Meera Nair

Archive for 2019|Yearly archive page

“the hill to die on”

In Case Reviews, Posts on November 3, 2019 at 8:05 pm

In March of this year, Howard Knopf informed readers of a pending Supreme Court hearing: that of a private company claiming copyright infringement at the hands of a public-service provider in Ontario. The works of contention were land surveys, which are essential documents in terms of establishing boundaries to parcels of land and the rights thereto.

Until the later twentieth century, surveyors would deposit land surveys with the provincial land registry. Individuals could request copies, conditional on payment of a fee. Monies collected remained with the province; surveyors received no further compensation. That system had not attracted any displeasure; however, after the registry was digitized in the 1980s and its services outsourced to a private corporation (Teranet), which had the responsibility for scanning/uploading the surveys into a digital repository and providing copies to the public. Again, receiving a copy required payment of a statutorily prescribed fee. (Generally speaking, Teranet’s operations are shaped by agreements with the province.) Yet surveyors filed a class action lawsuit (led by Keatley Surveying Ltd.) claiming copyright infringement. They lost in the lower courts, but were given leave to appeal to the Supreme Court.

Knopf wrote: “Teranet, which is resisting the payment of additional fees to surveyors beyond that which they were paid originally for doing the survey – has never disputed the notion that copyright subsists in land surveys. Indeed, the two actual parties (Keatley and Teranet) agreed for purposes of this litigation that copyright so subsists, although this crucial issue is far from clear and certainly not obvious.”

In late September, the Supreme Court of Canada issued its decision in Keatley Surveying Ltd. v. Teranet Inc. bringing to an end the surveyors’ twelve-year odyssey to hold Teranet liable for copyright infringement. With unanimity the Supreme Court Justices declared that the land surveys had passed into the realm of Crown copyright, and thus by virtue of the arrangements made between Teranet and the Province of Ontario, no infringement by Teranet had occurred.

Crown copyright is defined in Section 12 of the Copyright Act as:

Without prejudice to any rights or privileges of the Crown, where any work is, or has been, prepared or published by or under the direction or control of Her Majesty or any government department, the copyright in the work shall, subject to any agreement with the author, belong to Her Majesty … (emphasis mine).

But despite the unanimous outcome, opinion was divided among the seven justices. The majority opinion held by four justices, led by Justice Abella, focused on the degree to which the Crown provided direction or imposed control in the preparation or publication of the work. Whereas the minority contingent, comprising three justices, including Chief Justice Wagner, gave weight to the nature of the work produced, that it should serve a public purpose (as one would expect of a government work).

From the Majority: “Relevant indicia of governmental direction or control may include the presence of a statutory scheme transferring property rights in the works to the Crown; a statutory scheme which places strict controls on the form and content of the works; whether the Crown physically possesses the works; whether exclusive control is given to the government to modify the works; the opt‑in nature of the statutory scheme; and the necessity of the Crown making the works available to the public (para. 69).”

From the Minority: “Once a court is satisfied that a work was ‘prepared or published by or under the direction or control’ of the Crown, it must then consider whether, at the time of preparation or publication, the work is a ‘government work’. This entails examining the character and purpose of the work. The work will be a ‘government work’ where the work serves a public purpose and Crown copyright furthers the fulfillment of that purposes. These will be works in which the government has an important interest concerning their accuracy, integrity, and dissemination (para 127).”

This marked the first occasion where the matter of Crown copyright was discussed by the Supreme Court. The Justices were quite direct in suggesting that Parliament revisit the principles and statutory language of the nearly 100-year-old provision. A sentiment also noted in the INDU Report of the Copyright Review (2018-2019), “Several witnesses criticized section 12 of the Act and called for its reform. In fact, no witness supported its continuation, at least in its current form—a rare point of consensus.”

Since the Keatley decision was announced, numerous commentaries have been published. A complete list has been compiled by Amanda Wakaruk; a selection thereof is:

Also, in a podcast that lived up to its billing, Carys Craig detailed the case, and the shortcomings of the outcome in Crown Copyright is NOT Boring. Provided by Stereo Decisis, hosted by Robert Danay and Hilary Young, Craig shares Knopf’s concerns, that it is far from evident that land surveys are eligible for copyright protection.

In Craig’s words, “this is the hill to die on.” She emphasizes that copyright law does not protect ideas or information, and land surveys are an embodiment of information. To provide copyright in a land survey undermines a fundamental tenet of the system of copyright.

That the Court did not address this aspect is disappointing, but nonetheless is irresistible for comment.

If the question –are land surveys eligible for copyright protection– had been raised, presumably, the Court would have started from first principles.

In Canada, copyright ensues when one creates an original work (expression) of a literary, dramatic, artistic or musical nature. While “artistic works” are defined as including “paintings, drawings, maps, charts, plans…,” not all such items are protected. The pivotal requirement is that the creation be “original.”

In 2004, in CCH, the Supreme Court famously declared that originality requires an exercise of skill and judgment that is more than trivial. Shortly thereafter, Teresa Scassa* reminded us that the Court’s words should not be read in isolation but along with the Court’s accompanying language about the importance of having a robust public domain. To do otherwise, runs the risk of extending protection to “original facts,” which Scassa defines as “facts that owe their existence to the exercise of intellectual effort.”

Looking back in more detail to the Court’s ruminations on originality in 2004:

For a work to be “original” within the meaning of the Copyright Act, it must be more than a mere copy of another work.  At the same time, it need not be creative, in the sense of being novel or unique. What is required to attract copyright protection in the expression of an idea is an exercise of skill and judgment. By skill, I mean the use of one’s knowledge, developed aptitude or practised ability in producing the work. By judgment, I mean the use of one’s capacity for discernment or ability to form an opinion or evaluation by comparing different possible options in producing the work. This exercise of skill and judgment will necessarily involve intellectual effort. The exercise of skill and judgment required to produce the work must not be so trivial that it could be characterized as a purely mechanical exercise (para 16).

At that time, the Court was addressing a personal question: did copyright exist in the writings of a judicial decision itself? In answering the question, the Court sought a workable standard, one that fell between the endpoint possibilities of the “sweat of the brow” (on which industriousness is the principle concern) and “creativity.”  Interestingly though, the Court did not give equal attention to defining what creativity is, but, as shown above, was content to focus on what creativity is not—that it need not be “novel or unique.”

However, in the situation at hand, one must ask: what if the intellectual effort is one where novelty should be actively discouraged?

Arguably, a land survey should not be an invitation to novelty—its sole purpose is to establish facts. A land survey is created by data and mathematical/scientific operations. If two independent surveys were commissioned for the same purpose, one would expect that the outcomes would be at least similar, if not identical. And while similarity in two independent, creative works does not deny two separate claims of copyright,** it does not follow that two similar displays of independent skill and judgement must each be granted copyright.

It is at least an article of faith that facts are not protected by copyright. The rationale being, as Scassa writes, “either because they are not considered to be the product of someone’s authorial effort, or because some efforts are made for the common good and not for reward through copyright monopolies.” She provides a compelling rationale regarding the importance in distinguishing between the skill and judgment that gives rise to facts and that which gives rise to a copyright-protected work.

