Meera Nair

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Louvain – 25 August 1914

In Posts on August 24, 2014 at 11:36 am

Librarians and historians alike may well feel somber as we approach the 100th anniversary of the Le sac de Louvain, a collective punishment meted out by German forces to the people of Louvain for seeming resistance to the German presence. Included among the sites of destruction was the library of the University of Louvain. Set ablaze the night of 25 August 1914, by the next morning its contents had been reduced to ashes.

In 2013, Mark Derez, Archivist of University Archives and Art Collection Leuven (Louvain), presented the story of that destruction, response, and reconstruction. An abbreviated version of his presentation was published in 2014 by the WWI Daily. Derez writes:

The destruction of Leuven had not been unique – in four Belgian provinces, 18,000 houses were destroyed and 5,000 Belgian civilians were killed … [But] there was an emotional element at work… Of all the atrocities committed, that which spoke most to the imagination was the devastation of the university library, for in no way could it have been considered a military target. … [This assault] produced a worldwide stream of solidarity. While the war was still on, twenty-five committees were formed in neutral and Allied countries to collect money and books.

Among those who took it upon themselves to encourage donations of books by Americans and American libraries, was Theodore Wesley Koch. A scholar of Dante, and an internationally respected librarian, Koch’s appreciation of the benefit wrought by libraries for the public was all too evident. As Librarian for the University of Michigan, he had introduced measures that allowed students to borrow books (previously only the professoriate enjoyed that privilege) and allowed public access to the periodical collection.

In a publication titled The University of Louvain and its Library, produced in London and Toronto in July 1917, Koch details the history of the university and the depth and breadth of the library’s contents. It began with a bequest of 852 volumes in 1627, “rich in history and theology,” from former student Laurent Beyerlinck. Subsequent patrons and librarians worked together through a period of nearly 300 years to amass over 250,000 items including rare manuscripts, incunabula, and university archival material beginning with the original papal bull authorizing its foundation.

Koch draws particular attention to the work of C.F. de Nelis, appointed as University Librarian in 1752, whose first act was to: “… ask the Government to require Belgian printers to send to the University Library at least one copy of every book printed by them (p.17).” (A condition that sounds very much like that included within the Statute of Anne (1710), where publishers were to remit nine copies of each book produced, “printed upon the best paper,” to various university libraries.)

The library was successfully reconstructed, inside and out. But it opened in 1928 to both acclaim and controversy. Architect Whitney Warren had sought to design not merely a modern library in neo-renaissance style, but also a war memorial replete with a bell tower whose carillon would ring forth patriotic anthems. Derez describes in detail the clash between those who sought to demilitarize the halls of learning and those who wanted the atrocities to be immortalized. So too does Matthew Battles in Library: An Unquiet History (2003). The final design and play list stopped short of overt jingoism but was memorial enough to attract unpleasant attention from Germany in the next world war. Merely 12 years after it opened, the library was once again destroyed in the 1940 shelling.

The library has since been rebuilt again to Warren’s design. Complete with its bells.

The rallying of the international library community in support of public benefit continues to this day. Preservation of our past, and preparation for our future, were prominent topics of discussion at the satellite conference and the annual conference of the International Federation of Library Associations and Institutions (IFLA) held in Strasbourg and Lyon over the past few weeks. In her opening remarks, IFLA president Sinikka Sipilä spoke of strong libraries as integral to strong societies; and emphasized that “access to information supports development by empowering people to exercise their civil, political, economic, social and cultural rights, learn and apply new skills and make decisions and participate in an active and engaged civil society.”

To that end, the Lyon Declaration on Access to Information and Development was unveiled on 18 August 2014; it calls upon Member States of the United Nations to ensure that information access, sharing, and use are incorporated in the post-2015 development agenda. Details are here; at the time of this writing, 134 organizations have given their support.

 

the $500 million tip of the TPP iceberg

In Posts on July 13, 2014 at 8:19 pm

Last week, international negotiators met in Ottawa to further discuss the Trans-Pacific Partnership (TPP) agreement. With the usual shroud of secrecy, few details regarding agenda and outcomes were released for public consumption. Nevertheless, based on a leaked copy of the chapter relating to intellectual property, there is sufficient reason for concern with respect to copyright. As reported last week (see Electronic Frontier Foundation here, Michael Geist here, Public Knowledge here, and VICE here) Canada’s copyright regime is likely to be challenged on at least two fronts:

  • the role of internet service providers (will they remain as neutral providers or become key figures in policing the internet?)
  • copyright duration (will Canada’s life-plus-fifty term give way to life-plus-seventy?)

Geist reminds us that the TPP will touch more than copyright; Canada’s privacy and patenting regimes are also implicated. Indeed, the question of Canadian sovereignty with respect to patenting is already at risk, via Eli Lilly’s $500 million challenge to the Canadian government regarding the loss of two secondary-use patents. The means by which Eli Lilly has launched its claim is a consequence of the Investor-State Dispute (ISD) mechanism of NAFTA.

Courtesy of Dennis Lowe and National Geographic

Courtesy of Dennis Lowe and National Geographic

Our made-in-Canada copyright regime has been painstakingly crafted over ten years of deliberative thought; to watch it cast aside will be difficult. But more deleterious will be further entrenchment of the ISD mechanism through the TPP. Yet this issue has received little attention in Canada. Perhaps in part because the topic is not sexy; Investor-State Dispute sounds painfully dull. The phrase cannot be summarily equated to freedom of expression, invasion of privacy, or even the dubious claim that a hit television series could not have been made under the TPP. ISDs are constructed with arcane language that seemingly has little to do with everyday life, but they are potentially lethal as is being demonstrated by Eli Lilly.

Eli Lilly provides the bizarre spectacle of a corporation suing a government because a court decision did not favour the corporation. It has vehemently insisted that the decision of Canadian courts not to uphold two secondary-use patents is a violation of investor safeguards provided through NAFTA; specifically, those relating to minimum standard of treatment, non-discrimination, and expropriation. That the courts rejected the patents because the drugs concerned did not live up to the standard of utility set by Canadian law, was not reasonable according to Eli Lilly. To take action against Canada required contorting the ISD chapter of NAFTA, despite the fact that the chapter in question does not apply to intellectual property. The entire event would read like a lurid novel, if novels were written about intellectual property and national sovereignty.

In a report dated to March 2013, Public Citizen provides a meticulously researched account of Eli Lilly’s actions and the operation of ISDs within trade agreements. At that time, Canada was only facing a $100 million challenge (Eli Lilly has since upped the ante); even so, Public Citizen did not miss the irony at hand:

… while Canada faces an investor-state challenge from Eli Lilly, the country has joined negotiations to establish the TPP, which would expand the investor-state system further. To date, Canada alone has paid more than $155 million to foreign investors after NAFTA investor-state attacks on energy, timber, land use and toxics policies. Underlying Eli Lilly’s claim against Canada is the notion that government patent policies and actions are subject to the investor privileges provisions of the agreement.

