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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

I have endeavoured in this Ghostly little book, to raise the Ghost of an Idea, which shall not put my readers out of humour with themselves, with each other, with the season, or with me. May it haunt their houses pleasantly, and no one wish to lay it.

Their faithful Friend and Servant,
C. D.
December, 1843

On this day in 1843, Charles Dickens’ work, A Christmas Carol, was published.

Received with acclaim, unauthorized copies of the work appeared on the market within weeks. Although Dickens had ignored piracy before, he responded with legal action to the circulation of a “re-originated” version of his cherished Christmas tale.  Kate Sutherland, writer and associate professor of Osgoode Hall Law School, explains the business circumstances that prompted Dickens to take action and the emotional drive that propelled him to continue. Despite success in court, Dickens came away poorer for the experience.

Dickens is a noted figure in copyright lore — his efforts to have British copyrights recognized by American printers were famous, albeit largely unsuccessful. During an 1842 tour of the United States, he spoke frequently on the issue of copyright. Dickens, like many English authors and publishers, resented the practice whereby Americans reprinted English works without concern of recompense.  In Copyrights and Copywrongs, Siva Vaidhyanathan writes: “When Dickens’ account of his tour, American Notes,  came out in 1843, fifty thousand pirated copies sold in the United States in three days.” And when A Christmas Carol was published, “London readers … would have to pay the equivalent of $2.50 in 1843. An American Dickens’ fan would have to pay only six cents (p.50-51).”

However, American printing practices would not change quickly. Cheap literature served the United States well, both in terms of educating the public and developing a robust printing industry. Indeed, the U.S. Copyright Act of 1790 included what is best described as an invitation to piracy. Section Five stated:

That nothing in this act shall be construed to extend to prohibit the importation or vending, reprinting or publishing within the United States, of any map, chart, book or books, written, printed, or published by any person not a citizen of the United States, in foreign parts or places without the jurisdiction of the United States.

Perhaps realizing that England had little leverage with their renegade colony, the Report of a Royal Commission on copyright (1876-1878)  described the American attitude in very generous terms:

The main difficulty undoubtedly arises from the fact that … original works published in America are, as yet, less numerous than those published in Britain. This naturally affords a temptation to the Americans to take advantage of the works of the older country….

The Commission was also well aware of the practice of private business arrangements between some English copyright holders and American publishers, whereby the Americans paid handsomely for advance sheets of the latest English works.

The Anglo-American disputes and negotiations, coupled with the strictures of Imperial copyright law, took its toll on Canada’s printing industry. Even when an Anglo-American copyright agreement was eventually established in 1891, the United States took care to ensure that the conditions remained favourable to their own industry.*

Courtesy of Project Gutenberg and David Widger,  readers can enjoy the first edition of A Christmas Carol (complete with original illustrations by John Leech) here.  As 2012 marks the 200^th anniversary of Dickens’ birth, festivities are planned in England and around the world; check out the Dickens 2012 website.  Another site of note is Charles Dickens Page by David Perdue. Dedicated to the memory of his late wife, Sandra Perdue, his aim is to bring “the genius of Dickens to a new generation of readers.”

* See Meera Nair, “The Copyright Act of 1889 — A Canadian Declaration of Independence.” Canadian Historical Review. Vol. 90, Issue 1, March 2009, pp.1-28.

In this latter question, the educational community pointed out the inconsistency of current case law:

This case is not about a commercial use of copyright works. Despite this, copying by teachers for students in Canadian elementary and secondary schools has been held to be unfair, while copying for lawyers and the streaming of music previews to consumers in an obvious commercial context has been held to be fair. … [It] is the purpose of the consumer of the copy that should be used to assess the notion of “fairness”, not the purpose of the maker of the copy. The consumer is the student in the educational environment; the online music purchaser in the electronic commerce environment; and the lawyer, law student or clerk in the legal environment. The makers of copies are, correspondingly, the teacher, the online music service, and the librarian.  (See para 10 here. )

These cases will test the famed CCH Canadian Supreme Court directives that “the fair dealing exception is a user’s right … it must not be interpreted restrictively” and “research should be given a large and liberal interpretation.” The delineation of who qualifies as a “user” and what constitutes “research” should prove interesting.

Judging by Michael Geist’s post of Day One, and tweets of Day Two, the outcome for fair dealing looks promising in the first case and less so in the second.  (More on that another day.)

