Meera Nair

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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: (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.

remembering Oscar Wilde

In Posts on February 13, 2014 at 7:12 pm

“To lose one parent, Mr. Worthing, may be regarded as a misfortune; to lose both looks like carelessness. … The fact is, Lady Bracknell, I said I had lost my parents. It would be nearer the truth to say that my parents seem to have lost me.”
- Act I, The Importance of Being Earnest, 1895

To say that it is scintillant – the one bright line and one brilliant epigram and inversion of ordinary speech into something extraordinarily comic, follows after another, is merely to repeat what has been said about the play from the beginning.
- “Oscar Wilde Comedy Revived at the Lyceum”, New York Times, 15 November 1910

Wilde enthusiasts may recall that February 14 marks the anniversary of the debut of The Importance of Being Earnest–A Trivial Comedy for Serious People. The play opened on that date in 1895, at St. James Theatre in London. Leonard Smithers undertook publication of the work a few years later, with a first edition run confined to 1000 copies. (In 2007, the BBC reported that #349 had been found in a charity shop, “appropriately inside a handbag.”)

Copyright enthusiasts have added reason to dwell upon Wilde; his image sparked a pivotal discussion on authorship and originality, the effects of which are felt to this day. In 1882, during a lecture tour of the United States, Wilde sat for a series of photographs with celebrity portrait photographer Napoleon Sarony. When one of the photographs was later incorporated, without permission, into a department store advertisement, Sarony claimed infringement.

That the American courts should have agreed with Sarony seems no matter for surprise today. But at the time, the issue arose as to whether a photograph could be considered the work of an author and thus be eligible as copyrightable material. In The Lingering Effects of Copyright’s Response to Photography (2004), Christine Haight Farley (Associate Professor of Law at Washington College of Law, American University) examines this case against her detailed study of the culture of photography. She writes:

It is not at all surprising that the Supreme Court could appreciate the beauty of the Sarony portrait of Wilde, and with the economic interests at stake at that moment in the history of the photography industry, the result was all but a foregone conclusion. What is, however, remarkable is how the Court could seemingly articulate a standard that could differentiate between high and low art; between art and science (p.389-390).

“Oscar Wilde, No. 18.” Image courtesy of the Museum of Metropolitan Art

Farley explains that the courts were in an awkward predicament. Photography had been lauded as a mechanical process that captures a scene entirely by technology. An absence of human intervention implied an inviolate image of record. Such accuracy carried great merit, adding value to news reporting, documentary publications and evidentiary processes. To argue that a photograph be regarded as a creative work required another interpretation of photography.

The court found such an interpretation by locating creativity in the composition of the scene. According to Sarony’s own brief, he chose the lighting, props, costumes, position, and even the expression of the subject. The Supreme Court uncritically took such a proposition as evidence of authorship, but also took care to limit their decision, “… These findings, we think, show this photograph to be an original work of art (emphasis in original).” The specificity allowed other photography to remain as purely mechanical.

However, the language of the decision reveals an inconsistency within the Court’s reasoning. When refuting the argument that Congress had erred in situating photographs as copyrightable material—that the Constitutional Clause which secures “…for limited times to authors and inventors the exclusive right to their respective writings and discoveries…” does not support protection of photographs as writings—the Court identified an author as “he to whom anything owes its origin.” Yet the Court refused to entertain the idea that the composition of the picture lay in the activity at the camera, even though, as Farley writes:

The person operating the camera always exercises choice in producing a photograph. There are creative choices in the precise timing to click the shutter, the angle of the shot, the frame, the focus, the distance from the subject, the centering of the subject, etc.  (p.434).

Farley continues and explains the inconsistency:

[The] Court would have some difficulty relying on this possible act of authorship because Sarony did not actually operate the camera. Sarony was not a photographer in the modern or technical sense. He was not interested in the camera work. Instead, he regularly employed a cameraman, Benjamin Richardson, to work the camera. There is no evidence that Sarony, as directorial as he was, had given any direction to Richardson about these technical choices. There is no indication that Sarony cared about that dimension of choice (p.434-435).

Biographer and historian Roy Morris Jr. indicates that, not only did Sarony not care about technique, he took pains to distance himself from such details. In Declaring His Genius: Oscar Wilde in America (2013), Morris writes:

In action, Sarony was a very hands-off photographer. He took no photos himself, delegating the task to his assistants while he gazed distractedly out the window. Nor did he develop the finished products, bragging that he did not know anything about the developing process (p.35-36).

