Meera Nair

the golden age

In Posts on September 4, 2017 at 11:15 am

Another Labour Day has arrived and a new school year is underway. It seems befitting to continue exploring the often tension-ridden relationship between creators of educational material and users thereof. As I described last week via Policy Options: “the story of an ongoing disaster for writers and publishers—supposedly due to errant Supreme Court justices and negligent government—has played out in the press, at international gatherings and in literary journals.” Attacks on the post-secondary sector have been increasingly brazen this year;* for those who are becoming fatigued by the degree and volume of misinformation, I would like to share two points of good news.

First, this is not new.

There is a long history behind today’s dispute. Since the inception of copyright as a component of statutory law, copyright holders have sought to make copyright as expansive as possible and lessen any obligations that serve public interest as a whole. The Statute of Anne (titled An Act for the Encouragement of Learning…) provided copyright under conditions; as I have written before: “the privilege of the original exclusive right of reproduction came with the requirement that for each book published, nine copies were to be given to various university libraries, printed on nothing less than the best paper.” That requirement was decried, reneged on, and eventually discarded but not before many decades of familiar rhetoric had been unleashed.

When it became vividly evident that the statutory condition of library deposit (some called it the educational deposit) was being ignored, a professor of law protested vehemently. In A Vindication of the Right of the Universities of Great Britain to a copy of every new publication Edward Christian wrote:

When I hear much pity and commiseration expressed for the rights of poor authors, I wish to respect the rights of poor students, a class of men from whom poor authors themselves must derive their origin, and without whose successful labours nothing valuable in literature is ever likely to have existence. … By every honourable author [the deposit] would be paid with alacrity, as a debt of justice and gratitude, for the benefit which he must or might have derived from these common foundations of science.

Christian was not unaware of the objections raised to the requirement of deposit; he continued:

… It is sometimes observed, that besides the loss of the copy…, the author or proprietor will suffer considerably by the diminution in the sale of the work, when the members of the University have an opportunity of perusing it gratuitously. But that seems to be a fallacious and sophistical argument; for if the University thinks it worth purchasing, then the sale of one copy does precisely the same mischief to the author’s interest as the donation of that copy.

Christian’s words bring to mind those who insist that a librarian practicing fair dealing on behalf of students is unacceptable, despite the fact that the law (see Copyright Act, 30.2(1)) has long since allowed such practice. Moreover, our Supreme Court has repeatedly emphasized that fair dealing is effectively transferable—in 2004, librarians were permitted to act on behalf of their patrons; in 2012, an ISP and teachers could stand in the fair dealing shoes of subscribers and students respectively.

In any event, the early 19th century is an intriguing period of history. Ronan Deazley writes: “When one thinks of notable debates … in nineteenth century Britain one thinks of … the parliamentary wrangles surrounding the Copyright Amendment Act 1842,” but he brings readers’  attention to events related to a proposed 1808 amendment, titled:

Bill for the further encouragement of Learning in the United Kingdom of Great Britain and Ireland, by securing to the Libraries of the Universities, and other public libraries, copies of all newly-printed books, and books reprinted with additions, and by further securing the copies and copyright of printed Books to the authors of such books, or their assigns, for a time to be limited.

Copyright holders protested; in the decades that followed, the familiar trope of starving authors reappeared. With Romanticism in full bloom, William Wordsworth penned these lines:

… For ‘Books’!” Yes, heartless Ones, or be it proved
That ’tis a fault in Us to have lived and loved
Like others, with like temporal hopes to die
No public harm that Genius from her course
Be turned; and streams of truth dried up, even at their source!

After three hundred years, a change of dialogue would be much appreciated. Which leads me to my second point; such dialogue can exist.

In May of this year, I attended Congress 2017 at Ryerson University, taking the rare opportunity to explore my interest in all things related to books. During one session, a representative from Canadian Publishing made the remark that he did not see himself in the debate about copyright/fair dealing, or authors/readers. That the labour expended by homegrown Canadian presses remains unseen and unaccounted for. As we ran out of official time, he and his colleague stood with me in the hallway so that conversation could continue. To their credit, when I mentioned the millions of dollars that Canadian universities spend on content,** they were surprised, and wishful. If only a fraction of those funds came to them, their situation would be different.

Allied to the challenges of securing income for small presses is the challenge of securing writers. The next day I listened to a publishers’ panel and was struck by one remark in particular: they nurture young talent but when an author “finally writes something with the potential to make money,” that opportunity is given to a larger, weightier press. All publishers present agreed on one thing: that it was essential to sell beyond Canadian borders. The Canadian market is simply not large enough to sustain them. This is, and has always been, the problem.

