‘Negotiating with the Dead’

When it became evident that our copyright term was to be extended by twenty years, with no measures to mitigate the excess damage wrought by such action, Margaret Atwood’s book of this title kept returning to mind. A foray into the relationships that exist between writers and writing, a book where the word copyright did not feature among those ruminations, the title nonetheless feels apt for the days ahead.

Works of long-since-dead authors will now—in the best of situations—literally become objects of negotiation. This is purportedly to the benefit of those authors’ heirs, whereas on balance the true beneficiaries will be international publishing conglomerates and collective societies. In the worst of situations though, works will simply fade away with no surviving copy to emerge seventy years after their authors’ deaths. Those authors will be forgotten, and the public domain will remain poorer.

Atwood has been a prominent advocate for a stronger scope of protection in the name of copyright, famously remembered for her characterization of exceptions as expropriation and theft during a Standing Committee Meeting of the Department of Canadian Heritage in 1996. Two decades later, when she gave the 2016 CLC Kreisel Lecture at the University of Alberta, fair dealing was called out by name. Nonetheless, that lecture was a delight to listen to, grounded as it was on Atwood’s own experiences of being a Canadian writer.

It is her life that lies at the foundation of Negotiating, which took form through the Empson Lectures at the University of Cambridge in 2000. The combination of literature, literary criticism, book history, and history itself, written as only Margaret Atwood can, makes for compelling reading. In this book she comes perhaps closest to answering an age-old question about writing: what does it mean to write? There is no neat and tidy answer; at the very least it is blood, sweat, and tears amid negotiations between oneself, the society of the living, but also that of the dead.

To be sure, financial wherewithal is relevant to any impetus to write. Money appears approximately three times among the 74 reasons for writing taken “from the words of writers themselves (xx-xxii).” Yet, perhaps unintentionally, Atwood lays bare why copyright was not, nor ever will be, a broad determinant of success (either literary or material) for Canadian writers and publishers. From identifying the limitations of the Canadian publishing sector in the early to mid-twentieth century (to say there was disinterest in Canadian authors is putting it mildly), to stripping away the facades of originality and individuality (which underpin copyright’s structure of rights) in literary endeavor, there is much here to remind us that Canada’s phenomenal success in developing literary talent (see here and here) has occurred despite copyright, not because of it.

After borrowing the book repeatedly from the Edmonton Public Library, I had to buy it. Or rather, I had to buy it in the original form. Because what I had borrowed was a book titled On Writers and Writing, by Margaret Atwood, identified as a Canadian reprint of her earlier work, Negotiating with the Dead.

My preference was to buy Negotiating; in the peculiarities of my own mind, somehow it felt more authentic. As it turned out though, my instincts were correct. The two books are not the same. The difference lies, not in Atwood’s words, but in the representation of what copyright is. While both books specify the copyright as belonging to O.W. Toad (the name of Atwood’s enterprise), similarity ends there.

In Negotiating, published by The Press Syndicate of The University of Cambridge, readers are told: “This book is in copyright. Subject to statutory exceptions and to the provisions of relevant collective licensing agreements, no reproduction of any part may take place without the written permission of Cambridge University Press (emphasis mine).”

There it is. A clear indication that statutory exceptions exist and are relevant; meaning that some reproduction might not require permission. Whereas in Writers, published by Emblem (an imprint of McClelland & Stewart, a division of Random House of Canada Limited, a Penguin Random House Company), readers are told that permission is always needed for even a particle copied:

“All rights reserved. The use of any part of this publication reproduced, transmitted in any form or by any means, electronic, mechanical, photocopying, recording, or otherwise, or stored in a retrieval system, without the prior written consent of the publisher – or, in the case of photocopying or other reprographic copying, a license from the Canadian Copyright Licensing Agency – is an infringement of the copyright law (emphasis mine).”