Public Citizen observes that Eli Lilly’s actions marks the first occasion of an intellectual property challenge occurring under the auspices of NAFTA’s ISD provisions. Our previous “first”, the first challenge of any kind, does not offer much comfort, resulting as it did in a loss both monetarily and for public health. Briefly, in 1997 a ban on the gasoline additive MMT was repealed by the Canadian government in response to opposition by Ethyl Corporation, the American producer of the additive. At the time, Public Citizen wrote:

The Canadian government settled the NAFTA suit yesterday agreeing to pay Ethyl $13 million in damages and to cover the company’s legal costs. It will also proclaim publicly that MMT is “safe” in direct contradiction of the view of its national environmental protection agency.

With respect to Eli Lilly’s present action, Michael Geist and E. Richard Gold (Professor, Faculty of Law, McGill University) have both indicated that the corporation’s chances of winning are slim. Notably, in a briefing session recently held in Washington DC, Gold indicates that “… no competent tribunal could rule in Eli Lilly’s favor”. We can only hope that both Geist and Gold are correct. But competence might prove a relative term; so far, arbitration tribunals have not distinguished themselves in weighing public interest (as a domestic court of law would) into the decision-making process. (Public Citizen has thoroughly documented past arbitration decisions, with added detail for some of the more egregious outcomes.) Moreover, even if Canada secures a win, that does not necessarily exclude involvement in costs.

The Washington DC briefing session was hosted by the firm of Stern, Kessler, Goldstein and Fox on 5 June 2014, with all the presentations posted online. I am hard pressed to choose a favorite but Simon Lester (Trade Policy Analyst, Cato Institute) raises the issue of Canada’s increasing involvement with ISDs. Despite some indication from the Canadian government that CETA (the impending trade deal with the European Union) will mitigate the ISD risks, Lester notes that Canada is simply trying to “tweak the language” to ensure that court decisions cannot be challenged. “…  what I have seen written is that the only changes are that no claims can be made under expropriation, but there are more avenues [of claim]… the slight tweaks that Canada wants to make are probably not enough.”

If the Canadian government is not decisively protecting sovereignty within a bilateral trade negotiation, it is unlikely that we will do better in the multi-national forum of the TPP.

There is much more that could and should be written about ISDs but, for now, Lester shall have the last word. In his presentation, he asks an important question: “Normally, the Supreme Court gets the final word. But apparently, there’s an international court system above the domestic Supreme Court system.  … Is everybody okay with that?”

 

 

 

 

 

after Marrakesh

In Posts on June 23, 2014 at 7:59 am

June 28 marks the one year anniversary of the completion of a diplomatic conference to facilitate access to published works for blind, visually impaired and print disabled people. Known as the Marrakesh Treaty, its purpose is to address the book famine that currently exists with respect to anyone of limited reading capability, by: (i) facilitating creation of appropriately formatted materials with the use of exceptions to copyright; and (ii) allowing countries to share materials, thereby reducing costs all round. Hailed as the Miracle in Marrakesh, it is the first multilateral treaty on limitations and exceptions to copyright, and gives credence to the view that negotiation among stakeholders is possible.

But no one had any expectation that the treaty would move forward smoothly. (Some of my earlier coverage is here and here). Prior to last year’s conference, Tatiana Sinodinou posted a detailed assessment of the situation; reminding us that these negotiations began more than thirty years earlier, when UNESCO and WIPO jointly created a working group to examine the possibilities for enhancing access to copyrighted material for those handicapped by visual or auditory limitations.

Sinodinou eloquently captured the tension of what lay ahead: “… The road to Marrakesh is open but is not paved with roses and the outcome of the negotiations is awaited with both hope and reservations.” Given that history, the cooperation found a year ago was worthy of attribution to the miraculous. But tangible benefit is yet to be had; the miracle may give way to mirage if concerted action is not taken.

With the treaty language adopted on 27 June 2013, delegates were invited to sign the treaty on 28 June 2013 and agree to:

… to introduce a standard set of limitations and exceptions to copyright rules in order to permit reproduction, distribution and making available of published works in formats designed to be accessible to [blind, visually impaired and print disabled persons] and to permit exchange of these works across borders by organizations that serve those beneficiaries …

Fifty-one countries immediately obliged. Over the past year, sixteen others signed. And this morning came the welcome news that Australia, Finland, Ireland and Norway have also signed.

Canada’s absence of support is glaring, particularly given the role Canada purportedly played in negotiating the treaty; see Sara Bannerman’s remarks here and Michael Geist’s remarks here.

Geist points out that Canadian law will only need minor modification and that the Federal Government could make such changes during the upcoming scheduled review of Canadian copyright law in 2017. But, he also writes:

The biggest change would likely come from the need to establish an entity that would facilitate, promote, and disseminate accessible format copies of work and exchange information with other countries about accessible works. In other words, the treaty would require Canada to invest in improving access for the blind.

Fortunately, CELA might serve that need. Officially launched on 1 April 2014, with a formal debut at the Canadian Library Association’s National Conference on 29 May 2014, the Centre for Equitable Library Access (CELA) is a non-profit organization that serves Canadians with print disabilities. Supported by the Canadian Urban Libraries Council and the Canadian National Institute for the Blind, CELA already has 600 member libraries across Canada. Among the services provided by CELA are:

- A broad choice of formats including audio, braille, e-text and described video
– Access to a growing collection of over 230,000 alternate format items including books, magazines, newspapers and described videos
– A broad selection of genres: fiction, non-fiction, poetry, children’s, young adult, business, self-help, poetry and more
– A choice of delivery options: Direct download to computer, handheld devices and DAISY player; CD and braille mailed to home
– Training and expertise on accessibility

Of course, this only makes it more perplexing that our government is holding back on signing the treaty.

On a brighter note; Israel, which is not yet among the list of signatories, nevertheless amended its copyright law expressly to comply with the treaty requirements. At Israel Technology Law, Eli Greenbaum writes that the Israeli implementation exceeds the minimum standards required. (Hopefully, ratification is forthcoming quickly.) And it appears that India had planned to ratify the treaty by now; in his coverage last month for SpicyIP, Swaraj Paul Barooah writes: “G.R. Raghavender, Registrar of Copyrights, has stated that the ratification is expected by the end of May, 2014.” (Perhaps the election delayed the plans, but the new Indian government intends to act quickly?)

Until twenty countries ratify the treaty, and none have done so yet, the treaty cannot have force. In a lecture given at the Berkman Center on 23 April 2014, Justin Hughes, (chief negotiator for the United States for the Marrakesh Treaty) was unequivocal that much more needs to be done:

The real policy goal, the real thing we should care about is getting educational/cultural/informational materials into the hands of persons with print disabilities. And when you sign the treaty, you haven’t succeeded.

