Meera Nair

with due respect to PricewaterhouseCoopers

In Posts on August 3, 2015 at 7:20 pm

Howard Knopf (a prominent intellectual property lawyer and longstanding advocate for maintaining the limits upon copyright as prescribed by law) has drawn our attention to a new study commissioned by Access Copyright and carried out by PricewaterhouseCoopers (PwC). The study concludes that the end is nigh for educational publishing in Canada. Which in turn shall impose great hardships upon Canadian authors and illustrators, and ultimately mark the end of Canadian culture. The root cause of these troubles, according to PwC’s assessment, is the advent of fair dealing upon the Canadian educational landscape. Because fair dealing is actually practiced now (with guidance from the Association of Universities and Colleges Canada (AUCC) and Colleges and Institutes Canada (CIC)), the publishing industry is denied its time-honoured income gained through blanket-licensing of written materials for education in Canada.

There was a time when I would direct students to PwC reports as exemplars of informed and dispassionate analysis. I am not sure I would do so today. With due respect to PwC, their knowledge of copyright in general (and fair dealing in particular) is scant. But even setting aside any lack of understanding of copyright, the spectacle of being a paid messenger to a biased cause does little credit to PwC.

And the message is this: Canadian educational publishers can maintain their industry only by returning to the level of payments received from schools and post-secondary institutions in the past. Educational institutions must continue spending as before, regardless of: (1) the position of the law, (2) the general decline of funding to education, (3) availability of alternative resources, or (4) better fiscal management on the part of educators and administrators. All of this is set upon a lament about the perils of coping with new technology.

Incidentally, that lament has been heard with every past introduction of a new medium. The script remains unchanged: that existing industries are threatened, they are endeavoring to cope with a strange new world, and if their demands are not met then culture and attendant jobs will go the way of the dodo bird. A modest historical exploration would confirm that the printing press did not end the creation of literature (or the art of calligraphy), musical composition did not stop because of the player piano, the film industry did not collapse with the arrival of the VCR (indeed, studios found new markets in the form of the home-movie-collection), and digital technology has strengthened the music industry today.

Returning to the report, its premise is voiced as a complaint. In describing their mandate, PwC refers to the fair dealing guidelines framed by AUCC and CIC: “which, we understand, were developed without the input of the writing and publishing industry, claim to authorize educational institutions to make copies of portions of published works without permission from, or payment to, the copyright holder (p.13).”

PwC is clearly aware of CCH Canadian (2004) but makes selective use of it. A complete reading of the decision would have alerted PwC that the current guidelines are structured along the terms of the Access Policy of the Great Library which allowed for copying of modest amounts of work (one case, one article etc.) with requests for greater copying to be further examined (2004 SCC 13, para 61.) In declaring such a system as fair dealing, our Supreme Court gave the blueprint for the fair dealing policies now followed across Canada. Moreover, further words from the Supreme Court established the viability of sheltering legitimately, unauthorized copying in educational institutions, as fair dealing (Education v Access, 2012 SCC 37).

It is disappointing to hear that Canadians (individuals or institutions) need to solicit input from others, before choosing to act under the law as it is sanctioned by our highest court.

Of course, Access Copyright may use this report as they see fit; Knopf muses that the report will be presented to the Copyright Board when the Board moves on Access Copyright’s requests for tariffs linked to educational copying. Knopf also reiterates his observation that the Board is taking a more inquisitorial role in its hearings.

For instance, the Board might place close attention to this passage from the executive summary: “With less content purchased for the [K-12] classroom, teachers are increasingly required to fill the void by copying and repurposing published content (p.4).”

No citation is given; there is no effort to indicate how much content is involved or how often these actions occur. In the early pages of a 95-page report, it sets a tone of rampant piracy. The term “fair dealing” is entirely absent. Granted, it is the interpretation of fair dealing that is being taken to task, but to refrain from even a cursory acknowledgement that Section 29 of the Copyright Act may very well shelter these actions (depending on the facts of each situation) is, at best, an error on the part of PwC. At worst, it is intentionally misleading.

Regarding the thrust of that passage, readers may recall that when a decline of purchasing of educational content in the K-12 sector was brought to the attention of the Supreme Court in 2012, our justices acknowledged:

… as noted by the [educational representatives], there was no evidence that this decline was linked to photocopying done by teachers.  Moreover, [they] noted that there were several other factors that were likely to have contributed to the decline in sales, such as the adoption of semester teaching, a decrease in registrations, the longer lifespan of textbooks, increased use of the Internet and other electronic tools, and more resource-based learning (2012 SCC 37, para.33).

