Meera Nair

“a plea to the academics”

In Posts on June 13, 2017 at 8:08 am

If we want writers to flourish, then it is vital to maintain the spaces of legitimate-unauthorized use provided within the system of copyright.

That was the gist of my remarks for a public event concerning the upcoming review of the Copyright Act, held during Congress 2017. I had one objective in mind: to reach the professoriate. Particularly those individuals who are passionate about literature, books, publishing and Canada. That community is the one that may be best able to cut through the political rhetoric that swirls around the word copyright.  They could offer a well-grounded discussion of what the system of copyright is and how it helps or hinders the telling of stories. And so I titled my presentation as A Plea to the Academics.

The call for papers which prompted my participation asked two questions. The first enquired how might those involved with the enterprises of education and research respond to accusations of widespread pilfering of creative works? The second query asked those same individuals how might they demonstrate the value gained by maintaining a robust limit upon the grant of copyright? My answer was that researchers and educators should do what they do best: research and educate. This was not intended as a witty response; I was quite serious. Beyond a handful of dedicated scholars, the majority of the Canadian professoriate is unaware of the structure of copyright law, its particular history in Canada, and the very real risk Canadians face of being drawn into a strict no-copy-without-payment regime with the ensuing loss to creativity (i.e., see here).

It is likely safe to assert that no government has ever lost votes by declaring allegiance to its writers. Thus, copyright owners, or their representatives, have an easy argument to draw from when lobbying for more restrictive copyright laws; they blithely connect stronger copyright with authorial well-being, claiming that an attendant benefit will eventually flow to the general population. The argument lacks credible evidence, and logic, but given the highly emotional setting of the dialogue, countering the argument requires a deeper understanding of the backstory to literary creation. Limitations upon copyright are critical to building a book industry and to the creation of books themselves. To that end, I drew upon the words and experiences of three writers (Margaret Atwood, Charles Dickens, and Ved Mehta) to illustrate a different perspective about copyright and the creation of literature.

But I have no doubt that literary scholars and book enthusiasts would have more such stories to tell.

My notes, with a few slides embedded, are available through the Association of Canadian College and University Teachers of English.


In Posts on May 24, 2017 at 5:46 pm

Last week I had the pleasure of participating in the Copyright User Rights Access to Justice Symposium hosted by LTEC (Law and Technology) Lab of Windsor Law. The presentations were impressive in their depth and breadth; ensuing discussions illustrated that the intersection of user rights with access to justice is an extensive mine for exploration. Congratulations, and thanks, are due to Pascale Chapdelaine, Erica Lyons, and all the staff who contributed to the makings of a thoroughly enjoyable event.

At the outset, we were reminded that we stood in the realm of the Anishinaabe, the territory of the Three Fires Confederacy of First Nations, comprising the Ojibway, the Odawa, and the Pottawatomie. Such words take on particular significance, convinced as I am that aboriginal legal traditions, particularly those pertaining to land, are instrumental to the underpinnings of the system of copyright. We are accustomed to thinking of the Copyright Act as bijural; arguably, influenced as it is by three modes of law (aboriginal, civil and common), the Act is trijural. This perspective framed my presentation; more details will come another day.

For now, my focus is in connection with a remark made in passing by Ruth Okediji. In the context of discussion about the non-commercial user-generated content exception, Professor Okediji stated what we all know to be true – that this behavior is universal.  But her next words were striking: “Canada had the integrity to acknowledge it.” It was an exalting moment to hear such recognition, to which I may add: Canada should encourage it, as ought any country that values creativity. Creativity does not occur through set rules and methods; creativity operates in its own ecosystem according to an unpredictable dynamism of encounter and engagement, including reimagining and re-creation. Playing with work that has come before is the very foundation of creativity.

My conference junket continues next week at Congress, beginning with a public event concerning the upcoming review of the Copyright Act (jointly hosted by the Association of Canadian College and University Teachers of English and the Canadian Society for Digital Humanities) on Monday, May 29 at 1:30pm in KHW61. It is to be followed by a retreat to the 19th century via a joint event held by the Bibliographic Society of Canada and the Canadian Association for the Study of Book Culture. I hope to ensure that Sir John Thompson—a man of integrity, who was committed to the rule of law—is not forgotten in our sesquicentennial commemorations.

six factors if necessary

In Posts on February 24, 2017 at 9:58 am

But not necessarily six factors.

Below is some of the content I covered yesterday during a panel discussion Fair Dealing–Where do we go from here?  With the aim of simplifying the fairness analysis, I drew attention to some pre-CCH Canadian case law (see here and here).  My thanks to the University of Alberta for the opportunity to participate in the discussion.

