Meera Nair

As you wish Mr. Zukofsky,

In Posts on October 24, 2009 at 9:15 pm

Dear Mr. Zukofsky,

I read with interest your copyright notice of 17 September 2009, concerning the works of your father. A doctoral student brought it to my attention, asking for more information regarding copyright law. Please be assured that I will do my utmost to discourage students from exploring your father’s work. As you point out, they would do better to find a topic where a lawsuit or invoice does not appear imminent at every turn. Unless students have adequate resources, and a commitment of support from their institution, it would be unconscionable to send them into harm’s way.

However, I am concerned that students may interpret your position as an accurate reading of the law. It is not. For their benefit I would like to clarify some general points.

I must start by saying I am a citizen and resident of Canada. Within our Copyright Act, we have an exception called “Fair Dealing” which is similar to Fair Use, but not the same. So, I will frame my remarks along the general idea of exceptions to copyright, as well as specific Canadian cases.

1) Copyright is not, nor has it ever been, a grant of absolute control. There has always remained a space for some good-faith productive uses of a work, while that same work is still protected through the term of copyright. These uses are facilitated through statutory exceptions to copyright, i.e. Fair Use and Fair Dealing.

2) Fair Use in the United States allows for some uses such as criticism, comment, research, etc. Encoded into the law is the requirement that an assessment of Fair Use take into consideration the following factors: the purpose and character of the use, the nature of the copyrighted work, the amount copied, and the effect upon the potential market. On some occasions, strong consideration has been given to the last element, the effect upon a potential market. This is troubling; if by virtue of using an extract of a work, it is inferred that a market could have existed, fair use becomes fairly useless.

Professor Giusepina D’Agostino of Osgoode Hall Law School gives a thorough comparison of Canadian Fair Dealing to the corresponding U.S. and U.K. exceptions to copyright, see “Healing Fair Dealing: A Comparative Copyright Analysis of Canadian Fair Dealing to UK Fair Dealing and US Fair use.” McGill Law Journal 53 (2).

3) As mentioned, Canada operates with Fair Dealing, which is narrower than Fair Use. Our list of permissible uses is explicitly confined to: private study, research, criticism, review and news reporting, with some requirements of citation. For myself, I prefer fair dealing in part because its more modest allowance gives it credence in mediating between creators’ needs. By “creators” I mean both the original creator and the new creator. While Fair Dealing did not do well in Canadian courts through much of the 20th century, a more nuanced interpretation appeared in 1997 in Allen v. Toronto Star Newspapers Ltd. And, within a series of notable decisions, in 2004 a unanimous Canadian Supreme Court supported the merits of fair dealing.

In this decision, known as CCH Canadian, the Court stated that determining fair dealing is always a matter of context. And while emphasizing that fair dealing was not permission to copy at will and without restriction, they instructed that “Research should be given a large and liberal interpretation.” Emulating U.S. law, the Court laid out a framework for determining if a dealing is fair, with an important distinction: “The availability of license is not relevant to deciding whether a dealing has been fair.”

4) As I said at the start, copyright is not a realm of absolute control. Whatever the expansion of its depth and breadth, those changes do not enter into law simply via the whim of an individual copyright holder. No-one can assume unto himself the right to enact or affect statutory law. Be it good, bad or indifferent, any change to our copyright law will occur at the behest of the Parliament of Canada.

Mr Zukofsky, I would like to say again, I will not encourage students to include material written by your father in their dissertations. It is regrettable that a body of literature cannot be explored at this time, but I will turn to Franz Kafka’s words concerning his character Josephine, “She’s merely a small episode in the never ending saga of our folk, a bit of history, and we’ll be able to rise above our loss, our folk shall continue on.”

Meera Nair, Ph.D.

  1. I don’t get paid years later for my parents’ work and their past work as American military officers and my mother’s current work as a nurse saved numerous lives and improved the quality of life in far more important ways for many others in ways that poetry or music cannot. Copyright should be brought back to something reasonable and those who previously lived a single achivement or their parents toil should be obligated to find honest work like the rest of us.

  2. Thank-you Meera–I wonder how much of a chill this has put on Zukofsky scholarship. How especially weird and ridiculous and sad in light of developments in (Canadian) copyright law since 2009.

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