Despite what a publisher might prefer, Canada’s Copyright Act permits unauthorized uses of insubstantial parts of a work and unauthorized uses of substantial parts which comport with fair dealing or other exceptions. As the Supreme Court (with unanimity) stated in 2004, “the fair dealing exception is perhaps more properly understood as an integral part of the Copyright Act than simply a defence. Any act falling within the fair dealing exception will not be an infringement of copyright (para 48).” And yet, willful misinformation is standard fare among books issued in Canada.

Given the stunting of our public domain by term extension, fair dealing is even more important now as it provides some allowance of use of older, protected, material. But even a large and liberal interpretation of fair dealing, as required by our Supreme Court, is no substitute for a vibrant public domain.

With the Act expected to undergo change this year, Canada could still introduce a system of registration associated to a longer term of copyright. Owners of works which continue to be commercially successful fifty years after an author’s death, will likely choose to register and thus receive the additional twenty years of protection. Whereas works that did not have such longevity with respect to commercialization, and works that were never intended for revenue generation, would likely not be registered and thus would enter the public domain without the twenty year delay. Such a system was recommended by a former Industry Committee to uphold our obligations under CUSMA, ensure that commercial works which may benefit by a longer term are able to capture that gain, and continue to grow the public domain.

The difficulty is to convey to current Canadian lawmakers the importance of the public domain. Too often, its intangibility has meant that the public domain is perceived as being of lesser value. That an author’s work is not protected somehow deems it and the author as being unworthy. Even the way older works are spoken of, that they have “fallen into the public domain,” carries an aura of degradation familiar to the plight of “fallen women.” Whereas the public domain is precisely the opposite; it enables new works to emerge. As Jessica Litman wrote in The Public Domain (1990):

To say that every new work is in some sense based on the works that preceded it is such a truism that it has long been a cliche, invoked but not examined. …  The public domain should be understood not as the realm of material undeserving of protection, but as a device that permits the rest of the system to work by leaving the raw material of authorship available for authors to use (966-968).

That this truism went unexamined and unarticulated is a testament to the difficulty of capturing the intricacy of the relationships between old works and new authors. Margaret Atwood not only undertook such an exploration but also elegantly articulated the journey that underlies every literary endeavor.

It is only fitting then that Margaret Atwood should have the last words:

… All writers must go from now to once upon a time; all must go from here to there; all must descend to where the stories are kept; all must take care not to be captured and held immobile by the past. And all must commit acts of larceny, or else of reclamation, depending how you look at it. The dead may guard the treasure, but it’s useless treasure unless it can be brought back into the land of the living and allowed to enter time once more – which means to enter the realm of audience, the realm of readers, the realm of change (p.178).

why?

A few weeks ago, the University of Toronto announced revised guidelines and supporting material pertaining to fair dealing. A move that was not altogether surprising, given that their previous documentation was crafted in 2012. But what has emerged is unsettling.

For those new to this story, the first fair dealing guidelines addressing education in Canada took as inspiration the practices of the library of the Law Society of Upper Canada, which some ten years earlier had played a pivotal role in bringing fair dealing out of the shadows in Canada. The library was willing to copy material on behalf of patrons but did so under an inhouse policy which took into consideration the amount copied and the purpose of copying. When a group of publishers claimed the library’s conduct was infringement, in 2004 a unanimous Supreme Court of Canada rejected their claim saying:

Section 29 of the Copyright Act states that ‘fair dealing for the purpose of research or private study does not infringe copyright.’ The language is general. ‘Dealing’ connotes not individual acts, but a practice or system. … Persons or institutions relying on the s.29 fair dealing exception need only prove that their own dealings with copyrighted works were for the purpose of research or private study and were fair.  They may do this either by showing that their own practices and policies were research-based and fair, or by showing that all individual dealings with the materials were in fact research-based and fair (para 63).  

It was a significant step towards recognizing the value of fair dealing and practicing it openly.

