Meera Nair

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.

a last bastion of equality

In Posts on July 27, 2020 at 8:37 am

The building was more modest in 1975, but the Port Moody Library was a source of much joy for our immigrant family.

Some articles make one’s head spin. They project good argument, seemingly backed by facts and figures, maybe a dash of pathos, and even a tone of earnestness in pursuit of the betterment of all.

And yet, facts may be incomplete, pathos closer to hype than history, and the earnestness, in aid of simplistic responses to complex problems.

Such was my reaction when I encountered Kenneth Whyte’s 3000+ word opinion piece in Saturday’s Globe and Mail titled, “Overdue: Throwing the Book at Libraries.” Whyte blames libraries for the precarious state of authors, publishers, and booksellers. His argument that borrowing books represent lost sales is buttressed by an array of figures (drawing heavily from American data) about declining author incomes and ongoing struggles of booksellers and publishers. (Left unsaid is that writing, publishing and selling books have been precarious ventures for well over 300 years.)

Whyte offers two solutions: (i) increase the flow of money to libraries to enable them to pay more for their acquisitions; or (ii) restrict access to library books. With respect to (ii), he suggests that library titles be limited in number, without regard to the size of the population it serves. “Readers will be forced to choose between waiting months to borrow a popular volume or acquiring it at retail.” In short, remove access to books from people who need it the most – those who cannot afford to buy books.

Whyte’s suggestion regarding money merits closer inspection:

Perhaps adults, then, should pay for the right to borrow books for entertainment – something in the range of a Netflix fee, $12.99 a month (those below a certain income level could be exempted from the charge). Or maybe Ottawa’s “public lending right” program, which at present throws a few beans at guileless authors in compensation for the use of their works in libraries, could be vastly expanded (and adopted in the U.S.)

Through municipal taxes, many Canadians already foot the bill for public libraries. Our federal taxes also contribute financial support to aid the writing and publishing of books. (I suspect that if I look hard enough, I would see evidence of provincial funding in support of possibly both libraries and writers’ grants.) These contributions are effectively set by a means test; poorer Canadians likely do not pay property taxes and may not rise to the level of taxable income. If Whyte wishes to petition all levels of government to increase taxation on those who can afford it, and direct the monies raised to libraries, I would happily support his efforts.

But to suggest a user fee for Public Libraries is repugnant. A public library may be a last bastion of equality in modern society; it is a truly egalitarian space where all individuals have equal access to the same services regardless of income, class, or status.

(Reading Whyte’s suggestion brought to mind Libby Davies’ political memoir, Outside In (2019). When describing her efforts to assist residents living in Vancouver’s Downtown Eastside, Davies deplored those social service agencies who viewed residents as “clients” instead of “citizens.” The difference is not trivial.)

I would also happily give support to any expansion of the Public Lending Right (PLR)—a program that exclusively benefits Canadian writers. But imploring the U.S. to adopt the same program may be both fantasy and foolishness. We should be grateful that Canada’s clout does not rise to it, as Whyte neglects to consider that Canadians predominantly read content written by foreign authors. If PLRs should ever be tied to reciprocity, most of those Canadian taxpayer funds will leave the country. It would be more desirable to target Canadian money to Canadian writers, publishers and booksellers.

This aspect – that Canadian writers are not read in appreciable numbers by Canadians – has long been a source of disappointment. It dates back to pre-Confederation, when colonialists were longing for the literature of the Mother Country. Dickens and Scott were the rage, not the fare offered up by the local gentry. Yet over time, and in no small part due to public investments in writing and publishing, Canada’s literary output now holds its own, at home and abroad.

Perhaps one of the most curious aspects of Whyte’s outburst is that he refrained from any mention of the More Canada report released in December 2018. Announcing the report in the Globe and Mail, Kate Taylor wrote:

According to the report’s three organizers and authors, publishers James Lorimer, Jeff Miller and Philip Cercone, Canada’s literary culture is healthy: Writers keep writing and Canadian-owned publishers are publishing as many Canadian titles as ever, while independent bookstores are also stable. But somehow the industry’s link with Canadian readers has broken. The voluntary group of cultural professionals behind the More Canada report had sensed that; anecdotally, everybody was selling fewer Canadian books (even if more Canadian titles were being published.) So they got together to see if they could find hard evidence of a drop – which they did – and to discuss why it might have occurred. (Emphasis mine.)

The authors honed in on a particular problem, that despite the desire of Canadians to read more Canadian works, systemic problems of both discovery and cost impede heightening that connection.

Recently, those same authors produced another report: Independent Bookstores in Canada’s post-Covid Cultural Landscape. Dated to 21 July 2020, it describes heroic efforts being made by independent bookstores, supported by their local communities, to survive in our Covid-shaped world. On the topic of public libraries, these gentlemen write with no rancour:

Independent bookstores offer their communities a service that is complementary to public libraries. In fact, consumer research shows that most book readers frequent both libraries and bookstores. Library browsing and reading can substitute for book buying, but research data show that it also generates book purchases. Together, a public library branch and an independent bookstore will support and sustain higher levels of discovery and reading than either would generate on their own. Both have a common goal of encouraging book reading. Both share a commitment to the cultural goal of Canadians reading Canadian.