This journey is far from over; the road did not stop at Marrakesh.

 

More reading:

Explanatory notes, courtesy of World Blind Union.
User Guide to The Marrakesh Treaty, prepared by Jonathan Band.
The 1982 WIPO/UNESCO report is available at Knowledge Ecology International.

 

Update July 1  India becomes the first country to ratify the Marrakesh Treaty (dated to June 30, 2014)

 

 

 

privacy in Canada – part two

In Posts on June 1, 2014 at 7:23 pm

The current legislative situation regarding privacy confounds many Canadians, given that Prime Minister Harper and key players in his coterie have staunchly argued on the principles of privacy to dismantle past measures of data collection, even when those measures were supported by Conservative allies. Specifically, the long-form census and the long-gun registry were discarded despite opposition from prominent experts in the areas of finance and law enforcement.

In 2010, amidst a firestorm of criticism, the Prime Minister cancelled the mandatory long-form census and replaced it with an optional household survey. Objections poured forth from the provinces, municipalities, communities, businesses, educators, social advocates, health organizations, and more, including a former Bank of Canada governor.

Most telling, Munir Sheikh resigned his position as Chief Statistician of Statistics Canada, rather than acquiesce to a decision that could only damage Canadian wellbeing. Effective policy cannot be made without reliable data. (Indeed, Prime Minister Harper is likely feeling that headache now, as he tries to combat the problems of the temporary foreign worker visa program, without accurate information concerning where needs can be filled without placing Canadians at a disadvantage.)

The Prime Minister viewed the census as an intrusion into Canadian privacy, despite the rigorous controls enforced by Statistics Canada with respect to disclosure of the data. (Individual information was never revealed; only aggregate information was provided through a controlled request system.) Writing for the Progressive Economics Forum at that time, Armine Yalnizyan explored the Canadian system in detail and in comparison to other systems, and made plain that while personal data is gathered, the results are never personal. No privacy commissioner had ever seen fit to question the operations of Statistics Canada. Yet discarding the census was clearly a matter of principle, or so it must be seen. Tony Clement, then-Minister of Industry, made these remarks to the Standing Committee for Industry, Science and Technology:

Our government’s reason for replacing the mandatory census with a voluntary national survey on the long form is clear. We do not believe it is appropriate to compel Canadians to divulge extensive private and personal information.

So despite compromising effective decision making in his own government, Prime Minister Harper stood resolutely on the issue of privacy.

For those who might still have doubts, the demise of the long-gun registry offers further illustration of our Prime Minister’s formerly adamant views on privacy. A dogged six year battle (from 2006-2012) was needed to remove the registry from use. And, not content to merely end the requirement of registration, Prime Minister Harper sought to ensure that all existing data be destroyed. According to Jason Kenney, then-Minister for Citizenship and Immigration:

… we can protect the privacy rights of Canadians, and there are hundreds of thousands of law-abiding Canadians who are legitimate firearms owners who believe that database undermines their privacy rights, and our commitment was, for that reason, to get rid of that data.

When the registry was eliminated in 2012, it was over and above the objections of Canadian law enforcement agencies. For instance, an RCMP evaluation of the registry argued that it served a vital function towards public safety:

The program is often misperceived by the media and the public as being solely a registry. The administration of this national public safety program might better be compared with a provincial Motor Vehicles Branch, which is also involved in safety training, licensing and registration and is an important resource to law enforcement. …  There continues to be public safety threats in Canada caused by both the deliberate and accidental misuse of firearms, mostly through non-restricted firearms (long guns). … Regulation of firearms provides for greater accountability for the firearm (p.17)

The Canadian Association of Chiefs of Police also came out forcefully in favour of the registry. Bill Blair, then head of the association, indicated that “officers use the registry up to 11,000 times a day, both to investigate and prevent crime.”

With the Prime Minister favouring a law-and-order agenda in Canada, it is more than odd that he chose to ignore the opinions of those involved in law-and-order. One can only infer that privacy reigned supreme among Prime Minister Harper’s principles and was not to be compromised, even for political gain.

Returning to current events, perhaps knowing that she would not be permitted to speak to the Standing Committee, Ontario Privacy Commissioner Dr. Ann Cavoukian does not mince words in a letter to the Committee Chair, dated to 16 May 2014. Calling for revision of the pending legislation, she concludes with:

Canadians have a constitutional right to be secure from unreasonable search and seizure, including with respect to personal information held by third parties. The expansive surveillance proposals and entrenchment of sweeping immunity for digital service providers brings this right into question.

Cavoukian, along with the Canadian Bar Association and others, have encouraged the Government to separate Bill C-13 into separate pieces of legislation, one to address cyberbullying and the other for lawful access. Minister MacKay has refused such proposals; perhaps Prime Minister Harper may yet see wisdom in such a move.

Update – June 3  Jill Clayton, Elizabeth Denham and Ann Cavoukian (privacy commissioners of Alberta, BC and Ontario, respectively) ask the Standing Committee to “… postpone hearings on Bill C-13 until such a time as the Privacy Commissioner of Canada can appear and speak to this Bill …” ; their letter (dated 2 June 2014)  is available here.

Update – June 13 — a tumultuous ten days  

The contested appointment of a new privacy commissioner, with a somewhat surprising outcome, the unwillingness of the government to amend either C-13 or S-4, and a timely reminder from the Supreme Court of Canada that Canadians have an expectation of privacy, means that there will be continued pressure upon the government to reconsider its actions. With unanimity, the Justices declared: “The two circumstances relevant to determining the reasonableness of … expectation of privacy in this case are the nature of the privacy interest at stake and the statutory and contractual framework governing the ISP’s disclosure of subscriber information.”

Josh Wingrove, writing for the Globe and Mail, solicited opinion from privacy expert David Fraser; he emphasizes that this alone does not “throw out” parts of S-4 and C-13, but “… adds to the ammunition critics have had with respect to a number of the provisions.” Fraser provides ongoing analysis at his blog; among his preliminary remarks was this gem: “Contrary to the views of most police agencies and the government of Canada, this information is not innocuous phone book information but, ‘rather, it was the identity of an Internet subscriber which corresponded to particular Internet usage.'”

 

privacy in Canada – part one

In Posts on June 1, 2014 at 6:02 pm

Over the last few months, Canadians have been presented with the sobering news of breaches of privacy committed on a massive scale. The revelation of over one million requests to telecommunications’ providers for subscriber records must provoke scrutiny of this government’s treatment of privacy. Scholars and privacy organizations are concerned that our government’s current legislative program will only make such breaches easier to carry out.