Indeed, the developing process could also have been a place to locate creativity. As was also the selection of which photographs to register and publish. Farley explores all these avenues in detail and returns to the challenge the Court faced in ensuring photography’s standing as an untampered record of truth. Over the next century, courts would slowly recognize that the activity at the camera and laboratory had a place in the examination of authorship, but Farley’s work illustrates that the rationale employed in Burrow-Giles has surprising staying power.

Returning to The Importance of Being Earnest; readers likely know that the play marked the apex of Wilde’s career and his world would begin to unravel within a few days of the opening night. Soon after, he was charged and convicted of indecency—as per Victorian sensibilities of the day. He received the maximum sentence possible, two years of hard labour in prison, but it would be more accurate to say he received a life-sentence of permanent banishment. In a letter written from prison, he laments:

My tragedy has lasted far too long : its climax is over; its end is mean; and I am quite conscious of the fact that when the end does come I shall return an unwelcome visitant to a world that does not want me (p.22).

Sadly, Wilde’s pronouncement of the world of his lifetime proved to be accurate. Shunned and impoverished, he died with little fanfare in 1900. That his work would be held in such esteem in the century that followed, likely never crossed his mind.

Jaszi on fair use

In Posts on January 28, 2014 at 6:58 pm

Earlier today, Professor Peter Jaszi of American University’s Washington College of Law gave testimony concerning fair use to the U.S. House Judiciary Subcommittee on the Courts, Intellectual Property and the Internet. Jaszi is undoubtedly one of the most knowledgeable sources on the subject, with more than forty years of experience in the field. He credits his early teachers, Benjamin Kaplan and Lyman Ray Patterson, for their prescience in forecasting the importance of fair use to American advancement, particularly in what we now describe as the digital age.

In his testimony, Jaszi recounts how an early pronouncement of fair use as a right earned him an immediate rebuke but notes that both the courts and Congress have proven him correct (details on page 3). He acknowledges that the early years following codification of fair use into American law through the 1976 amendments did not bode well. However, he happily reports that fair use’s fortunes are much better: “Today, fair use is working!” That success owes a great deal to the federal courts which removed commercial exploitation as the anchor of fair use analysis, and gave more consideration to the purpose of the use. But Jaszi also emphasizes that willingness by the courts to think broadly would have come to naught without the user communities who were:

… willing to step up and make their own contribution to develop fair use by employing it and – where necessary – defending its exercise. Many groups deserve credit here: on the one hand, of course, libraries and tech startups, but also their occasional sparring partners commercial publishers and entertainment companies (p.4).

Jaszi’s testimony is comprehensive yet succinct; in less than eight pages of text he explains the  early 21st century misconceptions surrounding fair use and offers clarification. He leaves no doubt as the value of the exception: “The fair use doctrine adds materially to our cultural choices, our learning opportunities, and our access to innovation (emphasis mine).” His message to the members of the Subcommittee is that fair use does not need legislative reform, although it could benefit by some measures of support to facilitate further use of the exception thereby securing more benefit to the United States as a whole.

Finally, Jaszi raises the principled concern that current U.S. trade negotiations, particularly with developing countries, leave those countries with “lingering and crippling doubts” as to whether they may emulate the American example. Reminding all that nations are interwoven in today’s world-economy, Jaszi asks: “…whether this one-sided approach is really in our national interest – and (beyond that) whether it is ethically defensible?”

ghosts of libraries past

In Posts on December 24, 2013 at 7:45 am

Charles Dickens is with us at this time of year, his own ghostly visitation appearing via A Christmas Carol. But his spirit may have been addedly engaged last week when the news broke that scholars at Heinrich Heine University in Dusseldorf  had ranked the Vancouver Public Library (together with Montreal’s Bibliotheque) as the world’s best public library.

This evaluation of libraries came through focus upon “informational cities,” defined as “prototypical spaces of the knowledge society … where flows of information, capital, and power are as or more important than physical spaces (p.1).” Even more critical than the ranking, although as a Vancouverite I would not wish to renounce it entirely, the analysis makes plain that libraries form “an essential part of the city’s … knowledge and creative infrastructure… (p.313).” It is this sentiment that furthered the establishment of public libraries in England in the 19th century.

