Meera Nair

fair dealing week 2018

In Posts on February 25, 2018 at 6:27 pm

Tomorrow marks the start of Fair Dealing Week for 2018. It is an opportunity to bring concentrated attention to this particular exception, which is practiced every day by Canadians in their pursuit of learning and  creative endeavor (i.e. see here and here).

Broadly speaking, exceptions are statutory provisions which provide the means by which one may engage in legitimate, unauthorized uses of copyright-protected material. Taken together, exceptions delineate the essential space in which the fundamental construct of the system survives—that, in order to foster creativity, the system must operate as a set of limited rights.

Fair dealing enables Canadians to continuously build the capacity for creative thought; capitalizing on that thought is managed through the rights of control found within the system of copyright. More precisely, exposure to copyrighted work facilitates creation of future work. But the elapsed time between these two stages of creative endeavor leaves fair dealing vulnerable, as the modest amounts copied under fair dealing are viewed as a threat to copyright owners’ well-being.

Worse, fair dealing is tarred by accusation that it is bringing about the demise of Canadian literature. Emotional arguments lacking logic coupled with selective data are paraded before Members of Parliament as reason to curtail the scope of fair dealing. Such arguments would have us believe that but for the collective licensing regimes imposed on captive Canadian taxpayers, students, and their families, CanLit would never have gained its prominence. Fortunately, logical argument and expansive data employed by a noted member of Canada’s writing scene tell a different story.

In Arrival: The Story of CanLit, Nick Mount’s painstaking exploration describes CanLit as an outcome of a confluence of many events: post-WWII affluence, the reaction thereto, the Centennial celebrations, some (perhaps unintentional) prodding by George Grant, and … . [You must read the book!] Not surprisingly though, the catalyst was money:

[Affluence] paid for new spaces in which its artists could perform and exhibit. It paid for new universities with departments devoted to studying and fostering music, drama, literature, and the visual arts; for new campuses with their own galleries, theatres, radio stations, magazines, publishers, and book-stores. It built new houses with new hi-fis that need playing and new bookshelves that needed filling, and it built new shopping malls in which to buy the new records and new books …. Affluence paid for the salaries that bought the homes that filled with the babies that filled the universities, both creating and conditioning the first generation for whom culture was a mass-market product (p.25).

But Mount is quick to point out that affluence did not extend to the writers and publishers themselves:

For all the new GNP, it was still tough to make a living from literature in Canada in the 1960s. The publisher of the most commercially successful writers of the period, McClelland & Stewart, flirted with bankruptcy throughout and after the CanLit boom. …. Most writers lived cheaply and at times precariously, surviving on small grants, the occasional teaching or writer-in-residence contract, sometimes even their writing (p.26-27).

To those who insist that fair dealing in educational institutions will bring about a decline in Canadian writing, Mount offers compelling evidence indicating that the problem is not unauthorized use of portions of novels but a lack of interest in entire novels to begin with:

Saskatchewan and British Columbia require students to read a novel or two, but Canadian literature is once again optional in Ontario high schools. At eleven of Canada’s largest twenty universities, English and French, you can complete a major in literature without any of it being Canadian. (At all twenty, you can complete a B.A. without ever reading a Canadian poem or novel (p.292)).

Mount’s data should invite sober reflection on the part of Canadian literary nationalists. Curtailing fair dealing seems unlikely to revive interest in adding Canadian content to Arts education in Canada; instead, curtailing fair dealing points to reducing circulation of Canadian content.

In academic degree specialties focused on Canadian literature, required reading material is likely already assigned as books. Thus, the impact of lessening fair dealing’s capacities will be on those programs that might only refer to Canadian content for supplemental purposes. In these cases, it is only too likely that a disinterested professor or teacher, coupled with risk-averse administrations, will choose to avoid using those supplemental pieces entirely.

If the damage could be confined to reducing the presence of Canadian literature in the academy; well, many of us could just sigh and say it was a self-inflicted wound. To lobby for copyright in the name of Canada without understanding Canada’s particular history in this area is simply a repetition of what has been done before. But, diminishing fair dealing entraps all disciplines, reducing that capacity to nurse creative thought essential to later creativity in all perspectives of arts and science. And what will be most painful to accept will be how unnecessary such action was. For, as Mount writes, “Canadian literature is more alive and more exciting than ever (p.292).”

Mount does not stint on detail: Canadian writers are increasing in number, their work is being published at home and internationally, new Canadian presses are blossoming, the quality of work is constantly ascending, and the depth and breadth of literature produced reflects both the diversity within the country and its coming-of-age on the world scene. Mount’s conclusion bodes well for Canadian literature now and Canadian creativity to come: “Quite simply, there has never been a better time to be a Canadian reader (p.293).”

