Last Wednesday I had the pleasure of appearing before the Standing Committee on Industry, Science and Technology, to speak on the subject of the copyright review. Also participating were Carys Craig (Associate Professor of Law at Osgoode Hall Law School) and Patti-Anne Tarlton (Chief Operating Officer of Ticketmaster, Canada).
Due to internal delays, the meeting was quite late in starting. Unfortunately, Carys and I had flights to catch that evening and so were unable to fully participate in discussion with Members of Parliament.
My remarks drew from the brief I submitted some months ago. In my allotted time I endeavored to place emphasis on the importance of supporting our next generations as they hone their capacity for creative and innovative thought—a capacity that Canada needs. I also reminded the Committee that altering copyright law must be placed in the context of Canada’s particular copyright history–a history where our law was designed to support foreign corporations.
Good afternoon. My name is Meera Nair, I am the copyright officer for the Northern Alberta Institute of Technology, but I am here in my capacity as an individual. For nearly fifteen years, my research interest has been with systems of copyright, both contemporary and historical.
One of the challenges in dealing with copyright is that people tend to forget that it was designed to regulate industries. Because of an accident of vocabulary, it now includes individuals. People also forget the baggage we have carried for 150 years; that our system was largely designed by other countries, to serve their advantage. To the extent that we have successful writers, musicians, artists and publishers, those gains came despite the system, not because of it.[1]
So, what are we talking about? The system of copyright is composed of two parts; there are rights of control and there are rights of use. Why do we have it? For a very long time, we had no purpose. Copyright was simply one of 29 responsibilities handed to the Federal Government in 1867, with no explanation attached. But if we look at our multicultural roots—the influence of both civil law and common law—we see a shared goal: to protect the process of creativity.[2] While our Supreme Court has operationalized this as seeking a balance between creators and users,[3] it might be helpful to take one step back and simply think about this process; how do we enhance it? How do you assist individuals to maximize their creative potential? And from that, there is reasonable historical data to believe that larger social wellbeing will follow.
I am drawing from the work of B. Zorina Khan, an economist who explored American intellectual property policies at the time of their nation building years. The U.S. deviated from the IP norms of the day, and instead focused on educating its people and creating a framework which encouraged everyone to enter the arena of creativity.[4]
A part of that framework was the theft of other nations’ work—to be clear, I am not recommending that. But we could adopt the best aspect of current American policy: their structure of fair use. It would give leeway for new ideas to take form. It bears remembering that the United States has capitalized on this, with repeated development of billion-dollar industries.[5]
A speaker from an earlier meeting alluded to challenges faced by Americans with respect to fair use; he quoted Lawrence Lessig as saying: “Fair Use was simply the right to hire a lawyer.” Just to put that in context; Lessig wrote those words after losing a pivotal Supreme Court case in the United States. He had led a constitutional challenge, arguing that Congress had overstepped its bounds by lengthening copyright term. The loss was hard to take; while fair use is meaningful, it is no substitute for shorter copyright terms.
Adding to Lessig’s distress was likely the reality that the United States had made a bit of mess of fair use in later 20th century. They are correcting that misstep; but at the time, their courts began treating fair use as simply a response to market failure.
Fortunately, the Canadian judiciary has already ensured that Canada can avoid such a self-defeating approach.[6] Creativity is a cumulative affair; whether we are talking about books, music, software, medicines or a free press, creativity relies on exposure to and use of prior work. Some uses must remain above the cycle of permission and payment, if creativity is to be sustainable.
In 2012 we came up short on fair use.[7] But one pleasant addition stood out: Section 29.21 (known as the YouTube/MashUp exception). I would have called it the Creativity exception. It gives future Canadian creators some reassurance that their government does not wish them to be prosecuted for doing what Canada needs them to do–which is to hone their creative skills.
We need our next generations to be at their best to address the intractable problems that are being left for them to solve. Drawing from the combined wisdom of Julie Cohen and the late Oliver Sachs, it is important for individuals to play with whatever content they are interested in, to cultivate a capacity to see something that others cannot, to build the curiosity and determination that we hope will carry them into ground-breaking intellectual effort across all disciplines.[8] Much is being made of our innovation agenda—we will not get innovation just for the asking, we need to nurture it.
