Meera Nair

Feb 23-27, celebrating fair dealing

In Posts on February 19, 2015 at 9:23 pm

February 23-27 marks Fair Use Week in the United States, and thus by association, Fair Dealing Week for other jurisdictions. The Association of Research Libraries (ARL) is promoting a community celebration of these limits upon copyright that enable the system of copyright to live up to its mandate to promote creativity, advance knowledge and bolster innovation, and reap just rewards not only for the creators involved but for the creators yet to come as well. ARL pays particular attention to Canada: “… in Canada, fair dealing is a critical right of the user intended to facilitate balance in copyright law and accommodate freedom of expression.”

Readers may remember that user rights gained prominence in Canada in 2004, via CCH Canadian. Writing for the Supreme Court of Canada, in a decision supported with unanimity, Chief Justice Beverley McLachlin states:

The fair dealing exception, like other exceptions in the Copyright Act, is a user’s right. In order to maintain the proper balance between the rights of a copyright owner and users’ interests, it must not be interpreted restrictively (para.48).

The Supreme Court has consistently reminded Canadians that copyright is a set of limited rights, and that those limits are critical to the proper functioning of the system as a whole. Yet, even after 11 years of well-articulated, thoughtful reminders, it remains that copyright is often perceived as a measure of absolute control. Such perception is cultivated perhaps unintentionally by people/organizations who have a genuine desire to behave in a law-abiding manner and thus restrict behaviour that need not be restricted. With time, we may hope that such misunderstanding will subside. More potent and damaging is the conduct of members within the publishing community who actively promote misinformation.

For instance, consider the following notice that graces the frontmatter of far too many books:

All rights reserved. No part of this publication may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopying, recording, or any information storage and retrieval system, without permission in writing from the publisher.

If one unpacks this passage, the first sentence is correct. All the rights offered within copyright law have been reserved to the benefit of the copyright holder. At this juncture though, one should remember that extensive as those rights are, copyright holders are not permitted the right to refuse exceptions defined within the same law.  Copyright holders cannot pick the parts of the Copyright Act they wish to accept, and the parts which are to be dispensed with. But the sentence that follows in the passage tries to do exactly that; it categorically denies unauthorized use, despite the fact that fair dealing, fair use, and a host of other exceptions, can allow reproduction and transmission, by whatever means, without the consent of the publisher.

 

Update – February 28, 2015

Fair Dealing / Fair Use week sparked an outpouring of dialogue about our exceptions for unauthorized use. My favorite was Jonathan Band’s description of the many sightings of fair use in the daily life of a legislative assistant.

And, it was with great pleasure that I contributed the following posts to Harvard Library and the Office for Scholarly Communication, and University of Toronto Scholarly Communications and Copyright Office. My thanks to Kyle Courtney and Daniela Cancilla for the invitations to participate with their respective universities.

North of 49, posted February 24, 2015: “The proximity of the United States to Canada occasionally leads to some confusion north of the 49th parallel; in common parlance, fair use eclipses fair dealing. I cannot resist reminding others: we are Canadian; our exception is fair dealing. Yet it is only appropriate to also say that Canada has benefited greatly by American fair use. From our vantage point, we were able to appreciate the opportunity provided by flexibility in the language of exceptions, suffer the worst of fair use’s growing pains by proxy, and step ahead of such pain in our own development of exceptions.” To read more, see link or pdf.

Fair Dealing: Protector of the Public Domain, posted February 27, 2015“This past week marked Fair Dealing / Fair Use Week 2015. It was pleasing to see many Canadians within the educational community taking interest in our system of copyright. But, I confess to some disappointment that this interest should have blossomed only belatedly – after 2012. True, in that year the Copyright Act was revised with increased scope given to exceptional uses of copyrighted material. Also true, in 2012 the Supreme Court handed down two more decisions emphasizing the merits of fair dealing. But we cannot lose sight of the fact those decisions were based upon our previous Act which did not include any provision for “education.”  or can we forget our Court began speaking to the importance of fair dealing a full decade earlier, emphasizing that fair dealing is our mode of entry into the public domain.” To read more, see link or pdf.

a $3.5 billion reminder

In Posts on January 18, 2015 at 3:19 pm

Investor-State Dispute Settlement (ISDS) reappeared in the news last week. Writing for Toronto Star, Les Whittington alerts Canadians that our country is on the receiving end of a claim of $3.5 billion by the owner of the Ambassador Bridge which connects Windsor and Detroit. “Matty Moroun … is claiming damages from Ottawa in connection with Canada’s plan to help build a second bridge linking Ontario to Michigan at Detroit.”

