Meera Nair

when copyright and tragedy overlap

In Posts on June 21, 2022 at 7:14 am

It seemed unlikely that my two blogging interests would ever intersect—the dispassionate system of copyright versus the vivid emotion that accompanies recollections of Canada’s worst instance of terrorism. But such is the case today.

It is nearly 37 years since the bombing of Air India 182 on 23 June 1985, with the loss of all 329 people aboard. Their deaths were the outcome of a plot conceived and executed from within Canada. Among the victims were 280 Canadians, including 137 who were under the age of 18.

For decades, Canada’s preference was to distance itself from this tragedy. As I wrote last year: “[At the time] Canada’s seemingly progressive multiculturalism policies collided with the nation’s actual disinterest in its brown-skinned population. Politicians sought support in vote-rich immigrant communities without expending the effort needed to understand the turmoil brewing in the Indian Canadian community. Namely, the extent of hatred for the Indian government by some members of the community.”

That fury was meted out on innocent Canadians. And yet, today, more Canadians are likely aware of the past atrocities committed in India, than the retaliation that transpired here immediately afterwards. It does not help that Canada’s eventual probing of this tragedy, painstaking work carried out by committed public servants, is almost unfindable. Herein lie the copyright aspects—even when one knows what to look for, government documents pertaining to Air India 182 are very difficult to locate.

The first detailed exploration into events surrounding the bombing came in 2005. At the request of Anne McLellan (then serving as Deputy Prime Minister and Minister of Public Safety Canada) the Honourable Bob Rae was tasked with exploring those painful events to determine if a wider public inquiry would be appropriate. He described events prior to the bombing, the horror of that day and thereafter, and the ensuing Canadian indifference. From his report, Lessons to be Learned:

It has been a challenge, first because providing public policy advice in an area so fraught with emotion and conflict is difficult, second because the intellectual puzzle shrinks in comparison to the courage and example of those citizens who lost so much. There is an Irish saying that at times the world can break your heart. That certainly happened on June 23, 1985.

What was most striking from the copyright-perspective was this notice in the frontmatter.

Such an approach to copyright, crown copyright no less, was almost unheard-of in 2005. Rae’s effort to increase the circulation, and thus understanding, of this report, was innovative at the time. I can only hope that his intentions bore at least some fruit.

When looking for this report, a natural place to start is the Library and Archives Canada website. Yet this report does not surface, even when searching for “Lessons to be learned”.

Subsequent searches on the broader topic and keywords relating to Air India 182 also yielded nothing.

At least Rae’s work can be found as archived content at the Public Safety website. The same cannot be as easily said for Rae’s successor on this topic. Retired Supreme Court Justice John Major was appointed to lead a comprehensive inquiry (as recommended by Rae). The scale of which was daunting, but Major lost no time in addressing perhaps the most pressing need: to give those who suffered unimaginable loss, a voice on the Canadian stage. The first report The Families Remember, was released in 2007, ahead of completion of the inquiry.

[The families of the victims] have already waited much too long for their stories to be told. The publication of this report will mark the first opportunity for Canadians, and particularly young Canadians, to be able to fully understand the tragedy that befell many of their fellow citizens … Parents and children, scholars, scientists, doctors, social workers, business people, artists, humanitarians and students, perished as a result of that cowardly act of terrorism.

Yet Major’s work in its entirety is almost invisible. Officially described as the Report of the Commission of Inquiry into the Investigation of the Bombing of Air India Flight 182, spanning multiple volumes, it makes no appearance at the Public Safety website. (Nor does it appear under its companion name: Air India Flight 182: A Canadian Tragedy.) This, despite that the website explicitly offers a search category “Remembering Air India Flight 182.” 

Enacting that search reveals only three entries: Rae’s Lessons to be learned, the seven-page response to Major’s final report (which spanned hundreds of pages), and a progress report dated to 2011.

The WayBack Machine, courtesy of the Internet Archive, reveals that this limited offering dates back to at least 2013. This despite that Major’s inquiry was completed and released in full to the Canadian public on 17 June 2010. Further adding to the peculiarity is that the complete details of the final report, and the activity pertaining to the inquiry, are stored under the auspices of Libraries and Archives Canada, but (again) are not discoverable through their own search function. One needs a savvy librarian, wise to the intricacies of government documentation, to find it.