On that same theme, PwC continues:

As the market shifts away from the purchase of traditional paper-bound textbooks to the adoption of digital technology, the revenues of K-12 publishers and related creators have fallen dramatically. Total revenues generated in the K-12 Educational Publishing Market has declined by 40% since 2008 (p.4-5).

It is plausible that the collapse of global economies in 2009 also had some influence here. In any case, the K-12 educational body falls at the bottom of the funding totem pole. Transfers of taxpayer dollars flow from the federal government, through provincial and municipal governments before making their way to school boards and schools. And, unlike post-secondary institutions, tuition dollars are not a reliable component of school budgets. (Interestingly so, PwC observes a much smaller drop in revenues from the post-secondary sector; see p.12). In an era of cost-cutting and belt-tightening, it should come as no surprise that schools are spending less and looking for alternatives with respect to quality educational materials.

Perhaps one of the most startling aspects of PwC’s report is the disdain for efforts among educational communities to develop and circulate materials of their own. Section 7.1.1.1 Emerging models for K-12 materials (p. 49-51) describes some of these initiatives; notably characterized as “disruptive business models” as they shift money away from the past structures of the Educational Publishing sector. The efforts by provincial governments to promote collaboration among stakeholders in the pursuit of less-expensive, suitable material for K-12 students are mentioned without praise, even though taxpayers might see such steps as productive. The report also indicates that schools are: “… increasing use of content sources from the Internet; and making more use of open-source educational content …  [content that can be copied and shared for free] (p.51).” Again, this is laudable but not to PwC:

Open Educational Resources (OER) are a threat to traditional publishers as they provide textbook and course materials for free. Some school boards have access to digital content developed by the Ministry and/or teachers free of charge. … For now, exchanges of content between provinces remain limited however this is expected to increase in the future (p.51)”

In PwC’s hands, good educational content has very narrow boundaries; such content is deemed as only those materials that are legitimate to use via a paid license fee to a member of Canada’s “Educational Publishing Industry.” But even when speaking of the decline of licensing fees in Canada, the emphasis is upon the decline of blanket license fees, meaning a set fee per student, for all students, paid to Access Copyright. (PwC seems oblivious to its patron’s own role in this decline.)

PwC acknowledges that some institutions are dealing directly with publishers for transactional licenses but observes (albeit upon incomplete data) that the transactional licensing income does not match the decline of the revenue received via Access Copyright (p.62). However, PwC neglects to point out that some publishers did not wish to do business with educational institutions. Writing in September 2013, Stephen Toope (then president of UBC) gave details of the $25 million spent at UBC in direct transactions with copyright holders and indicated that, in connection to coursepacks, some publishers/authors refused to enter into contract for a transactional license to use works.

It has come to our attention over the last year or two that some publishers and authors have decided not to grant any transactional clearances. This is unfortunate, as this restricts faculty and students from utilizing the materials produced by the affected publishers and authors and, it would seem, unnecessarily cuts-off a source of revenue for them. Nonetheless, this is the right of publishers and authors and, if they are not prepared to grant a transactional clearance, the material will not be used.

It should be noted that, perhaps in some effort to show neutrality, PwC offers its lens of assessment as clarifying its scope:

[We have] considered this issue in light of the economic theory of copyright protection and its counterbalance, the fair dealing exception… The theory is that, without proper regulation, prospective users could consume certain goods without paying for them (in other words, they could “free ride”), resulting in “market failure”. This failure is signified by a reduction in the economic incentives to develop new creative content (p.6).

However, this invocation of loaded vocabulary invites two comments. First, the pejorative emphasis upon free ride and market failure conceals the reality that good public policy will aid and abet free-riders, because it is better for society as a whole. (Health care, education and public parks all come to mind—each of these is sustained through taxpayers, with varying degrees of contributions, including the option of a zero contribution.) And second, PwC seems unaware that markets themselves are of variety and will not necessarily transact in dollars and cents. Exceptions to copyright have existed for as long as copyright itself. The “market” in which creativity thrives is one which acknowledges that some goods/services will be transacted, without awareness, and without conventional payment. This is not a failure of the market; quite the reverse. Payment is in kind. Creators of today were users of yesterday, and pay their debt to the future.