As I have written before, today’s challenges are as old as Canada itself; 19th century Canadian publishers were shut out of, not only foreign markets, but their own market. Without government support, the publishing sector could not grow. And the support that Canada wished to give, was denied by the political influence of publishers and copyright holders from both the UK and the US.

It was not until the later 20th century, amid the demise of Ryerson Press, that explicit government support emerged for Canadian publishers. (A delightful bonus from Congress 2017 was listening to Clive Powell’s presentation regarding the Ryerson Press archives). That support has continued, but, as noted last year by Kate Edwards (executive director of the Association of Canadian Publishers) in The World Needs More Canada, support had remained static for the prior fifteen years. Even so, in that same article, Dan Wells (publisher of Windsor-based Biblioasis) had this to say: “… this really is the golden age of independent publishing in Canada.”

Wells’ enthusiasm aside, it need not mean we are not to try to focus attention on our homegrown publishers and writers. But it is unwise to take that step via copyright and blanket licensing. Efforts to manufacture a market out of legitimate unauthorized uses of copyrighted materials can only backfire. As I pointed out last week, the dual rise of (i) licensing of content directly between publishers and institutions; and (ii) openly licensed educational resources, points to a future where less proprietary information moves unsanctioned through academic corridors. To the extent that Canadian educators rely on educational publishers, that field is dominated by foreign firms. Just as demands for a uniform stamp of copyright in the 19th century did not serve Canadian publishers well, the call for uniformity through blanket licensing will again disproportionately benefit the competitors of our publishers.

For those who thrive on conflict, continuing to demonize educators and librarians as the enemy of writers and publishers is a desirable state of affairs. But as to whether this approach will benefit the writers and publishers in whose name the conflict is waged, is doubtful for the simple reason that copyright does not care about a Canadian writer, or a Canadian publisher. If we wish to target our own publishing sector and our own writers, we need to find another way.

For instance, provincial governments are taking active interest in developing open educational resources. Could not funds be set aside for grants to educational institutions (whether in the K-12 range or post-secondary) for partnerships with Canadian publishers, writers, artists, archivists, geographers, scientists, botanists and historians to develop Made-In-Canada content? Some educational institutions have their own facilities for printing; others are looking at the viability of establishing print-on-demand. A modest printing fee may well be more lucrative to local creators than the small margins available under a mass-market publishing model. Students and Canadian creators could all benefit.

There can be no easy solution to these problems, but conversation is more productive than acrimony. And so, to those two gentlemen, thank you.

 

Notes:

The Walrus recently published this missive, “How Universities Manage to Avoid Paying Writers for Their Work,” by Patrick Warner. He writes: “… why should writers, among the lowest-paid skilled workers in Canada—whose average income is less than 50 percent of the median national wage—be asked to subsidize the education system by making early contributions to the public domain?” Warner makes no mention of the millions spent by post-secondary institutions on content; instead he devotes considerable energy to marking librarians as a source of copyright discontent and enablers of unauthorized use: “… librarians had complained for decades that copyright law prevented them from offering better services to their users: desktop delivery of documents and electronic reserves being two services technology could easily allow.” Left unsaid is the prevalence of licensing of library resources; librarians are often operating under campus wide-licenses from content providers, many of whom allow electronic access and distribution.

** For instance, in 2013, then-President Stephen Toope wrote of the $25 million paid by the University of British Columbia alone for content, including $14 million spent directly on books by faculty and students. Last year, the Canadian Association of Research Libraries indicated that their 31 member libraries had collectively spent $293 million for information resources in 2014-2015. If the expenditures of smaller institutions are included, the number will be even higher.

now what?

In Posts on July 1, 2017 at 9:00 pm

The Day is done; candles have been blown out in some quarters, tears continue to be shed in others. 150 years of something–whether it is the lifetime of Canada or a chapter in millennia of a First Nation–has been duly marked/celebrated/decried. Now what?

In terms of copyright, we can expect continued calls for stronger copyright to better support Canadian writers. Ignored will be the detail of copyright deficit–that more control invariably means more Canadian dollars going to non-Canadian entities. Also omitted will be any hint that such calls have been in existence for the entirety of Canadian autonomy with respect to copyright, with no appreciable denting of that deficit to show for it. That copyright alone cannot be the salvation of Canadian culture (assuming that our culture is under threat) will also be absent from discussion.

