Meera Nair

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‘Negotiating with the Dead’

In Posts on January 10, 2023 at 7:49 am

When it became evident that our copyright term was to be extended by twenty years, with no measures to mitigate the excess damage wrought by such action, Margaret Atwood’s book of this title kept returning to mind. A foray into the relationships that exist between writers and writing, a book where the word copyright did not feature among those ruminations, the title nonetheless feels apt for the days ahead.

Works of long-since-dead authors will now—in the best of situations—literally become objects of negotiation. This is purportedly to the benefit of those authors’ heirs, whereas on balance the true beneficiaries will be international publishing conglomerates and collective societies. In the worst of situations though, works will simply fade away with no surviving copy to emerge seventy years after their authors’ deaths. Those authors will be forgotten, and the public domain will remain poorer.

Atwood has been a prominent advocate for a stronger scope of protection in the name of copyright, famously remembered for her characterization of exceptions as expropriation and theft during a Standing Committee Meeting of the Department of Canadian Heritage in 1996. Two decades later, when she gave the 2016 CLC Kreisel Lecture at the University of Alberta, fair dealing was called out by name. Nonetheless, that lecture was a delight to listen to, grounded as it was on Atwood’s own experiences of being a Canadian writer.

It is her life that lies at the foundation of Negotiating, which took form through the Empson Lectures at the University of Cambridge in 2000. The combination of literature, literary criticism, book history, and history itself, written as only Margaret Atwood can, makes for compelling reading. In this book she comes perhaps closest to answering an age-old question about writing: what does it mean to write? There is no neat and tidy answer; at the very least it is blood, sweat, and tears amid negotiations between oneself, the society of the living, but also that of the dead.

To be sure, financial wherewithal is relevant to any impetus to write. Money appears approximately three times among the 74 reasons for writing taken “from the words of writers themselves (xx-xxii).” Yet, perhaps unintentionally, Atwood lays bare why copyright was not, nor ever will be, a broad determinant of success (either literary or material) for Canadian writers and publishers. From identifying the limitations of the Canadian publishing sector in the early to mid-twentieth century (to say there was disinterest in Canadian authors is putting it mildly), to stripping away the facades of originality and individuality (which underpin copyright’s structure of rights) in literary endeavor, there is much here to remind us that Canada’s phenomenal success in developing literary talent (see here and here) has occurred despite copyright, not because of it.

After borrowing the book repeatedly from the Edmonton Public Library, I had to buy it. Or rather, I had to buy it in the original form. Because what I had borrowed was a book titled On Writers and Writing, by Margaret Atwood, identified as a Canadian reprint of her earlier work, Negotiating with the Dead.

My preference was to buy Negotiating; in the peculiarities of my own mind, somehow it felt more authentic. As it turned out though, my instincts were correct. The two books are not the same. The difference lies, not in Atwood’s words, but in the representation of what copyright is. While both books specify the copyright as belonging to O.W. Toad (the name of Atwood’s enterprise), similarity ends there.

In Negotiating, published by The Press Syndicate of The University of Cambridge, readers are told: “This book is in copyright. Subject to statutory exceptions and to the provisions of relevant collective licensing agreements, no reproduction of any part may take place without the written permission of Cambridge University Press (emphasis mine).”

There it is. A clear indication that statutory exceptions exist and are relevant; meaning that some reproduction might not require permission. Whereas in Writers, published by Emblem (an imprint of McClelland & Stewart, a division of Random House of Canada Limited, a Penguin Random House Company), readers are told that permission is always needed for even a particle copied:

“All rights reserved. The use of any part of this publication reproduced, transmitted in any form or by any means, electronic, mechanical, photocopying, recording, or otherwise, or stored in a retrieval system, without the prior written consent of the publisheror, in the case of photocopying or other reprographic copying, a license from the Canadian Copyright Licensing Agencyis an infringement of the copyright law (emphasis mine).”

Despite what a publisher might prefer, Canada’s Copyright Act permits unauthorized uses of insubstantial parts of a work and unauthorized uses of substantial parts which comport with fair dealing or other exceptions. As the Supreme Court (with unanimity) stated in 2004, “the fair dealing exception is perhaps more properly understood as an integral part of the Copyright Act than simply a defence. Any act falling within the fair dealing exception will not be an infringement of copyright (para 48).” And yet, willful misinformation is standard fare among books issued in Canada.

Given the stunting of our public domain by term extension, fair dealing is even more important now as it provides some allowance of use of older, protected, material. But even a large and liberal interpretation of fair dealing, as required by our Supreme Court, is no substitute for a vibrant public domain.

With the Act expected to undergo change this year, Canada could still introduce a system of registration associated to a longer term of copyright. Owners of works which continue to be commercially successful fifty years after an author’s death, will likely choose to register and thus receive the additional twenty years of protection. Whereas works that did not have such longevity with respect to commercialization, and works that were never intended for revenue generation, would likely not be registered and thus would enter the public domain without the twenty year delay. Such a system was recommended by a former Industry Committee to uphold our obligations under CUSMA, ensure that commercial works which may benefit by a longer term are able to capture that gain, and continue to grow the public domain.

