Looking ahead

an abstract representation of AI and automation, by 紅色死神 CC-BY-NC-SA, Flickr

This past week marked a Canadian festivity known as Fair Dealing Week. One might call it our spinoff of the American tradition of Fair Use Week. In the United States, Fair Use is a provision within their copyright law which limits the control exerted by copyright. Canada’s allowance of Fair Dealing is similar but far more constrained in application. Both limitations draw from principles established by courts and legislators over the past three centuries, wherein some unauthorized and unpaid uses of intellectual creations were deemed essential for the ecosystem of creativity and innovation to thrive.

There is no better exemplar of successfully using copyright limitations for economic development than the United States. In Inventing Ideas (2020), renowned economist B. Zorina Khan examines how a former colony was able to become a leading economy in less than one century, and the world’s technological and industrial leader within two. Copyright strategy was part of the answer; America’s initial objective “was not to benefit authors or publishing companies per se, but to increase contributions to knowledge and the dissemination of information.” Their foundational copyright system promoted the production of inexpensive books and limited the protection thereof. The net result was increased reading, learning, creativity, and innovation.

As I wrote in some detail in 2018, billion-dollar industries consistently emerged in the United States. (Such technological success did not impede the rise of highly acclaimed writers, musicians, artists, and other creators.) Copyright policy only shifted in priority after achieving international dominance; in the late twentieth century, control became the central goal. American heft in the global market meant that other nations could be either cajoled or threatened into following suit, even though such measures prevented those countries from emulating America’s development path.

Yet it remains that the grant of copyright is not all-powerful. In fact, by virtue of the Berne Convention, all participating countries must provide some allowance of unauthorized use; Global Mandatory Fair Use by Tanya Aplin and Lionel Bentley comes to mind. For Canadians, Fair Dealing provides a modest degree of copying of protected content to support learning, research, journalism, and some creative undertakings. But that will not be enough if Canada is serious about Artificial Intelligence development.

Again, the United States is the illustrative example. Fair Use paved the way for using existing content to develop the large language models that underpin AI programs. Lawsuits have abounded over the training of those models, with content owners arguing they should be compensated when their work was used without consent, yet it is not at all certain that they will win.

But winning may not be necessary. Dominant companies in the AI sector are increasingly offering compensation to larger media organizations for the use of their content as training data. Even though, as prominent legal scholar Andres Guadamuz writes, “training an AI is not an exclusive right of the author.” While some will be pleased at the undercurrent of willingness to pay by well-heeled tech companies, we should be wary. If that practice becomes the norm, who can enter and compete in that field? Will basic research even be possible? It should not come as a surprise that the likes of Alphabet, Meta, and Microsoft are willing to pay, as it will help ensure their continued dominance in this sector.

It is disappointing that the present Canadian government routinely rails against such companies, but is unwilling to take the steps to allow our domestic AI talent to thrive and compete in the global tech-sector. We are falling behind our competitors.

For instance, Israel has provided guidance to confirm that their regime of Fair Use could serve AI-development in a similar fashion to what American companies enjoy. Asia Pacific countries have, and are, moving ahead with AI-friendly copyright regimes; Peter Yu (another highly respected legal scholar) draws attention to the systems already in place in Japan and Singapore, and adds that “[Chinese copyright laws may be] very supportive of AI development once the appropriate regulations have been introduced.” Even the old guard, the United Kingdom, provided some support for the analyses that underwrite AI; although now the UK expressly requires licenses for commercial activity.

Whereas Canada seems content to continue our tradition of producing a highly skilled workforce to support foreign corporate owners who either set up branch operations here or just cut-to-the-chase and lure that expertise southward. Last year, for the Senate Standing Committee for Banking Commerce and the Economy, Jim Balsillie expressed great concern at the “exfiltration of knowledge assets out of Canada.” Among his examples, was this:

Foundational IP for AI that Canadian taxpayers funded for two decades is transferred from the University of Toronto to Google, who thanked Canada for it and said: “We now use it throughout our entire business and it’s a major driver of our corporate success.”

If Canada wishes to compete in the AI space, it has much catching-up to do. A place to start is implementation of recommendations provided in 2019 by a credible Standing Committee; their considered opinion was that Canada should expand the limitation of Fair Dealing to resemble something more akin to Fair Use and facilitate informational analysis as would support AI development.