What is striking about these cases is that those who seek to narrow the application of fair dealing continue to invoke the disingenuous argument that Canada’s approach to fair dealing could be in violation of international obligations, namely the three-step test of the Berne Convention. (In addition to the submissions of the principal parties as provided above, the factums of the interveners can be found here.) But although the High Court did not appear to be swayed by those arguments, such claims impede potential fair dealing among non-lawyers. Fair dealing, and applying the CCH Canadian framework, requires clarity, comprehension and some courage of conviction. Even to imply that FD+CCH is in violation of international law is enough to set back any productive effort to engage with fair dealing.

Noted scholars P. Bernt Hugenholtz and Ruth Okediji have no illusions that the focus of the three-step test is directed towards copyright protection; yet they still offer this encouragement: “the three-step test does afford [member] states significant flexibilities, and leaves them sufficient room to enter into an instrument on [limitations and exceptions] with meaningful substantive content (p.482)”.

Turning to the Berne Convention itself, the three-step test is stated in Article 9(2):

It shall be a matter for legislation in the countries of the Union to permit the reproduction of such works in certain special cases, provided that such reproduction does not conflict with a normal exploitation of the work and does not unreasonably prejudice the legitimate interests of the author.

Although the first condition of “certain special cases” is often held to discourage an individual instance of copying, one has to bear in mind that the exception as a whole must first be considered. To that end, Canada is in good stead. Fair dealing is a very precise entity – it is decreed by law to apply only to the specific purposes of research, private study, criticism, review and news reporting. These purposes have long been accepted as suitable reasons for exception to copyright’s mandate.

The second condition, that the exception should “not conflict with normal exploitation of a work”, raises the question of: what is normal exploitation? For many in the rights holders’ community, all uses should be normal exploitation, thereby eliminating exceptions in totality. But as leading attorney Fred von Lohmann reminds us: “Copyright law strives to strike a balance between creating adequate (not maximal) incentives for the creation and distribution of expressive works, while also ensuring widespread public access to and enjoyment of such works (p.10, emphasis in original).”

If, as rights holders are prone to do, analysis is confined to matters of remuneration, uses that do not contribute a substantive benefit to the rights holder are particularly well suited for protection under this condition. (In terms of the current case between Access Copyright and the educational community, the scope of the disputed copying averages to less than 5 pages per student.*)

The last condition, to “not unreasonably prejudice the legitimate interests of the author” provides considerable leeway. (1) The prohibition, “not unreasonably prejudice”, indicates that there may well be reasonable grounds to prejudice rights holders’ interests. Freedom of expression comes to mind; it would likely seek shelter under fair dealing through criticism and review. (2) The language of “legitimate interests of authors” serves as a visible reminder that legitimate operation of copyright does not extend to complete control. As the Supreme Court told us in 2004, fair dealing is always available.

References

P. Bernt Hugenholtz and Ruth L. Okediji. 2009. “The Contours of an International Instrument on Limitations and Exceptions” in The Development Agenda, ed. Neil Natanel, Oxford University Press. p.473-497.

Fred von Lohmann. 2008. “Fair Use As Innovation Policy,” Berkeley Technology Law Journal. Vol. 23 (1).

* In the educational copying dispute, the total copying is described as 246 million pages. Only 16.8 million pages are in dispute. These are short extracts copied to supplement textbook content. Spread across 3.8 million full-time students, this yields an average of 4.5 pages per student). See paras 6-9 of the submission of Province of Alberta et al.

I had the pleasure of receiving the following story from journalist Pippa Wysong. She writes about science, technology and medicine for audiences that range from children to specialized medical practitioners. Her work has appeared in a variety of publications including The Globe & Mail, The Medical Post, WebMD, and more.  The ‘Ask Pippa’ column for children ran in The Toronto Star from 1988-2008.

The Impending Extinction of Free 30-Second Music Previews – by Pippa Wysong

A dialogue in which my imaginary friends Justine and Frank discuss upcoming Supreme Court activity which could hinder access to music samples and the ability to make informed purchasing decisions, and further beat down fair dealing.

Frank: Hey. I’ve got a copy of the latest attack on fair dealing. And, it just might affect what you are doing now.

Justine: What? Let me take my headphones off. I was just listening to some music previews so I can decide whether or not to buy the newest songs from the imaginary all-Canadian group the Songsters. What do you have?