It may be that the difference between these two categories rests on a more precise definition of “creativity,” which I suspect no court will welcome having to define.

But it would have been satisfying to see our highest court give it a try.

* Teresa Scassa, “Original Facts: Skill, Judgement and the Public Domain” (2006) 51 McGill L.J. 253.  For more, “Copyright Reform and Fact-Based Works”, in M. Geist, ed. From “Radical Extremism” to “Balanced Copyright”: Canadian Copyright and the Digital Agenda, (Irwin Law, 2010), 571-597.

** While Sheldon et al. v. Metro-Goldwyn Pictures Corp. et al (1936) is a case from American jurisprudence, Judge Learned Hand’s ruminations on independent but identical creation of an Ode to a Grecian Urn comes to mind.

a miscast legacy

In Posts on September 3, 2019 at 8:35 pm

At the Copyright Review (2017-2018), one element of consensus among copyright owners and users alike was that students are certainly entitled to practice and benefit from fair dealing. With a new school year underway, I hope that educational administrators remember this and give students sufficient breathing space in connection to their learning.

Yet, it seems that anxiety still stalks authority when leaving students unattended with fair dealing. Uses of imagery seem especially fraught with tension. As imagery cannot be measured by any standard yardstick, its use immediately becomes suspect. Whereas the only distinction is that – to be fair – most, if not all, images have to be presented in their entirety to be useful. This does not mean, nor was it intended to mean, that the use is automatically excluded from fair dealing.

Despite the now well-entrenched CCH (2004) model of analysis guiding fair dealing—the critical elements being that we look at each situation comprehensively, and, that the use must serve the purpose for which it was chosen—use of imagery seems to provoke a combination of tension and amnesia. This may be due to a miscast legacy dating to fair dealing’s first experience in a Canadian courtroom: Zamacois v. Douville and Marchand (1943).

At issue was the reproduction of an article written by Miguel Zamacois, a citizen of France, which had been published in a French journal (Candide) and reprinted in a Quebec newspaper (Le Bien Public) together with a commentary by a local writer. A representative of a society of French writers claimed infringement on Zamacois’ behalf.

The proprietors of Le Bien Public, Raymond Douville and Clement Marchand, based their arguments principally on: (i) Zamacois’ ineligibility as a plaintiff; (ii) Zamacois’ creation pertained to matters of a political nature (WWII) and thus was not a literary work; (iii) provisions within the Berne Convention that favoured unauthorized reproduction of political or economic news; and (iv) the terms of a prior contractual arrangement with the French society (since lapsed). Invoking fair dealing was a measure of last resort. But when making the case for fair dealing, Douville and Marchand also drew particular attention to the fact that reprinting the article had not enhanced the paper’s commercial position.

The rationale of Douville and Marchand might have been deemed immaterial to the court’s eventual decision that infringement had been found and fair dealing had been denied. Indeed, a summary of the case issued later by Carswell, expresses bemusement as to why “the learned judge” had devoted such effort to exploring all aspects of the defendants’ arguments, as “the Convention has no statutory effect in Canada. The rights of authors are protected by the terms of the Copyright Act and that Act allows no reproduction of such articles without the consent of the author, except for the minor right of quotation on the basis of ‘fair dealing.’”

Such a statement baldly misrepresented fair dealing’s scope. Moreover, Carswell’s writer missed the critical point—a question of fair dealing is necessarily a contextual matter. Facts, and the circumstances in which they are imbedded, matter. Predating CCH by 61 years, Justice Angers gave Canadians an exemplar to follow in the years to come—a contextual analysis. He began from where one would expect, with reference to English authority, Copinger on the Law of Copyright (7th edition):  “It may be fair dealing to take a substantial part [of a work].” But noting that the article in question was of French provenance, he took care to also explore literary criticism and newspaper practices in that nation’s tradition. The depth and breadth of Anger’s exploration illuminates that matters of infringement generally pertained to commercial reproduction, that good faith was relevant, and that each situation is distinctive and must be assessed according to its own context.

In this case, Angers denied the claim of fair dealing, not because it was a copy of an entire article, but because it did not satisfy conditions under which an entire article could have been reproduced. He was precise in the language of his exploration and conclusion:

Yet Angers’ painstaking exploration of the applicability of fair dealing was quickly lost. The following year, in The Canadian Law of Copyright (1st ed.) by Harold Fox, the case is reduced to citations for isolated pronouncements such as, “Obviously quotation of a work in its entirety is not fair dealing.”

Fox’s language is disappointing; he expanded the object under consideration, arguably a literary article of a political bent, to the general terminology of “work.” Which entails all literary, dramatic, artistic and musical expressions. Moreover, his lack of precision as to the setting undermined the potential for fair dealing in categories other than literary criticism. In the years that followed, Zamacois v. Douville became synonymous with the general statement that fair dealing could not apply if the entirety of a work was reproduced.

The fullest extent of misunderstanding was on display in 1997 when, during an appeal concerning fair dealing with respect to imagery in an article published by the Toronto Star, the trio of judges then comprising the Ontario Court of Appeals said:

We were referred to the case of Zamacoïs v. Douville (1943)…  To the extent that this decision is considered an authority for the proposition that reproduction of an entire newspaper article or, in this case, a photograph of a magazine cover can never be considered a fair dealing with the article (or magazine cover) for purposes of news summary or reporting, we respectfully disagree.

Interpretation had moved from stretching the truth to jettisoning it entirely. There is no logical basis to equate a literary essay to a newspaper summary. That alone should have curtailed any blanket statements of what Zamacois v. Douville did or did not represent. Nor is a newspaper summary equal to an image. That a picture is worth a thousand words can only ever be an idiom, not a statement of fact. The only direct influence Angers’ work could have exerted on the Toronto Star appeal was the method of evaluation—a contextual analysis. (Which, fortunately, the Ontario Court of Appeals engaged in, but without citation to Angers.)

Reviewing the Toronto Star’s successful appeal, David Allesbrook wrote: “The ‘fair dealing’ exception will now achieve more prominence. The courts will be asked to consider the circumstances of the copying more forgivingly than they have in the past. It will be interesting to see how forgiving they will turn out to be.”

The irony is that, in 1943, Angers had done precisely that. By consideration of circumstances, he found merit in the good faith approach of Douville and Marchand, and refused to issue any injunction with respect to future operations of Le Bien Public. Angers also noted that there had been no particular financial gains through the unauthorized reproduction and so reserved any decision regarding costs to be awarded: “The plaintiff has proven neither loss of profits nor damages and I doubt if he might succeed in proving either.” And, with an appreciation for posterity, Angers refused to order the surrender of remaining copies of the reprinted essay, as the only remaining copies of that issue of Le Bien Public were intended for the paper’s archive.