In 1850, the English House of Commons undertook an inquiry into the nature of their libraries with the conclusion that, in comparison to Europe, Britain was inferior in terms of libraries freely available to the public. As reported by the Spectator, 12 November 1853, this situation was “unworthy of the power, the liberality, and the literature of this country.”

From the inquiry came an act to enable Town Councils to establish public libraries and museums. The first such public library was the Manchester Free Library; it opened on 2 September 1852 with Charles Dickens among the speakers. As revealed by the Manchester Archives during the bicentennial celebrations of his birth, Dickens had accepted the invitation with alacrity. “… My engagements are very numerous but the occasion is too important and the example too noble to admit of hesitation.” Assigned the task of introducing the resolution, Dickens gave added thrust to the importance of public libraries:

“That as in this institution special provision has been made for the working classes, by means of a free lending library, this meeting cherishes the earnest hope that the books thus made available will provide a source of pleasure and improvement in the cottages, the garrets, and the cellars of the poorest of our people.” …  Ladies and gentleman, I have long been, in my sphere, a zealous advocate for the diffusion of knowledge among all class and conditions of men; because I do believe, with all the strength and might with which I am capable of believing anything, that the more a man knows, the more humbly, and with a more faithful spirit he comes back to the fountain of all knowledge, and takes to his heart the great sacred precept, “On earth peace, good will towards men.” Ladies and gentleman, I have great pleasure in moving the resolution which I have already read to you.*

The significance of the role played by public libraries was not lost on the colonies. Reporting on the opening ceremonies in Manchester, the Empire (Sydney) emphatically called upon its elite to step forward and give the City of Gold such an institution. Describing Manchester’s initiative:

They assembled to establish no Charity School, with a scrannel supply of innutritive knowledge for the workers, but a great and enduring institution filled with the light of genius from every age and every land, where the gifted sons of poverty may burst from their bonds … for the advancement of civilisation and the highest interests of the human race.

In Canada, Dr. Alphaeus Todd, Librarian of Parliament, in a plea to improve supply of reading material to residents, also pointed to English developments. Courtesy of Libraries Today, his report to the Royal Society of Canada (1882) is available here. Quoting from the first librarian of the Manchester Free Library, Todd wrote:

… Without exception, the working of all the free libraries so established and brought into active operation has proved eminently satisfactory to all classes of ratepayers.  It has largely promoted that industrial education which fits men for their specific callings in life, as well as that wider education that reaches farther and higher…. (p.16).

Closer to home, the British Columbia provincial legislature passed a Free Libraries Act in 1891. In Dave Obee’s The Library Book—A History of Service to British Columbia, former Lieutenant Governor Iona Campagnola writes that the history of library services in British Columbia:

… is a testament to individual determination intended to overcome all challenges associated with B.C.’s difficult geography, complicated history, sparse population and ever-shifting economy…. Through their own love of books, men and women worked hard to enrich the unique culture of this precious province of ours. They knew the value of the gift of learning, education and knowledge that was to be found in libraries, and they knew the simple joy of being able to borrow literary works of history, fiction, poetry, drama and criticism, to experience a “really good read!”

After the Manchester event, Dickens would write to a friend: “I wish you could have seen the opening of the Free Library… Such a noble effort, so wisely and modestly made; so wonderfully calculated to keep one part of that awful machine, a great working town, in harmony with the other.”

History must always remain incomplete, but last week’s news gives hope that libraries may yet endure as “wise and modest” institutions facilitating harmony as much as knowledge.

* Charles Dickens, “Opening of the Free Library, Manchester.” The Speeches of Charles Dickens, ed. K.J. Fielding (Oxford: Clarendon Press, 1960) p.151-154.  Note: The text varies slightly from the archived speech presented by the NY Times.

about time

In Posts on December 12, 2013 at 3:12 pm

Yesterday, the universities of Toronto and Western Ontario formally announced their ending of relations with Access Copyright; Michael Geist cannily summed up the proceedings as “confirming the obvious.” Access Copyright’s licensing model is unsuited to the evolving needs of academic institutions. But it would be wrong to conclude that academic institutions want to evade payment for copyrighted works; quite the contrary. It only means institutions are unwilling to pay twice over for works licensed through other means, and are less than willing to pay for reproductions that are available without cost for a variety of reasons including: open access, public availability, and fair dealing. Across Canada, academic institutions are making the best use of resources to the betterment of students, teachers, researchers etc. We should expect nothing less given the predominance of taxpayer funds that support institutions, not to mention the over and above costs passed on to students and their families.