Then we could really celebrate the importance of limitations within systems of copyright.

twenty years later

On 5 March 2004, newspapers across Canada were publishing articles about a Supreme Court decision unveiled the day before. I distinctly remember reading a smallish article, occupying about 15cm x 12cm of newsprint, and discovering the Supreme Court had confirmed that moderate photocopying in libraries was lawful, whether carried out independently by patrons or assisted by librarians.

If that decision and its ensuing coverage had emerged one month earlier, my reaction might simply have been one of surprise. Did we really need the Supreme Court of Canada to tell us this? After all, libraries legitimately acquire their collections, and the law already permits individuals an allowance of copying. Such a topic would hardly have seemed worthy of a news-story, let alone the attention of our highest court. Instead, the article provoked some relief on my part, all on account of a conversation that transpired a few weeks earlier.

At the time, I was finishing my MA in communication. In my thesis, I explored the legal history of common law copyright and surveyed the American copyright landscape of the day. Following existing work with regard to copyright’s foundations, I reviewed the application of John Locke’s theories of labour to the realm of intellectual property. Locke’s work rested on the premise of a “commons,” and I was intrigued by the contributions of James Tully and CB Macpherson to Lockean scholarship as they provided two opposing theories of what “commons” meant. Eventually, I reconciled those two interpretations as partners in a dance, where each is essential to the success of the whole.

And then I went looking for a picture.

I found what I wanted in a very large artbook in my institution’s library. Dance in the City was one of Renoir’s famed three-part series painted in 1883. But creating a digital image posed a problem, so I approached the Help Desk and asked, “Do we have a larger scanner?”

The suspicious glance that came back at me was a little unnerving. Followed by, “Why?”

When I explained that my intention was to use the image on a PowerPoint slide for my defense, the response was, “That would be copyright infringement.”

My thoughts at that moment: Renoir died in 1919. This can’t still be protected. Surely there can’t be copyright in an exact copy of a work already in the public domain? But aware that I was a mere graduate student, I suggested that if the 1883 image is protected content, wouldn’t my use comport with fair dealing? Because I was using it to illustrate a concept that was germane to my argument, comfortably situated within the purposes of both private study and research.

The response were words to the effect of, “Because your defense is open to the public, this could be construed as a public performance and so fair dealing does not apply.”

Back then, I was unaware of the degree of fear within educational institutions, as, through amendments to the Copyright Act in the 1980s and 1990s, and less-than-ideal-handling of fair dealing by courts, legitimate unauthorized use had been rendered almost moot. But even so, twenty years later, the characterization of displaying a picture at my defense as “a public performance” is still a head scratcher.

To be fair, that staff member directed me to a repository of digital art imagery which was licensed for use by my institution. I found another of that Renoir series, Dance at Bougival and dutifully used it, even though it was not an adequate substitute. I had chosen Dance in the City because the faces of the dancers were less visible. Like any of our laws, the system of copyright must be impersonal if it is to achieve its goals. The symbolism within the art might have been lost on my audience, but it was meaningful to me.

And then a few weeks later, came CCH and with it my interest in fair dealing as a living practice and not just a passage of text in the Copyright Act.

I could not have foreseen though, that Canada’s lack of interest in Fair Dealing would underwrite my doctoral work. Nor that I would spend the next twenty years talking about Fair Dealing, CCH, additional Supreme Court decisions, and why exceptions (or as some say, limitations) within the system of copyright are essential if Canada is serious about education, research, creativity, and innovation.

For some of those past conversations, see my posts about CCH’s ten-year anniversary, that institutions are not liable for student conduct with protected content, and the flagrant misinformation within those frontmatter notices that imply, or openly state, that copying without permission is a violation of law. And, more recently, the fact that newer business models set by copyright owners and distributors have greatly reduced reliance on Fair Dealing in educational institutions.

While at times it feels as though Canada has not made much progress towards developing widespread, informed understanding of copyright as a system of complementary parts, taking stock of the past twenty years reminds me that we started with a deficit of institutional understanding of the framework of copyright and judicial interpretation.

More work lies ahead, but as today marks the start of Fair Dealing Week 2024 I will just enjoy sharing Renoir’s stunning trio of Dance, all painted in 1883. From left to right: Dance in the Country, Dance at Bougival, Dance in the City.

I have waited twenty years to do this.

epilogue

Part 1 – Prologue, available here

Part 2 – Uncovering the problem, available here

Part 3 – Where did the money go?, available here

Part 4 – Unkept promises, promises impossible to keep, available here

Part 5 – The Canadian Way, available here

Part 6 – A better game, available here

Through successive Canadian governments, policy discussions about copyright have been premised on insecurity. Whether real or politically conceived, there is a fear that Canadian identity will be lost. That angst might well be part and parcel of our identity, rooted as it is in pre-Confederation when colonial administrators cast wary eyes in the direction of those revolutionaries south of the border. But Canada remained loyal to the Crown.