The difficulty is to convey to current Canadian lawmakers the importance of the public domain. Too often, its intangibility has meant that the public domain is perceived as being of lesser value. That an author’s work is not protected somehow deems it and the author as being unworthy. Even the way older works are spoken of, that they have “fallen into the public domain,” carries an aura of degradation familiar to the plight of “fallen women.” Whereas the public domain is precisely the opposite; it enables new works to emerge. As Jessica Litman wrote in The Public Domain (1990):

To say that every new work is in some sense based on the works that preceded it is such a truism that it has long been a cliche, invoked but not examined. …  The public domain should be understood not as the realm of material undeserving of protection, but as a device that permits the rest of the system to work by leaving the raw material of authorship available for authors to use (966-968).

That this truism went unexamined and unarticulated is a testament to the difficulty of capturing the intricacy of the relationships between old works and new authors. Margaret Atwood not only undertook such an exploration but also elegantly articulated the journey that underlies every literary endeavor.

It is only fitting then that Margaret Atwood should have the last words:

… All writers must go from now to once upon a time; all must go from here to there; all must descend to where the stories are kept; all must take care not to be captured and held immobile by the past. And all must commit acts of larceny, or else of reclamation, depending how you look at it. The dead may guard the treasure, but it’s useless treasure unless it can be brought back into the land of the living and allowed to enter time once more – which means to enter the realm of audience, the realm of readers, the realm of change (p.178).

why?

In Posts on November 8, 2022 at 7:51 pm

A few weeks ago, the University of Toronto announced revised guidelines and supporting material pertaining to fair dealing. A move that was not altogether surprising, given that their previous documentation was crafted in 2012. But what has emerged is unsettling.

For those new to this story, the first fair dealing guidelines addressing education in Canada took as inspiration the practices of the library of the Law Society of Upper Canada, which some ten years earlier had played a pivotal role in bringing fair dealing out of the shadows in Canada. The library was willing to copy material on behalf of patrons but did so under an inhouse policy which took into consideration the amount copied and the purpose of copying. When a group of publishers claimed the library’s conduct was infringement, in 2004 a unanimous Supreme Court of Canada rejected their claim saying:

Section 29 of the Copyright Act states that ‘fair dealing for the purpose of research or private study does not infringe copyright.’ The language is general. ‘Dealing’ connotes not individual acts, but a practice or system. … Persons or institutions relying on the s.29 fair dealing exception need only prove that their own dealings with copyrighted works were for the purpose of research or private study and were fair.  They may do this either by showing that their own practices and policies were research-based and fair, or by showing that all individual dealings with the materials were in fact research-based and fair (para 63).  

It was a significant step towards recognizing the value of fair dealing and practicing it openly.

Yet the opportunity provided by our highest court to reinvigorate fair dealing was largely ignored for eight years. It took a serious misstep on the part of Access Copyright in 2010 for fair dealing to receive more consideration from the education sector. Only when reassured by another Supreme Court decision supporting fair dealing (concerning distribution of some learning resources to K-12 students) and a legislative change reflecting the government’s intention to “allow educators and students to make greater use of copyright material,” was the sector willing to collectively implement fair dealing as an institutional practice.

To that end, Universities Canada, Colleges and Institutes Canada, and the Council of Ministers of Education, developed guidelines for applying fair dealing—language which focused on what can be done, rather than explaining why. Institutions independently addressed the latter need as they saw fit. Among that effort was the University of Toronto’s 2012 Copyright Fair Dealing Guidelines developed by Howard Knopf and Casey Chisick under the leadership of then-Senior Legal Counsel Steve Moate (a position he held from 2006 to 2021, to great acclaim). As readers may know, Knopf and Chisick have differing perspectives on this topic, thus giving their combined effort added weight as a reasonable approach to fair dealing.

Comparison of those 2012 guidelines against their 2022 update is revealing; while individual changes appear modest, taken altogether they point to a diminishment of fair dealing.

At the outset, the purpose of the 2022 guidelines seems clear: “[To] assist members of the University community in decision-making about copying and other dealings with works. However, in situations of doubt, the library is available for advice and assistance (p.1).” The 2012 version is largely retained in terms of the explanation of Canada’s system of copyright, along with supportive Supreme Court case law. In the 2022 version, readers are also told that the Court “endorsed the use of guidelines like these to help actualize the use of fair dealing to facilitate fair dealing (p.2).” A prior sentence stands out though by way of omission; while readers of the 2012 guidelines were told, “The University is of the view that these short-form Guidelines should provide a ‘safe harbour’ for a considerable range of copying that occurs in the teaching and research activities of members of our community,” this view is nonexistent in 2022.

In and of itself, this is not troubling. Fair dealing is a matter of context and so every decision warrants individual assessment. However, on this point the 2022 guidelines lacks transparency. For instance, in the 2012 version readers are told: “A ‘short excerpt’ can mean (but is not limited to and may vary depending on the exact nature of the work being used, …).” Whereas now the phrase “is not limited to” has been removed, with emphasis added to the qualifier that in all situations users take “no more of the work than you need to achieve the allowable purpose.” This is not incorrect, but the University then muddies the waters by adopting a stance more likely to be found in the arena of commercial publishing:

Even where the portion of a work that is used is relatively short, or otherwise fits within the quantitative guidelines, the use may nonetheless be considered unfair. For example, the use of a short excerpt may tend toward unfairness when: (a) the short excerpt is qualitatively significant in relation to the overall work, such that the most important part, or the qualitative core, of the work has been used (i.e., if the short excerpt takes the heart of the work—the climax of a novel, the most revealing part of a biography, the ‘hook’ of a recorded song, and so on…

University of Toronto Copyright Fair Dealing Guidelines (2022) p. 7.