Imagery has as much claim to fair dealing as any other type of work. In a world where information increasingly relies on, and circulates in, visual elements, imagery plays an important part in social, historical, scientific, economic and artistic endeavors. To limit students’ capacity to work with imagery limits the development of their understanding and expertise, thereby limiting the very goal of the system of copyright itself—to advance intellectual activity.

ten years on

In Posts on July 30, 2019 at 8:12 pm

Ten years have passed now since Fair Duty came into existence. In July 2009, having recently completed my doctorate, the title to my dissertation served as inspiration for the name of my blog. (Had I known then that this venture in writing would continue beyond a decade, I might have named it something else.) My dissertation had involved examining university policies with respect to application of fair dealing in the hands of graduate students, doctoral candidates in particular. That project had been prompted by my own earlier experiences.

Just prior to the unveiling of CCH Canadian v. Law Society of Upper Canada —a unanimous decision by the Supreme Court of Canada, affirming fair dealing in the realm of research—I was at the post-defense, deposit-the-thesis, stage of my MA and thus jumping through the requisite copyright-hoops. After reading CCH, and looking forward with the naiveté of a doctoral student, I assumed the end of institutional limitations on students-and-fair dealing was nigh. Yet during my data gathering of 2007, 2008 (and confirmed again in 2009), it was evident that policies concerning use of copyright-protected material by graduate students still reflected a pre-CCH attitude.

Any disappointment with my own community was mitigated by the one inescapable challenge that faced institutions and students alike: meeting the copyright stipulations of Library and Archives Canada (LAC). Before digital distribution became the norm, that venerable institution offered greater exposure and enjoyment of graduate students’ works, through the medium of microform. At that time, the condition for inclusion with LAC was to abide by stringent rules with respect to use of third-party work in theses and dissertations. Even in 2009, CCH’s promise was not enough to overcome fair dealing’s ill-fated twentieth century history. (More on that another day.)

(Fortunately, LAC’s conditions now reflect an awareness that fair dealing is relevant to graduate students’ work; although LAC does so without actually using the words “fair dealing.”)

Ten years ago, I came to the conclusion that, whether driven by caution or misunderstanding, or both, Canadian institutions regarded fair dealing as lawful in the hands of a student, up to the point of depositing a thesis or dissertation in the institution’s library. But thereafter, with the added exposure through LAC and potential for further distribution, institutions appeared to believe that fair dealing no longer applied.

Today, despite favorable (almost coaxing) judicial and statutory developments of fair dealing, perhaps because deposit now means in a publicly available institutional repository, I wonder if caution might still be narrowing institutional positions on fair dealing, when exercised towards the creation of a thesis or dissertation by graduate students.

If apprehension still exists, David Vaver beckons. He has spoken to these issues for over 20 years. Apart from numerous journal articles, he has also written three books: Intellectual Property Law: Copyright, Patents, Trade-marks, (1997), Copyright Law (2000), and Intellectual Property LawCopyright, Patents, Trade-marks (2nd ed. 2011).

Before even touching fair dealing, Vaver would remind us all to begin from first principles—what is copyright?

Section 3.1 of the Copyright Act states: “For the purposes of this Act, copyright, in relation to a work, means the sole right to produce or reproduce the work or any substantial part thereof in any material form whatever … .”

If a reproduction is insubstantial then copyright does not arise. And if one needs more than the inherent logic of that conclusion, in CCH the Supreme Court of Canada indicated, that where “the amount taken from a work is trivial, the fair dealing analysis need not be undertaken at all because the court will have concluded that there was no copyright infringement (para. 56).”

Beginning then from the question of substantiality, and drawing from all three of Vaver’s books:

One should first screen out what cannot in law be a substantial part. ‘Part’ means ‘portion’ not ‘particle.’ A copyright owner cannot therefore control every particle of her work, any little piece the taking of which cannot affect the value of her work as a whole. Copying ten such particles is as inoffensive as copying one.

The lesson here is to curtail any temptation to measure the aggregate of uses from a single third-party source.

Vaver, of course, acknowledges that quantity alone does not determine substantiality; quality is a consideration. As he wrote in various ways, is the taking of something distinctive from a third-party work? Is it something into which the author expended “skill, effort or ingenuity.” Is it the heart of the work? In the context of academic research, it may be that the answer is “Yes.” When developing one’s own ideas, we are looking for portions of other works that exemplify either their merits or shortcomings. This is how we form the basis of our own analyses and from there derive new conclusions.

And that is precisely why we have fair dealing. To encourage research (and other activities beneficial to the public interest) that relies on reproduction of substantial parts of other works.

In Copyright Law (2000), and again in his 2011 publication, Vaver specifically addressed the nexus of research, fair dealing, and graduate students’ works:

A doctoral thesis is clearly written for research purposes, even though copies are routinely deposited in the National Library and other public libraries and the thesis is destined for publication. Research is part of process that routinely involves dissemination of results and supporting evidence to facilitate further research, including open review, criticism and verification (emphasis mine).

It is worth remembering that Copyright Law lay at the heart of CCH. And Vaver’s 2011 book was also cited in SOCAN v. Bell (2012), another, unanimous, Supreme Court decision relevant to fair dealing in research.

More precisely, in SOCAN, the Supreme Court gave a resounding “Yes” to the question of whether music previews constituted fair dealing in the hands of consumers. That affirmation came by affording consumer-activity recourse to the word “research.” Readers may recall that the Court was asked to weigh in on the very nature of what “research” is:

 SOCAN offers the definition of “research” as being “the systematic investigation into and study of materials and sources in order to establish facts and reach new conclusions.” Moreover, SOCAN argues, the goal of the “research” must be for the purpose of making creative works, since only uses that contribute to the creative process are in the public interest (para. 20.)

The Supreme Court disagreed with SOCAN’s definition:

Limiting research to creative purposes would also run counter to the ordinary meaning of “research”, which can include many activities that do not demand the establishment of new facts or conclusions. It can be piecemeal, informal, exploratory, or confirmatory. It can in fact be undertaken for no purpose except personal interest. It is true that research can be for the purpose of reaching new conclusions, but this should be seen as only one, not the primary component of the definitional framework (para. 22.)

Good news as this was, it is worth noting that SOCAN’s desired (narrower) definition of research, “systematic investigation … study of materials… to establish facts and reach new conclusions,” very neatly encapsulates what graduate students do. Furthermore, through writing theses and dissertations, those same students are making creative works, and thus still meet SOCAN’s view that serving the public interest only occurs through creation of literary, dramatic, artistic and musical works. If one takes SOCAN’s opinion as representative of the preferred stance of copyright-owners, it is reassuring to see that graduate student work would have no difficulty in qualifying as “research” under those expectations.

But of course, settling the purpose of the use is only the first step of determining fair dealing.

In terms of the fairness analysis, SOCAN was not a particularly taxing occasion for the Court. With recourse to CCH and the earlier Copyright Board decision on this matter, the remainder of the analysis was dispatched with great efficiency (paras. 37-49). One element carries neatly into the topic at hand; it arose under the exploration of whether there are alternatives to consumers using previews when choosing music for purchase. The Court reminded us that: “A dealing may be less fair if there is a non-copyrighted equivalent of the work that could have been used, or if the dealing was not reasonably necessary to achieve the ultimate purpose (emphasis mine, para. 44).”