Currently, there are two bills under discussion in Parliament. Bill C-13 (Protecting Canadians from Online Crime Act) is before the Standing Committee on Justice and Human Rights; it offers incentives for disclosure of subscriber data by providing immunity to any telecommunications company that voluntarily supplies information when requested by law enforcement agencies. Bill S-4 (Digital Privacy Act) has arrived at the Senate chambers and extends that offer of immunity to any private organization that claims to be investigating a breach of contract, or a possible breach of contract.

After his participation in discussion of C-13 with the Standing Committee on 29 May 2014, Michael Geist posted his thoughts about the meeting itself, alerting Canadians to the spectacle of a bill so intertwined with privacy, moving forward without the involvement of a single privacy commissioner. Furthermore, “… leading privacy groups such as the Canadian Civil Liberties Association, the British Columbia Civil Liberties Association, and CIPPIC have all been told that there is unlikely to be spots for them at committee. … .”

Canadians may wish to know who has been permitted to speak to the Standing Committee so far. According to the records available to date, the Standing Committee began discussion of C-13 on 1 May 2014, has had six meetings so far, with one more meeting confirmed for 3 June 2014.

The first meeting was entirely given over to Peter MacKay (Minister of Justice and Attorney General of Canada) and members of his department. Through the next five meetings, law enforcement officials and families of victims were each allocated one meeting. In the remaining three meetings, the following organizations were involved: Boys and Girls Clubs of Canada, Canadian Association of University Teachers, Canadian Bar Association, Canadian Centre for Child Protection, Criminal Lawyers Association, Kids Internet Safety Alliance, and Office of the Federal Ombudsman for Victims of Crime. Interspersed among these organizations were four individuals: David Fraser,  Gregory Gilhooly, Steph Guthrie and Michael Geist.

With this weighting of participants, one might have expected testimony to be resoundly in favour of the government`s proposals. Yet the second meeting defied that expectation. The transcript for 6 May 2014 makes for interesting reading.

The witnesses of the day were representatives of Boys and Girls Clubs of Canada, Steph Guthrie and David Fraser. Notably, both Guthrie and Fraser have devoted considerable effort to representing the interests of victims of cyber-assault, see here and here. If the Committee expected unqualified approbation from all three parties, the MPs were quickly disabused of that notion. All witnesses gave comprehensive statements; each witness asked that attention be brought to bear on the privacy implications of the bill.

Fraser spoke first; immunity came in for conspicuous displeasure at the end of his prepared remarks:

I find this to be gravely problematic. I think it’s a very cleverly crafted provision. We’re told that this is simply for greater certainty, but it goes beyond that. Everything we know suggests otherwise.

It says that you will not be liable for handing over any data that you’re not prohibited by law from handing over, and if you do so you’re civilly immune. Now, only the criminal law and other regulations create prohibitions against handing over information, but you can hand over information when you’re not legally prohibited and still incur civil liability. Civil liability is there for a reason. I may not be legally prohibited from accidentally driving my car into yours, but if I do that, you’re entitled to damages from that. I should be paying for the harm that is caused.

If there were an immunity provision that said you could not sue me if I did something that was not legally prohibited, that would be squelched. That would go away. So this provision, I believe, should be removed. It can’t be fixed and will only encourage overreaching by law enforcement.

In conclusion, while we don’t have Bill S-4, the digital privacy act, in front of us, that fits together with the immunity provisions. I’m concerned that the two taken together will extend the amount of information not only available to law enforcement but will extend the information available to other civil litigants and others (emphasis mine).

Fahd Alhattab, an alumnus of Boys and Girls Clubs of Canada, added a plea with his request for protection of privacy:

Young people deserve to be protected from cyberbullying, but they also deserve to be protected and respected for their privacy. Now, we’re no experts on privacy, so our only recommendation on that is to encourage you to listen, obviously, to any concerns that are brought up, any considerations that are brought up, by the experts who are dealing with privacy, to make sure that we’re protecting youth from cyberbullying but we’re also protecting our children and youth and their privacy rights (emphasis mine).

On cue, Guthrie then drew attention back to the immunity offered for warrantless disclosure in C-13, noting that C-13 claims to bring scrutiny to the issue of consent in terms of cyberbullying, yet turns around and abandons consent in terms of privacy:

 Perhaps most of Bill C-13 isn’t  really about cybersexual assault, but I find it interesting that it violates some of the same privacy principles, such as freely given and specific consent. Most of us do not and would not give free and specific consent for the state to access any, and potentially all, of our data by way of our Internet service providers if we had any meaningful choice in the matter.

The consent we give is to our Internet service providers. If the police want our information because they suspect we are engaged in criminal activity, well, most of us would assume that is what search warrants are for. Bill C-13 enshrines the idea of transferable consent in law, immunizing anyone who shares our information and violates our privacy without adequate legal justification for doing so (emphasis mine).

While obviously different in many ways, the limitations on personal freedom imposed by Bill C-13  bear some striking similarities to those imposed by cybersexual assault. The state could be following us into our job interviews, on our first dates, or to the laundromat. The bill’s provisions will restrict Canadians’ ability to live life normally and comfortably because they are constantly living with the idea that the state, when they encounter it, may know intimate things about them that they didn’t consent to share. Even if they know they have done nothing wrong, they must still deal with the judgments, misperceptions, and intrusions of the state.

In the question and answer period that followed, a concerted effort by MP Bob Dechert to push Fraser into agreeing that immunity was necessary to combat the harms that have been inflicted on past victims came to naught. Dechert posed the hypothetical situation of a young woman, about to be victimized by widespread dissemination of a personal photograph thereby provoking a request from the police that an ISP should help identify the offender; Dechert asked if Fraser would advise the ISP to disclose the data:

Mr. David Fraser: In this scenario—again, I can only speak for myself—I believe there is a real harm attached to the dissemination of these sorts of images. I’ve seen first-hand the harm that they can do to a young person, and I’ve seen what they can do to an adult. My inclination would be to provide that information. That would be my impulse. I would know there might be possibly some risk in doing that, but for me, given the severity of what’s going on, this is a non-trivial matter, and my inclination would be to hand over that information.

Mr. Bob Dechert: In that circumstance, you would agree that the ISP provider should not bear any civil liability if it turns out that they were incorrect; there was no crime committed or about to be committed.

Mr. David Fraser: I wouldn’t grant them immunity.

Mr. Bob Dechert: You wouldn’t grant them immunity.

Mr. David Fraser: No. I would say that they acted in good faith and they wouldn’t be liable, but I wouldn’t grant them immunity.

Mr. Bob Dechert:  That would expose them to a lawsuit, would it not?

Mr. David Fraser: Certainly. Walking down the street exposes one to a lawsuit. There is a difference between not being liable and having immunity. Immunity is a blanket, saying that no matter what you do, nobody can raise an issue.

Immunity, of course, is only part of the problem of C-13.

