a new chapter

Michael Geist’s column in the Toronto Star signals the start of a new chapter for Canada and copyright. He reminds us that C11 has some features that bode well for creativity and innovation. But the mood of the article is sombre as Geist also provides a record of how much better the law could have been.

This was an opportunity for Canada to shine on the international copyright stage – Canada could have been seen as looking forward in the digital age. Albeit purely due to three consecutive minority governments, Canadians enjoyed the wider range of copyright analysis that only time could offer. To bring into law language that might have been crafted in 1998 seems at best illogical, at worst absurd. But behind the seeming lack of logic are the usual explanations: a Canadian government’s desire to please the United States, the power of collective organizations to ensure the primacy of their views, and the continued feint that copyright is the means to ensure success for individual Canadian creators.

The fact is: the presence of the mechanism of copyright does not guarantee income to any creator. A work must be desired before it might be transacted. And the outcome of a transaction is not always evenly distributed between all parties; creators must contend with publishers, homegrown companies must compete with multi-national firms, and new artists must always face the establishment. Success is contingent on many factors including education, opportunity, stature, industry and sheer luck.

Fortunately, some comfort can be had by considering past Canadian cultural policy development. Ryan Edwardson’s Canadian Content: Culture and Quest for Nationhood is good reading – he details the various missteps through the twentieth century that affected the development of Canadian cultural industries. While those engaged in contemporary industries will remind me that challenges abound today, from the vantage point of 2012 we can point to many twentieth century Canadian success stories in literature, music, film and art. Support could have been better, but Canada soldiers on.

Last week I had the pleasure of attending an IP Scholars Workshop, hosted by the University of Ottawa’s Centre for Law, Technology and Society. The theme was Multidisciplinary Approaches to Intellectual Property Law –  it provided a much needed clearing of cobwebs for me. My thanks to the organizers Mistrale Goudreau, Madelaine Saginur and Teresa Scassa – the conference spilled over with good conversation, exciting ideas and wonderful food. All in all, the event reminded me that copyright in Canada is much bigger than C11 and Access Copyright.

My contribution to the workshop was based on Harold Innis and his exploration of law, rooted as that was in political economy and communication. Among Innis’ writings is a remark that cries out to fair dealing: Law was found, not made. We find fair dealing, we do not make it. That the law is not yet designed to protect existing creative and fair practices is a disappointment but that does not refute the fairness of those practices. Likewise, despite the exhortations of Access Copyright to a blanket licensing plan that effectively removes fair dealing by contract, fair dealing is practiced in post-secondary institutions on a daily basis. The work ahead is to ensure that people know it.

they’re back

Access Copyright (AC)  and the Association of Universities and Colleges of Canada (AUCC) announced today an agreement of a model license that will allow for reproduction of copyrighted materials in print and digital format. Details of the agreement are minimal but the price is explicit: “The model licence will see institutions pay Access Copyright a royalty of $26.00 per full-time equivalent student annually. This royalty includes what used to be a separate 10 cents per page royalty for coursepack copying, so there will no longer be a separate royalty for such copying.”

Left unsaid is that the previous arrangement was set upon a much smaller base rate, $3.38 per full-time equivalent student. Also, the prior arrangement included royalty charges only when actual copying occurred. A reasonable condition — a customer pays only when something is actually bought. Now AC is set to receive a yearly windfall, regardless of whether all students’ education requires use of any kind of coursepack, digital or otherwise. It is conceivable that humanities, social sciences, and arts teachers utilize course packs for some courses, but it is inconceivable to assume that all have shunned textbooks for coursepacks. I remain skeptical that mathematics, physics, biology and chemistry have much use for coursepacks at all, particularly for the early years of undergraduate studies.

My skepticism could be laid to rest if AUCC (or AC) would disclose what the actual use of resource material is at Canadian educational institutions. But neither entity seems to know: “Over the course of the next six months, a survey methodology will be designed jointly to gather reliable bibliographic data and volume of usage trending data to allow Access Copyright to make fair distribution of royalties to its affiliates and to assist in establishing appropriate future licence rates.”

I hope that current and future license rates appropriately exempt open source materials, publicly available websites, journals already licensed for by libraries, and, offer a discount for textbook chapters developed by the professoriate with a healthy contribution of funding courtesy of taxpayers. (And let’s not forget fair dealing.)

While AUCC is to be congratulated for striking a harder bargain than the Universities of Toronto and Western Ontario (their negotiators could only achieve a per full-time equivalent fee of $27.50) it is disappointing that the organization that claims to have “the voice of Canadian universities”  settled on an agreement that is not in the best interests of Canadian university students. AUCC negotiated a fee that does not reflect actual consumption of copyrighted materials for each student, yet the fees will likely be paid for by all students. Paul Davidson, president of AUCC, indicates that the agreement provides “long-term certainty on price.” No doubt AC was happy to accommodate.