PwC has lent its voice to Access Copyright’s ongoing complaint that educational institutions now may enjoy for free, the modest discretionary copying that they once paid a license for. However, the real grievance for Canadian students, teachers and parents is that until now, educational institutions endorsed a system whereby fair dealing, a right given to Canadians by Parliament, was treated as a consumer item to be bought and paid for.

To PwC’s credit, it is upfront in stating the limitations of the report; that PwC does not verify the accuracy of the information provided to them. Readers may wish to pay close attention to the sources from which the report was compiled (p.96); there is a distinct lack of diversity in perspective.

If this report is offered to the Copyright Board, it will be of interest to hear the Board’s impressions.

copyright and religion; a contentious mixture

In Posts on June 14, 2015 at 6:20 am

Discussions of copyright and religion are fraught with risk for the same reason; that it is extremely difficult to find middle ground.

Two weeks ago, an article in the Huffington Post raised what, on the surface, looks like a clear-cut demonstration of violation of intellectual property rights. But, as is often the case with these rights, careful reading brings to light a more complex matter.

The article, published on 6 June 2016, concerns the work of Vancouver photographer, Dina Goldstein. Although the Huffington Post indicates that Goldstein is seeking damages from a foreign newspaper for its use of her work, the article does not identify which body of law is relevant to Goldstein’s claim. Goldstein is entitled to be offended by the criticism levied at her; however, it is open to debate as to whether any laws were broken at all.

Images from Goldstein’s collection Fallen Princesses were used to support an argument from the Irish Catholic newspaper Alive!, of the need for families to raise children with hope. Specifically, the hope that arises from the Christian faith: “The sure hope of heaven gives us a joy here and now that even suffering cannot undermine. The fairy tales have it right.” The Huffington Post quotes Goldstein as saying:

My photograph … was deliberately manipulated into forming a criticism about parents who do not promote religion within the household. This sentiment is seething with the classic Catholic guilt trip I reject … In fact, this argument is completely opposed to my own way of raising a family, without religion.

In the same article, Goldstein acknowledges that her “socially critical work is ‘meant to attract discourse.'” However, the photographer objected “to the newspaper’s cover displaying neither a credit to her, nor an indication there’s a relevant story inside.”

DINA-GOLDSTEIN-IRISH-NEWSPAPERCloser examination of both the Alive! cover and the accompanying article do not easily support these remarks. It is true that the Alive! cover does not make mention of Goldstein by name, but there is a reference to an article in the lower right hand corner: “Being a child of parents with no faith is tough, see page 7.”

On page seven, the article begins with: “Photographer Dina Goldstein … .” The article deals with Goldstein’s work in depth, detailing highlights of the collection and Goldstein’s philosophy about the collection. In terms of crediting a creator, or invoking a creator’s work to a specific cause, these are matters of moral rights which serve to protect the personal connection between art and artist. As most readers know, the scope of protection varies. However, among observing countries, the right of attribution (acknowledging the creator) and integrity (treating the work with respect) are common. Ireland observes both (so too does Canada).

But the immediate question is whether moral rights prescribe a specific placement of attribution? Irish law is silent as to how attribution should be carried out. Known as the paternity right in their Copyright and Related Rights Act, Chapter 7 – Section 107 states: “ … the author shall have the right to be identified as the author and that right shall also apply in relation to an adaptation of the work.” Thus it is plausible that crediting Goldstein through the article would serve as observant of moral rights under Irish law.

[As an aside, the Copyright Act of Canada is slightly more detailed in its language of moral rights: “The author of a work has …  the right to the integrity of the work and, …  where reasonable in the circumstances, to be associated with the work as its author by name or under a pseudonym and the right to remain anonymous.” But the caveat of “where reasonable in the circumstances” also allows for the possibility that the attribution might not be placed according to the creator’s wishes.]

On the matter of the integrity of the work, Irish law is quite intriguing. Chapter 7 – Section 108 states: “… the author of the work shall have the right to object to any distortion, mutilation, or other modification of, or derogatory action in relation to, the work which would prejudice his or her reputation …” (emphasis mine). The two photographs of Goldstein’s, portrayed by Alive!, were not distorted, mutilated or modified. The representation is faithful to Goldstein’s original images. But we should consider the possibility that featuring Goldstein’s work in the newspaper, is a “derogatory action … which would prejudice his or her reputation.”