But for the archaic practice of crown copyright, independent librarians could have maintained a coherent and comprehensive digital archive of all documents relating to a horrific (and preventable) loss of Canadian lives.

As Amanda Wakaruk reminds us:

… works produced by government scientists, analysts, and researchers receive reduced visibility and impact. In addition, cultural memory organizations are unable to act as stewards for government information, resulting in losses of cultural works… Removing copyright controls from government works will allow individuals, corporations, and other organizations to make better use of these important resources. It will also allow librarians to continue their role as stewards of government information in a digital world.

Restoring Air India 182 to Canadian consciousness might not be such an uphill task if its government history was not tucked away from easy public access.  

more harm than good

In Posts on April 15, 2022 at 10:28 am

Last week Canadians received a dual dose of bad policy prescriptions through Bill C-18 which seeks to “regulate digital news intermediaries” and the Budget Act which indicates that twenty years will be added to the duration of copyright protection, as was “agreed under the Canada-United States-Mexico Agreement.” 

Lengthening copyright term will please the likes of Disney and other corporations which hold the rights to masses of popular, profitable, creative works. But term extension affects all protected works, whether they are profitable or even in use. Unnecessary copyright protection creates hurdles for archivists, scholars, students, authors, artists, and musicians, who wish to preserve, learn from, or build on, such content. (Michael Geist has described some of the harm that will be inflicted on Canadians.) This is not healthy for Canada’s overall wellbeing; for the last twenty years, our Supreme Court has repeatedly emphasized the importance of legitimate, unauthorized uses facilitated through user rights and the public domain.

Canada could mitigate the worst effects of term extension by expanding legitimate, unauthorized uses of protected content. However, the Federal Government appears disinterested in facilitating use: “The government is committed to ensuring that the Copyright Act protects all creators and copyright holders.” Copyright users only receive attention as consumers in a market. This despite copyright’s 300-year history of lawful, unauthorized uses that supported creativity, education, and the growth of new industries.

Such details are already in the hands of the Federal Government. In their mandate that spanned 2015-2019, the then-Standing Committee on Industry, Science, and Technology did all Canadians proud with an unbiased, comprehensive review of the Copyright Act. With respect to term extension, the Committee recommended requiring “rights-holders to register their copyright” in order to assert and receive protection for the additional twenty years.

Registration affords copyright owners the opportunity to decline the extra twenty years of protection when those years provide no added benefit. Copyright users are then able to distinguish between protected material and freely, fulsomely usable, material. Registration facilitates choice.

Yet that Industry report was left to gather dust; in February 2021, the Federal Government sought fresh consultation on the matter of term extension. The outcome of which is still not publicly known. Instead, Canadians were provided the details of Bill C-18 which is poised to do more harm than good.

If left unchanged, C-18 would establish a framework in which digital news intermediaries (Google and Facebook) are compelled to pay for Canadian news served up on their platforms, though both have already initiated agreements whereby payment is provided when articles are reproduced in full. But C-18 requires payment for uses involving any portion of news content. Even more disturbing is the requirement that simply providing access to news—a link—is deemed a compensable use. Such links are to the advantage of Canadian media by increasing traffic to their sites. And, more to the point, linking to content is not reproduction/communication of that content. The Supreme Court of Canada settled this matter more than ten years ago; in Crookes v. Newton (2011) , then-Justice Abella (writing for the majority) stated: “Hyperlinks thus share the same relationship with the content to which they refer as do references.  Both communicate that something exists, but do not, by themselves, communicate its content (para 30).”

Demanding payment for links is not only bizarre, it risks destabilizing how linking is treated for all Internet operations carried out in Canada. And herein lies the problem. While this government has taken care not to frame this as a copyright amendment, the thrust of the bill revolves around the copying of content. This is the purview of copyright. Requiring that links be paid for as a matter of regulation will be seen as indication that, in Canada, all links should be paid for.