It is the ISDS mechanism established within the North American Free Trade Agreement (NAFTA) that is providing the avenue of complaint for Moroun. I have written about ISDS before (most recently, see here); in essence, foreign corporations have recourse to sue governments, via private tribunal, when government or judicial actions of the home country are deemed to compromise the foreign investment. ISDS was introduced ostensibly to provide security to corporations when dealing in countries with less-than-robust systems of law, but has now become part and parcel of most bi-lateral or multi-lateral trade agreements. The recently agreed upon Comprehensive Economic and Trade Agreement (CETA) between Canada and the European Union, and the pending Trans-Pacific Partnership (TPP) which is described as the largest trade agreement negotiated outside of the World Trade Organization, are no exceptions. From a Canadian perspective though, it is perplexing that any government of Canada should embrace the continuance of ISDS in trade agreements.

Whittington draws from a newly–released compilation of actions against NAFTA governments, authored by Scott Sinclair for the Canadian Centre for Policy Alternatives (CCPA), to observe that, disproportionately, Canada receives most of the action. It could be argued that Canadian trade with the United States is of higher volume than that of Mexico, and thus such proportion is inevitable. One could also argue that Canada’s past commitments to public-wellbeing are more likely to impede a laissez-faire mantra, and that is why we attract unwanted attention. A day after Whittington’s article, Thomas Walkom also weighed in via Toronto Star: “… 69 of the 77 complaints made against governments in the three countries were leveled against public policy measures in areas such as environmental protection, land-use planning, drug regulation and health care.”

Whittington observes that the Canadian government sees concerns of ISDS as overdrawn; with respect to CETA, he quotes a representative: “Investment protections have long been a core element of trade policy in Canada and Europe, and will encourage job-creating investment and economic growth on both sides of the Atlantic.” But, in March of last year, Public Citizen issued a report which comprehensively illustrates that ISDS offers protection far beyond what occurred in the past and that “… countries bound by ISDS pacts have not seen significant FDI increases, [whereas] countries without such pacts have not lacked for foreign investment (p.3).” And in that same report, Public Citizen illustrates precisely how deleterious actions under ISDS are to public well-being.

For instance, both Uruguay and Australia have drawn fire for their anti-smoking efforts (larger warning labels and plain packaging requirements), despite the fact that the World Health Organization commends such effort. (Jim Armitage, writing for The Independent last fall, described in detail Uruguay’s success in reducing smoking rates among its population.) Yet tobacco company Phillip Morris, is challenging both countries by way of ISDS. As noted by Public Citizen, “Philip Morris is demanding compensation from the two governments claiming that the public health measures expropriate the corporation’s investments in violation of investor rights established in Bilateral Investment Treaties (p.2).” Neither Uruguay’s health success nor the fact that Australia’s regulations were upheld by its Supreme Court, will have much sway in the tribunal operations of ISDS.

Under ISDS, disputes are managed by a trio of corporate attorneys who rotate among the positions of representative and judge. These tribunals are not answerable to any electorate and do not address public well-being as a court of law would do when confronted with the same dispute. Even if one is willing to accept that such critical decisions are rendered outside the forum of any country’s judiciary, the lack of statutory guidance to the outcome is extraordinary; Public Citizen writes:

If a tribunal rules against a challenged policy, there is no limit to the amount of taxpayer money that the tribunal can order the government to pay the foreign corporation. Such compensation orders are based on what an ISDS tribunal surmises that an investor would have earned in the absence of the public policy it is attacking. The cases cannot be appealed on the merits. There are narrow technical and procedural grounds for annulment. Firms that win an award can collect by seizing a government’s assets if payment is not made promptly. Even when governments win cases, they are often ordered to pay for a share of the tribunal’s costs. Given that the costs just for defending a challenged policy in an ISDS case total $8 million on average, the mere filing of a case can create a chilling effect on government policymaking, even if the government expects to win (p.2-3).

For Canadians, that last sentence is not conjecture; Walkom writes “[In 2013] … the Ontario government paid a U.S.-based company $15 million to withdraw its complaint.” Moreover, the phrase “would have earned in the absence of the public policy it is attacking” should send chills down everyone’s spine. Clean air, clean water, access to medicine, and, worker and public safety, all sit on the cost side of any ledger. It is unrealistic to expect that measures addressing these social needs would have been voluntarily adopted by entire industries, and then maintained by those industries, without some prodding from government. The appropriate forum to address dispute between corporate expectation and government commitment to public well-being, can only be a court of law.