“The heart of the work” was a determinative factor in an American dispute in the 1980s between rival publishers of an excerpt of Gerald Ford’s memoir Time to Heal. While the excerpt was brief (300 words) it included details about Ford’s decision to pardon Richard Nixon, later deemed “the heart of the manuscript” by the U.S. Supreme Court when it denied the defendant’s claim of fair use. If American practices are to be held up as exemplars, Canadians should be provided a better understanding of the American context.

Fair use is generous in its statutory language (multiple copies for classroom use are specifically identified as eligible) but during the 1980s fair use began to be curtailed in application; it was largely seen as only an antidote to market failure. Since then American courts have become more attune to the interplay of fair use’s contextual factors towards the larger purpose of the system of copyright itself. Thankfully, our Supreme Court in 2004 ensured that Canada could be spared such growing pains in the development of fair dealing. Thus framing Canadian guidance by this particular aspect of American fair use history is peculiar at best.

While the University of Toronto may wish for these guidelines to serve all potential uses occurring under its auspices, the reality is that these guidelines are likely most in demand for the purpose of determining what learning resources may lawfully be provided to students as reference material. Against that need what follows is even more baffling.

In all cases, it is important to avoid using more of a work than is truly necessary to achieve the allowable purpose. If the same goal could have been achieved using a shorter excerpt, the dealing may tend toward unfairness. This may be the case, for example, when an entire poem or musical score is reproduced, but only a couple of stanzas or a few dozen bars are being taught, or when an entire journal article is reproduced but only one section or a few specific paragraphs are relevant to the course or lesson. … [Short excerpt] should be understood to apply only where it would not be possible to achieve the allowable purpose by using an excerpt of any length…  where the portion to be studied cannot practically be separated from the rest of the work.

Ibid. (emphasis mine)

What is meant by “being taught” in a lesson? Is it the material an instructor chooses to focus on for that hour, or is it the wider understanding a student gains by engaging with a work as a whole? It is implausible that anyone teaching either music or poetry would believe that providing students with fragments is meaningful when compared to engaging with a whole work. Given that this copying is already circumscribed by the limit of one work from a compilation and that it has long been understood that multiple takings from the same source are unfair, copyright owners’ interests are reasonably well-protected. Yet it appears that the University’s preference is that fair dealing with third-party materials be confined to what can be contained within a PowerPoint presentation.

Even that narrowing of fair dealing is then further reduced when applied to images found on the Internet. As detailed in the FAQ:

13. I found an image on the Internet that I want to use in my lecture slides. Can I do it?

It depends. An image or clip art on the Internet is protected by copyright in the same way as an image in a book or on paper. If you want to use it without a licence, a user’s right needs to apply, or the work needs to be in the public domain or available through an open access licence. Otherwise, you will need to obtain permission from the copyright owner. In some cases, you may be able to rely on the exception in section 30.04 of the Copyright Act for works available through the Internet [according to the conditions of 30.04].

University of Toronto, Copyright Basics & FAQ, p.14

The University seems unwilling to speak the words “fair dealing” in connection to imagery found via the Internet, choosing instead “a user’s right.” Again, this is not incorrect. But as fair dealing is the fundamental user’s right, it is a strange choice of vocabulary.

Furthermore, using visual content is one area where Canada has recent, good case law to refer to with respect to fair dealing. (See Michael Geist’s comments regarding Vancouver Aquarium Uncovered and Bob Tarantino’s account of Room Full of Spoons), making the FAQ response even more inexplicable.

Perhaps most bewildering is that from the outset of the contextual analysis fair dealing’s scope is artificially narrowed; use must be in aid of “a genuine educational or academic activity (p.6).” This restriction has no basis in law—it is solely the creation of the University of Toronto. It flouts the instruction given by the Supreme Court in 2004, that fair dealing be given “a large and liberal interpretation.” Beyond inexplicable, this is indefensible.

While the goal of these documents may have been to assist the community, they read more like deterrence. Which invites a question: Why? The educational sector’s traditional risk-aversion does not adequately explain what is happening here. If the University desires to curtail the practice of fair dealing within its community, there are less convoluted ways to do so.

Readers likely know that the University has begun legal action against a tutoring service known as Easy Edu. The university is claiming infringement of materials authored by faculty members but Easy Edu has denied infringement and cited fair dealing. Neither party’s claims have been verified and at this time there are no details as to what specifically was copied, how much, for what purpose etc. Yet the existence of the dispute raises the possibility that the University of Toronto is attempting to curb within its own ranks the conduct it finds objectionable when used by others.

Regardless of motive though, the University of Toronto’s 2022 Fair Dealing documents illustrate a regressive approach to fair dealing. They do not reflect what many have laboured for over the past twenty years—including multiple Supreme Court Justices—to show that fair dealing has both substance and honour.

in the public interest

In Posts on August 17, 2022 at 7:56 am

Last month, the Supreme Court of Canada provided Canadians with yet another positive outcome in the development of our system of copyright—one that (as Michael Geist said in 2004) does more than simply pay lip service to the balance required therein. SOCAN v. ESA (2022) picks up from where ESA v. SOCAN (2012) left off. On both occasions, our highest court was asked to determine if content flowing through the internet requires additional payment, because of the mode of conveyance. Each time the Court said No.

