Meera Nair

An open letter to the Right Honourable Stephen Harper

In Posts on June 2, 2011 at 5:55 am

June 2, 2011

Prime Minister’s Office
House of Commons
Ottawa, Ontario
K1A 0A6

Re: Bill C-32, An Act to amend the Copyright Act

Dear Mr. Prime Minister,

With Parliament set to resume under a majority government many Canadians expect legislative matters to move ahead quickly. Judging by your campaign platform, and recent remarks made by the Minister of Industry, Christian Paradis, amendments to the Copyright Act are imminent. I ask that Canadians be permitted a measure like American fair use. Despite strenuous opposition during the public consultation of 2009, the principles of fair use are viable in Canada. And such a measure is a vital component of the structure necessary to promote innovation in a digital economy. Canada is well-placed to carry out this change; the same cannot be said for all nations.

One of your peers, the Right Honourable David Cameron, bore the humiliation of hearing the founders of Google describe the unfitness of the U.K. copyright regime in terms of promoting innovation. The executives explained to Prime Minister Cameron that it would not have been possible to create Google in the U.K. as the application involves taking unauthorized snapshots of content from the internet at any given point in time. It was the latitude available within American law to capture these snapshots that lay at the foundation of the development of a world-leader in search engine technology. To his credit, Prime Minster Cameron ordered a review of copyright, culminating in the release of the Hargreaves Report last month. The report makes many recommendations but indicates that the U.K. cannot realistically implement fair use, not because of shortcomings in fair use, but because of the restrictions posed by EU law.

As Canada is not subject to such restraints, it would be a pity to neglect this opportunity. Fair use operates under a very simple principle; that copyright is not absolute. The limit of copyright’s ambit is to ensure that individuals may use the past to add to the future. Given that it is not possible to foresee precisely what combination of talent and input materials are needed to foster prize-wining literature, groundbreaking research, innovative digital technologies, or thought-provoking art, the best the law can do is to maintain its flexibility in what could be considered a legitimate, unauthorized use of copyrighted material.

Canadian copyright law includes an individual exception known as fair dealing. But this measure is very specific in purpose; at this time Canadians may consider unauthorized use of copyrighted material only if the intent is for research, private study, criticism, review or news reporting. Conditions are attached. One cannot randomly claim fair dealing; a case-by-case, multi-facetted inquiry is necessary to justify one’s actions. In 2004, the Supreme Court of Canada offered a framework to guide our use of fair dealing and Canadians are becoming familiar with this approach. You may be interested to know that this framework shows much similarity to the American model of fair use, together with some important improvements. Perhaps the most critical being that the framework itself is to be kept flexible as not even our Justices can predict what Canada will need in the future.

To that extent, Canadians are already on a path to fair use. However, a Canadian entrepreneur is constrained in a way that her American counterpart is not. While American fair use provides a similar set of categories, the list is prefaced with the words, “for purposes such as.” Herein lies the critical difference; creative and entrepreneurial-minded people can proceed with their ideas unshackled by premature regulation. A point best stated by Fred von Lohmann, a prominent American attorney, who observed that the United States tended to “innovate broadly first, and regulate narrowly later.”

Detractors of fair use insist that this measure is untenable even in the United States – they claim that fair use is fraught with uncertainty. Academic scrutiny does not support that claim, in fact there is compelling counter-evidence. Recent works by Pamela Samuelson and Barton Beebe (leading scholars in the United States) illustrate the predictability of fair use, particularly if one looks at similar applications of the measure. By that I mean consider the setting of each use – be it in art, or technology, or research etc.

Granted, if we look at American case history, fair use has not had an easy ride. But one could not expect that of any legal doctrine. The law grows with society and will be shaped by the promise and peril inherent to society itself. Instead of American history prejudicing Canada against fair use, the history illustrates the merit of the doctrine: interpretation of fair use adjusts over time and can correct for past misjudgment. Moreover, given the prescience of the Supreme Court of Canada, we are likely to be spared many of the growing pains our neighbors endured. There is every reason to be optimistic that flexible exceptions can serve Canada with distinction.