Reviewing the press releases of the three parties involved, while the institutions (Toronto and Western) each courteously state that negotiations were conducted in “good faith by both parties”, Access Copyright is unwilling to be so gracious. Instead, it continues to argue the seeming newness of fair dealing as interpreted by the universities; that it is “untested by law and closely replicates the scope of coverage in the Access Copyright license.”

I beg forgiveness for repeating, yet again, that current practices of fair dealing were shaped expressly by the edicts of the highest court of the land, over a period of ten years. The landmark decisions that speak directly to reproduction of works in educational institutions (CCH Canadian v. Law Society (2004), Access v. Education (2012), SOCAN v. Bell (2012), ESA v. SOCAN (2012)) predate the inclusion of “education” to fair dealing as amended through the Copyright Modernization Act (2012). See Notable Supreme Court Decisions for a summary of the decade.

The flexibility we enjoy today is not the result of an act of benevolence on the part of governments or courts—it is an acknowledgement that copyright holders were previously allowed to deny Canadians the full benefit of copyright’s system of limited rights and is a corrective to that unfortunate history. Access Copyright, perhaps unwittingly, confirms this with their view that fair dealing today replicates coverage within their previous licenses.

The blanket model licenses used in the past insinuated that fair dealing only existed in the presence of a general license. Educational institutions agreed to Access Copyright’s general prescription of fair dealing as a series of quantified measures, thereby removing any hint that fair dealing is a matter of individual context. Our educational institutions are now reclaiming the individuality of fair dealing on behalf of their communities. To which I must say: it is about time.

Almost two years ago to the day, Ariel Katz posted a compelling essay titled Fair Dealing’s 100 Years of Solitude. He chronicled in detail the treatment of the exception after its 1911 codification into statutory law in the United Kingdom. “Tragically, what was supposed to be an exercise in the codification of a dynamic and evolving common-law principle ended up—with a few notable exceptions—in a hundred years of solitude and stagnation.”

Posted shortly after the Supreme Court of Canada heard the “pentalogy” cases, Katz wrote: “The cases that the Court heard last week will determine whether CCH will be seen as an outlier in copyright jurisprudence or whether it created a necessary correction that brings fair dealing back to play the role it was always supposed to play.” As 2012 would bear out, the Court rose to the occasion and continued the task of bringing fair dealing back to its time-honoured role as a flexible limit upon the rights conferred through copyright.

Returning to the current news, to better understand the 20th century Access Copyright model of blanket licensing of educational materials, it is important to understand the history of Access Copyright itself. Two years ago I gave a brief talk on this matter for the British Columbia Library Association; my notes and references can be found through this post.

Access Copyright will not go quietly into the night. They continue a campaign of fear, targeting the teachers who are learning to navigate the terrain of copyright and fair dealing: “For faculty who are accustomed to operating under Access Copyright licenses, the termination will be accompanied by disruption and uncertainty.  Faculty may be asked to change the way they share materials or assume greater personal responsibility for copyright … .”

While institutions have become much better at providing copyright information, all too often the rationale for a “10%” rule is missing or limited to a citation of CCH Canadian. In yesterday’s announcements, both institutions spoke of educating their communities about copyright; the stories that make up fair dealing’s history, past and present, ought to be the starting point. Regulations and best practices take root more quickly if they are placed in context.

TPP and ISDS – more acronyms

In Posts on December 8, 2013 at 3:45 pm

“Countries that want to preserve flexibility on copyright term pretty much have no strategy in the TPP. Canada is about to fold.”

This tweet came early Friday morning from James Love, Director of Knowledge Ecology International. Love is in Singapore watching the latest drama of the TransPacific Partnership (TPP) negotiations. However, given that Canada officially has no negotiating power, its efforts to opposing copyright maximalism may not matter anyway. (Thomas Walkom, of The Toronto Star reported in 2012 that Canada’s admittance to the group did not include the right of negotiation.)