Yet neither copyright nor the Internet can be confined as a domestic matter. International copyright treaties require that all creators be treated equally within countries. Given the borderless nature of the Internet, it would be only a matter of time before other countries expect the same treatment for links to their content. Setting aside the nightmare of administration that such a framework for payment would entail, the net result will echo what we have seen throughout Canada’s history–increasing the scope of copyright only means more money leaving the country to benefit foreign copyright owners, than what remains to support homegrown entities.

The premise of C-18 is that Canadian media must receive fair compensation. The simplicity of the word fair masks the complexity of the criteria to be met and the control asserted over the process and potential arbitration. The CRTC will have the final word, along with expanded powers. And for all the hubris of the bill—to bring the tech giants to heel—C-18 would achieve the opposite. Michael Geist writes:

The power of large Internet platforms clearly present policy challenges and broader societal concerns. … But establishing a cross-industry subsidy model premised on little more than one sector being more profitable than the other further embeds the reliance on big tech. Indeed, rather than creating alternatives to big tech, it renders the Internet companies even more powerful.

It is hard to imagine a more dysfunctional attempt at legislation. Canadians can only hope that saner heads will prevail.

Fair Dealing Week 2022

In Posts on February 21, 2022 at 6:55 pm

Strictly speaking, every week is a Fair Dealing week. Thanks to multiple Supreme Court decisions over the last 18 years, the importance of fair dealing within the system of copyright has been well-established. The impetus for that development occurred nearly twenty years ago when fair dealing was identified as critical to the goal of the system of copyright: to foster and protect the public domain. Writing for the majority, in Théberge v. Galerie d’Art du Petit Champlain inc. (2002), then-Justice Ian Binnie provided these memorable words:

 “Excessive control by holders of copyrights and other forms of intellectual property may unduly limit the ability of the public domain to incorporate and embellish creative innovation in the long-term interests of society as a whole, or create practical obstacles to proper utilization.  This is reflected in the exceptions to copyright infringement enumerated in ss. 29 to 32.2, which seek to protect the public domain in traditional ways such as fair dealing for the purpose of criticism or review … (para. 32).”

Binnie’s words were influential towards establishing fair dealing as lawful, resilient, and necessary to a well-functioning system of copyright. Fair dealing is integral to the daily lives of creators, students, educators, researchers, consumers – said another way, to the lives of all Canadians.

With respect to the educational sector, in July 2021, the Supreme Court of Canada resolved the long-running dispute between Access Copyright and York University. The outcome was unambiguous: collective licenses cannot be imposed on users and analysis of fair dealing must begin from the perspective of the end user. With unanimity, the Justices effectively reminded us that fair dealing is always available.

Yet the politics around fair dealing persist.

It recently came to my attention that last year the Standing Committee for Canadian Heritage had agreed to “devote at least one meeting before the summer recess to hear from witnesses on the continuing challenges for publishers, creators and artists as it pertains to fair compensation for their work in the field of educational publishing in Canada.” Such intention, expressed outside the five-year copyright review cycle, is a stark reminder that some Members of Parliament are eager to lavish attention on copyright owners and writers. MPs seemed blissfully (perhaps willfully) unaware that those two bodies are distinct; that attention to the former does not imply gains for the latter.

When that meeting took place in June 2021, the assembly of witnesses left little to the imagination:

Despite optimism that the Supreme Court would rule in their favour in the York case, Roanie Levy (President and Chief Executive Officer, Access Copyright) called on the Committee to ensure implementation of Recommendations 18-21 of the prior Heritage Committee Report, Shifting Paradigms. (Preferably by the end of 2022 when the Government of Canada must amend the Copyright Act to comply with CUSMA.) Among those recommendations:

That Government of Canada amend the Act to clarify that fair dealing should not apply to educational institutions when the work is commercially available.
That the Government of Canada promote a return to licensing through collective societies (15).

MPs showed no interest in uncovering how the law actually works, they had no desire to understand that copyright is not a grant of absolute control over every scrap of content. The canard of 600 million uncompensated pages was on full display (Michael Geist debunked that premise years ago) as was the insistence that the educational community was in arrears on its payments for collective licenses and that such licenses are modest in cost.