Unfortunately, the distrust between Canadian education and Canadian copyright collectives is limiting opportunity for everyone. While moderate voices can be found among educators and creators alike, their messages do not penetrate the institutional positions of the two sides. Indeed, I am tempted to wish a pox on the houses of Montague and Capulet alike. At issue is Bill C-32’s proposed inclusion of “education” among the categories of fair dealing. Copyright collectives insist this will lead to the wholesale appropriation of Canadian works by educational institutions. A perception that gains currency when set against the years of delay on the part of most educational institutions to actively educate personnel on legitimate use of fair dealing. Yet copyright collectives have wielded their monopoly power to absurd lengths, resulting in a proposed license that recast the very definition of copyright and sought compensation without considering the actual consumption of educational material. And caught in the middle, as always, are the writers, musicians and artists who feel short-changed by all parties.

My suggestion is that you remove the measure of “education” from Bill C-32’s proposed amendments. This will hold at bay those individuals who blithely assume education means free access. Yet it will not impede those individuals who understand fair dealing and choose to legitimately apply it. As was noted by the Federal Court of Appeal in 2010, the existing categories of fair dealing already support many activities that take place in educational settings.

There are teachers, librarians and students who have not waited for their institutions and have successfully educated themselves about the nuance of copyright and fair dealing. Those individuals make conscientious decisions of when fair dealing applies and when a creator has a legitimate claim to compensation. What has been lacking are effective means to directly negotiate with creators. However, that may be changing as the limitations of collective licensing led by third parties are increasingly evident. Messy as it may be to introduce different business models into the educational marketplace, such is the nature of markets. Competition is good, both in terms of content and business models.

In the meantime, if the controversial category of education is taken off the table, the larger needs of Canada can be served. Returning to where my story began, with Google and the U.K., the company’s submission to the copyright review emphasized that:

Fair use is regularly referred to as the key tool by which the U.S. fosters innovation … no country in the world can compete with the U.S. for the most innovative search technologies, social networks, video and music hosting platform, and for the sheer generation of the most jobs and wealth in the Internet domain. If one is looking for evidence of how innovation succeeds, the best way is to look at those places where innovation has succeeded

Thus, borrowing and modifying contemporary American and Israeli law*, I propose the following text for an amended Bill C-32:
… unauthorized use of a copyrighted work is permitted for purposes such as: research, private study, criticism, review, parody, satire, journalistic reporting, and quotation.

And as per our current Copyright Act, the appropriate requirements of attribution would be added. Whether we call this fair dealing, or fair use, is immaterial. What will matter is its flexible language. Taken together with the guidance provided by the Supreme Court of Canada in 2004, Canada’s innovative future would stand on promising ground.

Thank you for your time.

Best,
Meera

Meera Nair, PhD.
Burnaby, BC

cc: Honourable Kennedy Stewart, MP Burnaby—Douglas
cc: Honourable James Moore, MP Port Moody—Westwood—Port Coquitlam, Minister of Canadian Heritage and Official Languages

* When Israel amended its copyright law in 2007, they moved from narrow language under fair dealing to a fair use provision instead. This is quite in keeping with the Israeli effort to maintain a growth-oriented economy, under a guiding principle that innovation leads to more social welfare.

  1. Nice work!

    Fair use would be a start, but it doesn’t go far enough IMHO.

    Education should have a free pass. In fact, all personal access and non-commercial re-use should be given the green light and written up in the books as a basic liberty; copyright should be gutted. The next 25 years, like the last 25000, will be about everybody just getting up to speed on the information and techniques that countless generations have already lived and died to produce. Most of our effort is lost only to be painfully re-invented, just to be lost again. Modern technology has the capacity to stop this vicious cycle, if we only let it. We are in the middle of a major enlightenment and we are still charging for “copies.”

    Charging for access to information or restricting derivations will never change the world. It will never eliminate poverty or fear, but we’re so used to digging our heels in though that we’re not quite ready to stop. We could.

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