Yet the opportunity provided by our highest court to reinvigorate fair dealing was largely ignored for eight years. It took a serious misstep on the part of Access Copyright in 2010 for fair dealing to receive more consideration from the education sector. Only when reassured by another Supreme Court decision supporting fair dealing (concerning distribution of some learning resources to K-12 students) and a legislative change reflecting the government’s intention to “allow educators and students to make greater use of copyright material,” was the sector willing to collectively implement fair dealing as an institutional practice.

To that end, Universities Canada, Colleges and Institutes Canada, and the Council of Ministers of Education, developed guidelines for applying fair dealing—language which focused on what can be done, rather than explaining why. Institutions independently addressed the latter need as they saw fit. Among that effort was the University of Toronto’s 2012 Copyright Fair Dealing Guidelines developed by Howard Knopf and Casey Chisick under the leadership of then-Senior Legal Counsel Steve Moate (a position he held from 2006 to 2021, to great acclaim). As readers may know, Knopf and Chisick have differing perspectives on this topic, thus giving their combined effort added weight as a reasonable approach to fair dealing.

Comparison of those 2012 guidelines against their 2022 update is revealing; while individual changes appear modest, taken altogether they point to a diminishment of fair dealing.

At the outset, the purpose of the 2022 guidelines seems clear: “[To] assist members of the University community in decision-making about copying and other dealings with works. However, in situations of doubt, the library is available for advice and assistance (p.1).” The 2012 version is largely retained in terms of the explanation of Canada’s system of copyright, along with supportive Supreme Court case law. In the 2022 version, readers are also told that the Court “endorsed the use of guidelines like these to help actualize the use of fair dealing to facilitate fair dealing (p.2).” A prior sentence stands out though by way of omission; while readers of the 2012 guidelines were told, “The University is of the view that these short-form Guidelines should provide a ‘safe harbour’ for a considerable range of copying that occurs in the teaching and research activities of members of our community,” this view is nonexistent in 2022.

In and of itself, this is not troubling. Fair dealing is a matter of context and so every decision warrants individual assessment. However, on this point the 2022 guidelines lacks transparency. For instance, in the 2012 version readers are told: “A ‘short excerpt’ can mean (but is not limited to and may vary depending on the exact nature of the work being used, …).” Whereas now the phrase “is not limited to” has been removed, with emphasis added to the qualifier that in all situations users take “no more of the work than you need to achieve the allowable purpose.” This is not incorrect, but the University then muddies the waters by adopting a stance more likely to be found in the arena of commercial publishing:

Even where the portion of a work that is used is relatively short, or otherwise fits within the quantitative guidelines, the use may nonetheless be considered unfair. For example, the use of a short excerpt may tend toward unfairness when: (a) the short excerpt is qualitatively significant in relation to the overall work, such that the most important part, or the qualitative core, of the work has been used (i.e., if the short excerpt takes the heart of the work—the climax of a novel, the most revealing part of a biography, the ‘hook’ of a recorded song, and so on…

University of Toronto Copyright Fair Dealing Guidelines (2022) p. 7.

“The heart of the work” was a determinative factor in an American dispute in the 1980s between rival publishers of an excerpt of Gerald Ford’s memoir Time to Heal. While the excerpt was brief (300 words) it included details about Ford’s decision to pardon Richard Nixon, later deemed “the heart of the manuscript” by the U.S. Supreme Court when it denied the defendant’s claim of fair use. If American practices are to be held up as exemplars, Canadians should be provided a better understanding of the American context.

Fair use is generous in its statutory language (multiple copies for classroom use are specifically identified as eligible) but during the 1980s fair use began to be curtailed in application; it was largely seen as only an antidote to market failure. Since then American courts have become more attune to the interplay of fair use’s contextual factors towards the larger purpose of the system of copyright itself. Thankfully, our Supreme Court in 2004 ensured that Canada could be spared such growing pains in the development of fair dealing. Thus framing Canadian guidance by this particular aspect of American fair use history is peculiar at best.

While the University of Toronto may wish for these guidelines to serve all potential uses occurring under its auspices, the reality is that these guidelines are likely most in demand for the purpose of determining what learning resources may lawfully be provided to students as reference material. Against that need what follows is even more baffling.

