Looking ahead

an abstract representation of AI and automation, by 紅色死神 CC-BY-NC-SA, Flickr

This past week marked a Canadian festivity known as Fair Dealing Week. One might call it our spinoff of the American tradition of Fair Use Week. In the United States, Fair Use is a provision within their copyright law which limits the control exerted by copyright. Canada’s allowance of Fair Dealing is similar but far more constrained in application. Both limitations draw from principles established by courts and legislators over the past three centuries, wherein some unauthorized and unpaid uses of intellectual creations were deemed essential for the ecosystem of creativity and innovation to thrive.

There is no better exemplar of successfully using copyright limitations for economic development than the United States. In Inventing Ideas (2020), renowned economist B. Zorina Khan examines how a former colony was able to become a leading economy in less than one century, and the world’s technological and industrial leader within two. Copyright strategy was part of the answer; America’s initial objective “was not to benefit authors or publishing companies per se, but to increase contributions to knowledge and the dissemination of information.” Their foundational copyright system promoted the production of inexpensive books and limited the protection thereof. The net result was increased reading, learning, creativity, and innovation.

As I wrote in some detail in 2018, billion-dollar industries consistently emerged in the United States. (Such technological success did not impede the rise of highly acclaimed writers, musicians, artists, and other creators.) Copyright policy only shifted in priority after achieving international dominance; in the late twentieth century, control became the central goal. American heft in the global market meant that other nations could be either cajoled or threatened into following suit, even though such measures prevented those countries from emulating America’s development path.

Yet it remains that the grant of copyright is not all-powerful. In fact, by virtue of the Berne Convention, all participating countries must provide some allowance of unauthorized use; Global Mandatory Fair Use by Tanya Aplin and Lionel Bentley comes to mind. For Canadians, Fair Dealing provides a modest degree of copying of protected content to support learning, research, journalism, and some creative undertakings. But that will not be enough if Canada is serious about Artificial Intelligence development.

Again, the United States is the illustrative example. Fair Use paved the way for using existing content to develop the large language models that underpin AI programs. Lawsuits have abounded over the training of those models, with content owners arguing they should be compensated when their work was used without consent, yet it is not at all certain that they will win.

But winning may not be necessary. Dominant companies in the AI sector are increasingly offering compensation to larger media organizations for the use of their content as training data. Even though, as prominent legal scholar Andres Guadamuz writes, “training an AI is not an exclusive right of the author.” While some will be pleased at the undercurrent of willingness to pay by well-heeled tech companies, we should be wary. If that practice becomes the norm, who can enter and compete in that field? Will basic research even be possible? It should not come as a surprise that the likes of Alphabet, Meta, and Microsoft are willing to pay, as it will help ensure their continued dominance in this sector.

It is disappointing that the present Canadian government routinely rails against such companies, but is unwilling to take the steps to allow our domestic AI talent to thrive and compete in the global tech-sector. We are falling behind our competitors.

For instance, Israel has provided guidance to confirm that their regime of Fair Use could serve AI-development in a similar fashion to what American companies enjoy. Asia Pacific countries have, and are, moving ahead with AI-friendly copyright regimes; Peter Yu (another highly respected legal scholar) draws attention to the systems already in place in Japan and Singapore, and adds that “[Chinese copyright laws may be] very supportive of AI development once the appropriate regulations have been introduced.” Even the old guard, the United Kingdom, provided some support for the analyses that underwrite AI; although now the UK expressly requires licenses for commercial activity.

Whereas Canada seems content to continue our tradition of producing a highly skilled workforce to support foreign corporate owners who either set up branch operations here or just cut-to-the-chase and lure that expertise southward. Last year, for the Senate Standing Committee for Banking Commerce and the Economy, Jim Balsillie expressed great concern at the “exfiltration of knowledge assets out of Canada.” Among his examples, was this:

Foundational IP for AI that Canadian taxpayers funded for two decades is transferred from the University of Toronto to Google, who thanked Canada for it and said: “We now use it throughout our entire business and it’s a major driver of our corporate success.”

If Canada wishes to compete in the AI space, it has much catching-up to do. A place to start is implementation of recommendations provided in 2019 by a credible Standing Committee; their considered opinion was that Canada should expand the limitation of Fair Dealing to resemble something more akin to Fair Use and facilitate informational analysis as would support AI development.