When speaking of his son’s first year at university, John Degen (Executive Director, The Writers’ Union of Canada) emphasized that he would have been happy to pay an annual copy licensing fee of $14.31. Philip Landon (Chief Operating Officer, Universities Canada) reminded the Committee that Access Copyright had recently sought $26 annually. (Left entirely unsaid was that tensions with the postsecondary community began when Access Copyright sought a fee of $45 per student per year.)

Notably, the MPs refrained from asking a pertinent question:  What do all students get for that fee?

For the sake of argument, let us assume that any amount of copying requires payment (that there is no fair dealing). Let us also assume that educational institutions do not license reproduction of content directly from publishers. Under these assumptions, students whose learning is dependent on excerpts of content would bear the cost of that content. 

But what of students where excerpts are never used as learning resources? I offer up my daughter’s experiences. Throughout her undergraduate studies—mechanical engineering—textbooks were predominantly the only learning resource employed. Sometimes she bought a new book, sometimes a used book, and sometimes no book at all. On those occasions she relied on the library’s reserve copy.

Had a blanket fee been in place during my daughter’s studies, she and her cohort (comprising approximately 100 students) would have paid the fee and received little or nothing in return.

In fact, her university admits two cohorts each year. As students participate in cooperative education work experience, their degrees span five years. Therefore, under a system of mandatory collective payment, by the time they graduated the Class of 2020 would have contributed at least $25,000 to Access Copyright. It is conceivable that this scenario would be repeated in many programs across the post-secondary community.

Let’s also assume that every dollar contributed to Access Copyright goes directly into the hands of struggling Canadian writers. (This borders on farce; bear with me.) The net result would be a transfer of wealth to an impoverished group of Canadians from another impoverished group. As a public policy, it would make no sense at all.

When Shifting Paradigms was publicly released, Michael Geist remarked that the report represents:

… little more than stenography of lobbying positions from Canadian cultural groups, the report simply adopts as recommendations a wide range of contentious proposals: copyright term extension, restricted fair dealing, increased damages, as well as several new rights and payments. There is no attempt to engage with a broad range of stakeholders, much less grapple with contrary evidence or positions.

The work of that Heritage Committee bore no resemblance to the dedication of the MPs actually tasked with the Herculean challenge of conducting a comprehensive review of Canada’s Copyright Act in 2017-2019. That duty fell to the then-Standing Committee on Industry, Science and Technology. From their final report, Dan Ruimy’s words regarding this challenge are memorable:

As Chair, my main concern was to make sure that the review would be informed by as many different perspectives as possible. Committee members were encouraged to ask all manner of questions to better understand the impact copyright law has on Canada’s modern economy and Canadian creators, even though such questions often led to difficult discussions. We did not presume what the outcome of this lengthy and complex undertaking would bring, only that the Committee would give anyone the opportunity to present oral or written evidence. I am honoured to have witnessed such an important and thoughtful conversation (xiii).

Ruimy and his colleagues ensured that participating Canadians would know their voices had been heard. Early in the Summary is this gem: “This report cites every single person who provided oral testimony or submitted a brief to the Committee, and thus recognizes that the complexity of copyright policy requires every issue to be carefully weighed (1).”

That Industry report should be the gold standard for what public consultation means in Canada.

In terms of fair dealing and its application in educational settings, the INDU Committee’s observations bear repeating:

The conflicting views presented on the matter of fair dealing are not entirely incompatible. The Canadian publishing sector is struggling to adjust to market disruptions that predate and are unrelated to amendments contained in the CMA. These disruptions will persist even if Parliament removed every single exception added to the Act in 2012. … The Committee cannot endorse the proposal to limit educational fair dealing to cases where access to a work is not “commercially available,” as defined under the Act. While licensing should be encouraged, this proposal risks reducing flexibility in the educational market by favouring blanket over transactional licensing (64).

Another Copyright Review will get under way this year and the push to make fair dealing subject to commercial availability will continue. Such a move would not be in Canada’s best interests. However, it would not be unusual either.

Throughout its history, Canada has not used the mechanism of copyright to its best advantage. Productive uses have been curtailed by an over-reliance on licensing, commercial availability, and a far too dogmatic interpretation of copyright. These issues will be explored in my upcoming talk on Wednesday, where I consider Canada’s goals for developing a world-class Artificial Intelligence industry against its copyright reality.

6 April 2022: The video of my talk has been posted.