Update — April 17, 2012 — Michael Geist’s comments on the agreement.

fear v. education

To all writers:

It is disappointing to read of the continued distortion of fair dealing through the call to action of The Writers’ Union of Canada and Access Copyright. But I am not surprised; it is much easier to provoke fear than to embark upon the longer journey of educating people.

Fair dealing is not appropriation. It is a modest measure that permits some reproduction of copyrighted materials, under certain conditions. Each situation must be judged on its own merits. At its core, fair dealing allows creativity to continue by ensuring that copyright is held to its 300 year-old structure as a set of limited rights.

In 2004 the Supreme Court of Canada upheld fair dealing in the situation of a library offering some services of reproduction to its patrons. The ruling was highly nuanced and resulted in providing a framework to guide Canadians in future use of fair dealing. The Supreme Court Justices unanimously agreed that consideration of fair dealing must be multi-facetted; and that commercial concern “is neither the only factor nor the most important factor.” Nor does this imply that commercial concerns are not a factor at all.

Your representatives insist that the inclusion of “education” as a permissible category of fair dealing will open the floodgates to mass copying.* This is patently false. Meeting the requirement of category is but a first step; the right to copy must still be evaluated within the framework offered by the Supreme Court decision of 2004. If your representatives would put some effort into educating writers, teachers, and Canadians as a whole about the legal functioning of fair dealing, we would all be better off.

Paradoxically, members of the publishing community are doing the exact opposite. As Michael Geist reports, arguments were made to our Government that the framework of inquiry offered by the Supreme Court not be included in the text of the law. This is perplexing to say the least. Having the nuance of the law explicitly laid out in the law is a vital step to ensuring that Canadians learn how to use fair dealing appropriately.

But of course, then it would be harder to distort what fair dealing is all about.

The Call for Action campaign makes the disingenuous remark: “If much more of the work of creators can be used for free in educational settings, the educational market is at risk of being legislated away.” Fair dealing is not a substitute for legitimate licensing. But if Canadians should think so, it is only because representatives of writers have gone out of their way to spread that mistaken message.

* My work on the political misfortunes of fair dealing is here.

more American than America itself

On Tuesday Michael Geist described a list of nations that chose a more lenient approach to digital locks than our current government has proposed with Bill C-11. On Wednesday he followed with a description of the wishlist of the Canadian Independent Music Association (CIMA) with regards to that same bill. Geist writes: “the music industry demands make SOPA look like some minor tinkering with the law.”

Perhaps not surprisingly, CIMA is not pleased with the proposed expansion of fair dealing to include parody and satire. In their submission concerning Bill C-11, they write: “It is unclear how ‘parody or satire’ made for commercial purposes will be treated under this exception, nor is it clear who would retain ownership for this material.”

Commercial undertakings have legitimate recourse to fair dealing. Success or failure will rest upon the outcome of the multi-facetted framework of inquiry set by the Supreme Court of Canada in 2004, via CCH Canadian. That this may be ‘unclear’ is simply a consequence of the fact that parody and satire are not yet exceptions in Canadian law and thus there are no past cases to refer to. This is hardly a good reason to deny the introduction of the exceptions themselves. With respect to CIMA’s second point, fair dealing is not a mandated transfer of copyright. The creator who brings a parody or satire to fruition, through the use of existing protected material, has copyright in the new creation. The copyright holder of the source material continues to enjoy the original privilege.

CIMA’s vision of what Canadian copyright law should look like far exceeds American demands. Even the original content of Bill C-11 was in excess of American treatment of digital locks. Together they conjure up a dreary reminder of Canada’s first Prime Minister’s efforts to create in Canada something more than just an extension of Britain on this side of the Atlantic. Sir John A. Macdonald envisioned a nation “more British than Britain itself.” Macdonald’s protectionist policies were in aid of promoting trade with Britain and protecting the institutions that had developed in the wake of the fur trade.* Then, as perhaps now, the focus was on exploiting Canada’s natural resources.

Yet, in this millennium, there is another dimension of American policy that is worth emulating. In Geist’s listing of countries, he also reminds us that Israel has avoided the issue of digital locks entirely. This may not seem a nod to American policy. But, contemporary Israeli policy decisions bear a striking resemblance to American intellectual property policies of its antebellum days. Via a concerted effort to democratize creativity, the United States made a remarkable journey from a predominantly agrarian society to a world leader in intellectual development in less than one century. Israel seems bent on a similar journey; in 2007 it not only avoided introducing protection of digital locks into domestic law but expanded the rigidity of fair dealing into the elasticity of fair use.  What struck me was the willingness of Israeli legislators to take the best that American law can offer and avoid the worst.

