Meera Nair

V.S. Naipaul and copyright

In Posts on September 5, 2018 at 8:18 pm

Following V.S. Naipaul’s death (1932-2018), I picked up his books again. They had been within reach throughout my life, yet I had never been too eager to read them. Naipaul’s views about India had not sat well; a seeming hostility heightened by an adoration of Britain. That Imperial overlords had sent his grandfather from India, to serve as an indentured labourer for estate owners in the West Indies, made it even more baffling.

Whereas my maternal grandfather, in joint opposition to both his caste-conscious family and British divine right claimants, had performed his own version of Quit India by moving to casteless Burma (Myanmar). He maintained a lifelong, faithful adherence to the Gandhian vision of an independent, secular India, one that aspired to equality for all, regardless of caste or gender. From that familial background, Nobel Prize notwithstanding, the sharpness of Naipaul’s pen was too alien for my tastes.

But the man was dead now, reading a book seemed the least I could do. A House for Mr. Biswas beckoned, a 1961 paperback edition brought out by Penguin Books. I glanced at the front matter, searching for that preliminary content which might influence how a reader approaches an author’s work.

In the words of literary theorist Gérard Genette, this is the realm of the paratext; that “vestibule,” where, before stepping inside the text, a reader is presented with information that might secure “a better reception for the text.” A paratext might include a preface (those guiding words in a detached voice), or the not-so-subtle extolling of past success (the lavish praise received in the wake of an author’s earlier works).

And then there are paratexts that carry a hue of legality.

Accustomed as I am to seeing maximalist copyright paratexts—those strident notices that, in violation of copyright law, prohibit any and all copying—this paratext was different:

Copyright © V.S. Naipaul
This book is sold subject to the condition that it shall not, by way of trade or otherwise, be lent, re-sold, hired out, or otherwise circulated without the publisher’s prior consent in any form of binding or cover other than that in which it is published and without a similar condition including this condition being imposed on the subsequent publisher (emphasis mine).

The reader was only urged to be aware that unauthorized books might be in circulation. Penguin Books likely hoped that readers would apply the market force necessary to keep rival publishers in line, but the reader is largely left alone.

Appealing to readers to maintain markets was not new, even in 1961.

Robert Spoo, an authority in both law and literature, has written extensively about courtesy paratexts, those notices used by nineteenth century American publishers to illustrate that their dealings with British books were with the consent of the British author. At that time, American copyright law did not extend to protecting foreign works; freely using British writing was a legitimate option, available to the entire American publishing industry. To manage the temptation of undercutting one another, to avoid a race-to-the-bottom in the pricing of reprints, larger American publishing houses agreed not to poach authors’ works, once a particular house had secured the author’s consent.

Consent was usually obtained with a courtesy payment from the American publisher to the British copyright-owner. While British authors and publishers fumed at their lack of control in this system, a Royal Commission on copyright carried out by the British Government (1876-1878) confirmed that many British authors and publishers profited handsomely through these arrangements (though at Canada’s expense, i.e., see here or here.)

However, these gentlemen’s agreements were not always respected, particularly when the writer was popular with American readers. A few words from the author could confer some respectability upon the publisher in the eyes of the market, and increase the likelihood of holding that market. Within Spoo’s work are examples, exhibiting a range of tone from the humble words of Robert Browning to the distinctly legal’esque language of Charles Dickens.

Returning to the Naipaul collection, a paperback copy of India, A Million Mutinies Now (a Minerva edition dating to 1990), reveals the same paratext as found in Mr. Biswas. However, a Viking Penguin hardcover offering of the same book, of the same year, extolls this:

Copyright © V.S. Naipaul, 1990
Without limiting the rights under copyright reserved above, no part of this publication may be reproduced, stored in or introduced into a retrieval system, or transmitted in any form, or by any means (electronic, mechanical, photocopying, recording or otherwise), without the prior written permission of both the copyright owner and the above publisher of this book.

