Meera Nair


In Posts on February 23, 2021 at 8:51 am

Fair Dealing Week (Fair Use Week for others) is upon us – that one week among 52 where exceptions to copyright are afforded some spotlight. As maximalism dominates copyright’s public persona, reminding Canadians and others of the importance of exceptions within the system of copyright becomes increasingly important. 

My last post highlights how easy it is to cast aspersions on efforts to mitigate the costs that a maximalist approach to copyright imposes on a country. Uttering the words “Berne Convention” often chills, and can silence, debate. Such is the power of that first international treaty regarding protection of authorial works across nations. Against this reality, a recent article by T. Prashant Reddy and Vishal Rakhecha invites imagination and execution: “[India] must push for amendments to the Berne Convention that allow member states to introduce a registration requirement for publishers under their laws.” The authors explain their quest as critical towards achieving affordability for scientific and educational publications.

Amending the Berne Convention is no small task. But perhaps India and her 1.4 billion people, including an attractive commercial market larger than the populations of many so-called developed nations, might just have the clout to do so.

To be sure, it will be an uphill battle. The Berne Convention never aspired to be a means of encouraging learning or advancement of arts and sciences. Those early motivations, invoked in the Statute of Anne (1709) and the American Constitution (1789), sought to create systems of copyright that acknowledged the interaction and importance of both public wellbeing and individual benefit. But calls for international observance of foreign copyrights (the Imperial Copyright Act (1842), the Berne Convention (1886), and, modern IP treaties and bilateral agreements), focused on individual gain and market dominance.

Nineteenth century arguments for global uniformity of ever-increasing protection endure; dominant nations alternate between scolding others for a lack of civility and enticing them with unsubstantiated claims of future success for domestic authors and publishers operating in the weaker market. When those arguments did not succeed on their own merits in the nineteenth century, Imperial strong-arming followed, to the detriment of developing nations (Canada included, see here and here). Later, in twentieth century, a new version of the same story emerged as the United States wielded its Special 301 lists.

In International Copyright and Access to Knowledge (2016), Sara Bannerman shuns the popular narrative of copyright as a 300 year progressive expansion of authors’ rights; instead, she writes:

The history of international copyright can be seen, in some cases, as the erosion of the principles of access to knowledge. … The Berne Convention embeds and reinforces the substantive inequalities of the international system, enshrining rich countries and corporations, the primary producers of copyright works, as the main beneficiaries of international copyright … with few mechanisms to ensure that local public policy goals [of poorer countries] are met (p.3-5).

Bannerman shows the consistent narrowing of provisions meant to facilitate a freer flow of educational, scientific, and news content. And as the twentieth century unfolded, trepidation over exceptions and limitations defined within the Berne Convention, cast further doubts on nations’ abilities to exercise what are now recognized as user rights. With Canada at the brink of adding twenty years to its copyright term, those user rights—principle among them, fair dealing—become all the more vital.

To that end, Tanya Aplin and Lionel Bentley offer a more positive view of limitations as being supported by the Berne Convention—a view that encourages robust application of fair dealing or other domestic statutory exceptions. In Global Mandatory Fair Use (2020) they begin with an enticing prospect: “Imagine an international instrument that does not merely oblige [conferring] rights on copyright holders… but also mandates limitations. Imagine, too, that such an instrument requires parties to permit use of material that has been taken from from existing works, irrespective of the purpose of so doing, but only on the condition that the use is in accordance with fair practice (p.1).”

Aplin and Bentley then reveal that imagination is not required, as the instrument already exists—it is none other than Article 10 (1) of the Berne Convention: Certain Free Uses of Works.

With exceptional detail, the authors excavate the deeper history, meaning, and application of Article 10 (1). Their scholarship may well blunt the ease with which the Berne Convention is currently thrown up as an obstacle to reliance on exceptions. Interested readers may also enjoy Aplin and Bentley’s presentation and discussion, offered through the auspices of the Program for information Justice and Intellectual Property in late January. As to how their work may be supported and operationalized, with a nod to Emily Hudson, Aplin suggests that cultural institutions might be a place to start.

