Last week, the Ottawa Citizen published an op/ed written by Blayne Haggart, Assistant Professor of Political Science at Brock University. I have crossed paths professionally with Blayne, and fully share his concern about the detriment wrought by the expansion of copyright. However, in this instance, he may have done more harm than good.
At issue is the removal of Chris Hadfield’s reworking and performance of David Bowie’s composition Space Oddity from YouTube. Readers of the Ottawa Citizen may have come away with the impression that Bowie pressured Hadfield to remove the video. Or that Bowie compelled YouTube to issue a takedown notice of the video. As reported by Joe Silver at ArsTechnica on 14 May 2014, Hadfield chose to remove the video himself, in compliance with the agreement he had made with Bowie, and that plans were underway to renew the license. This was a private matter between the two parties, and could have stayed that way.
Yet the fact that something that people liked to watch was disappearing from YouTube prompted a bewildering public outcry. Bowie’s character was impugned, without evidence that Bowie disliked Hadfield’s use of the song, or that he wished it removed from view. In fact, the contrary is more conceivable, given the very positive coverage that followed the release of the video. At that time, Simon Usborne of The Independent wrote: “David Bowie champions Canadian astronaut Chris Hadfield’s ‘Space Oddity’ cover.” Over at the desk of The Telegraph, Neil McCormick wrote: “Chris Hadfield’s performance of David Bowie’s Space Oddity from space is another brilliant moment for one of the greatest comebacks in pop history.” It is quite possible that a future license is forthcoming. That we might have to wait to see the video again, should not be reason for a mass lament.
Moreover, inciting a public condemnation of copyright, on this issue, is not helpful to the larger goal of finding an appropriate balance between copyright holders and copyright users. That goal cannot be accomplished without goodwill on both sides of the negotiations. A mediating point is in the use of exceptions to copyright; exceptions allow unauthorized use of works, without having to wait for copyright’s term of protection to end. Exceptions ensure that the goal of copyright – to foster creativity – is not thwarted by the rights embedded within copyright.
Readers of this blog will know that the most prominent Canadian exception is fair dealing. With the amendments that came into force in 2012, fair dealing addresses unauthorized uses of copyrighted work for purposes of research, private study, criticism, review, news reporting, parody, satire or education, if the manner by which the use occurs is fair. As I have written before, such an evaluation is not as cryptic as it sounds; ten years ago the Supreme Court of Canada gave appropriate guidance. Since then, many people have worked very hard to educate our educators on the importance of using copyright and fair dealing appropriately. But copyright representatives still eye exceptions with askance, and try to roll back the support given to exceptions by both the Supreme Court of Canada and the Federal Government of Canada. In the hands of a copyright lobbyist, op-eds that illustrate a lack of respect for creators and denounce copyright, only facilitate arguments for a continued expanding of rights and diminishing of exceptions.
In its current incarnation, fair dealing is the most expansive it has ever been. However, it still does not offer clear protection to new creative work, when the artist has drawn vigorously from another copyrighted work. Creative endeavor will not always suit a predefined category (see sometimes art is just art). But, a new exception provided in 2012 – section 29.21, non-commercial user-generated content – covers some of this gap. “It is not an infringement of copyright for an individual to use an existing work or other subject-matter or copy of one, which has been published or otherwise made available to the public, in the creation of a new work … .” This exception plays a vital role in protecting Canadians who want to play with existing creations and explore their own potential for creativity via the possibilities that digital technology provides.
Naturally, conditions apply; fortunately, those conditions invoke an analysis very similar to evaluation of fair dealing. Given that some of Bowie’s lyrics were rewritten to suit Hadfield’s situation, it is plausible that Hadfield could have argued the legitimacy of using Bowie’s work without permission, if he had posted the video at a Canadian host. But it should not surprise anyone that a noted representative of Canada, and a musician in his own right, chose to engage with a musician of iconic status and work in cooperation.
Hadfield’s memoir, An Astronaut’s Guide to Life On Earth (2013) describes the team effort that went into making the video, with Bowie’s permission being integral to the project. The outcome was stunning, garnering 10 million views within the first three days and millions more over the following year. I hope that all viewers took note of the last scene of the video; the list of acknowledgements that concludes: “With special thanks to David Bowie, NASA, ROSCOSMOS and the CSA.”
Many are the occasions when it is incumbent to publicly complain about the excesses of copyright. But this was not one of them. Taking our cue from Chris Hadfield, “Thank You” would have been more appropriate.
Update — June 13 Making more music; Chris Hadfield with Emm Gryner.
Update — June 28 The Ottawa Citizen issues an apology to David Bowie (dated 20 June 2014).