It is bizarre even to suggest that the lengthy prohibition of reproduction etc., could limit the rights under copyright—given that the notice exceeds what copyright provides under law.

But this nonsensical statement makes some sense if it is read, not as prohibition to readers, but as a warning to would-be pirate publishers. The notice tells prospective resellers that the road to Million Mutinies must go through not only Viking, but Naipaul as well. From that, a reader could assume that Naipaul did not hand over all the meaningful aspects of copyright (control over reproduction etc.) to Viking.

Continuing my Naipaulian-guided exploration of copyright-paratexts; a 2011 edition of A Way in the World  (issued by Picador), begins by scrupulously noting that the book was published in 1994 by William Heinemann, in 1995 by Minerva, and then in 2001 by Vintage (Random House). It ends with the prohibition on circulation in any other form of binding or cover.

In between, the author surfaces; Naipaul’s claim of copyright for the book in 1994, and in the preface in 2011, are explicit. Curiously though, while claiming copyright required no justification, claiming authorship did: “The right of V.S. Naipaul to be identified as the author of this work has been asserted by him in accordance with the Copyright, Designs and Patents Act 1988.”

The remainder of the copyright-paratext takes on a biblical tone of crime and punishment:

All rights reserved. No part of this publication may be reproduced, stored in or introduced into a retrieval system, or transmitted in any form, or by any means (electronic, mechanical, photocopying, recording or otherwise), without the prior written permission of both the copyright owner and the above publisher of this book. Any person who does any unauthorized act in relation to this publication may be liable to criminal prosecution and civil claims for damages.

The overreach on the scope of copyright is astounding. Limitations/exceptions to copyright are always an option. So said Canada’s former Chief Justice Beverley Mclachlin in 2004: “Fair dealing is always available.”

All copyright statutes of countries participating in international treaties, will have sanctioned some degree of unauthorized use of copyrighted work. The Marrakesh Treaty (created in 2013 to support perceptually disabled people) comes to mind, but even the Berne Convention (created in 1886 ostensibly to better support authors) does not omit unauthorized uses.

Even without international prodding, countries may amend their exceptions to ensure that a system purporting to support authors has the capacity to fulfill that expectation. Canada’s best adjustment may well be S29.21.

In terms of the criminality of unauthorized use, in Canada such remedies generally pertain to commercial malfeasance; i.e., sale of the work without consent. Arguably, this paratext speaks only in terms of “may be liable” but in the hypersensitive copyright-age we live in, such a notice is enough to scare off any teacher or student from exercising fair dealing. I wonder if authors are aware of the misrepresentation of the law that is presented in their names.

Furthermore, how often do authors retain their copyright? How often do they retain it in more than name only? Does having a copyright actually translate into royalties when books are sold? What happens when books fall out of print; do the rights revert to the author? Are authors (and their estates) aware of explicit statutory provisions for reversion of rights? (Rebecca Giblin’s work, particularly the Authors Interest Project, probes these questions.)

Naipaul seemed to be aware of the importance of copyright; from his earliest publications (by André Deutsch Limited) on, Naipaul consistently declared his copyright and renewed it as necessary. That command of copyright continued even where he was not the sole author. The copyright paratext in the published correspondence between Naipaul and his family, entitled Letters Between a Father and a Son (Little, Brown and Company, 1999), tells a story of its own:

Copyright © V. S. Naipaul 1999
The moral right of the author has been asserted.

The moral right of the author is startling to say the least. There are five authors in this collection: Naipaul, his sister Kamla, their father and mother–Seepersad Naipaul and Droapatie Capildeo–and Gillon Aitken (editor of the collection and author of the introduction). Granted, V.S. Naipaul’s letters form the majority of the book, and his parents were dead at the time of publication. However, all authors ought to have been entitled to recognition and reservation of rights with respect to their own original work.

Perhaps these matters were discussed, explained, and executed with consent from the living parties.

Back to Mr. Biswas.

Indigenous paradigms

In Posts on June 25, 2018 at 8:09 am

This post is a bit late; it is my contribution to #IndigenousPeoplesDay.