Hudson’s work, Drafting Copyright Exceptions (2020) details her exploration of environments of practice of exceptions in Australia, Canada, the United Kingdom and the United States during the early 2000s. Her Canadian focus begins in the years following our landmark decision CCH Canadian v. Law Society of Upper Canada (2004) and it’s re-introduction of the language of “rights” with respect to use in Canada. (It is worth remembering that in Canada’s first fair dealing case, Zamacois v. Douville (1943), the presiding judge emphasized the presence of user rights within the system of copyright, namely the right to quote. See here for some details.)

Noting the “muted” impact of CCH on Canadian institutions, a fact Hudson situates on our judicial and legislative histories, aided and abetted by the past dominance of collective management, she also draws attention to the uneven distribution of copyright knowledge and expertise across Canadian institutions. More than ten years after Hudson’s fieldwork, capacity building in Canada should remain a priority, particularly in light of the standards, guidelines and purported customs which permeate evaluation of use of copyright-protected work.

As stated at the outset, “fair practice” is the cornerstone on which fair dealing or other exceptions rest. Comprising, as Aplin and Bentley describe, “a plurality of considerations,” it is telling that the authors mention “custom and trade” among elements of fair practice but do so with some reservations. Referencing the work of both Kenneth Crews and Jennifer Rothman, Aplin and Bentley write:

… [Thus Crews is] highly dubious about the role of fair use guidelines and observes that the guidelines are not law, reflect a minimalistic view of fair use and risk fixing understandings of fair use and undermining its flexibility. [Similarly, Rothman] views using custom to evaluate ‘fairness’ as disadvantageous because of its tendency to be treated as a ceiling rather than a floor, in effect narrowing fair use. In Professor Rothman’s view, there can be a role for custom to play but it must be measured against a framework of factors: ‘the certainty of the custom, the motivation for the custom, the representativeness of the custom, how the custom is applied (both against whom and for what proposition), and the implications of the custom’s adoption’ (p.171-173).

Aplin and Bentley then suggest: “Customs that are ‘uniformly recognised and supported’, formulated as an ‘aspirational set of practices’ rather than as litigation avoidance techniques, are developed ‘with a diverse representation of interests’ and applied to those who participated in the custom generation or were represented in that process, should be given more weight.”

Imagine that.

term extension — redux

In Posts on February 15, 2021 at 8:18 pm

An illustration of the works of Lawren Harris, which now are in Canada's public domain.

Mount Robson, by Lawren Harris (1885-1970). A recent arrival to Canada’s public domain.

The spectre of copyright term extension has returned to Canada as the Federal Government seeks to fulfill its CUSMA obligation to extend the term from life-plus-fifty years to life-plus-seventy years. Canadians have been invited to comment regarding the “[adoption of] measures to mitigate the potential implications of this longer term of protection.”

As Michael Geist writes, with only a month allotted for Canadian input (during a pandemic), this has all the appearance of “consultation theatre,” particularly as a credible and comprehensive evaluation of many proposed changes to the Copyright Act, including term extension, was carried out by the INDU Committee assembled in 2017-2018. In their words:

[The Committee] favours extending the term of copyright, but only if CUSMA is ratified. The Committee expects that rights-holders will benefit from term extension, but also notes the arguments made against it. The Committee believes that requiring rights-holders to register their copyright to enjoy its benefits after a period equal to the life of the author plus 50 years would mitigate some of the disadvantages of term extension, promote copyright registration, and thus increase the overall transparency of the copyright system. 

But as Geist also writes: “The government is not inclined to support the committee’s recommendation.” Even more disappointing is the sight of the present government denigrating the painstaking work of the former INDU Committee members and analysts by questioning the legitimacy of their recommendation. In the consultation document, this government writes: 

The approach recommended by INDU raises serious questions in the context of Canada’s international obligations, as well as the costs that would be borne by copyright owners and the duplication of administrative efforts that might result. Numerous international treaties to which Canada is a party (e.g., Berne) prohibit the imposition of any ‘formalities’ [such as registration] that would need to be satisfied for foreign works to benefit from copyright protection in Canada (p. 9).