Frank: I’m holding a copy of a document the Canadian Recording Industry Association (CRIA) submitted to the Supreme Court of Canada. They want to stop you from being able to listen to those 30-second music previews. Well, maybe not stop you from listening to them, but they want to change the definition of what they are.

Justine: Why?

Frank: It’s all in the name of helping quash fair dealing – you know, the ability to use a reasonable amount of material for free — for personal use, research, the ability to mock it, or make purchasing decisions.

Justine: What are you talking about?

Frank: They suggest that listening to free music clips is material that copyright holders don’t get compensated for.

Justine: Um, I see. But you know, the musicians often are not the copyright holders – they wouldn’t get extra money anyway. Musicians need to read the fine print in their contracts.

Frank: Yeah, I’m not so sure musicians even have a problem with the previews. A lot have them on their own websites to showcase their music. Still, if I’m reading this right, CRIA says previews fall under fair dealing, and fair dealing is evil.

Justine: Evil? It’s helping me decide where to spend my money. It’s personal research.

Frank: Research? You’re planning to write a book? An academic paper?

Justine: Er, no. This is research to help with my purchasing decision.

Frank: CRIA says that’s not research. Apparently they think that’s not a valid reason to listen to previews.

Justine: What? Of course it’s a type of research. Consumers often do research, comparing products, checking them out, to help with purchasing decisions.

Frank: They say its ‘marketing.’ The preview services are marketing to you, but you don’t use them to do research.

Justine: I’m using the 30-second clips they created for their marketing to help me make my decision. They market — I use that material for personal-decision research.

Frank: Nope. Not allowed. If it’s research, it falls under fair dealing, and that’s evil. If they can define it as ‘marketing’ instead of ‘research’, then when you buy the songs you’ll have the privilege of paying extra for having listened to the 30-second clips. In fact, I’d bet the music companies would like to charge people a dime each time you listen to a preview.

Justine: That’s outrageous! Who says they want to charge a dime for letting you listen to a preview of a song you might want to buy?

Frank: Nobody. But you can imagine that’s the next step.

Justine: Okay. So there are web-based services out there making 30-second samples available. Does this mean I’m not supposed to listen to them? Why are they there in the first place if something is wrong with it all?!

Frank: It’s about compensation to the copyright holder – the music companies.

Justine: Well, if they think it’s such a big deal, they shouldn’t have made them available to begin with. How can you make samples available for years, then complain about the system while still leaving them there?

Frank: I guess that’s what marketing is. I think they’ve tried asking for compensation before too.

Justine: Wait. How is listening to a music preview different from when I read sample paragraphs from a book I want to buy?

Frank: Dunno. But I’ll bet when all books are electronic, looking at preview paragraphs will probably be added to the purchase sale of the book. At least one copyright collective is bound to fight for that.

Justine: That’s insane. The music companies just want to find another way to make consumers pay more for their products. It’s a money grab!

Frank: They really don’t want listening to previews considered as ‘research’. This whole document belabours that point. In the Copyright Act, if something is used as research material, it falls under fair dealing and no-one has to pay extra for that. One of the definitions for research mentioned is “diligent and systematic enquiry or investigation into a subject in order to discover facts or principles.”

Justine: I’ve listened to four 30-second clips on the new album – I’d say that’s both diligent and systematic. I’m finding that one track is little too heavy in the rhythm track for my taste, and the vocals and lyrics in two songs sound quite lovely and have nice harmonics. Those are facts and principles I’ve discovered.

Frank: You’re on shaky ground.

Justine: They’re just using legalese and word play to jerk around definitions to make it sound like my listening to samples isn’t research – in a normal, casual context of the word ‘research’. It’s nice of them to offer this marketing material for me to study.

Frank: They say that ‘research’ shouldn’t include shopping activities.

Justine: So, when you compared models, makes and prices of cars when you were buying a new one, you weren’t doing research?

Frank: Er, I was ‘shopping around’.

Justine: You had lists with numbers, read reviews posted on consumer sites, talked to and interviewed sales reps. You gathered pages and pages of information. That sounds like research to me.

Frank: Right. Shopping around.