In December 2017 Ministers Navdeep Bains and Melanie Joly jointly issued instructions to Members of Parliament charged with carrying out the Review of the Copyright Act. Among many details, the Ministers invited Members “to pay special attention to the needs and interests of Indigenous peoples as part of Canada’s cross-cutting efforts at reconciliation.”

Historically, Indigenous creative effort has not fared well under the modern paradigm of intellectual property rights. From looting of artifacts to casual help-ourselves approaches to indigenous design, indigenous assets, often described as cultural property and traditional knowledge, are used in ways that violate their traditions and laws. To the extent that others commercialize such assets, rarely do gains flow back to the community.

From the first meeting on, Committee members sought input from witnesses on this topic. In oral testimony, and submitted briefs, there is consensus that this challenge needs attention; this may be the one point of unity among all stakeholders of the copyright review. That in itself is encouraging.

However, it is difficult to make progress on this front under the auspices of copyright. The Copyright Act is structurally antagonistic to the principle characteristics of indigenous cultural property and traditional knowledge, namely they lack specific authorship (which is key to claiming ownership under the Act) and may date back to antiquity (which invariably places them in what is considered the public domain*).

As we wrestle with the intricacies of this challenge, there are other ways to show support and facilitate more respectful use of Indigenous materials.

In July 2016, An Open Licensing Scheme for Traditional Knowledge was jointly put forward by the Canadian Internet Policy & Public Interest Clinic (University of Ottawa) and the Geomatics and Cartographic Research Centre (Carleton University). The scheme “aims to give Indigenous communities new tools to exert control over their traditional knowledge [and] clarify expectations of those seeking licensing rights and other downstream uses (8).”

Modeled in the fashion of Creative Commons licenses, where a visual label indicates the creator’s wishes in terms of subsequent use, the researchers revealed a slate of possible labels including: Give Back / Reciprocity; Community Consent, Use-Based / Noncommercial; Education and Research Only; etc.  They also drew attention to two other similar, active, operations with respect to labels as a means of communication: the Mukurtu Project and its sister organization Local Contexts. While communication cannot guarantee respect for the wishes of Indigenous communities, it is a starting point.

In addition, Canadians could consider that Indigenous paradigms about creative endeavor are more akin to the creative process, than modern insistence that creativity is an individual exercise and that property is strictly private. My research looks at the overlap of Indigenous paradigms with Canadian copyright law — not in terms of the specificity of legal language, but in the processes that underwrite and shape creativity itself.

To be clear, when I use the phrase Indigenous paradigms, I am not suggesting a uniformity of thought, tradition or law, across the many Indigenous communities situated within Canada. Rather, the phrase is an attempt to describe a different approach to creativity and property than that which followed in the wake of Judeo-Christian theological teachings or (for the more secular minded) the writings of John Locke. Modern conceptions of intellectual property are rooted in assumptions about property itself – chief among them, the misconception that a right of property is absolute in its control and capacity to exclude others. (Even the most treasured property – land – is subject to measures deemed essential to the public good: building codes, zoning divisions, environmental laws, etc.)

All music, art, poetry and literature are creative outcomes via time immemorial communities of musicians, artists, poets and writers. This is hardly a revelation; Northrop Frye’s words have been with us for over sixty years: “Poetry can only be made from other poems, novels from other novels. All this was much clearer, before the assimilation of literature to private enterprise concealed so many of the facts of criticism.”

Briefly, that assimilation to private enterprise was largely carried out through the introduction and expansion of copyright. Those events are intertwined with the rise of the reading public, the shaping of a book market, new technology; events that combined to alter the perspective of where art, music and literature came from. While previously art was allied to the Divine – inspired by and in service to – the Romantics were never too happy with a world in which books were articles of sale, and writers were mere producers of commodities. As authors wrestled with changing streams of income and the need to compete in a marketplace, the idea of the individual creative genius whose work is original unto himself served to shelter the esteem of an author and justify the boundary of property around a creation. Ironically though, authors themselves were never a focal point in the development of copyright law.