The dire warning of “international obligations” is not a new tactic when it comes to matters of copyright; this bogey man returns each time Canada deviates from the path of copyright maximalism. But maximalism in itself is not an international obligation. As the World Intellectual Property Organization (WIPO) makes abundantly clear, while the Berne Convention sets minimum standards of protection, including a prohibition on registration for foreign copyright-owners, all protection is limited by time: “As to the duration of protection, the general rule is that protection must be granted until the expiration of the 50th year after the author’s death (emphasis in original).”

The present government takes further aim at registration: “with new pressure on copyright owners to register their works, such an approach would likely result in increased costs in the form of registration fees and associated administrative and legal costs, particularly for owners of copyright in multiple works (p. 9).” Through their analyses of all submissions to the 2017-2018 Copyright Review, librarians Jennifer Zerkee and Stephanie Savage shed some light as to whom such copyright owners might be:  

(Savage and Zerkee showcased their research during the ABC Copyright 2020 Fall Series and provided their slides to University of Alberta’s Education and Research Archive.)

It will come as no surprise that enthusiasts for term extension hail from commercial arenas. Broadly speaking, corporate entities with large holdings of commercially successful works have the potential to gain revenue through longer periods of control. They are the epitome of “owners of copyright in multiple works.” But to suggest that such companies are ill-equipped to handle the administration and costs of registration lacks conviction. And whether the copyright owner is a corporation, or an author’s heirs, the necessity of registration will not arise for decades, allowing ample evidence to accrue as to whether registration will enhance anyone’s coffers.

Moreover, as the prior INDU committee noted, a registration system ensures transparency and, by extension, allows users a better means to gauge what is or is not in the public domain. Such a state of affairs not only provides libraries, archives, and museums with more stable ground on which to practice their public missions (a need recognized by this government), but also offers smaller independent creators and publishers security to practice their crafts as well. 

There will always be those who insist that increasing the scope and duration of copyright provides both individuals and industry with greater incentive to invest in creative activity. But Eldred v. Ashcroft (2003), the ill-fated constitutional challenge to American copyright extension at the U.S. Supreme Court, remains a salient rebuttal to this catechism.

At that time, a bevy of noted economists placed the monetary gain of term extension as negligible: “Because the additional compensation occurs many decades in the future, its present value is small, very likely an improvement of less than 1%.” While the majority of the Justices allowed the term extension, dissenting Justice Breyer offered this memorable riposte: “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?” (Further details here.)

As Zerkee notes, one “creator/rights-holder” (Broadview Press) argued against term extension during the Copyright Review. Broadview Press is an independent Canadian publisher; their work is highly acclaimed, particularly their value-added editions of public domain works. In this regard, they exemplify what is too often glossed over by copyright maximalists: that the public domain can, and does, provides fodder for creative, commercial activity. Not only did Broadview Press argue against term extension, they recommended “that Canada protect or reduce the length of copyright term to be no more than ‘life of the author plus 50 years’.” 

The government is accepting submissions on the topic of copyright term extension until March 12, 2021.

Update March 30, 2021

The government agreed to extend the deadline for submissions to this consultation. My submission is here.

a life well lived

In Posts on August 14, 2020 at 10:39 am

As I write this, India is about to waken to its annual Independence Day celebrations. A befitting day to post this entry.

In memory of Leila K. Nair (1931-2020)

Throughout my life, my dear mother was the guiding hand, voice of reason, and rock to lean on for those days when I could not stand unaided. For all of you who have so kindly praised this blog, you must know that she faithfully read almost every entry, offering up her own take on the wording—prose for me to consider and to reject if I did not like it. It was rare when I did not use her words, or make them into my own.

My mother taught me how to play with words, to experiment. She instilled in me the understanding that every first, second, and third draft was necessarily only a precursor to the next draft, and that a lengthy sentence, when done correctly, can carry a theme with substance. Perhaps my favorite moment was a comment she made in 2016, words to the effect of: “I’ve tried for years to encourage you to be more assertive; Menzies has finally dragged it out of you!” (For her pleasure on that point, my thanks to Heather Menzies and the Writers Union of Canada.)