Justine: Okay, as of November 30, 2011, here’s the online Merriam-Webster definition of ‘research’: “1. careful or diligent search; 2. studious inquiry or examination; especially: investigation or experimentation aimed at the discovery and interpretation of facts, revision of accepted theories or laws in the light of new facts, or practical application of such new or revised theories or laws 3. the collecting of information about a particular subject.” I argue that I am ‘collecting information about a particular subject’. As an example of the usage of the word research, this same dictionary has “He did a lot of research before buying his car.”

Frank: So, you’re saying shopping around is a type of research?

Justine: Yes. When I listen to music samples, I’m shopping around, researching them. I might listen to cover-versions as well, and sometimes read reviews. I’m not doing as much research as you when you bought the car, but I’m still compiling information, even if it’s based just on listening, thinking about it and using the material to form an opinion.

Frank: Don’t you think musicians should be compensated for use of the samples?

Justine: Marketers know that in order to sell more product, you sometimes give out something for free. They give thousands of free copies of whole songs to the media. Cheese companies sometimes have people handing out free samples of cheese in grocery stores. Thirty-second samples are what, a sixth of the length of the song, so they don’t have an intrinsic value – in most cases they wouldn’t be able to sell samples. Well, except for maybe those odd bits that might work as a ring tone. Anyway, it’s marketing for them, research material for me.

Frank: Hmm.

Justine: You know, if this nonsense continues and the price of music goes up because they end up adding in the cost of listening to samples, or samples are no longer available – I’m just not going to buy music anymore.

Frank: What will you do instead?

Justine: Buy more cheese.

Access Copyright describes its purpose as “to protect the value of intellectual property” owned by authors and publishers, “by ensuring fair compensation when their works are copied.” Value is an interesting concept – value can increase by market-demand. Value can also be artificially elevated by restricting the supply. What concerns me is that Access Copyright is able to control both axes.

And that leads to one plaguing question: How did we get into this mess? The situation now is almost surreal. How did a single organization manage to monopolize both their supply chain (the authors and publishers who produce the works) and an entire market (the educational community of English Canada)?* I decided to look for an answer to this question. Understanding how we arrived at this moment doesn’t make the situation better, but there’s comfort in knowledge.

These were my opening remarks from a panel discussion “Out of the Shadows” hosted by the BC Library Association on November 2, 2011. Fellow panelists were Paul Jones (CAUT) and Dan Burnett (Owen Bird Law Corporation). We addressed a variety of issues affecting the post-secondary community including Access Copyright licenses (or lack thereof), Bill C11 (previously Bill C32) and the political atmosphere.

The answer to my question lies in the pre-history of Access Copyright and the years that followed. Aiding my understanding were the works of Martin Friedland, Howard Knopf and Margaret Ann Wilkinson. Material was also drawn from the current annual reports of the Copyright Board of Canada and Access Copyright. My notes are available here.

It was a very enjoyable evening; my thanks to the BCLA for inviting me to participate.

* The province of Quebec operates with a different collective, Copibec, and relations there seem to be less contentious.

Tuesday, October 18, 2011

Debate has begun in the House of Commons with respect to Bill C11, the Copyright Modernization Act. The opposition parties voiced their concerns about the measures to protect digital locks and the government insisted such measures were necessary because: (a) copyright holders requested them; and (b) “digital locks are important for encouraging innovation” (see the opening remarks of Hon. Christian Paradis, Minister of Industry). Concurrent with his regular posts, Michael Geist is running a series titled The Daily Digital Locks Dissenter highlighting the submissions from other stakeholders who question the wisdom of absolute protection for digital locks.

In terms of the actual debate, it is disappointing that the government did not emphasize that the inclusion of education to fair dealing does not sanction rampant copying of copyrighted works in schools, as persistent misinformation has given currency. The ministers involved could have mitigated the situation by taking a clear stance at the outset. Instead, the field was left wide open for damaging allegations, such as these remarks from opposition MP Mr. Pierre Dionne Labelle:

What about lost royalties in Quebec because of the broadening of the concept of fair dealing? In fact, what is fair dealing? The law does not specify what is meant by fair dealing. This will result in the loss of $11 million annually for creators and copyright owners. Every year schools, CEGEPs and universities make 175 million copies of excerpts from protected works.  Let us remember that fair dealing is a loose concept that will put an end to the right to grant or deny authorization to use a work and the right to receive remuneration for the use of a work, thus affecting the rights of 23,000 authors and 1,000 publishers in Quebec.