The issue of concern was the “making available” condition, which was added to the definitional framework of the Copyright Act in 2012. Section 2.4(1.1) states: “For the purposes of this Act, communication of a work or other subject-matter to the public by telecommunication includes making it available to the public by telecommunication in a way that allows a member of the public to have access to it from a place and at a time individually chosen by that member of the public.”

In a LawBytes episode hosted by Michael Geist, Jeremy de Beer describes the fuller history of this dispute, noting that “the making available case has been more than 25 years in the making.” The legal drama stemmed from the late 20th century phenomenon of music file sharing and the music industry’s effort to assert control over, and seek compensation for, the flow of music. In the first associated case to reach the Supreme Court—SOCAN v. CAIP (2004)—the dispute was whether ISPs should be charged for content that flowed via their services. The Court recognized the importance of leaving neutral entities unfettered in their role as facilitators of access to the Internet and rejected SOCAN’s claims.

This was hardly a death knell for the music industry, quite the opposite. From the infancy of iTunes to a profusion of streaming services today, commercial sales of music and other entertainment products have thrived. In SOCAN’s own words this year:

Despite the challenges of 2021 in the wake of the COVID-19 pandemic, for the first time in its history SOCAN’s total annual collections for licensed music are expected to exceed $416-million… When compared with 2020 collections of $391-million, the company attributed most of the $25 million year-over-year growth to $135 million collected for the use of music on digital platforms – an increase of $32 million over 2020.

As Geist noted, that trend had been positive for some time:

(As to whether profits are fairly distributed between music publishers and their composers and authors, that is an issue of bargaining power, not copyright.)

Returning to the recent decision, the question was whether the “making available” condition, implemented to ensure Canada’s adherence to the WIPO Internet Treaties (1996), was a new right under the Act or merely clarification that the decision to make content available is already protected under our Act. Our highest court made it abundantly clear that Parliament did not create a new right, that in fact, Parliament never intended that this be a new right. Rights are defined, and confined, in Section 3.1. Writing for the Court, Justice Rowe states:

While I accept that the act of ‘making a work available’ is a separate physical activity from the act of a user downloading or streaming a work, it does not follow that it is a separate compensable activity. Had Parliament intended to treat the act of making available as a new separately compensable activity, the way to do so would have been to add ‘making available’ as a fourth copyright interest in the opening paragraph of s. 3(1) (para 59).

Another notable reason given for rejecting the proposition that a new right had been created, was that such an interpretation would violate the tenets of technological neutrality—a goal explicitly stated by Parliament with respect to the 2012 amendments. Again, from the Court:

The principle of technological neutrality is designed to operate precisely in situations like the present case, where a novel technology emerges that has no clear traditional equivalent. In those circumstances, courts must look at what that new technology does to the substance of the work by examining which, if any, of the copyright interests in s. 3(1) are engaged by this new method of distributing a work. If that new technology gives users durable copies of a work, the author’s reproduction right is engaged. If the new technology gives users impermanent access to the work, the author’s performance right is engaged (para 70).

On multiple fronts, this decision is good news and positions Canada well for the future. Michael Geist concisely describes its overall impact: “[It is a] repudiation of SOCAN’s effort to establish a new, additional royalty for the ‘making available’ of music, confirmation of the importance of technological neutrality and copyright balance, an example of the flexibility associated with implementing the WIPO Internet treaties , and the undeniable entrenchment of Canadian copyright jurisprudence that now features deeply layered precedents on users’ rights.”

And yet.

 In his conversation with Geist, de Beer addresses the handling of these issues by the Copyright Board. While he is unequivocal that much of the criticism levied at the Board is undeserved, emphasizing that these matters are highly complex and could be addressed through several plausible approaches, de Beer sheds some light on how the Board copes with such complexity. Briefly, Board members have been so immersed in complicated, technical issues, and “were so deeply familiar with the process of law reform,” they might not consider “alternate interpretations of what the legislation could have meant.” (Unspoken, but implicit is that law reform routinely meant expansion of rights.) Whereas when these same issues arrive at our appeals’ courts, Justices will be “coming at this with fresh eyes [and] rather than focusing on hyper-technical issues and embedded assumptions,” will examine “copyright law and policy more generally, with broader principles … and thus are more able to see another path.”

Said another way (my words now, not de Beer’s) the Federal Court of Appeal and the Supreme Court of Canada are more likely to place public interest (comprising the needs of users, creators, and copyright owners) now and into the future, at the core of any decision.

Readers might remember the Board’s origin story—as has been detailed by Ariel Katz and others—illustrates that the governing body came into being to protect the public interest from the “mischief” and “extortion” wrought by predecessors of today’s collective societies. Moreover, in 2019, after much scrutiny of the Board’s operations (a review by the Senate Standing Committee on Banking, Trade, and Commerce, and the Statutory Review of the Copyright Act by the Standing Committee on Industry, Science and Technology), the powers-that-be explicitly specified “public interest” as relevant to tariff setting processes (Subdivision H/Amendment 292 of C-86).

And yet public interest is still unevenly applied by the Copyright Board. With our profusion of collective societies and entrenched systems of tariffs, this is a troubling state of affairs. We cannot assume that every Board decision will always be reviewed through our appeals’ courts.