My mother’s upbringing was unconventional. Shunning both the British and the Indian caste system, my blue-blooded grandfather had elected to become a penniless school teacher in a small cantonment town, called Pyawbwe, in upper Burma (now known as Myanmar). Penniless, because all the better-salaried teaching appointments were in government-schools that answered to the British authorities. Whereas his school was one of a string of “National Schools” that dotted rural Burma, where an occasional IOU for a month’s salary was not unknown. Long before non-cooperation became the formal mantra of the Independence-movement, my grandfather had adopted its ideals and strategy.

That it invariably condemned the family to an extremely modest living, was simply the sacrifice required of those generations. As my mother had told me, even as a young child, one knew that “nothing else mattered.” Colonialism was stripping those countries bare, the inhumanity of British rule perhaps most exemplified by the Bengal famines. (For anyone interested, I recommend watching Shashi Tharoor’s 2015 Oxford Union speech — the motion under debate was: “Britain Owes Reparations to Her Former Colonies.”)

Life in Burma came to an abrupt halt for my mother when Pearl Harbour was bombed. The family hastily fled, securing standing-room-only passage on one of the few remaining steamers departing for India. Less than a week later, their house was bombed to rubble. And so my mother, of Indian descent, returned to India as a refugee.

War-time, coupled with the Independence movement, and then the challenge of building a country from less-than-nothing, shaped the opportunities (or lack thereof) for those generations. But, my grandparents (Narayanan Nambiar and P.V. Kalyanikutty) were determined that both my aunt and mother should be well-educated. It did not matter that it took my grandfather’s entire salary to pay their tuition and room/board during their college years. My aunt became a lawyer, my mother a mathematics lecturer.

Years later, in Canada, my mother returned to demystifying calculus for undergraduate students. It was so evident that they adored her. I enjoyed reading their teaching evaluations. Two that remain etched in memory are: “Mrs. Nair remembers what it is like to be a student,” and, “Although my grade may not reflect it, I have learnt a great deal this term.” As it later turned out, one of my daughter’s teachers had been one of my mother’s students—she was so happy to tell me what a difference my mother had made for all those struggling to find comprehension in mathematics.

As I leafed through pages of my mother’s notes – brief histories of various events in her life – her words on the teaching of mathematics (and the role of textbooks therein) may resonate to some readers of this blog:

In India, a stone thrown into the air taught me, and helped me teach, certain physical principles, which landed without much fanfare in either case. The same purpose is suggested in textbooks here, using an object thrown from a flying plane, or a rocket that has been blasted off. Inoffensive projectiles, given the appearance of rocket-science, make circumscribed minds already intimidated by the subject, turn tail. University textbooks, the size of encyclopedias have pictures of pretty trains, complete with level crossings and cute characters with flags, to introduce the concept of velocity. India gets by in relative comfort with a bald definition of velocity as the rate of change of displacement, in drab paperbacks without margins or borders to save on paper.

Those were also the days of polite racism in Canadian professional circles—to that end, the university was one place where my mother was moderately protected. Tall, always impeccably dressed in a silk sari, she cut a commanding presence in the classroom. But outside of the university, too many Canadians were dismissive of the immigrant woman, regardless of the fact that her written and spoken English was better than theirs, and that her command of Canadian history and political affairs was impressive. (We have a signed note by the late Pierre Berton attesting to as much.)

But Pierre Berton was the anomaly. It was very difficult to gain acceptance from editors and publishers. Something I have written about here and here. Diversity of voice was not yet a governing principle in the media. Despite that, on some occasions, my mother’s work was published. As she once told me, “not bad for the sari-clad woman.”

Even though her short-term memory was starting to fail, the English literature of her grade-school days stayed with my mother. Effortlessly, verse flowed from her; there was a poem or sonnet for even the most mundane elements of daily life.

Recently, she launched forth with a selection from Ben Johnson. These two lines seem to sum up her guiding principle:

In small proportions we just beauties see;
And in short measures life may perfect be.

Words to live by.

Leila K. Nair (1963) in India

Leila K. Nair died on July 31, 2020 at Royal Columbian Hospital in New Westminster, British Columbia, Canada. A heartfelt thank you to all the people involved—paramedics, social workers, doctors and nurses from the ER and Palliative Care Departments—for their loving, compassionate care, ensuring a peaceful ending.