What is so disturbing is the avowed determination that copyright is already a grant of absolute control and fair dealing an impertinent upstart that interferes with those rights. Mr. Mike Lake, Parliamentary Secretary for the Minister of Industry, attempted to clarify the inclusion of education but did not clearly stipulate that copyright has always functioned as a set of limited rights.

Wednesday, October 19, 2011

The Supreme Court handed down a landmark ruling: that linking to content on the Internet is not the same as publication of that material and thus poses no liability to the site who creates the link. The ruling in Crookes v. Newton was set upon the issue of defamation but has broader implications. John Barber, writing for the Globe and Mail, identifies the two dimensions of this case. It can be seen as a continued thrust to protect freedom of expression, or, a practical response to the modus operandi of the Internet.

Interestingly, the ruling contains three opinions in total.  The majority opinion, written by Justice Abella stipulates:

Hyperlinks thus share the same relationship with the content to which they refer as do references.  Both communicate that something exists, but do not, by themselves, communicate its content.  And they both require some act on the part of a third party before he or she gains access to the content.  The fact that access to that content is far easier with hyperlinks than with footnotes does not change the reality that a hyperlink, by itself, is content neutral — it expresses no opinion, nor does it have any control over, the content to which it refers (para. 30).

Abella emphasizes the role of the Charter of Rights and Freedoms and the functioning of our communications’ environment:

This interpretation of the publication rule better accords with our Court’s recent jurisprudence on defamation law.  This Court has recognized that what is at stake in an action for defamation is not only an individual’s interest in protecting his or her reputation, but also the public’s interest in protecting freedom of expression (para 31) … Interpreting the publication rule to exclude mere references not only accords with a more sophisticated appreciation of Charter values, but also with the dramatic transformation in the technology of communications (para 33).

But, as should be expected, the range of that environment invites further thought. There were two additional opinions. Chief Justice Mclaughlin and Justice Fish write:

While we agree in large part with the reasons of Abella J., we respectfully propose a different formulation of the test for when a hyperlink reference in a text constitutes publication of defamatory matter to which it links (para. 46)…In our view, the combined text and hyperlink may amount to publication of defamatory material in the hyperlink in some circumstances.  Publication of a defamatory statement via a hyperlink should be found if the text indicates adoption or endorsement of the content of the hyperlinked text.  If the text communicates agreement with the content linked to, then the hyperlinker should be liable for the defamatory content (para. 48).

And, the final opinion came from Justice Deschamps. He too agrees with the majority opinion that a hyperlink in and of itself is not defamatory but presents further information:

Proof of publication is necessary in order to establish liability for defamation. “Publication” has an established meaning in the law of defamation. It refers to the communication of defamatory information in such a way that it is “made known to a third party”…. Thus, publication has two components: (1) an act that makes the defamatory information available to a third party in a comprehensible form, and (2) the receipt of the information by a third party in such a way that it is understood (para.55).

To resolve the traditional meaning of publication against the practice of hyperlinking, Justice Deschamps proposes:

A more nuanced approach to revising the publication rule, and one that can be applied effectively to new media, would be for the Court to hold that in Canadian law, a reference to defamatory content can satisfy the requirements of the first component of publication if it makes the defamatory information readily available to a third party in a comprehensible form. In addition, the Court should make it clear that not every act, but only deliberate acts, can lead to liability for defamation (para 57).

Thursday, October 20, 2011

Professor Adrian Johns spoke at the University of British Columbia on “The Intellectual Property Defense Industry and the Crisis of Information.” (I could not attend but am enjoying the audio coverage available here.) Prof. Johns posits that intellectual property is a consequence of how the actions of the IP Defense Industry have played out over time. He says, “… going back centuries, the IP police or their predecessors have pioneered practices, that at that point were at best alegal [sic] , or maybe even illegal, but over the years the law has expanded to embrace them.”

Adrian Johns is a professor in the Department of History at the University of Chicago and author of Piracy – the Intellectual Property Wars from Gutenberg to Gates.

Friday, October 21, 2011.