SOCAN had “argued that there were other methods available, like advertising, to help users identify potential music for purchase. Many of the service providers, for example, offered album artwork, textual descriptions, and user-generated album reviews (para. 45).” But the Court declined to accept that argument, concurring instead with the Copyright Board’s earlier assessment that “[l]istening to a preview probably is the most practical, most economical and safest way for users to ensure that they purchase what they wish (para. 46).”

This is the crux of the matter from where to consider whether inclusion of a work, or a portion thereof, is fair dealing. Herein is why a dealing will be “reasonably necessary.” Because the inclusion must be in aid of the purpose of the user. In this context, a research question must have been addressed. Therefore, inclusion of third-party work, must support the process of exploration necessary to meet this goal.

Crafting the work that conveys this scholarly journey, making those decisions about inclusion of other works, these are functions that invariably flow from engagement between student and supervisor; and later, with the examining committee. These senior members of the field will be looking for students’ own voices—their own expression of their own ideas—buttressed by other voices, but only as needed to confirm the student’s mastery or skill with the subject. An excessive quotation will be called out, as will gratuitous illustrations. The legitimacy of what was used and how much was used, depend on the subject and the particular method of exploration, and the guidance of experts in the field.

It is not the purview of copyright practitioners to assess the use of those other works; those decisions are the responsibility of qualified members within each discipline, under whose aegis the work is offered. Lest that should alarm the professoriate, their responsibility is discharged simply by remaining true to the principles of the vocation they have chosen.

By virtue of successful completion of a graduate degree, the most vital element of the fairness analysis—as to why specific uses of third-party works are necessary—will have been successfully navigated.

a good time to look up

In Posts on July 20, 2019 at 5:09 pm

Over the past week, extensive coverage of the Apollo 11 mission and Moon landing have graced our imagination in print and online. Canadians are enjoying a little achievement-by-proxy or perhaps glumly recalling that Canadian scientists and engineers were handily picked up by NASA when Canada’s AVRO Arrow program was summarily disbanded in 1959. But does that matter? At the time, it seemed humanity was capable of shared goals; in terms of science, technology and educational advancement, there was reason to believe that great achievement would eventually lift up all boats. A poignant column by Matt Reed (still known to his readers as @DeanDad) reminds us of what was considered possible then, as we can only hope it remains so now.

In any case, circulating today was Maria Popova’s tribute to the black women mathematicians of NASA. As often happens, readers are offered some verse before leaving her site. The teaser today was the second stanza of W. H. Auden’s work The More Loving One:

How should we like it were stars to burn
With a passion for us we could not return?
If equal affection cannot be,
Let the more loving one be me.

Popova’s exploration of this poem comes with a reading by astrophysist Janna Levin. A little online searching also reveals that The More Loving One is available at a number of sites. Some offer critical reflection, others leave the reader the pleasure of unguided contemplation. And, perhaps as one would expect in this day and age, YouTube serves up readings by Auden himself. My favorite might be this one.

Comments about the video reveal the polarity of opinion when it comes to any type of artistic expression—some see the visual and musical accompaniment as heightening the glory of Auden’s words, others see it as denigration. Grist for intellectual property purists ruminating about moral rights, or simply a prompt to change the channel.

In terms of copyright, Auden died in 1973; by Canadian law we are still four years shy of his work entering the public domain. The United States and European Union countries must wait 24 years. Of course fair dealing and fair use offer some shelter to unauthorized reproduction, as developed by a country’s judiciary.

However, those exceptions can only stretch so far–complete reproduction at a publicly available Internet site may strain the boundaries of legitimacy. And while some sites may operate with permission, others may not.

Fortunately, under Canadian law, the exception for non-commercial user-generated content (S29.21 of the Copyright Act), would shelter amateur presentations involving protected work. Legitimacy is grounded on the critical question of revenue—that when one is not attempting to exploit a work for commercial gain, the use is lawful. A perspective that largely shaped the development of copyright law from 1710 to the later twentieth century—the law sought only to manage exploitation by commercial entities.

Regardless though, copyright maximalists will argue that these unauthorized reproductions are harmful to authors, blithely glossing over the distinction between author and copyright owner.

Which invites the question: when publishers hold the rights of control within the system of copyright, and may deny permission to reproduce a work (or a portion thereof) intended solely for non-commercial purposes, how does that benefit the author? Monetarily, the answer is contingent on the contract between publisher and author. If the transfer of copyright was in its entirety, as appears to be the case with Auden’s published works, it is less likely that an author or heirs gain from extraneous licensing in connection to noncommercial uses of those works.

Stepping then beyond matters of money, how does it affect the awareness of the author? In this case, if those sites sharing Auden’s work had never happened, would his legacy be what it is today? Would it carry for another fifty years? Or would his work be only of interest to those engaged in some formal study of poetry?

Years ago, Graham Reynolds argued that changes to copyright law should be guided in similar fashion to laws affecting the environment—that is, through the lens of a precautionary principle. While he acknowledges the differences between a physical environment and an intellectual one, there is a a critical similarity: ” … not all harms can be remedied after the fact.” Therefore, it becomes of paramount important to anticipate future harm to public interest (which includes authors) served through the system of copyright.

Returning to the matter at hand, the questions become: What would the harm have been in eliminating the possibility of ordinary readers becoming familiar with Auden’s work? Would that have served Auden, his estate, or the public interest?

 

a tale of two licences

In Posts on July 10, 2019 at 6:07 am

Kris Joseph recently penned a thoughtful column concerning institutional procedures that affect graduate students in terms of access and use of their work. After defending his thesis, he had eschewed the typical copyright statement (“Copyright Kris Joseph, 2019”) for his work and chose instead to deposit his thesis with his institution under an open licence. It took some persuasion on his part before his institution would accept his wishes.

Joseph describes a seeming offer of compromise that came at an intermediary point in the negotiation:

To keep my thesis deposit from being rejected, they suggested I remove the open licence from the front of my thesis, use the “standardized” copyright notice on the title page, and then place my Creative Commons licence inside the thesis, at the end of the frontmatter. On the surface this seems fair, but it isn’t: it suggests that the front of my thesis should say “this is mine and you can’t use it,” but if you keep reading and look carefully, you’ll see that I actually mean “this is mine and I want you to use it and thank God you thought to check the 11th page otherwise how would you know?”

The happy ending is that Joseph’s thesis was accepted as he wished to license it. But as he astutely noted, many students would have hesitated to push back on what appears to be a matter of institutional policy.

Graduate students across the country are required to deposit their work in their institution’s online repository—this is the millennium version of the former custom of leaving a copy in the institution’s library. In the later twentieth century, it became addedly necessary to enable a copy to be sent to Library and Archives Canada, to further the goal of making publicly-supported work more widely available to the public. (Moreover, it heightened the possibility that a thesis or a dissertation might actually be read by those continuing in the field.)

To achieve the twin goals of public dissemination and broader awareness of one’s work, Joseph was asked to sign a form that gave:

… the university library and Library and Archives Canada a non-exclusive licence to “archive, preserve, produce, reproduce, publish, communicate, convert into any format, and to make available my Thesis in print or online by telecommunication to the public for educational, research and non-commercial purposes.”