There are significant concerns about the widening of data to be collected. What is benignly referred to as transmission data is not as innocuous as it sounds, despite the assurance of Minister MacKay at the first meeting on 1 May 2014:

…  the definition of transmission is narrowly defined and captures only data that relates to the act of telecommunication. The definition of transmission data is the modern equivalent of phone-call information, not what is actually contained in the conversation, and these proposals are meant to ensure consistent treatment of similar information.

Such language is, intentionally or otherwise, misleading. Turning again to Fraser’s opening remarks, he is explicit as to what transmission data entails:

With conventional telephony, transmission data refers to the number called from, the number called to, whether the call was connected, and how long that call lasted.   In the Internet context, the amount of information that’s included in the kind of out-of-band signalling information and what it reveals is dramatically different. It would include the IP address of the originating computer, the destination computer, information about the browser that’s being used, information about the computer that’s being used, information about the URL, the address being accessed, which can actually disclose content, even though the definition of transmission data is intended to exclude that.

It will also tell you what kind of communications are being done. Is it an e-mail communication? Is it an instant message? Is it peer-to-peer file sharing or otherwise? So it provides much more insight into actually what is going on than just phone number information.  An interception of transmission data would tell law enforcement agencies whether the target of surveillance was visiting a search engine, an encyclopedia site, a poker site, or a medical site. Furthermore, the data would provide greater insight into the likely physical location of the surveillance target. This is a dramatic expansion of the information that’s provided and available, compared to traditional telephone communications.

As anybody in this room knows, I expect, the way we use computers today is dramatically different from the way we used telephones 15 years ago. We use them as spellcheckers. We use them to find out facts. We use them for a much wider range of activities. With the disclosure of greater information through these transmission data orders, you’re revealing much more about an individual. Even though the definition excludes content, just the transmission data tells you a lot more about really what’s going on.

Geist raises what is perhaps the most perplexing aspect of the proceedings in “Why has the Canadian government given up on protecting our privacy?”, published by the Toronto Star on 30 May 2014. He notes: “… conservative government policies are often consistent with civil libertarian views that abhor public intrusion into the private lives of its citizens.” Our Prime Minister has shown great zeal in protecting privacy in the past.  A look back follows in privacy in Canada – part two.

 

 

 

gratitude would have been better

In Posts on May 19, 2014 at 8:11 pm

Last week, the Ottawa Citizen published an op/ed written by Blayne Haggart, Assistant Professor of Political Science at Brock University. I have crossed paths professionally with Blayne, and fully share his concern about the detriment wrought by the expansion of copyright. However, in this instance, he may have done more harm than good.

At issue is the removal of Chris Hadfield’s reworking and performance of David Bowie’s composition Space Oddity from YouTube. Readers of the Ottawa Citizen may have come away with the impression that Bowie pressured Hadfield to remove the video. Or that Bowie compelled YouTube to issue a takedown notice of the video. As reported by Joe Silver at ArsTechnica on 14 May 2014, Hadfield chose to remove the video himself, in compliance with the agreement he had made with Bowie, and that plans were underway to renew the license. This was a private matter between the two parties, and could have stayed that way.

Yet the fact that something that people liked to watch was disappearing from YouTube prompted a bewildering public outcry. Bowie’s character was impugned, without evidence that Bowie disliked Hadfield’s use of the song, or that he wished it removed from view. In fact, the contrary is more conceivable, given the very positive coverage that followed the release of the video. At that time, Simon Usborne of The Independent wrote: “David Bowie champions Canadian astronaut Chris Hadfield’s ‘Space Oddity’ cover.” Over at the desk of The Telegraph, Neil McCormick wrote: “Chris Hadfield’s performance of David Bowie’s Space Oddity from space is another brilliant moment for one of the greatest comebacks in pop history.” It is quite possible that a future license is forthcoming. That we might have to wait to see the video again, should not be reason for a mass lament.

Moreover, inciting a public condemnation of copyright, on this issue, is not helpful to the larger goal of finding an appropriate balance between copyright holders and copyright users. That goal cannot be accomplished without goodwill on both sides of the negotiations. A mediating point is in the use of exceptions to copyright; exceptions allow unauthorized use of works, without having to wait for copyright’s term of protection to end. Exceptions ensure that the goal of copyright – to foster creativity – is not thwarted by the rights embedded within copyright.

Readers of this blog will know that the most prominent Canadian exception is fair dealing. With the amendments that came into force in 2012, fair dealing addresses unauthorized uses of copyrighted work for purposes of research, private study, criticism, review, news reporting, parody, satire or education, if the manner by which the use occurs is fair. As I have written before, such an evaluation is not as cryptic as it sounds; ten years ago the Supreme Court of Canada gave appropriate guidance. Since then, many people have worked very hard to educate our educators on the importance of using copyright and fair dealing appropriately. But copyright representatives still eye exceptions with askance, and try to roll back the support given to exceptions by both the Supreme Court of Canada and the Federal Government of Canada. In the hands of a copyright lobbyist, op-eds that illustrate a lack of respect for creators and denounce copyright, only facilitate arguments for a continued expanding of rights and diminishing of exceptions.

In its current incarnation, fair dealing is the most expansive it has ever been. However, it still does not offer clear protection to new creative work, when the artist has drawn vigorously from another copyrighted work. Creative endeavor will not always suit a predefined category (see sometimes art is just art). But, a new exception provided in 2012 – section 29.21, non-commercial user-generated content – covers some of this gap. “It is not an infringement of copyright for an individual to use an existing work or other subject-matter or copy of one, which has been published or otherwise made available to the public, in the creation of a new work … .” This exception plays a vital role in protecting Canadians who want to play with existing creations and explore their own potential for creativity via the possibilities that digital technology provides.

Naturally, conditions apply; fortunately, those conditions invoke an analysis very similar to evaluation of fair dealing. Given that some of Bowie’s lyrics were rewritten to suit Hadfield’s situation, it is plausible that Hadfield could have argued the legitimacy of using Bowie’s work without permission, if he had posted the video at a Canadian host. But it should not surprise anyone that a noted representative of Canada, and a musician in his own right, chose to engage with a musician of iconic status and work in cooperation.

Hadfield’s memoir, An Astronaut’s Guide to Life On Earth (2013) describes the team effort that went into making the video, with Bowie’s permission being integral to the project. The outcome was stunning, garnering 10 million views within the first three days and millions more over the following year. I hope that all viewers took note of the last scene of the video; the list of acknowledgements that concludes: “With special thanks to David Bowie, NASA, ROSCOSMOS and the CSA.”

Many are the occasions when it is incumbent to publicly complain about the excesses of copyright. But this was not one of them. Taking our cue from Chris Hadfield, “Thank You” would have been more appropriate.