But on a more positive note, Canadians should savour a significant theme in this decision—that when examining the intersection of international agreements with domestic law, it is the will of Parliament that matters:

While a treaty can be highly relevant to statutory interpretation, it cannot overwhelm clear legislative intent. The court’s task is to interpret what the legislature (federally and provincially) has enacted and not subordinate this to what the federal executive has agreed to internationally. It is always the domestic statute that governs because “international law cannot be used to support an interpretation that is not permitted by the words of the statute” (para 48, citation omitted).

This may seem intuitively obvious but this outcome was not assured. Since the inception of the Berne Convention (1886), copyright maximalists have used international treaties to expand the scope of copyright. (The exception being the Marrakesh Treaty (2013) for visually impaired persons but we cannot forget it took 30 years to overcome the objections of international publishers and it was ultimately watered down for their approval; see here and here.)

Canada’s 150+ years of copyright history has been one of perpetual acquiescence to foreign demands over domestic needs. Even after shedding our colonial status, in the late 19th century the British Crown cited the Berne Convention (and American wishes) and summarily overrode the then-Canadian Parliament which had chosen an innovative approach to copyright that supported Canadian publishers and writers (see here).

Canada did not fare much better in the 20th century with branch-plant American interests influencing the views of Canadian creators. And even as a 21st century system that prioritizes Canada has taken shape over the last twenty years, a chorus of dissent followed each progressive step with dire warnings that we would violate Berne, TRIPs and WIPO treaties. Thus SOCAN’s argument that an international treaty necessitated a new right was hardly a surprise. What was striking was the forcefulness of the Court’s rebuttal:

Article 8 [of the Treaty] obliges member countries to do two things: (1) protect on˗demand transmissions and (2) give authors the right to control when and how their work is made available for downloading or streaming. It does not, however, tell member countries how to give effect to these obligations. … Member countries could provide for art. 8 protections through “an explicit making available right or provide effective coverage of the right through a combination of pre˗existing rights” (para 88 emphasis mine, citation omitted).

(The Court emphasized that we have done our duty through existing provisions; much like the United States, para 89 or 109.)

As this installment of ESA and SOCAN decisively illustrates, an international treaty, let alone a maximalist interpretation thereof, is no longer sufficient to deny a made-in-Canada system of copyright as befitting our public interest. A moment that has been more than 150 years in the making.

Image by Rebekka D provided through Pixabay

when copyright and tragedy overlap

In Posts on June 21, 2022 at 7:14 am

It seemed unlikely that my two blogging interests would ever intersect—the dispassionate system of copyright versus the vivid emotion that accompanies recollections of Canada’s worst instance of terrorism. But such is the case today.

It is nearly 37 years since the bombing of Air India 182 on 23 June 1985, with the loss of all 329 people aboard. Their deaths were the outcome of a plot conceived and executed from within Canada. Among the victims were 280 Canadians, including 137 who were under the age of 18.

For decades, Canada’s preference was to distance itself from this tragedy. As I wrote last year: “[At the time] Canada’s seemingly progressive multiculturalism policies collided with the nation’s actual disinterest in its brown-skinned population. Politicians sought support in vote-rich immigrant communities without expending the effort needed to understand the turmoil brewing in the Indian Canadian community. Namely, the extent of hatred for the Indian government by some members of the community.”

That fury was meted out on innocent Canadians. And yet, today, more Canadians are likely aware of the past atrocities committed in India, than the retaliation that transpired here immediately afterwards. It does not help that Canada’s eventual probing of this tragedy, painstaking work carried out by committed public servants, is almost unfindable. Herein lie the copyright aspects—even when one knows what to look for, government documents pertaining to Air India 182 are very difficult to locate.

The first detailed exploration into events surrounding the bombing came in 2005. At the request of Anne McLellan (then serving as Deputy Prime Minister and Minister of Public Safety Canada) the Honourable Bob Rae was tasked with exploring those painful events to determine if a wider public inquiry would be appropriate. He described events prior to the bombing, the horror of that day and thereafter, and the ensuing Canadian indifference. From his report, Lessons to be Learned:

It has been a challenge, first because providing public policy advice in an area so fraught with emotion and conflict is difficult, second because the intellectual puzzle shrinks in comparison to the courage and example of those citizens who lost so much. There is an Irish saying that at times the world can break your heart. That certainly happened on June 23, 1985.

What was most striking from the copyright-perspective was this notice in the frontmatter.

Such an approach to copyright, crown copyright no less, was almost unheard-of in 2005. Rae’s effort to increase the circulation, and thus understanding, of this report, was innovative at the time. I can only hope that his intentions bore at least some fruit.

When looking for this report, a natural place to start is the Library and Archives Canada website. Yet this report does not surface, even when searching for “Lessons to be learned”.

Subsequent searches on the broader topic and keywords relating to Air India 182 also yielded nothing.

At least Rae’s work can be found as archived content at the Public Safety website. The same cannot be as easily said for Rae’s successor on this topic. Retired Supreme Court Justice John Major was appointed to lead a comprehensive inquiry (as recommended by Rae). The scale of which was daunting, but Major lost no time in addressing perhaps the most pressing need: to give those who suffered unimaginable loss, a voice on the Canadian stage. The first report The Families Remember, was released in 2007 ahead of completion of the inquiry.

[The families of the victims] have already waited much too long for their stories to be told. The publication of this report will mark the first opportunity for Canadians, and particularly young Canadians, to be able to fully understand the tragedy that befell many of their fellow citizens … Parents and children, scholars, scientists, doctors, social workers, business people, artists, humanitarians and students, perished as a result of that cowardly act of terrorism.