Earlier this week, I mentioned Canada’s progress in developing a mutually respectful system of copyright, one that does more than pay lip-service to creativity. Fair dealing plays its part in this system of limited rights, as is necessary to maintain the goal and structure of copyright set some three hundred years ago. That fair dealing has become part and parcel of the legal landscape is perhaps best exemplified by remarks from a Federal court judge: “I don’t think this case is as profound as you and others made it out to be.”

Fair dealing is here to stay; students and teachers have every reason to make use of it.

However, it would be reasonable to say that there is still a great deal of timidity among educational institutions over actually using fair dealing.

The principal element of a decision of fair dealing is the contextual analysis to determine if a use is fair. This approach was set via CCH Canadian where the Court relied on six factors for analysis: (i) purpose of the dealing; (ii) character of the dealing; (iii) amount of the dealing; (iv) alternative to the work; (v) nature of the work; (vi) effect of the dealing on the work. These factors were included in fair dealing policies developed by national educational bodies and subsequently implemented at institutions across the country.

But therein lies a problem. While it is essential to remember that fairness is embedded in context, we have also to remember that the six factors cited are not sacrosanct. In CCH Canadian, the Supreme Court also emphasized that the framework of exploration must be malleable. That discussion of fair dealing is hailed as a progressive development because it struck down the 20th century tendency to see copyright, or exceptions thereto, in terms of mechanical rules to be applied without consideration of context. By simply adopting new rules, we risk that estimable gain of progressive development.

To be sure, rules carry some value in setting general guidelines for institutions as a whole. When fashioning policies for use of copyrighted works, the 10% / 1 chapter position of the prevailing policies is a reasonable starting point. If more is desired, then discussion with copyright personnel is the next step. Yet the larger goal should be to encourage thought with regard to any decision to copy. Fair dealing is not, and never should be, confined to the perspective of measure.

A challenge to such copyright literacy is the six-factor analysis. Intimating that teachers carry out such an expansive consideration risks evoking horror, even paralysis, in that audience. But that audience is well-positioned to grasp a more tailored analysis.

Fair dealing is not used purely to obtain reference materials; fair dealing also shows itself in the creative effort of developing learning resources. Such resources benefit from the inclusion of quotations, images, charts/tables etc. Inclusion of any one of these items may well be legitimate simply by virtue of being an insubstantial portion of a larger work; yet it is beneficial to engage in a fairness analysis. Particularly, as such cases lend themselves to a two-factor examination that everyone is capable of understanding and executing:

1. What is the purpose of using the copyrighted material?

Mere conventional thinking would tell us that the purpose is education, and education is one of the permissible categories of s.29 Fair Dealing. But a more precise answer pays dividends in terms of risk management. Teachers choosing to use particular materials should be clear (at least to themselves) as to how that content serves an educational objective. The answer need not be couched in pedagogical jargon, it could be as simple as it “illustrates a concept.” This modest exercise of thought sharpens focus on both the objective and the material, and (inadvertently perhaps) places a curb on the amount copied. Without resorting to stipulations of measure, such consideration encourages the teacher to use only what is needed, nothing more.

2. How is the material distributed?

We ought not to forget that teachers stand in the fair dealing shoes of their students. Hence, distribution should be in light of what is necessary to meet the needs of that finite group. Placing content in a secure, password-protected learning platform, or via handouts in class, serves that goal. Whereas posting content to a public website is not as confined in its reach. (I am not ruling out wider distribution such as placing a dissertation in an open-access institutional repository–more on that another day). In any case, if students were then to circulate the carefully curated material, there is no liability to the teacher or institution.

To those who are concerned at the seeming loss of four factors, they have not disappeared.  Rather, they are subsumed by the situational aspects of this type of copying. As noted above, the aspect of amount is implicit to considered thought regarding why a work (or portions thereof) is being copied. The question of alternative resources becomes less germane as the explicit language in Alberta v. Education rules out the implication that schools ought to purchase a copy of every conceivable work for every conceivable student. (And if the work copied is from institution-wide subscription resources, this factor becomes irrelevant.) The nature of the work tends to be published material, eminently suited to fair dealing. As to effect, the Supreme Court has emphasized that such dealings should not be read in the aggregate. And the Copyright Board has explicitly rejected the former dictum of anything worth copying is worth paying for (para 110 here and  para. 217 here).

To some that may sound harsh, but only until one realizes that the Board has not ruled out paying for copying when appropriate. The Board only rejected a century-old proposition which was inspired by the conduct of a rival publisher. The Board, like the Supreme Court, now emphasizes a holistic examination of any dispute.

On a different note; in 2016 I met an American lawyer who was–to put it plainly–in awe of Canada and our development of fair dealing. Three Supreme Court decisions, progressive amendments passed by government, two Copyright Board decisions, and fifteen years of considered dialogue led by legal scholars, practicing lawyers, university counsels and many, many librarians. In part wonderment, part frustration, she asked: “What are you waiting for?