The Alive! article quotes Goldstein as saying: “I am a fierce realist so I wanted the princesses to be in real life situations with problems of their own.” The article further quotes Goldstein as “raging against the happily-ever-after motif” spoon-fed to the young. Neither quotation is attributed to any particular press interview or article, but Goldstein’s website contains an extensive collection of material so it is plausible that these quotations are accurate. Alive! uses Goldstein’s work and her remarks as a background to advance their own argument; that believing in “happily ever after” is a fundamental belief, and a worthwhile one, in the Christian tradition.

At this stage, a claim based upon moral rights infringement looks less robust; rather than a violation of moral rights, the use of the images melds well with fair dealing. In Ireland, like Canada, criticism and review are protected purposes if the creator receives sufficient acknowledgement (see Chapter 6 – Section 51). It would not be possible to convey the force of Goldstein’s work, without showing some of the work. Where Alive! may have erred, is to speculate that Goldstein’s work is deliberately an attack on Christianity and a style of parenting. From the article:

But is [Goldstein] raging against the Christian message of hope in the fairy stories or against the culture of despair which has infiltrated both society and her own life? She seems to think we should stop telling children stories with happy endings. That kids need to realize that real life stories don’t end that way.

Alive! continues in this vein, about people who have lost sight of God, emphasizing that “hope and happiness, not despair, are the realistic attitude to life.”

Goldstein has not been shy about voicing her views on religion; but she has also articulated that her work is art, not a parenting manual. In 2009, when Fallen Princesses was unveiled, Cheryl Rossi, writing for Vancouver Courier, states:

Her Fallen Princesses photos aren’t meant for kids, Goldstein says, and she’s not shielding her daughter, now four, from Disney. “I don’t want to ruin her bubble,” she said. “She’ll learn that life is complicated and tough eventually.”

In a more recent interview Goldstein states that she would not deprive her young daughters of the enjoyment of Disney productions or merchandise, emphasizing that children are too young to understand the concepts behind Goldstein’s imagery. Goldstein is unequivocal: “These images are made for adults.”

So is there a legitimate complaint here, and if so, what is it? Was the photograph unfairly used in a manner that is derogatory to Goldstein’s reputation? Have the musings of Alive! cast aspersions to Goldstein’s character? Or, was the condemnation of Goldstein’s work merely criticism? Criticism that necessarily required explanation and therefore invocation of Goldstein’s work?

And if there is a complaint, is there an avenue of redress for Goldstein? I am unfamiliar with the sturdiness of Ireland’s regimes of fair dealing, moral rights and defamation; if an Irish reader would like to comment, please do.

On a different note, Goldstein’s work is phenomenal. In an interview with Fanny Kiefer, Goldstein remarks: “… [the] characters are symbols, to convey a scenario.” Fallen Princesses is dramatic and touches a chord by the recasting of familiar characters among the all-too-real feelings of desperation that pervade life. The rude-awakening that marriage can be, the trauma of cancer, and other realities, are conveyed masterfully.

With my bent for maintaining copyright as a set of limited rights (as it has been for 305 years), the best part of Goldstein’s work is this: no reprisals from the Disney Corporation. When questioned by Kiefer as to whether Goldstein had sought permission from Disney, and did Disney call upon publication of the pictures, the answer to both questions was No.

Nor should there have been any reason for Disney involvement. But the persona of Disney and its ironclad grip upon its characters is legendary to the point of discouraging putative artists and even well-heeled lawyers from using Disney materials. Goldstein’s story is a happily-ever-after of an entirely different nature.

a lesson from the Copyright Board

In Posts on May 31, 2015 at 7:35 am

On 22 May 2015 the Copyright Board released its decision concerning tariff rates for copying carried out in provincial and territorial governments (excluding that of the Province of Quebec). The rates set by the Board fell far short of what Access Copyright had requested; some commentaries indicate that the returns would not cover the costs of the tariff proceedings.

The Board came to its decision via a number of factors, including: (i) scrutinizing Access Copyright’s claim of the extent of both its repertoire and business relations; (ii) deferring appropriately to fair dealing, given the integral nature of the exception within the system of copyright; and (iii) being mindful that copyright only applies when a substantial part of a work has been reproduced.

For commentary, see Michael Geist (here and here), Howard Knopf (here and here), Bob Tarantino (here) and Bobby Glushko (here). To which I add my own. The decision underlines that institutional systems of fair dealing, which includes assessment of substantiality (the threshold of copyright), remain contextual affairs. This lesson is not transparently evident, but it is there.