Update — June 13  Making more music; Chris Hadfield with Emm Gryner.

Update — June 28  The Ottawa Citizen issues an apology to David Bowie (dated 20 June 2014).

 

 

 

rewriting history

In Posts on March 23, 2014 at 8:22 pm

On 11 March 2014, the Canadian Copyright Institute (CCI) released their policy paper titled A Fair and Better Way Forward, which details the Institute’s interpretation of the last two years’ of fair dealing activity. The Institute calls for dialogue with the educational community, expressly to return to the prior climate of collective licensing in Canada. Obligingly, the Institute has even scripted the dialogue; it begins with the statement “The CMEC/AUCC/ACCC guidelines are unacceptable to Canadian creators and publishers,” and ends with “The final step would be to implement [revised] guidelines through a collective licensing agreement.”

In his blog post of 14 March 2014, Michael Geist expertly discredits CCI’s interpretation of history and points out the emptiness of their not-so-veiled threats against the educational community. Readers who are tired of this subject (as I am) likely hoped that discussion of the paper would end. Regrettably, that did not happen; on 20 March 2014, Quill and Quire gave further support to the paper through an interview with Jaqueline Hushion (chair of CCI). Hushion voiced her disappointment that the paper has not received much attention from educational institutions, that efforts to “make positive, useful contact with any one or more of the three major education [organizations] in order to see if we could open a dialogue” were unsuccessful.

The premise of CCI’s paper, and Hushion’s interview, is that current challenges for the publishing sector of Canada began with the legislative expansion of fair dealing in 2010, and, Education v. Access Copyright (2012) – a Supreme Court decision that confirmed that some copying carried out in schools is fair dealing. (It must be emphasized that this decision was made without reliance upon the expanded ambit of fair dealing). According to CCI, these two factors: “… did not eliminate the need for collective licensing in educational institutions. Nor do they justify copying practices that will have a devastating impact on the market for published materials (p.2).” These two sentences invite exploration.

If I may begin with the second sentence, strictly speaking, it is irrelevant. It is not incumbent upon the education sector to prop up the publishing sector by making unnecessary payment for materials. As I have written before, this does not mean that educational institutions are not paying for copyrighted material, they are only ensuring that payments are not made in duplicate. Such a propping up would be a reprehensible waste of taxpayers’ money and the tuition dollars scraped together by students and their families. However, for a moment, let us assume that such waste is the correct course of action. CCI does not present credible evidence as to the “devastating impact.” Which is not surprising as this is not the first instance where rights holders have painted a picture of devastation without support. In Education v. Access Copyright (2012), the Supreme Court of Canada was unimpressed by this tactic:

Access Copyright pointed out that textbook sales had shrunk over 30 percent in 20 years. However, as noted by the Coalition, there was no evidence that this decline was linked to photocopying done by teachers. Moreover, it noted there were several other factors that were likely to have contributed to the decline in sales, such as the adoption of semester teaching, a decrease in registrations, the longer lifespan of textbooks, increased use of the Internet and other electronic tools, and more resource-based learning (para. 33).

Returning to the first sentence–regarding the cause of the elimination of collective licensing–I agree. Neither the expansion of fair dealing nor the Supreme Court decision is responsible. That claim to fame, goes primarily to Access Copyright.

It was not that long ago when educational institutions were quite complacent about their licensing agreements with Access Copyright. As I described two years ago, the educational market became reserved for Access Copyright, with no real protest from institutions. A relatively inexpensive and easy-to-administer deal, coupled with seeming assurances of safety, made collective licensing an attractive proposition. And Canadian universities were extremely timid in their approach with fair dealing (as I noted a few weeks ago, even the CCH Canadian decision of 2004 did not bring forward pronounced engagement with fair dealing.) The heightened focus upon fair dealing came only after a startling move by Access Copyright.

Readers may remember the summer of 2010, when Access Copyright proposed a 1300% increase in the royalty rate of the university license agreements. Along with expectation of heightened fees came demands for more rights (including for linking to material – a claim not supported by law and later rejected by the Supreme Court of Canada), no exclusion for fair dealing (despite the presence of such an exclusion in earlier licenses), and invasive surveillance of university activity. (Howard Knopf provided detailed coverage, see here.)

Shortly thereafter, Michael Geist wrote:

  … education must self-assess to determine whether it actually needs these licences or whether individual licences with the authors (or copyright holder) where needed makes more sense.  … How many courses rely heavily on recently published research that is available under open access?  How many courses limit materials primarily to textbooks that are purchased by students and not copied?  How many rely on works found in databases that are licenced separately? …

Three and a half years later, many post-secondary institutions have carried out such self-assessment and are using their resources wisely. Students may receive instruction through licensed material (paid directly to the individual provider), open-access content, publicly available materials, and through use of all exceptions available to Canadians under the Copyright Act of Canada.

CCI’s stated disappointment at the lack of engagement from the educational community is not likely to bring about a thaw in relations. The community has simply run out of patience in the wake of threats, tariff applications, one lawsuit, and incessant attempts to rewrite history.

Just some of last year’s activity on this subject:

April 2013: Access Copyright announces legal action. Michael Geist responds with a detailed analysis of how ill-conceived the action is.

September 2013: Howard Knopf covers Access Copyright’s statement of claim to the Copyright Board for a post-secondary tariff. Through the work of Graham Reynolds, I indicate that the Copyright Board was no longer something Access Copyright should take for granted. (I also took the opportunity to remind the collective’s membership that their administration was gambling with the members’ money.)

Also in September 2013, my take on the object of tension; namely the AUCC guidelines. It spanned two entries; see here and here.

December 2013: Access Copyright announces its disappointment concerning the continued trend to abstain from collective licensing. Michael Geist reminds us that collective licensing is no longer good value. My reminder was that Canadian universities were long overdue in recognizing that copyright is a set of limited rights. (I also took umbrage at the campaign of fear conducted by Access Copyright.)

December 2013: The Association of Canadian Publishers releases a Statement of Principles on Fair Dealing in Education.

February 2014: Howard Knopf provides clarification regarding ACP’s [Mis]Statement of Principles.

February 2014: Michael Geist reports that the Copyright Board has posed challenging questions to Access Copyright with respect to the proposed tariff.  The Board also offered a much-needed reminder; as copyright does not apply to insubstantial amounts of copying, fair dealing addresses substantial copying.

a belated “thank you”

In Posts on March 16, 2014 at 9:10 pm

On 5 March 2014, Intellectual Property for the 21st Century was officially unveiled by the Centre for Law, Technology and Society of the Faculty of Law at the University of Ottawa. The book is an outcome of a workshop held in the spring of 2012, where “interdisciplinary” was the word of the day. My contribution involved connections between Harold Innis and copyright as it is evolving through the 20th and 21st centuries. The diversity of scholarship set upon a common interest in intellectual property made for engaging discussion; it was a pleasure to participate with this endeavor.