Compare this against Joseph’s own sentiments regarding his intent with his work:

A Creative Commons licence is a convenient way to say “yes, this work is mine and I have copyright. I want you to know that you are free to share it or adapt it or rework it without asking me first, as long as you give me credit and don’t trade it for lucre.”

In neither case would Joseph (and scholars like him) receive any financial reward for enabling public access to the work in question. Interestingly though, it is only in Joseph’s choice of Creative Commons’ licensing terms that a user is deliberately asked to acknowledge who created the work. (The university/LAC license seeks only to ensure that those institutions may legitimately store and distribute the work; it does not bind them to declare how a work should be used.)

Granted, in Canada, moral rights ought to ensure users give due attention to the necessity of attribution, but that is not necessarily true in other countries. (For instance, the United States has a very limited view of moral rights’ obligations.) Whereas Creative Commons is globally recognized and explicitly makes attribution a condition of use.

Of course, the university/LAC license makes no specific allowance for adaptation or re-working, but both functions may well occur under that licence’s broad allowance of “… to make … available to the public for educational, research and non-commercial purposes.”

The irony of Joseph’s experience is that his chosen Creative Commons’ license more closely aligns with academic experience and the social contracts made by higher education/research entities with the public.

Joseph called on universities to make a better effort in educating graduate students with respect to the nature of copyright and its multi-faceted personality, comprising rights of use and rights of control. I concur.

And to which I may add, a better understanding of copyright is needed among staff involved in research and education, across all universities. Not an easy objective to be sure—Joseph’s experience illustrates the challenge that lies ahead for all those attempting to raise the level of copyright literacy: old-world ideas about how copyright is managed are difficult to dislodge.

At its core, that old world was a thicket of gatekeepers.  Copyright was largely exercised by those who produced and distributed the finished product, under arrangements that might not favour the creator of the work. (The dispute between L. M. Montgomery and L.C. Page comes to mind, as does the more recent discord between Taylor Swift and Scooter Braun.) Academia has its own share of copyright difficulties—ranging from the external problem of proprietary journals excluding access to the very community that provides labour and content for free, to, an apparent discomfort in seeing their charges taking charge of their own work.

The critical difference between the two licences of this story, is that in one scenario a middle-entity is given a privilege of, and responsibility for, distributing the work, whereas in the other, the creator seeks to offer the work directly to any interested party willing to transact in the principal currency of academia: the citation.

before and after june 23

In Posts on June 21, 2019 at 8:15 am

On June 23, 1985, a bomb detonated in the cargo hold of Air India Flight 182 while in midflight off the coast of Ireland. There were no survivors. Of the 329 people aboard, 268 were Canadians. Over 80 were children. It was the outcome of a plot politically motivated, conceived, and carried out in Canada.

The event that provoked those murders had occurred a year earlier, when the Indian government had sent its army into the holiest site in Sikhism, the Golden Temple at Amritsar. A potent, but inaccurate, message that circulated in 1984 was that the temple had been destroyed.

At that time, Mark Tully, a British journalist with a long tenure in India, was on the ground in Amritsar; thirty years later he recounted the details that led to the incursion: the temple complex had been occupied by extremists determined to carve out a Sikh homeland from India. They had “mounted a reign of terror and murder, attacking police, terrifying villagers and extorting money,” and they had fortified the temple complex with arms. Tully wrote:

I returned to Amritsar in the first press party taken to the Golden Temple complex after the operation. I was deeply saddened by what I saw. The Golden Temple itself was intact, scarred only by a few bullet holes. Although defenders had fired from the Temple, the army had clearly obeyed orders not to fire at it.

Retribution came six months later when then-Prime Minister Indira Gandhi was assassinated by her own Sikh bodyguards. Which led to further retaliation by angry mobs against innocent Sikhs. With that history, Tully’s words from 2014 are memorable:

It’s a great credit to India’s Sikh community, and the country’s multi-religious culture, that the wounds have not gone deeper. For India’s new Prime Minister, Narendra Modi, and his Hindu Nationalist Bharatya Janata Party, the events of 1984 should be a warning against allowing any of the more extreme elements associated with them to start inciting hatred of other religious communities.

But Tully also noted that while tensions eased in India, they had escalated in Britain.

As they did in Canada. Rage simmered and extremists called for revenge, which led to the plots to bomb two Air India planes laden with Canadian passengers.

Bombs hidden in baggage were checked first onto Canadian Pacific planes departing from Vancouver, travelling both west and east. The deadly baggage was then to be transferred to connecting Air India planes. By sheer luck, passengers of the western route were spared, when that bomb detonated on the ground before being loaded onto the connecting Air India flight in Tokyo. However, two baggage handlers lost their lives. The second bomb performed as intended on the eastern route, having been transferred to an Air India plane in Toronto.

Prior to 9/11, the bombing of Air India Flight 182 was the worst act of aviation terrorism the world had ever known. Unlike 9/11, 6/23 which came twenty-six years earlier, never fully entered Canadian consciousness, and its history diminishes with each passing year.

For those who have borne a depth of tragedy that most of us cannot even comprehend—the families of the victims—June 23 cannot be allowed to fade into oblivion.

I was fortunate that my family was not directly touched by the bombing. But my parents knew at least three men who each lost his wife, and all six children between the three couples. At that time, the Indian immigrant community in Vancouver was quite small; everyone knew someone who had been affected. To this day, my mother speaks of a toddler who expertly identified a Da Vinci print hanging in our home. “Mona Litha” was declared with exuberance. She perished along with her sibling and her mother.

In Vancouver, before and after the bombing, those were years of harassment, intimidation, beatings, and murder. Ujjal Dosanjh (later premier of British Columbia and then a member of Parliament and cabinet minister) was brutally beaten because of his public efforts to alert Canadian authorities to the behaviour of extremists in the community. I remember the news footage of what Dosanjh looked like, lying in a hospital bed, after being attacked by an assailant wielding an iron pipe.

Canadians likely do not know that a journalist was murdered over these matters. Tara Singh Hayer (father of Dave Hayer who would go on to become a Member of the Legislative Assembly of British Columbia) had pertinent information about the bombings and was targeted twice. Mr. Hayer (senior) survived the first attempt but was left disabled. He did not survive the second. I still remember Dave Hayer’s press conference where he condemned the cowardice of people who would attack a man in a wheelchair.

The families had hoped for justice through the courts, but none came. That trial ended in acquittals, largely because the judge deemed the star witness to be not credible. She had been involved in a close friendship with one of the accused; with considerable risk to her safety, she provided testimony that he had acknowledged his culpability in the bombings. Her testimony was discarded by the judge, in part because the close friendship had continued even after the revelation. I remember thinking how oblivious the judge seemed of the risks that woman would have faced, had she broken off the friendship earlier.