Copyright owners receive their rights through Section 3.1 of the Copyright Act: “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 … .” Thus, if the reproduction is insubstantial then copyright does not arise.  This was explicitly stated in CCH Canadian (2004); as Tarantino writes : “… the Supreme Court of Canada [indicates] in its discussion of fair dealing, that where “the amount taken from a work is trivial, the fair dealing analysis need not be undertaken at all because the court will have concluded that there was no copyright infringement.”

But as Tarantino (and the Copyright Board) remind us, the Supreme Court has also indicated, via Robinson v Cinar (2013), that substantiality is “a flexible notion … a matter of fact and degree”, to be decided “by its quality rather than its quantity.”

In its discussion about substantiality, the Board concluded that: “… without the benefit of a qualitative analysis and without even knowing which portions of a work were copied, … 1 to 2 pages of a work [to a maximum of 2.5% of the entire work] are a reasonable approximation in establishing non-substantiality (para. 204).” This measure has been greeted with enthusiasm but it is imperative that educational institutions not sleep walk into creating a de facto ceiling to insubstantiality. It bears emphasizing that the Board has contextualized its own remarks; this measure is appropriate when little or no information is available about the copying.

In terms of institutional practices–where post-secondary communities have endeavoured to develop resources and engage personnel, all to assist faculty in their understanding of appropriate uses of copyrighted material–it is viable to apply a qualitative assessment and allow for the possibility of copying more.

In Intellectual Property (2011), David Vaver makes a valuable point in connection to assessment of substantiality: “One should first screen out what cannot in law be a substantial part. ‘Part’ means ‘portion’ not ‘particle.’ … Copying ten such particles is as inoffensive as copying one (p.182-183).” As is often quoted, but appears not to receive sufficient consideration, facts are not eligible for copyright. Furthermore, processes are unlikely to meet the threshold of originality to be granted copyright. (Arguably, it is ill-advised to be creative when teaching students a process.) It is then likely that in fields of natural science, life science, mathematics and computer science, the threshold of substantiality may be higher. Even in fields typically considered to be more creative, it remains possible that a taking of more than 2.5% will not contravene substantiality when the qualitative analysis is undertaken.

The Copyright Board’s statement should be read in the same spirit as the Fair Dealing Guidelines developed by the Association of Universities and Colleges Canada (AUCC) and Colleges and Institutes Canada (CIC). Those instructions are baselines supporting legitimate unauthorized copying and more copying is always a possibility when individuals are suitably informed, or have access to informed support. It is the combination of baseline rules and discretionary support that constitute an institutional practice of fair dealing.

The Board takes note of the Supreme Court’s measured approach to unauthorized copying in institutional settings:

In CCH, the Supreme Court of Canada stated that fair dealing can be made out either by demonstrating that there exists a general practice that is based upon an enumerated fair-dealing purpose, and, is in fact, fair, or by demonstrating that a particular copying event … was fair dealing (para. 223, citing para. 63 of CCH Canadian).

It was the lack of a robust practice on the part of the provincial and territorial governments involved in the tariff negotiations that resulted in the Board’s scrupulous attention to every incident of copying in the evidentiary sample collected in agreement with Access Copyright and the governments (paras. 223-225).

Generally speaking, post-secondary educational practices in Canada are closely modeled upon the Great Library Access Policy that was at issue in CCH Canadian. Meaning, the policy prescribes minimums, with copying beyond the minimum contingent upon informed discussion. But informed discussion itself can unwittingly be curtailed. Fortunately, the Board reminds institutions to avoid slavish attention to rules to the extent of diminishing the contextual nature of fair dealing. As readers likely know, in CCH Canadian, the Supreme Court followed six factors with which to explore the fair dealing issue at hand; the Board emphasizes that these factors themselves must not become rigid: “… the list of factors … is not an exhaustive list, and fairness is a matter of impression.” The Board continues with a quotation from the work of Giuseppina D’Agostino:

[p]arties pleading fair dealing, and courts ultimately deciding those events, should exercise flexibility when interpreting fair dealing: raise factors germane to the case and assess evidence to support them. Whether there are six factors, seven factors, or four factors should not be the driving preoccupation … (para. 267 citing p. 197 of  The Copyright Pentalogy).

A timely reminder as the post-secondary community moves forward with solidifying their institutional systems of fair dealing.

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