Against the turmoil of contemporary controversy it was a relief to take refuge in a different century and listen to Professor Geoff Turnovksy speak at Simon Fraser University. His talk “Worldly Writers and Worldly Readers in 17th-Century France” was part of the 2011-2012  Print Culture Series. Prof. Turnovsky gave an intriguing look at the relationships embedded to authorship in  the era of the French salon.  He spoke of the authorial modesty of the day and the worldly society made up of a community of readers. His 2009 work, The Literary Market–Authorship and Modernity in the Ancient Regime looks very interesting but I will have to wait (the SFU library copy is already out.)

Geoff Turnovsky is an Associate Professor in the Department of French Studies for the University of Washington.

Of all the tributes, nothing captured more attention than Jonathan Mak Long’s creation, where a silhouetted profile of Jobs served as the bite from the famous apple.

The artist, who goes by the name Jonathan Mak, posted the image here on August 26, 2011 after Jobs stepped down from his position as CEO of Apple. At the time, Mak wrote: “Posting designs like this one makes me paranoid, because I can’t shake the feeling that it’s not original. I enjoyed the process regardless, but please let me know if somebody else beat me to the idea!”

The words were prophetic; comments later posted to his blog accused him of taking from an editorial work of Chris Thornley. That image was published at Creative Review, a visual communication magazine and can also be seen at Thornley’s own site. On October 9, 2011, Mr. Mak posted a very thoughtful and considerate response to the charge of plagiarism. Michael Cavna, of the Washington Post, summed it up well:  “It happens … Two talented artists, same deft idea.” [Cavna’s article includes some delightful editorial cartoons, all relying on a similar theme.]

The dispute is a reminder that “originality” is a heavily laden term, far weightier than what copyright law might impose. As I noted earlier, current discussion of originality draws from the 2004 CCH Canadian decision which reminds us that originality does not rely on being “novel or unique.”  That train of thinking has its roots in an English case of 1916, (Mak, being a resident of Hong Kong, conceivably can draw from the same legal lineage). University of London Press v. University Tutorial Press is a classic case; it set the minimal requirement for originality as something more than a copy, yet not necessarily novel. At issue was whether a set of mathematics examination papers were original. The court wrote:

The word ‘original’ does not in this connection mean that the work must be the expression of original or inventive thought. Copyright Acts are not concerned with the originality of ideas, but with the expression of thought… The originality which is required relates to the expression of the thought. But the Act does not require that the expression must be in an original or novel form, but that the work must not be copied from another work — that it should originate from the author (p.608-609).

The circularity of definition notwithstanding, the last phrase set the bar of originality as separate from the question of uniqueness. Originality is a question of origin. The expression of thought must be new to the author.

But while law awards the label of originality on the basis of individual thought and expression, society is less fair-minded. Whoever speaks, illustrates, composes and then publishes first, gains a prestige at the expense of fellow creators. [It took the world over a century to allow both Newton and Leibnitz equal claims to Calculus]. The assumption is that any similar, or near-identical work, must have been copied. It is a sobering thought – that all work must either be seen as unique or condemned to the stamp of plagiarism.

References:

University of London Press v. University Tutorial Press, [1916] 2 Ch 601

Abraham Drassinower, “Taking User Rights Seriously,” in In The Public Interest: The Future of Canadian Copyright Law, ed. Michael Geist (Toronto: Irwin Law, 2005).

What if, in 1959, the federal government under John Diefenbaker (1895-1979) had not scrapped development of the A.V. Roe (Avro) Arrow? To be sure it was a complex decision, but in that process, a great deal of Canadian expertise in the aerospace industry was thrown away. I am not speaking metaphorically: valuable documents, schematics and prototypes were destroyed; some of the greatest Canadian talent summarily dismissed. (Fortunately for them, many of those scientists and engineers received a warm welcome from NASA.)

What if, in 1932, a federal Combines Investigation (anti-competition) into the behaviour of the American film industry, had been tried in a federal court, instead of a provincial court? Commissioner Peter White had decisive evidence that American studios operated as a cartel in Canada. With the public increasingly aware that independent Canadian filmmakers were being denied exposure in Canadian theaters, opinion was favourable to introducing some manner of a quota to encourage domestic creative effort, as other countries had done. But confusion over constitutional authority ultimately saw the case tried in Ontario, where American studios had their branch-plant distribution offices in residence. The charges were dropped.