Yet Major’s work in its entirety is almost invisible. Officially described as the Report of the Commission of Inquiry into the Investigation of the Bombing of Air India Flight 182, spanning multiple volumes, it makes no appearance at the Public Safety website. (Nor does it appear under its companion name: Air India Flight 182: A Canadian Tragedy.) This, despite that the website explicitly offers a search category “Remembering Air India Flight 182.” 

Enacting that search reveals only three entries: Rae’s Lessons to be learned, the seven-page response to Major’s final report (which spanned hundreds of pages), and a progress report dated to 2011.

The WayBack Machine, courtesy of the Internet Archive, reveals that this limited offering dates back to at least 2013. This despite that Major’s inquiry was completed and released in full to the Canadian public on 17 June 2010. Further adding to the peculiarity is that the complete details of the final report, and the activity pertaining to the inquiry, are stored under the auspices of Libraries and Archives Canada, but (again) are not discoverable through their own search function. One needs a savvy librarian, wise to the intricacies of government documentation, to find it.

But for the archaic practice of crown copyright, independent librarians could have maintained a coherent and comprehensive digital archive of all documents relating to a horrific (and preventable) loss of Canadian lives.

As Amanda Wakaruk reminds us:

… works produced by government scientists, analysts, and researchers receive reduced visibility and impact. In addition, cultural memory organizations are unable to act as stewards for government information, resulting in losses of cultural works… Removing copyright controls from government works will allow individuals, corporations, and other organizations to make better use of these important resources. It will also allow librarians to continue their role as stewards of government information in a digital world.

Restoring Air India 182 to Canadian consciousness might not be such an uphill task if its government history was not tucked away from easy public access.  

more harm than good

In Posts on April 15, 2022 at 10:28 am

Last week Canadians received a dual dose of bad policy prescriptions through Bill C-18 which seeks to “regulate digital news intermediaries” and the Budget Act which indicates that twenty years will be added to the duration of copyright protection, as was “agreed under the Canada-United States-Mexico Agreement.” 

Lengthening copyright term will please the likes of Disney and other corporations which hold the rights to masses of popular, profitable, creative works. But term extension affects all protected works, whether they are profitable or even in use. Unnecessary copyright protection creates hurdles for archivists, scholars, students, authors, artists, and musicians, who wish to preserve, learn from, or build on, such content. (Michael Geist has described some of the harm that will be inflicted on Canadians.) This is not healthy for Canada’s overall wellbeing; for the last twenty years, our Supreme Court has repeatedly emphasized the importance of legitimate, unauthorized uses facilitated through user rights and the public domain.

Canada could mitigate the worst effects of term extension by expanding legitimate, unauthorized uses of protected content. However, the Federal Government appears disinterested in facilitating use: “The government is committed to ensuring that the Copyright Act protects all creators and copyright holders.” Copyright users only receive attention as consumers in a market. This despite copyright’s 300-year history of lawful, unauthorized uses that supported creativity, education, and the growth of new industries.

Such details are already in the hands of the Federal Government. In their mandate that spanned 2015-2019, the then-Standing Committee on Industry, Science, and Technology did all Canadians proud with an unbiased, comprehensive review of the Copyright Act. With respect to term extension, the Committee recommended requiring “rights-holders to register their copyright” in order to assert and receive protection for the additional twenty years.

Registration affords copyright owners the opportunity to decline the extra twenty years of protection when those years provide no added benefit. Copyright users are then able to distinguish between protected material and freely, fulsomely usable, material. Registration facilitates choice.

Yet that Industry report was left to gather dust; in February 2021, the Federal Government sought fresh consultation on the matter of term extension. The outcome of which is still not publicly known. Instead, Canadians were provided the details of Bill C-18 which is poised to do more harm than good.

If left unchanged, C-18 would establish a framework in which digital news intermediaries (Google and Facebook) are compelled to pay for Canadian news served up on their platforms, though both have already initiated agreements whereby payment is provided when articles are reproduced in full. But C-18 requires payment for uses involving any portion of news content. Even more disturbing is the requirement that simply providing access to news—a link—is deemed a compensable use. Such links are to the advantage of Canadian media by increasing traffic to their sites. And, more to the point, linking to content is not reproduction/communication of that content. The Supreme Court of Canada settled this matter more than ten years ago; in Crookes v. Newton (2011) , then-Justice Abella (writing for the majority) stated: “Hyperlinks thus share the same relationship with the content to which they refer as do references.  Both communicate that something exists, but do not, by themselves, communicate its content (para 30).”

Demanding payment for links is not only bizarre, it risks destabilizing how linking is treated for all Internet operations carried out in Canada. And herein lies the problem. While this government has taken care not to frame this as a copyright amendment, the thrust of the bill revolves around the copying of content. This is the purview of copyright. Requiring that links be paid for as a matter of regulation will be seen as indication that, in Canada, all links should be paid for.

Yet neither copyright nor the Internet can be confined as a domestic matter. International copyright treaties require that all creators be treated equally within countries. Given the borderless nature of the Internet, it would be only a matter of time before other countries expect the same treatment for links to their content. Setting aside the nightmare of administration that such a framework for payment would entail, the net result will echo what we have seen throughout Canada’s history–increasing the scope of copyright only means more money leaving the country to benefit foreign copyright owners, than what remains to support homegrown entities.