In all cases, it is important to avoid using more of a work than is truly necessary to achieve the allowable purpose. If the same goal could have been achieved using a shorter excerpt, the dealing may tend toward unfairness. This may be the case, for example, when an entire poem or musical score is reproduced, but only a couple of stanzas or a few dozen bars are being taught, or when an entire journal article is reproduced but only one section or a few specific paragraphs are relevant to the course or lesson. … [Short excerpt] should be understood to apply only where it would not be possible to achieve the allowable purpose by using an excerpt of any length…  where the portion to be studied cannot practically be separated from the rest of the work.

Ibid. (emphasis mine)

What is meant by “being taught” in a lesson? Is it the material an instructor chooses to focus on for that hour, or is it the wider understanding a student gains by engaging with a work as a whole? It is implausible that anyone teaching either music or poetry would believe that providing students with fragments is meaningful when compared to engaging with a whole work. Given that this copying is already circumscribed by the limit of one work from a compilation and that it has long been understood that multiple takings from the same source are unfair, copyright owners’ interests are reasonably well-protected. Yet it appears that the University’s preference is that fair dealing with third-party materials be confined to what can be contained within a PowerPoint presentation.

Even that narrowing of fair dealing is then further reduced when applied to images found on the Internet. As detailed in the FAQ:

13. I found an image on the Internet that I want to use in my lecture slides. Can I do it?

It depends. An image or clip art on the Internet is protected by copyright in the same way as an image in a book or on paper. If you want to use it without a licence, a user’s right needs to apply, or the work needs to be in the public domain or available through an open access licence. Otherwise, you will need to obtain permission from the copyright owner. In some cases, you may be able to rely on the exception in section 30.04 of the Copyright Act for works available through the Internet [according to the conditions of 30.04].

University of Toronto, Copyright Basics & FAQ, p.14

The University seems unwilling to speak the words “fair dealing” in connection to imagery found via the Internet, choosing instead “a user’s right.” Again, this is not incorrect. But as fair dealing is the fundamental user’s right, it is a strange choice of vocabulary.

Furthermore, using visual content is one area where Canada has recent, good case law to refer to with respect to fair dealing. (See Michael Geist’s comments regarding Vancouver Aquarium Uncovered and Bob Tarantino’s account of Room Full of Spoons), making the FAQ response even more inexplicable.

Perhaps most bewildering is that from the outset of the contextual analysis fair dealing’s scope is artificially narrowed; use must be in aid of “a genuine educational or academic activity (p.6).” This restriction has no basis in law—it is solely the creation of the University of Toronto. It flouts the instruction given by the Supreme Court in 2004, that fair dealing be given “a large and liberal interpretation.” Beyond inexplicable, this is indefensible.

While the goal of these documents may have been to assist the community, they read more like deterrence. Which invites a question: Why? The educational sector’s traditional risk-aversion does not adequately explain what is happening here. If the University desires to curtail the practice of fair dealing within its community, there are less convoluted ways to do so.

Readers likely know that the University has begun legal action against a tutoring service known as Easy Edu. The university is claiming infringement of materials authored by faculty members but Easy Edu has denied infringement and cited fair dealing. Neither party’s claims have been verified and at this time there are no details as to what specifically was copied, how much, for what purpose etc. Yet the existence of the dispute raises the possibility that the University of Toronto is attempting to curb within its own ranks the conduct it finds objectionable when used by others.

Regardless of motive though, the University of Toronto’s 2022 Fair Dealing documents illustrate a regressive approach to fair dealing. They do not reflect what many have laboured for over the past twenty years—including multiple Supreme Court Justices—to show that fair dealing has both substance and honour.

in the public interest

Last month, the Supreme Court of Canada provided Canadians with yet another positive outcome in the development of our system of copyright—one that (as Michael Geist said in 2004) does more than simply pay lip service to the balance required therein. SOCAN v. ESA (2022) picks up from where ESA v. SOCAN (2012) left off. On both occasions, our highest court was asked to determine if content flowing through the internet requires additional payment, because of the mode of conveyance. Each time the Court said No.