Harold Innis (1894-1952) once remarked upon the brilliant achievement that was the development of law; that law represented “an alternative to force.” True, in the 21st century, citizens of nation states do not fear marauding armies traipsing through the streets in a hostile takeover of the nation. But we should not lose sight of the fact that nations can be taken over in a far more insidious way; losing the supremacy of our judiciary and the autonomy of our government should be an early warning sign.

poems out of other poems

In Posts on December 10, 2014 at 6:50 pm

December 11 marks the death of John Gillespie Magee, Jr. (1922-1941). Born to an American father and a British mother, Magee opted to join the Royal Canadian Air Force in 1940 to serve with the Allied Forces during WWII (the United States had not yet entered the war). Killed in flight during a training exercise, Magee’s name continues to circulate via his poem High Flight; he may be forever known as the pilot poet.

High Flight

Oh! I have slipped the surly bonds of Earth
And danced the skies on laughter-silvered wings;
Sunward I’ve climbed, and joined the tumbling mirth
of sun-split clouds — and done a hundred things
You have not dreamed of — wheeled and soared and swung
High in the sunlit silence. Hov’ring there,
I’ve chased the shouting wind along, and flung
My eager craft through footless halls of air…

Up, up the long, delirious, burning blue
I’ve topped the wind-swept heights with easy grace.
Where never lark, or even eagle flew —
And, while with silent, lifting mind I’ve trod
The high untrespassed sanctity of space,
Put out my hand, and touched the face of God.

Each sentence surpasses the previous; and the last line lingers inexorably: “Put out my hand and touched the face of God.” The denizens of Wikipedia have traced the phrase “touched the face of God” to an earlier work by Cuthbert Hicks, a poem titled The Blind Man Flies. Some other phrases of Magee’s are also found in other poems. It is a reminder of Northrop Frye’s edict: “Poetry can only be made out of other poems; novels out of other novels. … All this was much clearer before the assimilation of literature to private enterprise concealed so many of the facts of criticism.”

That creativity is an effort in recycling has gained heightened attention in the digital age. Where we once might have talked about chapbooks and scrapbooks, we now speak of user-generated content (UGC). To be sure, digital technology has enhanced both the tools for creative effort as well as the means to distribute the outcome of such effort. But the fact remains that creativity has always relied on inclusion of prior work. In our pre-digital world, amateur recycling of copyrighted materials would either have escaped notice, or been tolerated; today, copyright holders are more likely to resent such behavior and claim infringement.

Aware of the risk to our creative instincts by overt copyright consciousness, as part of the 2012 amendments to the Copyright Act, the Canadian government brought in an exception to protect UGC activities. Found in Section 29.21, the exception is titled as Non-commercial User Generated Content and begins with, “It is not an infringement of copyright for an individual to use an existing work or other subject-matter or copy of one, which has been published or otherwise made available to the public, in the creation of a new work … .”

As all such amendments to copyright have been, S29.21 was controversial from the outset. It pleased few. The exception addresses solely non-commercial creations, thereby offering little assistance to professional artists, and comes with conditions that appear too onerous for amateurs to follow. But closer inspection suggests that S29.21 is not far removed from the analysis that must accompany fair dealing in Canada (fairness and attribution are key to both).

Notably, Canada is the only country that has taken such a progressive step. Peter Yu, an internationally acclaimed intellectual property scholar, argues passionately that a similar exception be included in proposed modifications to the Copyright Ordinance of Hong Kong. Yu also expertly discredits naysayers who profess that Canada’s amendment violates international obligations.

From its infancy on, S29.21 was dubbed the YouTube clause; a title perhaps more fitting in spirit than jurisdiction. The moniker notwithstanding, the scope of 29.21 is vast. Any form of copyrighted work is eligible for consideration, not merely music or video. Teresa Scassa, also a highly acclaimed scholar in the world of intellectual property, writes:

From one perspective it is a licence to build on the works of others; from another it is a potentially sharp curtailment of the scope of a copyright holder’s ability to control the use of their work. In the end, the scope and importance of the UGC exception may come down to how its limiting provisions are interpreted: and in this regard, the direction already charted by the [Supreme Court of Canada] in its recent copyright decisions will likely have great bearing.

Scassa goes on to remind us that the Supreme Court of Canada has taken a strong stance on the issue of balance between rights of control and rights of access. Their directive should feature prominently if lower courts must assess a copyright claim against the limits of the UGC exception.

So, in celebration of Magee’s life and work, and the creative process in general, readers might enjoy this UGC creation by SongOfTheOpenRoad. High Flight’s words are elegantly scripted and interspersed with beautiful imagery. Set upon the musical score of Return/Reunion by Basil Poledouris, the result is much more than the sum of its parts.

 

Follow

Get every new post delivered to your Inbox.

Join 46 other followers