As many readers know, the TPP is a trade agreement in the making, negotiated in secrecy (except for privileged members of the business class). In November, Wikileaks published details of the negotiations with respect to intellectual property rights; they did not look promising. At that time, Michael Geist offered a series of posts detailing the shortcomings of the agreement. In his first post, Geist wrote:

The good news is that Canada is pushing back against many U.S. demands by promoting provisions that are consistent with current Canadian law. Canada is often joined by New Zealand, Malaysia, Mexico, Chile, Vietnam, Peru, and Brunei Darussalam. Japan and Singapore are part of this same group on many issues. Interestingly, Canada has also promoted Canadian-specific solutions on many issues. The bad news is that the U.S. – often joined by Australia – is demanding that Canada rollback its recent copyright reform legislation with a long list of draconian proposals. …

And in his regular column with The Toronto Star, Geist added:

The U.S. finds itself relatively isolated on many issues, with only Australia offering consistent support for its positions. For example, Canada and most other TPP countries support a general objectives provision that references the need for balance, promotion of the public domain, protection of public health, and measures to ensure that intellectual property rights themselves do not become barriers to trade. The U.S. and Japan oppose these objectives.

If the U.S. is successful in pressuring other countries to meet its demands, Canada would be required to radically overhaul its current law, reversing course on many of the rules the government recently enacted as part of its long-awaited copyright reform package or negotiated in the trade agreement with the European Union.

Returning to Love’s assessment of the current talks, the prospects of Canada (or any country) maintaining a sovereign system of copyright looks bleak. Copyright term extension is high on the list of demands; earlier today Love tweeted: “One USTR official I talked to said, yes, 70+ life copyright terms [are] wrong. But Europe made us do it, and now, we need everyone to follow.” Even more disturbing was the news that Mexico is arguing for “at least” life plus 100.

Yet copyright may be the least of our problems.

By far the most insidious part of the TPP is the determination by the Office of the United States Trade Representative (USTR) to further entrench the Investor State Dispute Settlement (ISDS) process. This mode of dispute resolution allows corporations to sue governments, not through courts of law, but in private tribunals. Earlier this year, law professor Brook Baker published a comprehensive examination of the risks ISDS poses to access to medicines:

Suddenly intellectual property rights, already hugely protected, are given another mantle of protection, namely protections as investments.  In addition, investors are given rights to bring claims for private arbitration directly against governments whenever their expectations of IP-based profits are frustrated by government decisions and policies.   Decisions of these private arbitral tribunals consisting of three international trade lawyers are not subject to judicial review, but are reducible into court judgments that can be levied against government property.

The principle behind compensation for thwarted expectation may have seemed rational at its outset (investor-state dispute mechanisms were first introduced in NAFTA in 1994) — to ensure corporations have recourse against unstable governments whose court systems may lack objectivity and rigour. But the mechanism has allowed egregious actions by corporations directly against governments, sidestepping robust courts of law. That health, environmental, or financial regulations seem to hinder corporate profit, is considered sufficient cause to bring action. That these regulations serve the citizens of that elected government is irrelevant.

In a TPP information session in Singapore, Melinda St. Louis of Public Citizen gave a presentation describing actions brought under ISDS; video available here.  Some of the highlights:

  • Even municipal actions can provoke claims of frustrated expectation.
  • The private attorneys who participate in the proceedings rotate between serving as arbitrators and serving as judges.
  • Tribunal rulings are not bound by precedent.
  • There is no means for appeal.
  • Governments cannot counter-sue investors.
  • The proceedings are very expensive for governments; it is in the interests of the tribunal arbitrators to drag out proceedings as even if the government wins, “almost always they are ordered to pay half the tribunal costs.”
  • Tribunals have the discretion to award unlimited damages.
  • Each year, the number of disputes increases.
  • An example from St. Louis’ list (there were many): Occidental Petroleum (OP) breached their contract with the Ecuadorian government; the tribunal recognized the breach of contract but still awarded OP $2.4 billion to be paid by the government.
  • Canada features in the list a few times; including the matter of Eli Lilly.  As I have written before, the U.S.-based pharmaceutical company has taken issue with Canadian courts’ invalidation of patents for two drugs and is seeking $500 million. St. Louis emphasizes how significant this case is: “[Eli Lilly is] actually challenging Canada’s entire patenting system.”

