper balance between the rights of a copyright owner and users' interests, it must not be interpreted restrictively.
Furthermore, by taking "a liberal approach to the enumerated purposes of the dealing", the Court has made fair dealing more flexible, reducing the gap between this provision and US fair use
It then establishes six principal criteria for evaluating fair dealing.
1. The Purpose of the Dealing Is it for research, private study, criticism, review or news reporting? It expresses that "these allowable purposes should not be given a restrictive interpretation or this could result in the undue restriction of users' rights." In particular, the Court gave a "a large and liberal interpretation" to the notion of research, stating that "lawyers carrying on the business of law for profit are conducting research".
2. The Character of the Dealing How were the works dealt with? Was there a single copy or were multiple copies made? Were these copies distributed widely or to a limited group of people? Was the copy destroyed after being used? What is the general practice in the industry?
3. The Amount of the Dealing How much of the work was used? What was the importance of the infringed work? Quoting trivial amounts may alone sufficiently establish fair dealing as there would not be copyright infringement at all. In some cases even quoting the entire work may be fair dealing. The amount of the work taken must be fair in light of the purpose of the dealing.
4. Alternatives to the Dealing Was a "non-copyrighted equivalent of the work" available to the user? Was the dealing "reasonably necessary to achieve the ultimate purpose"?
5. The Nature of the Work Copying from a work that has never been published could be more fair than from a published work "in that its reproduction with acknowledgement could lead to a wider public dissemination of the work - one of the goals of copyright law. If, however, the work in question was confidential, this may tip the scales towards finding that the dealing was unfair."
6. Effect of the Dealing on the Work Is it likely to affect the market of the original work? "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."
Though the Supreme Court outlined these six criteria, it noted that in some contexts, factors other than those listed may be relevant in determining whether a particular dealing is fair.
Under the above noted descriptions, Canadian Fair Dealing is significantly more restrictive than American fair use, particularly since Parody and Satire are covered under "commentary" in fair use, but are not expressly covered by Fair Dealing.
All that notwithstanding, neither element of copyright law says anything about file sharing or hardware.
-m