The families had repeatedly called for a public inquiry, only to have successive Canadian governments resist. Finally, twenty years after the bombing, Bob Rae (between his positions of Premier of Ontario and Member of Parliament) was given a mandate to determine whether there were questions that necessitated exploration and if so, what form that exploration should take. His report, Lessons to be Learned, was detailed, compassionate and called on Canadians to recognize this tragedy as their own:

 Let it be said clearly: the bombing of the Air India flight was the result of a conspiracy conceived, planned, and executed in Canada. Most of its victims were Canadians. This is a Canadian catastrophe, whose dimension and meaning must be understood by all Canadians.

Because of Rae’s work, the long-desired public inquiry took form under the care of retired Supreme Court Justice John Major. I remember some of the televised news coverage; victims’ families and various branches of Canada’s security, intelligence and civil services were asked questions and given an opportunity to speak. Perhaps most poignant were the remarks from two Irish men who had participated in the grim task of pulling bodies from the ocean. In an interview by Terry Milewski, one man said that initially he had not wanted to meet the families because “we let them down.” The incredulous tone of Milewski’s reaction still rings in my ears, “You thought you’d let them down?” An affirmative nod was followed by: “If we could have just found even one person alive.” It spoke to the power of hope—the longing to believe that anyone could have survived the combined effects of a massive explosion, a fall of 30,000 feet, and then hours in the ocean before help arrived.

But as had been evident to the families for over twenty years, it was Canada whose conduct had been wanting. To begin with, the bombing could have been prevented. The erasure of vital wiretap evidence had compromised the trial from the start. Throughout, the strenuous effort by Canadian governments anxious to limit their liability for the bombing, combined to deny not only justice, but sheer human decency to the families.

Major’s preliminary report, The Families Remember, was completed in 2008. It ought to be compulsory reading for every member of Parliament. To know that before those 329 became victims, they were real people. They were friends, colleagues, aspiring students, professionals, business people, husbands, wives, grandparents, and children. From the little boy who used to buy milk to help an elderly neighbor, to the grandmother of the three-generations taken from a single family, this was a Canadian loss of proportions unimaginable. As Major wrote then:

These are not easy stories to read. The pages that follow are permeated with an ineffable sadness that is emotionally draining, but the examples of courage and determination that are related through the narratives illustrate the strength that accompanied the desolation of the victims’ families.

In the final report, Air India Flight 182-A Canadian Tragedy, he did not mince words as to the deplorable behaviour of various Canadian government towards the families. Members of Parliament ought to at least see these two sentences:

In stark contrast to the compassion shown by the Government of the United States to the families of the victims of the 9/11 terrorist attacks, for all too long the Government of Canada treated the families of the victims of the terrorist attack on Flight 182 as adversaries. The nadir of this attitude was displayed when the families’ requests for financial assistance were met by the Government’s callous advice to seek help from the welfare system.

And the lack of recognition that this was a Canadian tragedy was again noted:

The fact that the plot was hatched and executed in Canada and that the majority of victims were Canadian citizens did not seem to have made a sufficient impression to weave this event into our shared national experience. The Commission is hopeful that its work will serve to correct that wrong.

Despite the painstaking efforts of Rae, Major, and dedicated journalists (Kim Bolan, Terry Glavin, Terry Milewski to name a few) who tirelessly covered the story then and continue to do so now, Air India Flight 182 remains detached from our shared national experience.

Twenty years after the bombing, June 23 was declared as a National Day of Remembrance for Victims of Terrorism. But it seems to have had little impact, particularly to contemporary members of Parliament. June 23 is also the start of the summer recess with members likely back in their home ridings. Few seem to engage with the memory of Air India Flight 182. To be sure, those members are entitled to enjoy at least some time off with their friends and family. However, it would be nice if they remembered that the bombers made that same calculation. With the school year ending, on June 23, 1985, the planes were packed with families. As Dr. Chandrima Chakraborty asks: Why do Canadians not remember the tragic loss of so many children on Air India Flight 182?

Chakraborty details a number of creative works that bring the humanity of the suffering closer to readers. And for those wanting to learn more about the events before and after the bombing, Kim Bolan’s book Loss of Faith, How the Air India Bombers Got Away With Murder (2005) is compelling.  So too is The Sorrow and the Terror, the Haunting Legacy of the Air India Tragedy (1987) by Clark Blaise and Bharati Mukerjee.

An earlier version of this post was published by the Georgia Straight on 20 June 2019.

the fifth recommendation

In Posts on June 7, 2019 at 3:47 pm

Earlier this week, the Standing Committee on Industry, Science and Technology released the concluding report of the Copyright Review. In a world where political partisanship can often be described as toxic, the report is encouraging by its display of Members of Parliament of differing parties working together. While I have no doubt some political theatrics occurred behind the scenes, Members appear to have collectively taken on the challenge to probe a seemingly impenetrable area of law that touches Canadian lives on a daily basis, and reconcile  competing interests expressed by a multitude of voices.

The Official Opposition and the New Democratic Party each attached a dissenting report, as is their prerogative to do so.  Yet their combined discomfort was in relation to only two matters: (i) artists’ resale rights; and (ii) Crown copyright – that its repeal was preferable to the stated recommendation of open licensing for government-created content.

As noted by Creative Commons:

The Canadian report offers a glimmer of hope that copyright policy can be furthered in such a way to promote creativity and innovation, while at the same time protecting crucial user rights. This is contrasted with the final outcome of the European copyright directive, which reflects a disturbing path toward increasing control of the web to benefit only powerful rights holders at the expense of the rights of users and the public interest.

The report in its entirety is here, with encouraging language in its front-matter:

Reproduction of the proceedings of the House of Commons and its Committees, in whole or in part and in any medium, is hereby permitted provided that the reproduction is accurate and is not presented as official. This permission does not extend to reproduction, distribution or use for commercial purpose of financial gain. …

But before we delve into the report and reflect broadly on the thoughts and recommendations provided, one issue ought to take priority. In the letter guiding the Committee’s work, the presiding ministers invited Members to “pay special attention to the needs and interests of Canada’s Indigenous peoples as part of Canada’s cross-cutting efforts at reconciliation.” It is telling that, after dealing with matters of procedure and preparing the ground for future information-gathering and analysis, the first recommendation pertaining to current challenges is:

Recommendation 5
That the Government of Canada consult with Indigenous groups, experts, and other stakeholders on the protection of traditional arts and cultural expressions in the context of Reconciliation, and that this consultation address the following matters, among others:

• The recognition and effective protection of traditional arts and cultural expressions in Canadian law, within and beyond copyright legislation;

• The participation of Indigenous groups in the development of national and international intellectual property law;

• The development of institutional, regulatory, and technological means to protect traditional arts and cultural expressions, including but not limited to:

  • Creating an Indigenous Art Registry;
  • Establishing an organization dedicated to protecting and advocating for the interests of Indigenous creators;
  • and Granting Indigenous peoples the authority to manage traditional arts and cultural expressions, notably through the insertion of a non-derogation clause in the Copyright Act.

In a submission offered by the Association of Canadian Publishers,  Sa’ke’j Henderson (Research Fellow Miyasiwewin Mikiwahp Native Law Centre of Canada College of Law, University of Saskatchewan) had written: “The purpose of the non-derogation clause is to clarify that these Aboriginal knowledges and cultural expressions are protected and promoted under Sections 52(1) and 35 of the Constitution Act, 1982 and Section 25 of the Charter.”