Mount’s words complement those of Justice Barnes, who presided over Blacklocks v. Canada (A.G), 2016. That dispute revolved around limited sharing, for the purpose of research, of two proprietary articles legitimately obtained through a subscription; see here for my coverage.  The following lines seem particularly apropos at this time of year:

What occurred here was no more than the simple act of reading by persons with an immediate interest in the material. The act of reading, by itself, is an exercise that will almost always constitute fair dealing even when it is carried out solely for personal enlightenment or entertainment (para. 36).

Happy Fair Dealing Week.

adjudication by algorithm

In Posts on January 3, 2018 at 8:33 am

Monday’s issue of The Globe and Mail describes new initiatives to secure better returns for the music industry when musical content is used via radio or internet. Under a joint initiative between the University of Toronto and The Society of Composers, Authors and Music Publishers of Canada (SOCAN), students are investigating how technology “… can parse through audio and video to find media using SOCAN member songs that should be paying royalties to creators and publishers.”

If a reader parses that sentence, the word “should” stands out. Merely using a SOCAN member’s song, or anyone’s song, does not automatically indicate that payment is required. While it is plausible that artificial intelligence can develop a capacity to engage in the contextual analysis required to determine whether a use is legitimate or an infringement, much will depend on the human input.

(As I write this, I recall undergraduate days and a computer science professor who was fond of saying, “garbage in, garbage out.”)

In her remarks about the article Carys Craig draws on the work of Niva Elkin-Koren, who has written at length about the perils of copyright adjudication by algorithm. For instance, in Fair Use by Design (2017), Elkin-Koren argues that: “… for fair use to serve its role in the twenty-first century, the checks that it intends to create on the rights of authors must also be embedded in the design of online systems.” She reveals some disturbing findings following analysis of 10,000 removal requests sent to Google, to the conclusion that “an algorithmic regime, which is neither overseen by the public nor by any judicial entity, is extremely vulnerable to misuse.”

Misuse may be deliberate, but misuse also occurs through confusion with respect to the very nature of copyright. Too many people believe that copyright means an absolute right of control; which it never has been, nor has it ever functioned in this manner. From its implementation into statutory law (1710), copyright has been structured as a set of limited rights. But despite this 300+ year ancestry, contemporary articles rarely provide any explanation of where control begins or where control ends.

That story is told through the Copyright ActSection 3.1 states:

For the purposes of this Act, copyright, in relation to a work, means the sole right to produce or reproduce the work or any substantial part thereof in any material form whatever, to perform the work or any substantial part thereof in public …

From 3.1 we see that copyright exists only when a substantial amount of work is being reproduced. Any algorithm that deems infringement by only identifying use, has vastly overstepped its bounds. Copyright may not even have arisen, let alone finding infringement. (For more about substantial/insubstantial, see here and here.)

If a substantial reproduction has occurred, copyright owners (which may include the writers, musicians, artists, etc. that created the work) are entitled to control the use of the work, through the measures enumerated in the Copyright Act. But that control is not absolute. It is limited, not only by time (Canada maintains the life+50 copyright duration mandated by international treaty) but also by many statutory exceptions. That list begins with fair dealing:

Section 29, fair dealing “Fair dealing for the purpose of research, private study, education, parody or satire does not infringe copyright.”

Sections 29.1 and 29.2 – which provide fair dealing for “criticism or review” and “news reporting” under conditions of attribution. Writers and publishers (perhaps those associated to national newspapers) might appreciate this exception.

(Over the last fifteen years Canada’s treatment of fair dealing has evolved into a measured, progressive exception and ensures that the system of copyright remains balanced and does not devolve purely into a means of rent-seeking. For instance, see here, here, and here.)

Canada’s jewel in the crown – S29.21 “Non-commercial user-generated content,” is more colloquially known as The MashUp Exception. With conditions (amateur creation, attribution, legitimate source material, and a consideration of market effect), creativity at its most nascent is protected as lawful activity. While the scope is vast, at the very least S29.21 seems tailor-made to protect video involving a dancing cat. (For more on 29.21, see here and here.)

Or if the musical accompaniment to the cat was unintended, the unsung heroic exception of S30.7 “Incidental Use” comes to mind:

It is not an infringement of copyright to incidentally and not deliberately (a) include a work or other subject-matter in another work or other subject-matter; or (b) do any act in relation to a work or other subject-matter that is incidentally and not deliberately included in another work or other subject-matter.

Incidental use is not limited to amateur creation, nor is it confined to any specific purpose of use. That said, it has provided Canadians with some bragging rights in a particular genre; as Howard Knopf wrote over a decade ago, “This section is the envy of American documentarians … .”