Our loyalty was rewarded with a denial that our Dominion status allowed us to function as equals to Britain.[1]

But whatever the state of our national conception, the reality is that we have had Canadian literature for as long as we have had Canada. Even when many were dismissive of the mere thought of “Canadian” literature (they of Macdonaldesque sensibilities: a British subject I was born, a British subject I hope to die). A distinctive literature could not help but emerge, even if only by installment form.

For instance, the nineteenth century saw the creation of a distinctly Canadian literature but (as Nick Mount explained in 2005) “it had to go through Customs to get there.”[2] Another installment soon followed; Margaret Atwood has obliquely referred to the 1920s-1960s as a “golden age” of Canadian poetry.[3]. Then came the bulk delivery in the later twentieth century, a critical mass sufficient to declare that Canadian Literature was real. Again, I turn to Nick Mount’s Arrival—the Story of CanLit:

The CanLit boom didn’t come from a sudden proliferation of Canadian publishers. … [It] also didn’t come from a sudden proliferation of writers. Looking back, Margaret Atwood compared it to opening a floodgate … ‘It looks as if there’s this sudden intense burst of creativity but actually, there was suddenly an outlet, places you could publish and read. It looked as if all of a sudden people were creating, but they had been creating all along.’

As to the state of our publishing sector, it looks good. Last September, Ed Nawotka writing for Publishers Weekly,[4] offered a glowing account of Canadian publishing, adapting as it is to new challenges. Among the many highlights:

One of the key trends fueling book sales has been the opening of new independent bookstores across Canada (as in the U.S.), with the number of points of sale expanding as well. 

In addition, indies are getting direct financial support from the government for the first time: the Canada Book Fund, run by the Canadian Department of Heritage, has earmarked C$32.1 million to support the growth of bookstores around the country.

Sales of Indigenous-focused books are rising.

Kristin Cochrane CEO of Penguin Random House Canada (the country’s largest publisher): “Overall, we’re reassured by what is shaping up to be a healthy marketplace, with consumers fully back in stores and people now more comfortable shopping online, so there are net new avenues for us to reach readers.”

Despite pandemic-related woes, indie publishers—including Arsenal Pulp Press, Coach House Books, Linda Leith, Pajama Press, Thistledown Press, and the University of Regina Press—are finding success with new strategies.

And the list went on.

Readers might recall that Canadian writers’ troubles began in the nineteenth century because our publishing sector could not get off the ground. Today, there is every reason to be optimistic about Canadian publishing and writing, aided in our own way. Mount’s words from 2017 still hold true: “Canadian literature is more alive and more exciting than ever.”

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[1] In a paper first published in 1942, poet-cum-constitutional-scholar Frank R. Scott offered a closer look at Canada’s ambitions for Confederation and the challenges of realizing them afterwards. The founding fathers had hoped that Confederation would “change the self-governing colonies into a united nation with a stature like that of a partner or ally of Britain.” The words ally and alliance appear in the sentiment of many players from that era. Canadians today may be unaware that British legislators had peppered the first draft of the BNA Act with the word colony which were then duly struck out by the Canadian delegates. Sir John A. Macdonald wished for the new entity be named “The Kingdom of Canada,” but Dominion was chosen instead. The meaning of which was unclear as interpretation could mean both “ruled over” and “territory ruled.” It seems almost too much of a coincidence that in 1889—the year in which an innovative Canadian copyright act was seen “as a declaration of independence”—a different British Act passed into law, an Interpretation Act which “took care to include the Dominions within the term ‘colony’.” Frank R. Scott, Essays on the Constitution: Aspects of Canadian law and politics (Toronto: University of Toronto Press, 1977) p.8-12.

[2] Nick Mount, When Canadian Literature Moved to New York (2005) p. 161.

[3] “Margaret Atwood stated in her Introduction to the New Oxford Book of Canadian Verse (1982) that, ‘this, for me, is the age that only the usual Canadian cautiousness and dislike of hyperbole prevents me from calling golden.'” Quoted by Lorraine York, “English-Canadian Poetry, 1920-1960” in (ed. Reingard Nischik) History of Literature in Canada (2008) p.159.

[4] Ed Nawotka, “Publishing in Canada 2022: Canadian Publishing Adapts to New Challenges,” Publishers Weekly, 23 September 2022.