Regardless of whether we have strictly enumerated exceptions, or a more flexible condition of fair use, we cannot gain the fullest potential on either unless we adjust the current language of digital locks.
This Committee has been asked repeatedly to do more to support Canadian writers and Canadian publishers; this is a worthy goal. But I hope proposed solutions will not include billing students for materials already paid for, or worse, billing students for works that are not prescribed at all.
Moreover, if we want to target Canadian operations, copyright is not an effective means. More money will leave the country than will stay in. As I wrote in my brief: “Copyright is a blunt instrument; it cannot distinguish between literary superstars and novice writers, between fostering a homegrown operation and serving an international conglomerate, or, between writing for an audience and writing for financial gain.”
As I mentioned at the start, our Act draws from both our common-law and civil-law ancestry. The Copyright Act has long been recognized as being bi-jural; we cannot help but see two of our Founding Nations in it. However, the third is present. Indigenous paradigms about creative endeavor and property are implicit to the system of copyright as we practice it today.[9]
Acknowledging this will not solve the difficulties encountered by Indigenous communities with respect to protecting their intellectual property. But given the objectives of the Truth and Reconciliation Commission, we ought to recognize that the Copyright Act is tri-jural.
I would like to close by acknowledging that we have gathered on the lands of the Algonquin people.
I look forward to your questions. Thank you.
[1] Meera Nair, “History begins with geology (a response to Margaret Atwood),” Fair Duty, 20 September 2016.
[2] “Where social utility meets with natural rights is in the belief that creativity itself is valued. Otherwise, the underlying purpose of copyright in either tradition becomes meaningless, raising the question of why have such laws at all? Therefore, natural rights must apply to everyone, including past, present, and future creators. Likewise, consideration of societal benefit must ensure that future creative processes are not stifled by the system purporting to encourage creative effort;” Meera Nair, “Copyright and Ethics—an Innisian Exploration,” (2009) Global Media Journal (Can. Ed.) Vol. 2, Iss. 1, (23-39) 30, .
[3] “…a balance between promoting the public interest in the encouragement and dissemination of works of the arts and intellect and obtaining a just reward for the creator …;” Théberge v. Galerie d’Art du Petit Champlain inc., 2002 SCC 34 at para 30.
[4] Those policies fostered American ascendency from, “an undistinguished developing country with an agricultural economy to world leader in less than one century;” B. Zorina Khan. The Democratization of Invention: Patents and Copyright in American Economic Development, 1790-1920. (Cambridge: Cambridge University Press, 2005) 5.
[5] Meera Nair, “Outdated copyright law hinders innovation and growth,” Edmonton Journal, 12 September 2018. Details here.
[6] Fortunately, Canada has already taken steps to avoid falling down this rabbit hole; “The availability of a licence is not relevant to deciding whether a dealing has been fair. As discussed, fair dealing is an integral part of the scheme of copyright law in Canada. Any act falling within the fair dealing exception will not infringe copyright. If a copyright owner were allowed to license people to use its work and then point to a person’s decision not to obtain a licence as proof that his or her dealings were not fair, this would extend the scope of the owner’s monopoly over the use of his or her work in a manner that would not be consistent with the Copyright Act’s balance between owner’s rights and user’s interests;” CCH Canadian v. Law Society of Upper Canada, 2004 SCC 13 [CCH] at para 70.
[7] Numerous organizations sought to discredit fair use; “… to each objection raised, a nuanced explanation or rebuttal exists;” see Meera Nair, “Fair Dealing at a Crossroads,” From Radical Extremism to Balanced Copyright—Canadian Copyright and the Digital Agenda, ed. Michael Geist (Toronto: Irwin Law, 2010): 90-120 (103).
[8] “Both copyright law and policy have shown little interest in understanding the processes by which these roles are performed, nor in inquiring what users need to perform their roles in a way that optimizes the performance of the copyright system as a whole (348).” See Julie Cohen,“The Place of the User in Copyright Law,” Fordham Law Review, Vol. 74, (347-374) 348, 2005. “Imitation and mastery of form or skills must come before major creativity;” see Oliver Sacks, “The Creative Self” in The River of Consciousness (2017) 137.
[9] Meera Nair, “Indigenous paradigms,” Fair Duty, 25 June 2018.
Fair Duty 