The entire list of exceptions is extensive and should be part of any algorithmic effort to pronounce judgement on use of copyrighted works. In this regard, artificial intelligence could lead to better outcomes for copyright owners and users alike, if such systems are appropriately seeded, capable of learning from existing and ongoing court decisions, and attuned to the nuance that permeates application of the law. To rephrase my former professor’s words: comprehensive information in, contextual decisions out.

how Canadian education really hurts creators

In Posts on October 16, 2017 at 8:12 pm

Last week, this tweet made the rounds:

The article referenced insists, yet again, that Canada’s 2012 copyright amendments are the reason for declining fortunes among Canadian publishers and creators.

Such a lopsided assessment of Canada and copyright is nothing new. While it is important that members of the education community continue to press Members of Parliament to engage in a comprehensive exploration of this matter, it is as important to turn our gaze inwards and redress the real failure of Canadian education with respect to nurturing creators and creative activity.

The creators I speak of are not those who belong to any union or collective society; most of these creators are still under-age.

Two weeks ago, a mother said to me, “My daughter is terrified of using anything off the Internet.” The daughter is of middle-school-age, and the source of that terror: dire edicts driven in at school. Thou shalt not steal from the internet for the purpose of schoolwork.

Judicial pronouncements notwithstanding, this is not an isolated misconception.

If generations of Canadian students are instilled with the view that education and creativity are contingent on permission from others; that every scrap of content (even when employed for something as innocuous as homework) must be paid for, Canada’s future looks bleak.

The irony of the current situation is that too many Canadian creators are deemed to have been ruined by virtue of our inclusion of “education” into fair dealing, while the fact is that too many Canadian educators are unaware of fair dealing to begin with. Fair dealing would certainly protect a student who wants to use a published picture, a video-clip, or a quotation of text, towards fulfilling an assignment, regardless of the provenance of that content.

Moreover, in addition to fair dealing, the Copyright Act offers many avenues by which a student’s copying in aid of learning finds legitimacy. But are educators aware of these measures?

For instance, are they aware of the importance of S29.21? Hailed by Ruth Okediji as a mark of integrity by Canada, that we as a nation support the type of copying that is the very foundation of creative effort, S29.21 is quite capable of also sheltering a school project. Northrop Frye’s immortal words bear repetition; poetry can only be made out of other poems…

Are Canadian educators aware of the very structure and language of the grant of copyright? S3.1 clearly indicates taking an insubstantial amount of work would not raise a question of infringement.

Continuing along the lines of first principles, do Canadian educators understand the existence of the public domain? That not every artifact (whether in print or digital) is protected by copyright. Facts and ideas are never protected material; copyright is only gained by creation of original expression. A grant of copyright will expire; from that time forward, anyone may use the creation for any purpose. And the exercise of a statutory exception renders protected-material, in that instant, as public domain.

Returning to the situation at hand, what about the long-sought-after Internet exception S30.04? Its language is clumsy, but given that Canadian education fought for this exception, to see it lying by the wayside is frustrating. Granted, the exception is framed in the language of “institution,” but it is only logical that a student attending an institution could rely on the same protection. Given the forceful language surrounding plagiarism in all educational institutions, it is safe to say that the attribution requirement will be met. (Further conditions limit the exception to some degree, but in the context of a student working on an assignment, those conditions will likely also be met.)

But, for simplicity, fair dealing is all that needs be said about an individual student engaged in learning. S.29 states: “Fair dealing for the purpose of research, private study, education, parody or satire, does not infringe copyright.” There are no fixed conditions; multiple Supreme Court decisions emphasize the contextual nature of fair dealing and provide guidance on determining fairness. The typical uses put forward by students (for a picture here, a quotation there) would easily stand up under such an analysis.

Children, teenagers and post-secondary students should not have to take on the task of learning all about copyright before they can comfortably do their homework. That responsibility falls squarely on Canadian educators. While it is undoubtedly easier to simply adopt a no-copying regime, it will not place Canada on any strong footing in a global economy where success is determined by a country’s capacity to think broadly, to be creative, and to develop knowledge-based industries.

Ideally, the word copyright would never need to be uttered to one under the age of 21. But as life is less than ideal, the best we can do for students is to reassure them that their constructive use of broad shoulders of the past to stand on, is not unlawful.

Students today are confronting a world not of their making, but are being handed the responsibility to fix it. To be able to rise to this demand, they need to engage fulsomely with the resources around them to further their creative aspirations, to cultivate their capacity to see something that others cannot, and to dream beyond the constraints of contemporary problems. This cannot happen if copyright angst is the manner in which students choose how to learn.