And what if Prime Minister Mackenzie Bowell (1823-1917) had carried on the work of his predecessor Prime Minister John Thompson (1845-1894) who fought long and hard to develop a Canadian publishing industry? Thompson had worked tirelessly for years to gain the right of Canadian book printers to supply their own market, through legitimate licensing agreements with U.K. publishers. Such an agreement would have developed a Canadian publishing sector with the potential, as even English officials noted, to command the entire North American market. (Imagine an alternate universe where Toronto, not New York, had been the centre of publishing for North America.) But Thompson’s untimely death left Canada without a champion and the publishing industry duly took form as a branch-plant operation.

[sigh]

But nothing cuts quite so sharply as watching your current government throw away an opportunity.

The Federal Government of Canada has reintroduced Bill C32, now under the name of Bill C11. The amendments remain unchanged. While there are some good elements (i.e., parody, satire and education can become legitimate categories of fair dealing, persons with print-disabilities have a somewhat broader allowance for works to be converted into an amenable format, and an exception for noncommercial mash-ups could facilitate individual creative effort) those measures pale beside the mandated obedience to technological protection measures (digital locks). No circumvention is permitted, even for the legitimate exceptions brought in by the same bill.

Music, film, publishing, software and gaming industries have members who use locks. Those same industries also have members who do not. It is a matter of choice; vendors will decide for themselves whether the use of locks supports the growth of revenue or not. Honourable James Moore, Minister for Canadian Heritage, declares this a market situation, in which the Conservatives are unwilling to intervene:

The movie industry has digital locks on some films and not others … An informed consumer makes the right choices. If people don’t want to buy a piece of software or a movie that has a digital lock, they don’t have to.

If Minister Moore is correct, and there is no reason to think otherwise, then there is no need to drag protection of locks into the Copyright Act. If a copyright holder wishes to prosecute an individual for copyright infringement, it makes no difference whether the individual picked a lock or not to commit that infringement. But since the Copyright Act governs not just consumer behavior but also creative adventurism, embedding protection for digital locks into the Act removes any balance in the system of copyright. If a work is locked, and there is no allowance for legitimate lock-picking, all exceptions become null and void. It is painful to watch Canada adopt American maiden ideas of 1998, namely their Digital Millennium Copyright Act (DMCA), instead of the subsequent international awareness, as of 2011.

By sheer luck (three minority governments) Canada avoided embedding protection for digital locks into law. Over the last 13 years we have had the luxury of watching how creativity and markets adjusted to digital technology set upon world-wide networks. Now there is a more measured awareness that new media technologies offer a promise that is greater than any of the earlier conceived perils. It is also well known that, the efforts of RIAA notwithstanding, the U.S’s own protection for digital locks did not ensure the growth of their music industry. At a conference at McGill University held in 2007, Bruce Lehman, architect of American efforts to protect digital locks at home and abroad, said: “… attempts at copyright control have not been successful, at least with regards to music.”

One official reason for embracing digital locks lies within the WIPO Internet Treaties. Christine Dobby writing for the Financial Post says:

The bill’s passage will also allow Canada to ratify the World Intellectual Property Organization internet treaties it signed in 1997. Canada is one of only a handful of the 89 signatory countries that has yet to implement the treaties

The number of countries that have implemented the treaty is irrelevant. The larger question is: what is the substance of the treaties? These treaties were conceived of by the sound-recording industry in the mid-90s (the height of digital angst) expressly to protect their assets upon a digital landscape. But it was by no means a unanimous international exercise — the language of the treaties was hotly disputed; Michael Geist gives the fuller story in From “Radical Extremism” to “Balanced Copyright” — Canadian Copyright and the Digital Agenda.  And, as he has also revealed, the Federal Government is aware that Bill C32/C11 goes far beyond what is required to comply with these treaties.

Which leaves only one other reason: to placate the United States. Steven Chase, writing for the Globe and Mail, does not mince words:

The Harper government is using its new majority to remove a long-standing trade irritant with the U.S. government by passing a law that will crack down on digital piracy and expand protection for copyrighted materials in Canada.

The salt in the Canadian wound is that the United States itself has softened its stand on digital locks. Under the guidance of the U.S. Librarian of Congress educational uses of some locked copyright material is permitted. So too is use of those materials for documentary films and noncommercial videos.

And, above all, the United States has the flexible language of fair use, with all the innovative potential that exception yields.  If we must look to American law for inspiration, there are better aspects to draw from.