The premise of C-18 is that Canadian media must receive fair compensation. The simplicity of the word fair masks the complexity of the criteria to be met and the control asserted over the process and potential arbitration. The CRTC will have the final word, along with expanded powers. And for all the hubris of the bill—to bring the tech giants to heel—C-18 would achieve the opposite. Michael Geist writes:

The power of large Internet platforms clearly present policy challenges and broader societal concerns. … But establishing a cross-industry subsidy model premised on little more than one sector being more profitable than the other further embeds the reliance on big tech. Indeed, rather than creating alternatives to big tech, it renders the Internet companies even more powerful.

It is hard to imagine a more dysfunctional attempt at legislation. Canadians can only hope that saner heads will prevail.

Fair Dealing Week 2022

In Posts on February 21, 2022 at 6:55 pm

Strictly speaking, every week is a Fair Dealing week. Thanks to multiple Supreme Court decisions over the last 18 years, the importance of fair dealing within the system of copyright has been well-established. The impetus for that development occurred nearly twenty years ago when fair dealing was identified as critical to the goal of the system of copyright: to foster and protect the public domain. Writing for the majority, in Théberge v. Galerie d’Art du Petit Champlain inc. (2002), then-Justice Ian Binnie provided these memorable words:

 “Excessive control by holders of copyrights and other forms of intellectual property may unduly limit the ability of the public domain to incorporate and embellish creative innovation in the long-term interests of society as a whole, or create practical obstacles to proper utilization.  This is reflected in the exceptions to copyright infringement enumerated in ss. 29 to 32.2, which seek to protect the public domain in traditional ways such as fair dealing for the purpose of criticism or review … (para. 32).”

Binnie’s words were influential towards establishing fair dealing as lawful, resilient, and necessary to a well-functioning system of copyright. Fair dealing is integral to the daily lives of creators, students, educators, researchers, consumers – said another way, to the lives of all Canadians.

With respect to the educational sector, in July 2021, the Supreme Court of Canada resolved the long-running dispute between Access Copyright and York University. The outcome was unambiguous: collective licenses cannot be imposed on users and analysis of fair dealing must begin from the perspective of the end user. With unanimity, the Justices effectively reminded us that fair dealing is always available.

Yet the politics around fair dealing persist.

It recently came to my attention that last year the Standing Committee for Canadian Heritage had agreed to “devote at least one meeting before the summer recess to hear from witnesses on the continuing challenges for publishers, creators and artists as it pertains to fair compensation for their work in the field of educational publishing in Canada.” Such intention, expressed outside the five-year copyright review cycle, is a stark reminder that some Members of Parliament are eager to lavish attention on copyright owners and writers. MPs seemed blissfully (perhaps willfully) unaware that those two bodies are distinct; that attention to the former does not imply gains for the latter.

When that meeting took place in June 2021, the assembly of witnesses left little to the imagination:

Despite optimism that the Supreme Court would rule in their favour in the York case, Roanie Levy (President and Chief Executive Officer, Access Copyright) called on the Committee to ensure implementation of Recommendations 18-21 of the prior Heritage Committee Report, Shifting Paradigms. (Preferably by the end of 2022 when the Government of Canada must amend the Copyright Act to comply with CUSMA.) Among those recommendations:

That Government of Canada amend the Act to clarify that fair dealing should not apply to educational institutions when the work is commercially available.
That the Government of Canada promote a return to licensing through collective societies (15).

MPs showed no interest in uncovering how the law actually works, they had no desire to understand that copyright is not a grant of absolute control over every scrap of content. The canard of 600 million uncompensated pages was on full display (Michael Geist debunked that premise years ago) as was the insistence that the educational community was in arrears on its payments for collective licenses and that such licenses are modest in cost.

When speaking of his son’s first year at university, John Degen (Executive Director, The Writers’ Union of Canada) emphasized that he would have been happy to pay an annual copy licensing fee of $14.31. Philip Landon (Chief Operating Officer, Universities Canada) reminded the Committee that Access Copyright had recently sought $26 annually. (Left entirely unsaid was that tensions with the postsecondary community began when Access Copyright sought a fee of $45 per student per year.)

Notably, the MPs refrained from asking a pertinent question:  What do all students get for that fee?

For the sake of argument, let us assume that any amount of copying requires payment (that there is no fair dealing). Let us also assume that educational institutions do not license reproduction of content directly from publishers. Under these assumptions, students whose learning is dependent on excerpts of content would bear the cost of that content. 

But what of students where excerpts are never used as learning resources? I offer up my daughter’s experiences. Throughout her undergraduate studies—mechanical engineering—textbooks were predominantly the only learning resource employed. Sometimes she bought a new book, sometimes a used book, and sometimes no book at all. On those occasions she relied on the library’s reserve copy.

Had a blanket fee been in place during my daughter’s studies, she and her cohort (comprising approximately 100 students) would have paid the fee and received little or nothing in return.

In fact, her university admits two cohorts each year. As students participate in cooperative education work experience, their degrees span five years. Therefore, under a system of mandatory collective payment, by the time they graduated the Class of 2020 would have contributed at least $25,000 to Access Copyright. It is conceivable that this scenario would be repeated in many programs across the post-secondary community.

Let’s also assume that every dollar contributed to Access Copyright goes directly into the hands of struggling Canadian writers. (This borders on farce; bear with me.) The net result would be a transfer of wealth to an impoverished group of Canadians from another impoverished group. As a public policy, it would make no sense at all.