As a result of numerous actions against governments, many countries are starting to question whether ISDS should be part of trade agreements. Intriguingly, all 50 state legislatures in the United States passed a resolution opposing ISDS in trade agreements. Which makes it all the more perplexing that Canada appears to have already agreed to such terms in the purported Canada-EU free trade agreement. Announced in October by the Harper government as an agreement in principle, the text has not yet been publicly disclosed.  But in the summary document provided by our government, discussion of ISDS is artfully worded:

The process that investors follow to seek compensation is called “investor-to-state dispute settlement” (ISDS) and involves an independent arbitral panel hearing facts and making a decision on the merits of an investor’s claim. ISDS rules have been a standard feature of Canada’s comprehensive free trade agreements since the North American Free Trade Agreement and give assurance to investors that their investments will be protected from discriminatory or arbitrary government actions (p.21).  …

When individuals have disagreements, they have various ways to resolve them. They can try to negotiate  among themselves or, if that doesn’t work, they can seek the help of an impartial third party such as a mediator, an arbitrator or a court. Trade disputes between countries work much the same way. Trade agreements include various dispute resolution mechanisms so that governments can resolve their disagreements. For instance, when consultations fail to resolve a problem, trade agreements provide governments with the option of using impartial third parties to help resolve the dispute. In some cases, these third parties act like courts in the sense that they hear evidence from both sides and ultimately render binding decisions (p.38).

While our government assures us that the agreement, “includes provisions to guard against frivolous claims in order to ensure that the process will not be abused,” the disparate bargaining positions vis-à-vis the Europeans do not bode well for Canadians; see this assessment of the imbalanced negotiation by Gus Van Harten (an Associate Professor at Osgoode Law and well-versed in international trade).

Our best hope seems to be that saner Canadian heads will prevail before the final language is set. And that other countries can remove the deleterious conditions of ISDS from the TPP.

Harry Potter in New Hampshire

In Posts on November 9, 2013 at 8:03 pm

A curious story came to light last week, that of a film studio exerting influence over the design of a curriculum. Warner Brothers took issue with an English course, prepared by the University of New Hampshire and offered this past summer to children, titled “Harry Potter as Storytelling: An Online Adventure for the Young Fan.” Most coverage of the story emphasizes that Warner Brothers was concerned that people would think the studio had sponsored the course. However, the cease and desist letter, courtesy of Michael Brindley writing for New Hampshire News, shows a decidedly more strident tone than that of concern:

Warner Bros. is the exclusive owner of all trademark rights, and certain other intellectual property rights in and to all elements contained in the best selling series of “Harry Potter” books and popular motion pictures, including, but not limited to, “Harry Potter and the Sorcerer’s Stone,” “Harry Potter and the Half-Blood Prince,” and “Harry Potter and the Deathly Hallows” (hereinafter, collectively, the “HARRY POTTER Properties”). Because of these rights, no one may utilize the HARRY POTTER Properties without the express written permission of Warner Bros.

(Of course, the last sentence is patently false; fair use and fair dealing expressly permit some unauthorized uses of any copyrighted work, including the HARRY POTTER Properties.)

What is striking about the letter is its lack of precise detail. While rushing to claim its trademark rights and “certain other intellectual property rights”, Warner Brothers only goes so far as to state that words and concepts were used in the course. The studio does not explain how this is a violation of any intellectual property right:

[The] course is entirely themed around the HARRY POTTER Properties and makes extensive use of them for commercial and marketing purposes. For example, each of your five classes mimics the fictional classes taught at Hogwarts School of Wizardry as expressed in the HARRY POTTER books and motion pictures. In addition, there are “magical areas” (e.g. Azkaban, Honeydukes, etc.) which are derived from protected elements of the HARRY POTTER Properties. Other elements of Hogwarts are used, such as “prefects,” and school houses, etc., all of which are obviously designed to mimic an experience in the fictional world of Hogwarts. Moreover, the website uses trademarks owned by Warner Bros. to promote the course. These include the name “Hogwarts,” “Harry Potter,” and depictions of the lightning bolt and glasses – all derived from and associated with the HARRY POTTER Properties.

Intellectual property rights are contingent upon the nature of the use made of the claimed property. It is not enough for any intellectual property claimant to merely state that something was used. How it was used and why it was used are germane to the claim of right. And it is not at all clear what portion of law would actually support most of Warner Brothers’ objections.