Then we could really celebrate the importance of limitations within systems of copyright.

twenty years later

On 5 March 2004, newspapers across Canada were publishing articles about a Supreme Court decision unveiled the day before. I distinctly remember reading a smallish article, occupying about 15cm x 12cm of newsprint, and discovering the Supreme Court had confirmed that moderate photocopying in libraries was lawful, whether carried out independently by patrons or assisted by librarians.

If that decision and its ensuing coverage had emerged one month earlier, my reaction might simply have been one of surprise. Did we really need the Supreme Court of Canada to tell us this? After all, libraries legitimately acquire their collections, and the law already permits individuals an allowance of copying. Such a topic would hardly have seemed worthy of a news-story, let alone the attention of our highest court. Instead, the article provoked some relief on my part, all on account of a conversation that transpired a few weeks earlier.

At the time, I was finishing my MA in communication. In my thesis, I explored the legal history of common law copyright and surveyed the American copyright landscape of the day. Following existing work with regard to copyright’s foundations, I reviewed the application of John Locke’s theories of labour to the realm of intellectual property. Locke’s work rested on the premise of a “commons,” and I was intrigued by the contributions of James Tully and CB Macpherson to Lockean scholarship as they provided two opposing theories of what “commons” meant. Eventually, I reconciled those two interpretations as partners in a dance, where each is essential to the success of the whole.

And then I went looking for a picture.

I found what I wanted in a very large artbook in my institution’s library. Dance in the City was one of Renoir’s famed three-part series painted in 1883. But creating a digital image posed a problem, so I approached the Help Desk and asked, “Do we have a larger scanner?”

The suspicious glance that came back at me was a little unnerving. Followed by, “Why?”

When I explained that my intention was to use the image on a PowerPoint slide for my defense, the response was, “That would be copyright infringement.”

My thoughts at that moment: Renoir died in 1919. This can’t still be protected. Surely there can’t be copyright in an exact copy of a work already in the public domain? But aware that I was a mere graduate student, I suggested that if the 1883 image is protected content, wouldn’t my use comport with fair dealing? Because I was using it to illustrate a concept that was germane to my argument, comfortably situated within the purposes of both private study and research.

The response were words to the effect of, “Because your defense is open to the public, this could be construed as a public performance and so fair dealing does not apply.”

Back then, I was unaware of the degree of fear within educational institutions, as, through amendments to the Copyright Act in the 1980s and 1990s, and less-than-ideal-handling of fair dealing by courts, legitimate unauthorized use had been rendered almost moot. But even so, twenty years later, the characterization of displaying a picture at my defense as “a public performance” is still a head scratcher.

To be fair, that staff member directed me to a repository of digital art imagery which was licensed for use by my institution. I found another of that Renoir series, Dance at Bougival and dutifully used it, even though it was not an adequate substitute. I had chosen Dance in the City because the faces of the dancers were less visible. Like any of our laws, the system of copyright must be impersonal if it is to achieve its goals. The symbolism within the art might have been lost on my audience, but it was meaningful to me.

And then a few weeks later, came CCH and with it my interest in fair dealing as a living practice and not just a passage of text in the Copyright Act.

I could not have foreseen though, that Canada’s lack of interest in Fair Dealing would underwrite my doctoral work. Nor that I would spend the next twenty years talking about Fair Dealing, CCH, additional Supreme Court decisions, and why exceptions (or as some say, limitations) within the system of copyright are essential if Canada is serious about education, research, creativity, and innovation.

For some of those past conversations, see my posts about CCH’s ten-year anniversary, that institutions are not liable for student conduct with protected content, and the flagrant misinformation within those frontmatter notices that imply, or openly state, that copying without permission is a violation of law. And, more recently, the fact that newer business models set by copyright owners and distributors have greatly reduced reliance on Fair Dealing in educational institutions.

While at times it feels as though Canada has not made much progress towards developing widespread, informed understanding of copyright as a system of complementary parts, taking stock of the past twenty years reminds me that we started with a deficit of institutional understanding of the framework of copyright and judicial interpretation.

More work lies ahead, but as today marks the start of Fair Dealing Week 2024 I will just enjoy sharing Renoir’s stunning trio of Dance, all painted in 1883. From left to right: Dance in the Country, Dance at Bougival, Dance in the City.

I have waited twenty years to do this.