In concert with the universality of the process of creativity is a bond between creative artifact and the author, artist, musician etc. In intellectual property law, this has a name: moral rights. (The term is misleading; despite the somewhat pious inference, the rights reflect personal connections between the creator and the thing-created.) Among moral rights is the protection of the integrity of the work – the creative artifact has a persona,** which sits in relation to the creator.

And there might be another relationship present; Rudyard Kipling famously spoke of daemons who led the creative process, writers must “drift, wait, obey.” Contemporary writers are not shy of acknowledging this third-party, Elizabeth Gilbert and Philip Pullman come to mind. Even without this partner, writers may have the eerie feeling that their characters are writing their own story. (I welcome input from writers of fiction.)

This nexus of relationships occurs with the creative artifact situated at the centre and a community of writers engaging in relationship with it. A set of relations that is similar to the structure of Indigenous cultural property/traditional knowledge. It is the interpretation of property that differs between Indigenous and non-Indigenous paradigms; in Indigenous hands, property is far more immersive, far more relational, one belongs to the property as compared to the converse interpretation of property by non-Indigenous legal paradigms.***

As I wrote in my brief to the Standing Committee: “… recognizing indigenous traditions that we implicitly already follow, supports the objectives of the Truth and Reconciliation Commission, particularly the recurring call for better integration of indigenous law into Canadian life.

Much as we acknowledge that the physical ground beneath our feet is Indigenous territory, we ought also to acknowledge those Indigenous paradigms which serve as the foundation to our daily creative effort.


* My research offers an alternative, legitimate conception of the public domain that is more flexible in its composition — I draw from the work of Jessica Litman and our Supreme Court decisions.

** Anishinaabe legal scholar Aimée Craft reminds us that some jurisdictions have granted personhood to bodies of water. That physical or cultural property could have agency, at least in legal proceedings, is, again, not a revelation.

*** Brian Noble, “Owning as Belonging/Owning as Property …” in Catherine Bell and Val Napoleon, eds., First Nations Cultural Heritage and Law (Vancouver: UBC Press, 2008) 465.

my brief for the Copyright Review

In Posts on June 1, 2018 at 11:14 am

As submitted to the Standing Committee:

Thank you for this opportunity to contribute to the examination, and potential revision, of the Copyright Act. This subject has occupied my attention for nearly fourteen years, through life as a graduate student, teacher, researcher, administrator, and parent.

Copyright is a seemingly straight-forward provision; a measure within law that allows a copyright owner to monetize intellectual effort, by controlling (among other things) the right of reproduction. This control is not absolute; it is limited in time by expiry and in space by some rights of use (those statutory exceptions defined in the Copyright Act). Taken together, rights of control and rights of use form the system of copyright and might foster future creativity.

An impediment to fruitful operation of the system is the misunderstanding that authors lie at the heart of the system. Whereas the system was only designed to bring some stability among feuding 18th century publishers. Nevertheless, for over three centuries, control via copyright expanded in depth and breadth, always through the plea that authors were living in poverty. One may rightly ask: if authors are still in dire straits after 308 years of copyright expansion, is copyright their real problem and can it provide a meaningful solution?

The rhetoric escalates with every revision of the Copyright Act; copyright is deemed essential to the very existence of Canadian culture. But copyright is a blunt instrument; it cannot distinguish between literary superstars and novice writers, between fostering a homegrown operation and an international publishing conglomerate, and, between writing for an audience and writing for financial gain. Revision of the Act must be carefully handled, with the commercial trade imbalance kept uppermost in mind.

On the following pages are my recommendations for action the Federal Government could undertake, with (and without) change to the Copyright Act. Four themes are addressed:

  • Preserving Canadian content.
  • Deterring copyright abuse.
  • Fostering Canadian creativity, exceptions and other means.
  • The system of copyright, in support of reconciliation.

Regards,
Meera Nair, Ph.D.
Edmonton, AB