To suggest that anyone can, or should, control the use of the word “prefect”, or the use of the idea of school houses, is audacious. There is no basis in law to claim rights to a common word or concept. Besides, the terminology and concept have been in popular use since English boarding schools were created; even today, among the private schools that cater to children of the Empire, we still hear of prefects and school houses.

Continuing to review the listed complaints, the objection to mimicry is bizarre. Invoking fictional settings with role playing is a time-honoured pleasure for children, and a highly-regarded method of teaching. Getting into the skin of a character is a means to the better understanding of character development. For such mimicry to be effective, explicit references to characters and events are not only appropriate, they are necessary. For such mimicry to be a violation of law, the law would have to require that explicit reproduction of specific words is the sole basis upon which rights are awarded. That is hardly true. As I have written many times, copyright law permits unauthorized reproduction of protected works, depending on the context. So too, does trademark law.

Warner Brothers makes the claim that their trademarks were violated in the marketing of the course. They objected to the use of: “Hogwarts,” “Harry Potter,” and, “depictions of the lightning bolt and glasses”. Without seeing all the original marketing materials, it is not possible to accurately state whether a trademark violation occurred or not. Nevertheless, the law and contemporary discussion* offer some clues.

According to the Legal Information Institute at Cornell University, a trademark is:

any word, name, symbol, or design, or any combination thereof, used in commerce to identify and distinguish the goods of one manufacturer or seller from those of another and to indicate the source of the goods.

However, control over a trademark is not absolute. Trademark law has its own limits. This situation calls for consideration of the legal doctrine of nominative fair use which allows for use of a trademark when the purpose is to refer to that product. A course about Harry Potter will naturally require the use of the words “Harry” and “Potter” in both its title and course description. And if the course is intended to simulate the schooling experience, using “Hogwarts” would seem not unreasonable.

As to whether the lightning bolt and glasses were necessary, more information is needed. But, interestingly enough, the library at the University of Texas has a timeline of trademark history, accompanied by illustrations, and indicates that lightning bolts were used in the 1930s as signs of modernity and power. Which leads one to wonder if Warner Brothers and J.K. Rowling sought permission for using said lightning bolt in their creations.

Like fair use in copyright law, limits upon trademark control are a grey area; each situation must be evaluated on its own merits. This flexibility is important to maintain the flexibility that is inherent to all creative endeavor. It is worth noting that while the principal of trademark rights is to avoid confusion to consumers, courts have tolerated modest confusion depending on the circumstances. In this case, if the title of the summer-school course invites momentary confusion that Warner Brothers is actually getting into the education business, a simple disclaimer in the course outline would alleviate that confusion.

Returning to the University of New Hampshire, their response to Warner Brothers appears to be one of capitulation; without admitting wrong-doing, they have set out to:

… remove all uses and references that could be interpreted as improper from content and title. The course will still include the Harry Potter novels as part of the curriculum literature for the course’s educational purposes, but will no longer reference, mimic, or emulate the Harry Potter properties. (Emphasis mine.)

This is disappointing, as Warner Brothers’ objections appear more mischievous than legitimate.

* Some interesting reading

Trademark Law and Theory: A Handbook of Contemporary Research, edited by Graeme B. Dinwoodie, Mark D. Janis (Edward Elgar, 2008).  Nominative fair use is discussed in detail; i.e., “… occurs when the defendant designates its product source using a third-party trademark for its referential meaning (p.426).”

Further discussion of trademark law is available from William McGeveran, “The Trademark Fair Use Reform Act,” Boston University Law Review (2010). McGeveran draws attention to the challenges for free speech wrought by aggressive, and sometimes groundless, claims of trademark ownership. His initial words are disturbing:

[Some] lawyers charged with policing their clients’ trademark portfolios now send threatening “cease and desist” letters (C&Ds) as a routine response to virtually any unauthorized use of a mark. In addition to deterring the individual recipients, these legal threats also serve a broader signaling function by warning against all unauthorized uses of a mark (p.2273).

McGeveran remarks that it is “the risk of litigation, not the risk of liability,” that compels would-be defendants to adopt risk-averse policies (p.2276). Together with his own proposal to ameliorate this chilling effect, he presents a comprehensive literature review of other proposals for change (see footnotes 5-10, p.2270)).


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