The foreword, provided by David Vaver, an internationally acclaimed intellectual property scholar, includes these observations:

… patents, copyrights, trademarks, designs, and information and image rights have become vibrant individual disciplines and not just in law. … But crosstalk occurs less frequently than it could, and joint work, while growing, is still the exception rather than the norm. … Acting as facilitators [the editors] assembled a group of scholars and practitioners told them to get interdisciplinary with IP – whatever that meant to each one of them – and hope for the best. And as this volume demonstrates, the best can be very good indeed.

My thanks are due to Courtney Doagoo, Mistrale Goudreau, Madelaine Saginur, and Teresa Scassa. Their guidance before, during, and after the workshop, was immeasurable. Editing and shepherding a volume of this nature to completion is no small task – the book spans twenty-five chapters penned by more than thirty authors from different disciplines. I share Vaver’s concluding assessment: “This is an intellectual feast worth savouring and digesting. Anyone with even a passing interest in how society and intellectual property interact will enjoy sampling these delights.”

An overview of the book, and its table of contents, is available here. All chapters are freely available via Irwin Law’s Content Commons, see here.

While I recommend the book in its entirety, I must highlight a much-needed reminder from Graham Reynolds. In his exploration of the viability of a Public Domain Impact Assessment within copyright’s legislative process, Reynolds gives a broad explanation of what the public domain is. More specifically, it includes: “uses of material that are deemed not be covered by intellectual property rights through the application of defenses/exceptions to intellectual property infringement … (p.98).” Said another way, the public domain includes currently copyrighted works when accessed in accordance with fair dealing.

The stature of “public domain” is not only a function of the age of a work, it is also a function of how the work is used. (For further information; see Public Domain.)

it IS a big deal

In Posts on March 2, 2014 at 3:47 pm

On 27 February 2014, The NY Times published “No Big Deal”, by Paul Krugman on the Trans-Pacific Partnership (TPP) agreement and the apparent stalling of negotiations. He writes, “I am in general a free-trader, but I’ll be undismayed and even a bit relieved if the T.P.P. just fades away.” On that point, many people would likely share his relief. However, Krugman’s article is dangerous; he cloaks the TPP with an aura of blandness, arguing that the benign nature of the agreement is why it will not be missed. According to Krugman, the agreement does very little to enhance trade, instead:

… these days “trade agreements” are mainly about other things. What they’re really about, in particular, is property rights – things like the ability to enforce patents on drugs and copyrights on movies.  And so it is with T.P.P.

Krugman’s assessment of the TPP is framed by comparison to trade agreements of days gone by, when eliminating tariffs was a principle feature of negotiation. His remarks may be accurate in that regard, but by confining his assessment so narrowly, he avoids in-depth examination of the agreement as a whole. The TPP is not about trade. That word suggests a mutually beneficial exchange between two or more parties. The TPP is about domination and ensuring that countries do not oppose any actions taken by foreign corporations regardless of how those actions might affect health, environment, or even trade, within a host country.

Achieving such dominance includes imposing stringent measures upon intellectual property (more so than what is currently required by international agreement) and requiring that disputes arising are not adjudicated in either a court of law, or a seat of some impartiality like the WTO, but in private tribunals. (I have touched on the perils of investor-state dispute mechanisms, see here; Renée Loth writing for the Boston Globe on 22 December 2013 also covers this issue.)

Mr. Krugman could dismiss such remarks on the grounds that the actual agreement is yet to be seen. But that factor in itself ought to be a major reason for concern. Negotiations have been conducted in secret, with the public having to rely on a leaked document to discover what is being discussed. Granted, it is not possible, nor desirable, for any administration to govern by referendum. However, even U.S. elected representatives have not been privy to details. That combined with the desire of the Obama administration to fast-track the agreement, should have alerted Krugman: the TPP is a big deal.

But perhaps most startling of all is that Krugman’s article of the 27th is the second such article he has written. The first was published by The NY Times on 12 December 2013, titled “TPP”. Comparing the two articles, the tone is essentially the same; that judging by the former hallmarks of free trade, the TPP would not make much difference:

…  my starting point for things like this is that most conventional barriers to trade — tariffs, import quotas, and so on — are already quite low, so that it’s hard to get big effects out of lowering them still further.

That earlier article provoked some commentary. Dean Baker wrote a courteous dissent for the Center for Economic and Policy Research:

…it is a misunderstanding to see the TPP as being about trade. This is a deal that focuses on changes in regulatory structures to lock in pro-corporate rules. Using a “trade” agreement provides a mechanism to lock in rules that it would be difficult, if not impossible, to get through the normal political process.

Mike Masnick of TechDirt went into greater detail than Baker on the measures included in the TPP. And Masnick puts his fingers immediately on the value of an op/ed such as Krugman’s:

On [Krugman’s] basic reasoning, he’s correct. There’s little trade benefit to be gained here. In fact, some countries have already realized this. But that’s why the TPP is so nefarious. It’s being pitched as a sort of “free trade deal,” and Krugman analyzes it solely on that basis. That’s exactly what the USTR would like people to think, and it’s part of the reason why they’ve refused to be even the slightest bit transparent about what’s actually in the agreement.

Both responses are worth reading in their entirety; they are as germane today as they were three months ago.

Which leads me to question why Krugman continues to limit his exploration of the subject? He acknowledges that the TPP would, “increase the ability of certain corporations to assert control over intellectual property.” But he makes no effort to explore the ramifications of the increase. For such an accomplished economist, who writes under the tagline of “The Conscience of a Liberal,” this neglect is unconscionable.

Further Reading: InfoJustice.org (of the Washington College of Law, American University) has compiled a list of analyses (some for the agreement, others against), see hereChristopher Ingram, writing for The Washington Post (28 February 2014) describes the current composition of trade-advisory committees as selected by the Obama administration: “Of the 566 committee members, 306 come from private industry and an additional 174 hail from trade associations. All told they represent 85% of the voices on the trade committees.”

Update – 18 March 2014 – And more reading: On the Wrong Side of Globalization by Joseph Stiglitz.

ten years later

In Posts on February 25, 2014 at 6:37 am

Next week marks a decade of post-CCH Canadian copyright dialogue in Canada. The decision addressed a number of issues including originality, and the implications of providing technology that might be used towards infringing behaviour. However, the decision has largely become known for its stance on fair dealing. It stood out on the world stage; described at the time by Michael Geist as: “one of the strongest pro-user rights decisions from any high court in the world, showing what it means to do more than pay mere lip service to balance in copyright.” And yet, looking at it now, it seems a little incredulous that a decision to uphold copyright’s structure as a set of limited rights, should garner so much attention.