Canadian and Israeli copyright development make for intriguing comparison. In part because of a common history between the two countries; each stemmed from a British antecedent, came under the closer influence of the United States, and kept a bi-jural ancestry of copyright law. And both countries had a “fair use moment” where their Supreme Courts introduced a multi-facetted inquiry for fair dealing, similar to that followed in American law for fair use.  And, under the circumstances of each case, the Justices sought to limit the influence of commercial concern. Notably, the Israeli Supreme Court stated:

The use may be found to be fair in light of its purpose and character, even if those are commercially oriented, given that the use is found to promote important social values.… This is a product of our modern world, in which most of the activities that promote social values cannot be disconnected from financial motives. Prohibiting any commercial use of a protected work will discourage activities that society would have liked to encourage.**

With multiple Supreme Court decisions due this spring, perhaps Canada will see further development of fair dealing, to the benefit of commercial use of protected work.

I am enjoying comparing Canadian and Israeli developments in copyright; a  working paper is available through the Program on Information Justice and Intellectual Property at the Washington College of Law at American University. Comments on the paper would be most welcome.

* David Ralph Spencer, “Rhymes and Reasons: Canadian Victorian Labour Journalism and the Oral Tradition,” in Journal of Communication Inquiry (1992).

** CA 2687/92 Geva v. Walt Disney Company 48(1) PD 251 [1993]

correction to the Honourable Member

During the current debate concerning C-11 (the Copyright Modernization Act), the Honourable Member Scott Armstrong (CPC) sought to bolster the merits of C-11 by invoking the presumed support of Canadian students:

That is why the Canadian Alliance of Student Associations is in support of this bill. It states that “the government has demonstrated a commitment to…Canada’s education community”. It goes on to state that students across Canada are greatly encouraged. It goes on to state that “the federal government has a clear understanding of how this bill will impact Canada’s students, educators and researchers”.

The Honourable Member omitted some details. Following the announcement of Bill C-32 (the predecessor of C-11), the Canadian Alliance of Student Associations (CASA) expressed favour at the expansion of fair dealing, but also expressed concern. From the CASA statement dated to 3 June 2010:

By expanding fair dealing as proposed in Bill C-32, the government has demonstrated a commitment to creating new, supportive measures in our copyright law for Canada’s education community … CASA members are concerned that this excellent education right may be lost in the debate around digital rights management, but we will continue to review the legislation and provide feedback to Minister Clement and Minister Moore to ensure that the federal government has a clear understanding of how this bill will impact Canada’s students, educators and researchers (emphasis mine).

CASA members are not the only Canadians concerned about the capacity of C-11 to give with one hand, and to take with the other. As Michael Geist has repeatedly documented (ex. here and here), thousands have expressed their wishes, to the Government of Canada, that the legality or illegality of circumvention of digital locks be determined by the purpose of the circumvention. Said another way, circumventing a lock for a legitimate purpose should not be infringement. Such an approach is consistent with the World Intellectual Property Organization (WIPO) Treaties of 1996.  (These treaties appear to be among the principal reasons for amending Canadian copyright law, despite the fact that the treaties were highly contested.*)

Even more curious about the Honourable Member’s remarks is his keen awareness of the industries that have come of age and repute, under our existing copyright law:

The Copyright Act was changed in 1988 and then again in 1997. Many of the technologies we enjoy today were not invented by then and many of the students who I used to teach, who enjoy these devices today, were not even born the last time the Copyright Act was changed. The current act does not respond to the opportunities and challenges provided by Web 2.0 and social media. It does not answer the needs of the multi-billion dollar industries of today that were in their infancy the last time Parliament amended the Copyright Act. For these reasons, we need to modernize Canada’s copyright laws and bring them in line with the demands of the digital age. (emphasis mine).

There is an absence of logic with the Honourable Member’s conclusion. If multi-billion dollar industries grow in the shadows of copyright, Canada would do best to keep those shadows as broad as possible.

* See Michael Geist, The Case for Flexibility in Implementing the WIPO Internet Treaties: An Examination of the Anti-Circumvention Requirements in Michael Geist, ed., From ‘Radical Extremism’ to ‘Balanced Copyright’: Canadian Copyright and the Digital Agenda 204 (Irwin Law, 2010).

what happened to January?