They call on government to address the particular needs of independent bookstores. The only time public libraries feature within the recommendations is in a request that independent bookstores may share the same discounted postal rates that libraries can rely on when shipping books.

There is much more that ought to be written about Whyte’s opinions, about his determination to cast public libraries as competitors within the book industry. I can only hope that a graduate student who has an interest in the intersection of Canada with literature or book history or intellectual property or international trade or economic development or citizenship, will draw this out in a thesis.

I’ll offer up right now my willingness to be an advisor on that project.

 

two histories

In Posts on May 19, 2020 at 7:14 am

Last week, the two co-existing histories of Canada’s system of copyright, however contradictory, were on full display. A twitter discussion that began with moral rights, culminated with Carys Craig, Heather Martin, Bob Tarantino, and I, emphasizing how challenging it is to engage in creative endeavor which incorporates a prior work (even in the realm of parody). Bryan Frye was duly sympathetic:

But then on Friday, under the aegis of the Program in Information Justice and Intellectual Property, a Canada-U.S. panel discussed at length how an Open Educational Resource (OER) created in one country, could be relied on as legitimate in the other country. (Said another way, OERs, like essential goods and services, can cross the Canada/U.S. border.) Carys, Lucie Guibault, and Ariel Katz deftly illustrated the strength of fair dealing in the realms of research, private study, and education. This despite the recent FCA decision relating to York University’s application of fair dealing in 2011.

One aspect that went unremarked was that Canadian development of fair dealing differs from that of American fair use. While both rely on a fairness analysis, Canada has managed to avoid some challenges experienced by the United States. Two critical aspects have been held at bay:

1. An undue regard for licensing.

“The availability of a license is not relevant to deciding whether a dealing has been fair (CCH v. LSUC, 2004, para. 70).” Sixteen years may have left Canadians complacent with those words crafted by former Chief Justice Beverley Mclachlin, words which were supported with unanimity by the Supreme Court. That said, complacency should not eliminate appreciation for our Court’s foresight.

No explanation, no citation, was ever given for that piece of wisdom. But it is hard to believe that McLachlin and her clerks were unaware that fair use had fallen off the rails in the later twentieth century in the United States. Fair use was frequently portrayed as only a response to market failure, notably in circumstances pertaining to research and education. The prevailing view was that if a work could have been licensed, it should have been licensed, and therefore unauthorized use could not be fair use. Such circularity in arguments left fair use almost inert, leading to Lawrence Lessig’s dispirited remark that fair use simply enabled one to hire a lawyer.

(The late Lyman Ray Patterson wrote extensively about this period of American history wrought as it was through Princeton University Press v. Michigan Document Services Inc. (1994) and American Geophysical Union v. Texaco Inc. (1996). I provide some details here, and my thoughts on efforts by the Second Circuit to rehabilitate fair use are here.)

Under McLachlin’s watch, Canada was spared that growing pain of fair use.

2. Dependence on Transformation

Elevating fair use out of the pit it had fallen into required years of work. A good portion of heavy lifting was carried by U.S. Judge Pierre Laval. In 1990, he proposed the element of “transformative” as a governing principle to distinguish fair use from infringement:

The use must be productive and must employ the quoted matter in a different manner or for a different purpose from the original. Transformative uses may include criticizing the quoted work, exposing the character of the original author, proving a fact, or summarizing an idea argued in the original in order to defend or rebut it. They also may include parody, symbolism, aesthetic declarations, and innumerable other uses.

But Canada is not dependent on invocation of “transformative.” It has not entered our vocabulary, nor should it.

Two of the three Canadian Supreme Court cases where fair dealing prevailed (in research and education) were instances where professionally published works were used for the same purposes, the same settings, for which the works were created. Academic/research works were copied for research needs, and, copies of educational content were provided to students as part of classroom learning.

Against this history, it is not only unnecessary but also ill-advised to invoke “transformative” in Canada. To academic administrators anxious to keep their institutions safe, or, in the hands of professional Canadian lobbyists, the plain-English connotation of “transformation” leads to an expectation that a new work must be created. Which then becomes an argument to discourage unauthorized uses, however fair they might be, by students and researchers. 

During Friday’s discussion, the Canadian panelists reminded us that our Supreme Court stated that legitimacy of fair dealing does not require further creativity (SOCAN v. Bell (2012) para 21.)  In fact, the Court expressly rebutted SOCAN’s efforts to bring the word “transformative” into discussion (paras 23-24).

PIJIP will post the video; keep an eye on their YouTube channel. The discussion at the end offers detailed explanation with respect to incorporating various types and portions of protected works into OERs.

Canada’s development of exceptions towards building the infrastructure of a knowledge-based economy – education and research – is robust. But it remains under-developed when it comes to actually protecting creative activity. While, as Bob notes, the recent Wiseau decision “confirms that documentary films qualify as criticism, review and news reporting under the Copyright Act’s allowable fair dealing purposes,” other forms of creativity are still without shelter under the Copyright Act. Because, as I have written earlier, sometimes art is just art.

Canada has covered a good deal of ground in attaining a flexible exception under the Copyright Act; it is gratifying that last year’s report from the Standing Committee on Industry, Science and Technology explicitly calls for an illustrative set of purposes under fair dealing (see recommendation 18).  But, we’re not there yet. As Bob also said last week, “We’re working on it.”