In his brief, Henderson had also reminded us that “Canada has endorsed the United Nations Declaration on the Rights of Indigenous Peoples (2007).”  Unfortunately, at best, Canada could be described as having a chequered past with respect to the UNDRIP.

Meaningful attention to Indigenous issues requires deliberate effort to harmonize all federal law with the UNDRIP. So it is disappointing to read that, this week, the Conservative members of the Senate used “procedural tactics to cancel committee meetings on Bill C-262.” This private member’s bill, brought forward by NDP MP Romeo Saganash, was passed by the House  of Commons in May 2018, and aims to ensure that federal laws comport with the UN Declaration of the Rights of Indigenous Peoples.

Returning to Recommendation Five, through my remarks to the Committee and brief, I said: “Indigenous paradigms about creative endeavor and property are implicit to the system of copyright as we practice it today,” and that finding commonality may help alleviate the challenges experienced by Indigenous communities with respect to appropriate protection and use of traditional knowledge and art.

While passage of C-262 looks less and less likely, we may hope that  Members of the Opposition will ensure that Recommendation Five is acted on.

fifteen years

In Posts on March 31, 2019 at 8:10 am

The Supreme Court’s decision of 4 March 2004, CCH Canadian v. Law Society of Upper Canada, ushered in a more progressive approach to copyright, by emphasizing that exceptions to copyright are a vital part of the system itself. The decision also coincided with the start of my doctoral research, at Simon Fraser University’s School of Communication. So it seemed only befitting to begin with CCH when I gave the keynote address last month at Balancing the scales: the role of fair dealing in Canadaan event organized by the Vancouver post-secondary community and hosted by Simon Fraser University.

One of the more fascinating aspects of studying systems of copyright is its variety of entry points. Enthusiasts of business, communication, economics, ethics, history, human rights, innovation, international relations, literature, philosophy, technology, and law, can all find a familiar theme within the ambit of copyright. Such an interdisciplinary nature is an asset; there are many signposts by which to navigate the route to effective public policy.

Yet copyright remains predominantly mired in the bland pronouncement of copyright is an author’s right. As to what that right means, whether copyright can achieve the expectation of authorial well-being implicit to the language of rights, that discussion is too often shunted aside. Complicating matters further in Canada is the propensity to wrap copyright in a maple leaf; a false, but politically effective, message portrays Canadian literature as dying and asserts that only more copyright can save it.

For my address, I took a little inspiration from Margaret Atwood and drew attention to the events that shaped both copyright and publishing in Canada during the late nineteenth-century. Namely, that those norms of copyright benefited only Britain and America, and deterred Canada from devising a system that would serve its own readers, writers, and publishers. The consequences of those years continue to be felt today; we cannot escape our own history. Fortunately, Canada’s ongoing success in literature is also a product of history, one carved outside of the regime of copyright.

The entire event is available here. (My presentation was the last one; click on Show Media and select: balancing_scales_role(4).mp4.)

On a personal note; that day in Vancouver, a dear friend was missing from the audience. James Woodburn Dean (1941-2019) died earlier in February. James, professor emeritus of SFU’s economics department, was an extraordinary champion of all students, regardless of their subject. His capacity for kindness was, and will remain, unparalleled to those who received it. As has been written of James, “He believed in the power of education and music and encouraged others to take bold steps.” To the extent that I can claim some success as a scholar, I am indebted to James for his indefatigable confidence in my ideas and unstinting friendship that continued long after completion of my doctorate.

Rest in peace James.

an ideal tariff

In Posts on March 14, 2019 at 7:15 am

Last month Howard Knopf reminded us that the Copyright Board is nearing completion of its work on the issue of collective licensing in post-secondary educational institutions. Under discussion are Access Copyright’s requests for tariffs on some unauthorized copying of copyright-protected materials. The Board has in fact invited parties to “comment on the feasibility and clarity of the terms of the tariff.”

While the documents pertaining to the proposed tariffs indicate that students are to be considered as “authorized users,” the aim of collective licensing is largely to address instances where teachers choose to distribute portions of copyright-protected works, often described as excerpts, to students.

Ideally, any tariff for a collective license would hew as close as possible to the principle of individual and fair negotiation between two parties for compensable use of content, and be based on a clear understanding, not only of the market, but also of Canadian copyright law. To that end, let us hope that the Copyright Board will engage in a thorough investigation of three hitherto-unchallenged assumptions, namely that:

  1. Unauthorized copying of copyright-protected materials occurs uniformly across institutions.
  2. Such unauthorized copying must always be paid for.
  3. Appropriate payment has not already been made.

1. The Scale of Unauthorized Copying

In the political arena, Access Copyright’s portrayal of unauthorized copying, as copying running amok at campuses, was met with neither question nor criticism. Ideally, the Board would engage in some investigation of this claim. At the very least, the Board should recognize that when a textbook is assigned to students as their principle source of reference, the question of excerpts (or course-packs) becomes moot.

For instance, a cohort of approximately 200 students pursuing the degree of Bachelor of Applied Sciences in Engineering at a reputable Canadian university are routinely assigned textbooks as their sole resource for learning. (Full disclosure: one of the cohort is my daughter. In her case, depending on what she might spend, she bought new books, used books, or on occasion nothing at all, relying instead on the copy held in the Reserves section of her institution’s library.)

An ideal tariff would ensure that institutions may opt-out on behalf of those students for whom their principal learning resource is not an assemblage of excerpts. While this strongly suggests that many students in the STEM fields will be removed from the FTE count, other disciplines may fall within the same framework. For instance, Nick Mount, a professor in the Department of English at University of Toronto writes: “In all my classes, undergraduate and graduate, I assign and expect students to purchase books, including many books by living Canadian writers. I stopped using course-packs years ago: they’re aesthetically ugly, and their digital replacements don’t work well in classrooms. To the best of my knowledge my colleagues follow much the same practice.”

The calculation of the tariff must reflect only those students who actually consume works by excerpt, but only when such excerpts are entitled to payment.

2. Some types of unauthorized copying 

i. OER.

The use of open-educational resources (OER) is becoming more common in Canada. These works, often funded by taxpayers, and developed by credible authorities in various disciplines, are released under open licenses whereby users (be they teacher or student) may adapt, copy, or post content without additional fees. While adoption of such resources is not uniform across the country, the trend is sloping upward.[1] The Board should take particular note of the efforts at Kwantlen Polytechnic University (KPU), the first institution in Canada where entire programs have been designed on the basis of open resources and are now showing escalating enrollment.

An ideal tariff would ensure that institutions may opt-out on behalf of, and thus remove from FTE count, those students participating in programs for which the institution has actively sought to ensure a zero cost for materials, by developing and/or adopting OER content.

ii. Exceptions.