January seems all but a blur  – two new courses to teach are keeping me busy. But I had a glimpse of the outside world, long enough to notice the SOPA/ACTA protests, the growing list of digital lock dissenters, and the implications for Bill C-11. (Thank you, Michael Geist.)

Two other interesting developments occurred in the last few days. On 30 January 2012, Access Copyright issued a statement, describing an agreement reached with the Universities of Toronto and Western Ontario in relation to copying of materials in paper or digital form. The statement does not give too much by way of detail, other than to say a fee was agreed upon ($27.50 per full-time student), the agreement is backdated (how far back we do not know) and that an “indemnity provision increases the university’s legal protection against copyright infringement.”

The last clause is a curious one. It is unclear how precarious either university’s position was in terms of a viable charge of copyright infringement. But it invites the question — how stringent are the terms of the agreement as to have each university feel further protected?

Moreover, applying a set fee to all students, regardless of whether they use course packs or not, suggests a marked increase in funds flowing to Access Copyright. According to the statement, neither the universities nor Access Copyright knows how much copying is happening: “Over the course of the next year, a method will be jointly developed to assess the actual volume of copying of copyright protected materials which will assist in determining the appropriateness of the royalty structure in subsequent years.”

Could not the copying have been assessed first, and then the contract drawn up? In the meantime, as other universities have opted to do, permission and payment for copying could be handled directly with the publishers.  A task that is part of a publisher’s duty.

Howard Knopf has a good post about this matter.

A far more agreeable announcement came from the Association of Research Libraries (ARL). The Code of Best Practices in Fair Use for Academic and Research Libraries is now available. Developed in partnership with the Center for Social Media and the Washington College of Law at American University, the code describes reasonable copying that can be taken under fair use, in the pursuit of academic inquiry and higher education:

This code of best practices identifies eight sets of common current practices in the use of copyrighted materials in and around academic and research libraries, to which the doctrine of fair use can be applied. It articulates principles describing generally how and why fair use applies to each such practice or situation.  Each principle is accompanied by a list of considerations that the library community believes should inform or qualify it, limitations that should be observed to assure that the case for fair use is strong, and enhancements that could further strengthen that case.

Of course, fair use is not fair dealing and the American context differs somewhat from Canadian circumstances. But reading this code is instructive towards recognizing how Canadian practices may already support a healthy practice of fair dealing.

This is not the first such effort by the Center for Social Media, similar codes organized by genre or media practice are available here. And, the Center’s founder, Patricia Aufderheide (American University, Professor of Communication) with Peter Jaszi  (American University, Professor of Law) are the co-authors of Reclaiming Fair Use (2011).  Details are available here.

A short lived celebration

With the celebration of the New Year, came new vigour into the Canadian public domain. But by Friday Michael Geist was alerting us that our public domain may stagnate soon. Under the auspices of the Trans-Pacific Partnership (a proposed international trading agreement) the term of copyright in Canada would increase from life plus fifty years, to life plus seventy years.

As Geist reminds us, our international obligation stops at life plus fifty years. Other countries have increased their copyright term, without any illustration of public benefit.  Whereas, evidence to the contrary is not hard to find. 1998 was not only the year of the United States’ Digital Millennium Copyright Act (DMCA) with its protection of digital locks, but also the year of their Copyright Term Extension Act (CTEA) which set American copyright term to life plus seventy years.

Before, during, and after the extension of American copyright term, dialogue was vigorous. A memorable comment came from Peter Jaszi; in his testimony to a Senate Judiciary Committee in 1995, he expressed concern that copyright in the United States would become perpetual via “the installment plan.” This lay in contravention to their Constitutional quid-pro-quo bargain: the monopoly of copyright is permitted only for a limited time in order to assure the public of unfettered access to creative works. These concerns were further argued through a constitutional challenge to CTEA, Eldred v. Ashcroft (2003). (Regrettably, the case did not succeed; see my entry here.)

Canadians may wish to read the detailed analysis of seventeen note-worthy economists, prepared for the Eldred case. From their summary:

The longer term for new works provides some increase in anticipated compensation for an author. Because the additional compensation occurs many decades in the future, its present value is small, very likely an improvement of less than 1% compared to the pre-CTEA term.

With respect to the economists’ analysis, dissenting Justice Breyer of the United States Supreme Court offered these choice words:

What potential Shakespeare, Wharton, or Hemingway would be moved by such [a gain]? What monetarily motivated Melville would not realize that he could do better for his grandchildren by putting a few dollars into an interest-bearing bank account?