The issue of concern was the “making available” condition, which was added to the definitional framework of the Copyright Act in 2012. Section 2.4(1.1) states: “For the purposes of this Act, communication of a work or other subject-matter to the public by telecommunication includes making it available to the public by telecommunication in a way that allows a member of the public to have access to it from a place and at a time individually chosen by that member of the public.”

In a LawBytes episode hosted by Michael Geist, Jeremy de Beer describes the fuller history of this dispute, noting that “the making available case has been more than 25 years in the making.” The legal drama stemmed from the late 20^th century phenomenon of music file sharing and the music industry’s effort to assert control over, and seek compensation for, the flow of music. In the first associated case to reach the Supreme Court—SOCAN v. CAIP (2004)—the dispute was whether ISPs should be charged for content that flowed via their services. The Court recognized the importance of leaving neutral entities unfettered in their role as facilitators of access to the Internet and rejected SOCAN’s claims.

This was hardly a death knell for the music industry, quite the opposite. From the infancy of iTunes to a profusion of streaming services today, commercial sales of music and other entertainment products have thrived. In SOCAN’s own words this year:

Despite the challenges of 2021 in the wake of the COVID-19 pandemic, for the first time in its history SOCAN’s total annual collections for licensed music are expected to exceed $416-million… When compared with 2020 collections of $391-million, the company attributed most of the $25 million year-over-year growth to $135 million collected for the use of music on digital platforms – an increase of $32 million over 2020.

As Geist noted, that trend had been positive for some time:

(As to whether profits are fairly distributed between music publishers and their composers and authors, that is an issue of bargaining power, not copyright.)

Returning to the recent decision, the question was whether the “making available” condition, implemented to ensure Canada’s adherence to the WIPO Internet Treaties (1996), was a new right under the Act or merely clarification that the decision to make content available is already protected under our Act. Our highest court made it abundantly clear that Parliament did not create a new right, that in fact, Parliament never intended that this be a new right. Rights are defined, and confined, in Section 3.1. Writing for the Court, Justice Rowe states:

While I accept that the act of ‘making a work available’ is a separate physical activity from the act of a user downloading or streaming a work, it does not follow that it is a separate compensable activity. Had Parliament intended to treat the act of making available as a new separately compensable activity, the way to do so would have been to add ‘making available’ as a fourth copyright interest in the opening paragraph of s. 3(1) (para 59).

Another notable reason given for rejecting the proposition that a new right had been created, was that such an interpretation would violate the tenets of technological neutrality—a goal explicitly stated by Parliament with respect to the 2012 amendments. Again, from the Court:

The principle of technological neutrality is designed to operate precisely in situations like the present case, where a novel technology emerges that has no clear traditional equivalent. In those circumstances, courts must look at what that new technology does to the substance of the work by examining which, if any, of the copyright interests in s. 3(1) are engaged by this new method of distributing a work. If that new technology gives users durable copies of a work, the author’s reproduction right is engaged. If the new technology gives users impermanent access to the work, the author’s performance right is engaged (para 70).

On multiple fronts, this decision is good news and positions Canada well for the future. Michael Geist concisely describes its overall impact: “[It is a] repudiation of SOCAN’s effort to establish a new, additional royalty for the ‘making available’ of music, confirmation of the importance of technological neutrality and copyright balance, an example of the flexibility associated with implementing the WIPO Internet treaties , and the undeniable entrenchment of Canadian copyright jurisprudence that now features deeply layered precedents on users’ rights.”

And yet.