Perhaps we could set aside copyright for a moment and think about that word: culture. Described by Raymond Williams as one of the most complicated words in the English language, it spans the entirety of our collective lived experiences.

Through the past 150 years, Canada has only too often demonstrated narrow-minded thought. Beginning with an unapologetic objective to rid the country of indigenous people,* followed by the Chinese Head Tax, the Komagata Maru, the internment of Japanese Canadians, the rejection of Jewish refugees, … . The situation for visible minorities improved somewhat in the later 20th century, with racism taking on a slightly more polite tone. (Although, children of colour attending school in the ’70s will likely have evidence to the contrary.) And it is difficult to forget the national indifference to the tragedy of Air India Flight 182 in 1985.

Yet Canada has developed a credible capacity, not merely to mouth the importance of protecting minority rights, but to actively encourage the virtue of diversity. The underlying theme for the last 30 years or so is that we are all in this together and we all do better together. Some pride is warranted; it has been possible to find unity without imposing uniformity. But can this be sustained, or is the best of Canada behind us?

Paula Simons, writing for the Edmonton Journal, reminds us not to rest on our laurels. That systemic racism is still part of our landscape, and extremism is on the rise: “for all our lauded tolerance, this was also the year when six peaceable Canadians, at prayer in a Sainte-Foy neighbourhood mosque, were shot in the back and killed in the midst of their devotions.”

With an eye to building on the effort of our prior angels, to what extent are we aware of our collective history? Is that history within reach of all Canadians? In this regard, copyright cannot be ignored. Two proposals come to  mind; one is already underway, the other I offer as an idea.

1) For years, Amanda Wakaruk (copyright librarian for University of Alberta) has publicized the challenges inherent to maintaining accurate information about Canada as a whole, due to the archaic practice of Crown copyright. In her capacity as a private citizen, she has introduced a petition Fix Crown Copyright:

Decades of stakeholder requests to abolish or at least update the Crown copyright provision in the Copyright Act have been largely ignored. This has resulted in a barrier to the re-use of government publications prepared for and paid for by Canadian taxpayers. For example, the refusal of government departments to allow for the copying of content made freely available on their web sites, and then deleted from those same sites, resulted in the loss of countless digital government works in recent years. (Note that very few government publications continue to be produced in paper.)

Removing copyright protection from government works made available to the public 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. …

The petition will remain open until 23 September 2017.

2) Volumes of scholarship about Canada are, for the most part, confined to the university community. Painstaking explorations that uncover the past, both its pain and glory, are not easily available to the Canadian reader who wishes to learn more.

For instance, I recently sought two books published by University of Toronto Press: (i) The Man from Halifax: Sir John Thompson, Prime Minister (1985) by P.B. Waite; and (ii) Essays on the Constitution: Aspects of Canadian law and politics (1977) by Frank R. Scott. Both are rich in their contribution to understanding the past, both could be staple reading for anyone interested in the idea and existence of Canada. But neither can be easily purchased (the odd copy may exist in a few select used-bookstores) and both have limited visibility in university libraries.

We cannot fault any publisher for letting production lapse when there is no market. And yet these are quintessentially Canadian books; written by Canadians, issued by a Canadian press, and intended without embarrassment as expressly for Canadian readers. Which raises the question: when such books are no longer actively produced or peddled for sale, can they not be made widely and freely available via an open license?

A requirement of an academic appointment is to engage in scholarly effort; to that end, scholars enjoy publicly funded salaries and research grants. With respect to publication, university presses are eligible for support from the Canada Book Fund. University libraries then pour more money into the purchase of information resources; data collected for 29 university libraries show aggregate spending in 2014-2015 as $305,046,488 (see page 4 here). Between government provision of public money, and university spending thereof, could some funds be set aside to convert old printed books into ebooks?

This does not require a change to the system of copyright–it requires consent from copyright owners of existing content, and, cooperation from institutions  If consent is given, and if institutions would share the necessary costs of labour and money, more Canadian content could reach more Canadian readers.

Copyright maximalists constantly tell us that Canadian culture is near death–that Canadian themed content will cease to be written unless copyright is strengthened. They neglect to point out how much existing Canadian content cannot be read at all.

* Roberta Jamieson, featured on CBC Ideas for 30 June 2017, pulled no punches in her telling of the past 150 years. And yet, offers much optimism for the road ahead.

“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.