March 4, 2004 began quietly enough. According to the news reports, the Supreme Court of Canada ruled that a library could make, at the request of a patron, a copy of a work of legal literature (i.e., an individual journal article, edited reasons for a judgement, a selected chapter from a treatise etc.). The library was only engaging in fair dealing. If anything felt odd, it was the implication that we needed the Supreme Court’s sanction for the modest copying that is carried out daily within libraries and among researchers. Perhaps recognizing the peculiarity of this spectacle, Chief Justice Beverley Mclachlin, writing for a unanimous court, took pains to remind us that:

Under s. 30.2(1), a library or persons acting under its authority may do anything on behalf of any person that the person may do personally under the fair dealing exceptions to copyright infringement (para. 83).

In her next breath, Mclachlin also indicated that this was superfluous to the matter at hand:

I concluded in the main appeal that the Law Society’s dealings with the publishers’ works were fair. Thus, the Law Society need not rely on the library exemption. However, were it necessary, it would be entitled to do so (para. 84).

What surrounded the decision with acclaim from public interest advocates, and loathing from some copyright owner representatives, was the recognition by the court that the system of copyright is inherently about nuance—that copyright does not support a blanket prohibition on all copying.

For most of the twentieth century, fair dealing had existed essentially in name only. In “The Changing Face of Fair Dealing” in ed. Michael Geist, In the Public Interest—the Future of Canadian Copyright Law (2006), Carys Craig writes that fair dealing was “all but redundant in the Canadian courts: rarely raised and cursorily rejected (p.438).” It has been only in the new millennium that the rights of the public began to gain attention. In this regard, CCH Canadian was not the watershed moment; that distinction was earned two years earlier in the Théberge v. Gallery d’Art du Petit Champlain decision by the Supreme Court. Even though the case had nothing to do with fair dealing, Justice Binnie, writing for the majority, decisively placed owners’ rights in service of the vitality of the public domain, and, made particular mention of the role of exceptions:

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, or create practical obstacles to proper utilization. This is reflected in the exceptions to copyright infringement … which seek to protect the public domain in traditional ways such as fair dealing … (para. 32).

Binnie’s remarks were later given added thrust in CCH Canadian. Reminding us that fair dealing “was always available,” Mclachlin continued with: “Research must be given a large and liberal interpretation in order to ensure that users’ rights are not unduly constrained (para. 49-51)”. And after a multi-factor examination of the copying under scrutiny (building and improving upon the four factors of American fair use) the Court declared fair dealing.

Encouraging as the decision was, it by no means assured anyone of success in the long-term pursuit of balance in copyright law. In a comment upon the case, Teresa Scassa wondered if it was “too little, too late.” The predilection of the world then (as it is now) was to adopt more expansive copyright and the Canadian government of the day showed no signs of taking a different course of action. She wrote:

… [W]hile the Canadian Supreme Court’s new balancing approach offers users greater scope under the existing copyright legislation than they have ever realistically been able to hope for, it is an approach that may be anachronistic, insufficient and ultimately against the grain of current legislative and international directions.  The Court may well be situating itself as the last champion of a much beleaguered underdog – the ordinary user, and in this respect, the effort is welcome (p.97).

Certainly, the domestic reaction against the decision was swift and brutal. I have detailed this period of fair dealing history in “Fair Dealing at a Crossroads” in ed. Michael Geist, From Radical Extremism to Balanced Copyright (2010). Alarmed by the possibility of surrendering the absolutism that had characterized copyright in Canada, rights-holders representatives lost no time in presenting CCH Canadian as nothing less than an assault on creators. The nuance of the decision, its setting, and the emphasis of the Court that every instance of fair dealing is unique and must be examined holistically, could have eased the anxiety felt among Canada’s creative set. However, rights holders sought instead to present the decision in the blackest terms possible and paint fair dealing as unwelcome to Canadian creators. The irony of such pronouncements was that, even with its limited scope, fair dealing was the only measure within the Copyright Act that gave modest support to uses of copyrighted material that are critical to fostering creativity.

Looking back now, Scassa’s concerns may well have been borne out if, at the time, Canada had enjoyed federal governance of our usual variety. But two consecutive minority governments were not conducive to moving forward with copyright change. By the time of the third minority government, public consultation began and amendments were proposed and later accepted in the name of Bill C32/C11. The passage of time was critical; it allowed all parties to gain some perspective concerning the rise of digital technology and world-wide networks. Although, political pressures being what they are, Canada could not avoid the unwelcome addition of protection for technological protection measures (even when a use is non-infringing.) Nevertheless, fair dealing was given a modest nod of approval through the addition of parody, satire and education as legitimate purposes of fair dealing.  As readers likely know, the purpose is only the first step.  The fairness analysis, using later words of our Supreme Court, does the heavy-hitting.

Returning to Scassa’s comment, she drew particular attention to Mclachlin’s instruction that the availability of a license is not relevant to a decision of fair dealing. Scassa wrote: “This is an extremely important statement for libraries and universities which have  struggled with the costs of reprography licenses to protect them against copyright infringement actions (p.95).”

Many scholars across Canada saw the decision as the impetus for Canada’s post-secondary institutions to engage with fair dealing; to educate their communities about the importance of the exception and offer guidance of how to best use the exception. Regrettably, this did not happen. When I took stock of fair dealing in 2010, I wrote: “In the years following CCH Canadian, Canadian educational institutions remained disquietly silent on the decision … CCH Canadian has not, to any appreciably degree, taken root in the Canadian university landscape (p.100-101).” Fortunately, Canadian educational institutions are showing more engagement now. (Lisa di Valentino offers some data upon this subject; see here.) Further reassurance came from the Supreme Court of Canada in 2012 concerning fair dealing’s legitimacy and application within K-12 schools (see Education v. Access in Notable Supreme Court Decisions). It must be emphasized that the decision of 2012 was based upon the earlier language of fair dealing, meaning before the inclusion of “education” as an allowable purpose within the law.

The impetus for this blog entry, though largely to indulge in reflection, is also to take the opportunity to identify what, if anything, is the legacy of CCH Canadian. With respect to procedure, it set a new standard for examination of fair dealing; effectively, all roads now begin with a multi-factor enquiry, with no particular factor taking precedence over any other. Policy-wise, the “long-term interests of society as a whole” cannot now be easily set aside. Both elements are valuable and contribute to stability for creators and users alike. But perhaps a legacy less visible is an affirmation through what did not happen. The complaints following the decision included dire warnings that the conduct of the Supreme Court of Canada was not in compliance with international norms, namely the three-step test devised through the Berne Convention, with later variations adopted in the TRIPs agreement and the WIPO Internet Treaties. But the independent action of our Supreme Court to operate in Canada’s best interests has not met with any challenge outside of Canada. The affirmation that international cooperation does not preclude independence on matters of domestic exceptions is something to celebrate.

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