 In his conversation with Geist, de Beer addresses the handling of these issues by the Copyright Board. While he is unequivocal that much of the criticism levied at the Board is undeserved, emphasizing that these matters are highly complex and could be addressed through several plausible approaches, de Beer sheds some light on how the Board copes with such complexity. Briefly, Board members have been so immersed in complicated, technical issues, and “were so deeply familiar with the process of law reform,” they might not consider “alternate interpretations of what the legislation could have meant.” (Unspoken, but implicit is that law reform routinely meant expansion of rights.) Whereas when these same issues arrive at our appeals’ courts, Justices will be “coming at this with fresh eyes [and] rather than focusing on hyper-technical issues and embedded assumptions,” will examine “copyright law and policy more generally, with broader principles … and thus are more able to see another path.”

Said another way (my words now, not de Beer’s) the Federal Court of Appeal and the Supreme Court of Canada are more likely to place public interest (comprising the needs of users, creators, and copyright owners) now and into the future, at the core of any decision.

Readers might remember the Board’s origin story—as has been detailed by Ariel Katz and others—illustrates that the governing body came into being to protect the public interest from the “mischief” and “extortion” wrought by predecessors of today’s collective societies. Moreover, in 2019, after much scrutiny of the Board’s operations (a review by the Senate Standing Committee on Banking, Trade, and Commerce, and the Statutory Review of the Copyright Act by the Standing Committee on Industry, Science and Technology), the powers-that-be explicitly specified “public interest” as relevant to tariff setting processes (Subdivision H/Amendment 292 of C-86).

And yet public interest is still unevenly applied by the Copyright Board. With our profusion of collective societies and entrenched systems of tariffs, this is a troubling state of affairs. We cannot assume that every Board decision will always be reviewed through our appeals’ courts.

But on a more positive note, Canadians should savour a significant theme in this decision—that when examining the intersection of international agreements with domestic law, it is the will of Parliament that matters:

While a treaty can be highly relevant to statutory interpretation, it cannot overwhelm clear legislative intent. The court’s task is to interpret what the legislature (federally and provincially) has enacted and not subordinate this to what the federal executive has agreed to internationally. It is always the domestic statute that governs because “international law cannot be used to support an interpretation that is not permitted by the words of the statute” (para 48, citation omitted).

This may seem intuitively obvious but this outcome was not assured. Since the inception of the Berne Convention (1886), copyright maximalists have used international treaties to expand the scope of copyright. (The exception being the Marrakesh Treaty (2013) for visually impaired persons but we cannot forget it took 30 years to overcome the objections of international publishers and it was ultimately watered down for their approval; see here and here.)

Canada’s 150+ years of copyright history has been one of perpetual acquiescence to foreign demands over domestic needs. Even after shedding our colonial status, in the late 19^th century the British Crown cited the Berne Convention (and American wishes) and summarily overrode the then-Canadian Parliament which had chosen an innovative approach to copyright that supported Canadian publishers and writers (see here).

Canada did not fare much better in the 20^th century with branch-plant American interests influencing the views of Canadian creators. And even as a 21^st century system that prioritizes Canada has taken shape over the last twenty years, a chorus of dissent followed each progressive step with dire warnings that we would violate Berne, TRIPs and WIPO treaties. Thus SOCAN’s argument that an international treaty necessitated a new right was hardly a surprise. What was striking was the forcefulness of the Court’s rebuttal:

Article 8 [of the Treaty] obliges member countries to do two things: (1) protect on˗demand transmissions and (2) give authors the right to control when and how their work is made available for downloading or streaming. It does not, however, tell member countries how to give effect to these obligations. … Member countries could provide for art. 8 protections through “an explicit making available right or provide effective coverage of the right through a combination of pre˗existing rights” (para 88 emphasis mine, citation omitted).

(The Court emphasized that we have done our duty through existing provisions; much like the United States, para 89 or 109.)

As this installment of ESA and SOCAN decisively illustrates, an international treaty, let alone a maximalist interpretation thereof, is no longer sufficient to deny a made-in-Canada system of copyright as befitting our public interest. A moment that has been more than 150 years in the making.

Image by Rebekka D provided through Pixabay