Canada is one of only a handful of countries that has some autonomy in setting its own intellectual property agenda.  Our framework of trade with the United States was established through the Canada-US Free Trade Agreement (1988) and broadened through the North American Free Trade Agreement (1994). Arguably, newer trade issues have arisen since then – border flow and access-to-competition are important. But giving away the store now does not secure Canadian well-being in the future.* Whereas if Canada set priority on fostering creativity and innovation at home, the United States would not be our only significant market.

* Blayne Haggart has written about Canada’s domestic copyright autonomy in From “Radical Extremism” to “Balanced Copyright” — Canadian Copyright and the Digital Agenda. Commentary about Canada-U.S. trading issues can be found at his blog.

As has been written many times on this blog, fair dealing is not license to copy and distribute at will. It is a nuanced exception within the system of copyright. But the atmosphere of copyright, at this time, is one of confusion.

The movement away from Access Copyright bundled licenses towards more varied approaches for purchasing and distributing learning materials is a positive step. Monopoly practices never produce quality and variety to the benefit of consumers; it doesn’t matter which industry one talks about. Unfortunately, the adjustment is messy. Post-secondary teachers across Canada are unsure of what materials they can copy. A recent article from the Canadian Press sums up the situation:

The resulting wariness means students aren’t getting the same course material they received in the past as guarded professors choose to simply eliminate material from classes they teach rather than risk a lawsuit. … Libraries and copyright officers have been swamped with work this fall, trying to clear the course materials assigned for classrooms.

Sorry as I am to hear that, the larger problem is the degree to which existing teaching practices are scrutinized for copyright infringement. Individual teachers have been implicitly, or explicitly, instructed to remove any copyrighted material from display during lectures. Such a directive has no basis in law. It ignores fair dealing entirely. The purposes of criticism and review (found within existing fair dealing) favour the use of quotations, illustrations, diagrams, flow charts, film clips and software snippets – in short, any copyrighted material – when such inclusion serves the purpose of conveying concepts to students. To fortify this behaviour under fair dealing, attribution is important. But with citation being the backbone of academic practice, it is likely that teachers already take care to identify their source materials to students.

Furthermore, bans on inclusion of copyrighted material in a lecture presentation ignore the status of the teacher as an author in his or her own right and the originality that implies. Preparing a lecture is much more than assembling a sequence of copyrighted material. Teachers bring their own language into the lecture, shaped as it is by their own perspectives. And they exercise the skill and judgment befitting an original creation as described by Chief Justice Beverly Mclaughlin in CCH Canadian.*

A lecture is an original  expression of an idea. Said another way, a lecture is a copyrightable work on its own merits. The fact that this work contains copyrighted elements is not a negation of the copyright status of those elements but neither does it require permission or payment for those elements. This is precisely the behaviour that fair dealing protects; provided one can fall within the existing categories of private study, research, criticism, review and news reporting.

(If this all sounds too esoteric, Canada has an appropriate example of a successful fair dealing defense of an inclusion of copyrighted work into a new work. In this case, a photograph was incorporated into a news story.)

Of course the question will arise, can this work  - known as the lecture – be distributed to students? That is a decision for the copyright holder of the work, namely the author-teacher. I read of Professor Jeremy Richards’ decision to remove some elements before distributing his slides to students – that is his prerogative. I do not have much sympathy for students who require a lecture-to-go. Professor Richards makes a cogent point that students could gain more by taking notes by hand instead of “letting it all wash over [them].” But in any case, the decision to distribute remains at the discretion of the individual who created the whole work, not the copyright holders of the constituent parts.

Good Luck.

* While in this blog I have focused upon the development of the framework of inquiry for fair dealing as brought about through CCH Canadian, the case had another side: a discussion of originality. On that point the Chief Justice wrote:

For a work to be “original” within the meaning of the Copyright Act, it must be more than a mere copy of another work. At the same time, it need not be creative, in the sense of being novel or unique. What is required to attract copyright protection in the expression of an idea is an exercise of skill and judgment. By skill, I mean the use of one’s knowledge, developed aptitude or practised ability in producing the work. By judgment, I mean the use of one’s capacity for discernment or ability to form an opinion or evaluation by comparing different possible options in producing the work. This exercise of skill and judgment will necessarily involve intellectual effort. The exercise of skill and judgment required to produce the work must not be so trivial that it could be characterized as a purely mechanical exercise (para.16).