Within the Copyright Act are various measures[2] that permit unauthorized copying of copyright-protected materials; chief among these is Section 29 Fair Dealing. As use of Fair Dealing has been contentious, the Copyright Board might wish to limit its consideration of fair dealing to only that which has been supported by the Supreme Court of Canada. To that end, the famed CCH case of 2004 is instructive—the final decision was one of unanimity and the measures of content reproduced and accepted as fair dealing ranged from a few pages to 21% of an entire textbook.[3]

Naturally, quantity alone is never solely determinative of fair dealing; however, this must raise at least some question as to why Access Copyright is asking that educational institutions pay a fee for distributing content which may well be fair dealing. Particularly as prior to the amendments of 2012, the Supreme Court sanctioned classroom distribution of short excerpts which were supplemental to principal learning resources, under the auspices of the category of “private study,” within fair dealing.[4]

An ideal tariff would ensure that institutions may remove from FTE count, those students enrolled in courses where supplemental excerpts would sit within the threshold of fair dealing as appropriate under the authority of CCH (2004). As the Copyright Board itself noted in 2009, “CCH now is the unavoidable starting point of any analysis of the notion of fair dealing (para. 75).”

And while the Board’s discomfort was evident then, their careful adherence to the law paved the way to the Board’s more nuanced understanding of fair dealing as was exemplified in 2015:

In CCH, the Supreme Court of Canada stated that fair dealing can be made out either by demonstrating that there exists a general practice that is based upon an enumerated fair-dealing purpose, and, is in fact, fair, or by demonstrating that a particular copying event … was fair dealing (para. 223, citing para. 63 of CCH Canadian).

3. Fair remuneration for copying

Perhaps Access Copyright is behaving in good faith, and is simply unaware of changing patterns of development and distribution of educational resources. However, members of Canada’s publishing sector cannot pretend to be without guile, as it has come to light that they have chosen to license their wares for use in educational institutions, yet insisted to Canadian MPs that the educational community was not paying its fair share. In a comprehensive post, dated to 23 November 2018, Michael Geist laid bare the claims of some Canadian presses – that they were suffering for the lack of payment from educational institutions – when in fact:

… educational institutions typically purchase both access to the work and a licence for multiple uses and/or inclusion in a CMS. This means that the e-book licence replaces the Access Copyright licence, compensating publishers and authors while providing students and teachers with greater flexibility and value. Moreover, many of the licences are perpetual, meaning that rights holders are paid a higher upfront fee in return for no subsequent royalties or payments.

An ideal tariff issued by the Copyright Board would ensure that institutions do not pay a second time for content already paid for through voluntary market-agreements between parties.

From the profusion of briefs submitted to the Federal Government during last year’s Copyright Review, it is evident that, over the last seven years, consumption of content has evolved in the post-secondary community. Educational institutions have come to rely increasingly on licensed content, where licenses are of both the proprietary and open variety. Unauthorized copying reliant on exceptions to copyright is decreasing. And yet, if Access Copyright has its way, Canadian students will be charged fees to cover the costs assessed against their institution, regardless of whether that fee represents actual compensable transactions of content and use by each student.

 

[1] In October 2018, the Scholarly Publishing and Academic Resources Coalition (SPARC) issued promising news with respect to OER: $1 billion of savings had been realized through global adoption of open educational resources. While the lion’s share of this savings was generated in the United States, Canada is onboard with OER development and adoption. Notably, the province of British Columbia alone achieved over $10 million in savings between 2012-2019.

[2] Section 29, Fair Dealing is principle among them. But also applicable to students’ learning are S29.21 NonCommercial User Generated Content and S30.4 Work available through Internet. Plus, there are a host of exceptions addressing Educational Institutions.  The proposals offered by Access Copyright presume to discard the very existence of exceptions; said another way, the very existence of the Copyright Act.

[3] CCH is predominantly known by the Supreme Court’s final adjudication of the case, but scrutiny of the case at the trial division reveals the amounts copied without authorization; see CCH Canadian Ltd. v. Law Society of Upper Canada. (1999)  Para. 136.  These copies were later accepted as fair dealing by the Supreme Court. CCH Canadian Ltd. v. Law Society of Upper Canada, 2004 SCC 13

[4] Alberta (Education) v. Canadian Copyright Licensing Agency (Access Copyright), 2012 SCC 37.

fair dealing week 2019

In Posts on February 24, 2019 at 7:36 pm

Fair Dealing week begins tomorrow with seminars, workshops, and discussion spanning the country. It speaks well of the efforts of post-secondary communities to raise understanding of its importance. Many fair dealing stories will circulate this week; I have one of my own to add. Fair dealing is personal.

My parents emigrated from India to Canada in the 1960s. As to why they chose Canada, my mother later explained the decision as a process of elimination. Both had grown up through the country’s Independence struggle and lived the life of noncooperation, whatever hardship it may have entailed. So Britain never made the list. The United States was given some consideration; but, in my mother’s words: “We had all wept over Uncle Tom’s Cabin.” And so “No” to a society that was still struggling to provide civil rights to all its citizens. Canada? It seemed nice, inoffensive. Years later my mother gave me these memorable words: “I didn’t realize we had left one colonized nation, only to join another.”

That the undercurrent of being a colonized nation still seemed to permeate Canada in the twentieth century hints at how close to the surface that current was in the years immediately following Confederation. Canadian industry was particularly affected, including the publishing sector. I cover some of this history in “The Geopolitics of Nineteenth-Century Canadian Copyright, as seen by some British Authors, in the recently published Canada 150 Special Issue of the Papers of the Bibliographical Society. This paper complements an earlier work of mine, “The Copyright Act of 1889—A Declaration of Independence,” published by the Canadian Historical Review, which examined the same events, from documents compiled by the British Government. Taken together, it is a reminder that copyright policy cannot be enacted in a vacuum–the effect of change is conditioned by history.

Returning to the theme in hand, prior to leaving India, my mother was a Lecturer in Mathematics and a freelance writer of some repute. In Canada, while my brother and I were young, she stayed home with us but would occasionally return to writing. However, multiculturalism was not yet a gleam in anyone’s eye, and diversity in publishing nonexistent. The views of a visible minority woman, no matter how educated, no matter how capable with her pen, were of little interest to the editors of the day. (No amount of copyright could change this.) And without the approval of the gatekeepers, there was no means to reach an audience.

My mother’s assays in writing were infrequent as it was a period of coming to grips with total responsibility for housekeeping and child rearing amid the inescapable isolation of immigrants, not to speak of the deflation of rejections. But one rejection will always stand out in my mind, because the work was praised by the editor (from Macleans no less) but still declined as it had been forestalled in timeliness. The cause of the delay? A well-meaning intermediary had insisted that my mother’s quoting of one sentence from Subject India, by H.N. Brailsford, required copyright clearance.

Because of that inept advice, my mother had dutifully written to the book’s publisher, who had then contacted Brailsford’s widow, who sent back a charming letter saying how happy she was that her husband’s work was still being read. But this provision of consent took time to reach Canada; in the meantime, Macleans had already chosen their content.

Fair Dealing matters. Individual writers, musicians and artists should not need to be well-versed in the intricacies of copyright law, to benefit by exceptions to copyright defined in the law. It falls to teachers, administrators, and distributors to have the confidence of knowing that unauthorized use may be lawful.

Note: Subject India is now available through the Internet Archive.