The economists also observed that the extension of term for existing works does not provoke a further incentive to create — the investment required had already been made. Against these negligible, or non-existent, benefits of term extension, the economists examined the costs of the extension by way of access to existing works and creation of derivative works:

A lengthened copyright term under the CTEA keeps additional materials out of new creators’ hands. Would-be new creators face increased transaction costs: the necessity to engage in costly locating (especially for very old works, the very ones that would be in the public domain but for the CTEA) and bargaining with multiple parties. These higher costs give new creators less incentive to produce. As a result, the CTEA imposes two kinds of burden on society, fewer new works produced and higher  transaction costs in the creation of some works.

Canadians might also be interested in the 2009 copyright consultation submission of Project Gutenberg Canada, written by its founder Mark Akrigg. He explains how our cultural heritage is affected by copyright’s lengthy term:

The commercial value of copyrights is exhausted far more quickly than most people realize. The vast majority of books go out of print shortly after their original appearance, and are never reprinted. Very long copyright periods are dangerous to Canada’s cultural heritage, because many original works are in essence gone forever by the time they enter the Public Domain. They are forgotten, because they have been unavailable so long.

Akrigg asked our Government to refrain from copyright term extension and protect the public domain. In his final recommendation, he made three suggestions:

(a) The Copyright Act be renamed the Copyright and Public Domain Act. The purpose of this to emphasize that private copyright and public copyright (the right to use the Public Domain freely) are both vitally important.

(b) Explicit recognition of the Public Domain. The preamble to the copyright update bill should include specific recognition of the role of the legislation in ensuring “the orderly passage of works to the Public Domain to form part of Canada’s cultural heritage”, and a statement that “full, unimpeded access to the Canadian Public Domain is a critically important cultural right which is vital to preserving Canada’s cultural heritage.”

(c) The creation of a Public Domain Commissioner. The Public Domain is not protected by organizations of any kind, and its critical importance is often overlooked in policy discussions and decisions. For the public good, a high-profile advocate is needed to ensure that the Public Domain is protected and promoted. The history of copyright in Canada must not be a depressing tale of increasingly oppressive legislation removing accepted rights from the Canadian people. It would be extremely helpful to have a Public Domain Commissioner with a specific mandate to act as the advocate of the Public Domain, to facilitate the access of Canadians to their cultural heritage, and to report to Parliament on the status and health of Canada’s Public Domain.

Our Supreme Court has not been shy to emphasize the preeminence of the public domain. In 2002, Justice Binne, writing for the majority in Théberge v. Galerie d’Art du Petit Champlain inc., stated: “Excessive control by holders of copyrights and other forms of intellectual property may unduly limit the ability of the public domain to incorporate and embellish creative innovation in the long-term interests of society as a whole (para.32).” Two years later, in CCH Canadian Ltd. v. Law Society of Upper Canada, Chief Justice McLachlin spoke of the importance that there be “room for the public domain to flourish as others are able to produce new works by building on the ideas and information contained in the works of others (para. 23).”

Our life plus fifty copyright term gives Canadian creators an advantageous position with disfavour to none. In fact, far from extending copyright’s term, a worthy ambition would be the international reduction of the term of copyright. With instant obsolescence an increasing characteristic of the present day world, lengthy protection holds even less meaning.

On 31 December 2011, in Canada Gazette, the Government of Canada filed notice of a public consultation regarding the TPP agreement: “It is essential that the Government of Canada be fully aware of the interests and potential sensitivities of Canadians with respect to this initiative.” Canadians may submit comments before February 14, 2012; see Canada Gazette for details.

Happy New Year

Happy Public Domain Day!

January 1 marks the celebration of a new year, and, a celebration of old works. As in previous years, publicdomain publishes* an extensive listing of some of the authors whose works  can now be freely enjoyed. The author writes, “Copyright is necessary for our cultural life and cultural economy. But so is copyright expiration, allowing us all to build on the collective cultural and intellectual past of our own countries and of the entire world.”

This is a made-in-Canada site; it includes information for our life-plus-fifty copyright term. (The author also addresses the life-plus-seventy realms.) 1961 is the transition point for this year’s largess; the works of creators who passed away in 1961 became full-fledged members of the public domain at 12:01am this morning.

The Center for the Study of the Public Domain at Duke Law School also marks the occasion. So too does Communia; see here. But the public domain is not confined to works whose copyright term has expired. As I have written elsewhere, it also includes: “the realm of all works which can be exploited by everybody without any authorization.” Meaning, works put to use through legitimate exceptions (i.e. fair dealing / fair use) are public domain. Our public domain comes into existence, not just by the expiration of copyright, but also by the boundaries of copyright.

* Previous references to the work of publicdomain are here and here.