When Shifting Paradigms was publicly released, Michael Geist remarked that the report represents:

… little more than stenography of lobbying positions from Canadian cultural groups, the report simply adopts as recommendations a wide range of contentious proposals: copyright term extension, restricted fair dealing, increased damages, as well as several new rights and payments. There is no attempt to engage with a broad range of stakeholders, much less grapple with contrary evidence or positions.

The work of that Heritage Committee bore no resemblance to the dedication of the MPs actually tasked with the Herculean challenge of conducting a comprehensive review of Canada’s Copyright Act in 2017-2019. That duty fell to the then-Standing Committee on Industry, Science and Technology. From their final report, Dan Ruimy’s words regarding this challenge are memorable:

As Chair, my main concern was to make sure that the review would be informed by as many different perspectives as possible. Committee members were encouraged to ask all manner of questions to better understand the impact copyright law has on Canada’s modern economy and Canadian creators, even though such questions often led to difficult discussions. We did not presume what the outcome of this lengthy and complex undertaking would bring, only that the Committee would give anyone the opportunity to present oral or written evidence. I am honoured to have witnessed such an important and thoughtful conversation (xiii).

Ruimy and his colleagues ensured that participating Canadians would know their voices had been heard. Early in the Summary is this gem: “This report cites every single person who provided oral testimony or submitted a brief to the Committee, and thus recognizes that the complexity of copyright policy requires every issue to be carefully weighed (1).”

That Industry report should be the gold standard for what public consultation means in Canada.

In terms of fair dealing and its application in educational settings, the INDU Committee’s observations bear repeating:

The conflicting views presented on the matter of fair dealing are not entirely incompatible. The Canadian publishing sector is struggling to adjust to market disruptions that predate and are unrelated to amendments contained in the CMA. These disruptions will persist even if Parliament removed every single exception added to the Act in 2012. … The Committee cannot endorse the proposal to limit educational fair dealing to cases where access to a work is not “commercially available,” as defined under the Act. While licensing should be encouraged, this proposal risks reducing flexibility in the educational market by favouring blanket over transactional licensing (64).

Another Copyright Review will get under way this year and the push to make fair dealing subject to commercial availability will continue. Such a move would not be in Canada’s best interests. However, it would not be unusual either.

Throughout its history, Canada has not used the mechanism of copyright to its best advantage. Productive uses have been curtailed by an over-reliance on licensing, commercial availability, and a far too dogmatic interpretation of copyright. These issues will be explored in my upcoming talk on Wednesday, where I consider Canada’s goals for developing a world-class Artificial Intelligence industry against its copyright reality.

6 April 2022: The video of my talk has been posted.

Imagine

In Posts on February 23, 2021 at 8:51 am

Fair Dealing Week (Fair Use Week for others) is upon us – that one week among 52 where exceptions to copyright are afforded some spotlight. As maximalism dominates copyright’s public persona, reminding Canadians and others of the importance of exceptions within the system of copyright becomes increasingly important. 

My last post highlights how easy it is to cast aspersions on efforts to mitigate the costs that a maximalist approach to copyright imposes on a country. Uttering the words “Berne Convention” often chills, and can silence, debate. Such is the power of that first international treaty regarding protection of authorial works across nations. Against this reality, a recent article by T. Prashant Reddy and Vishal Rakhecha invites imagination and execution: “[India] must push for amendments to the Berne Convention that allow member states to introduce a registration requirement for publishers under their laws.” The authors explain their quest as critical towards achieving affordability for scientific and educational publications.

Amending the Berne Convention is no small task. But perhaps India and her 1.4 billion people, including an attractive commercial market larger than the populations of many so-called developed nations, might just have the clout to do so.

To be sure, it will be an uphill battle. The Berne Convention never aspired to be a means of encouraging learning or advancement of arts and sciences. Those early motivations, invoked in the Statute of Anne (1709) and the American Constitution (1789), sought to create systems of copyright that acknowledged the interaction and importance of both public wellbeing and individual benefit. But calls for international observance of foreign copyrights (the Imperial Copyright Act (1842), the Berne Convention (1886), and, modern IP treaties and bilateral agreements), focused on individual gain and market dominance.

Nineteenth century arguments for global uniformity of ever-increasing protection endure; dominant nations alternate between scolding others for a lack of civility and enticing them with unsubstantiated claims of future success for domestic authors and publishers operating in the weaker market. When those arguments did not succeed on their own merits in the nineteenth century, Imperial strong-arming followed, to the detriment of developing nations (Canada included, see here and here). Later, in twentieth century, a new version of the same story emerged as the United States wielded its Special 301 lists.

In International Copyright and Access to Knowledge (2016), Sara Bannerman shuns the popular narrative of copyright as a 300 year progressive expansion of authors’ rights; instead, she writes:

The history of international copyright can be seen, in some cases, as the erosion of the principles of access to knowledge. … The Berne Convention embeds and reinforces the substantive inequalities of the international system, enshrining rich countries and corporations, the primary producers of copyright works, as the main beneficiaries of international copyright … with few mechanisms to ensure that local public policy goals [of poorer countries] are met (p.3-5).

Bannerman shows the consistent narrowing of provisions meant to facilitate a freer flow of educational, scientific, and news content. And as the twentieth century unfolded, trepidation over exceptions and limitations defined within the Berne Convention, cast further doubts on nations’ abilities to exercise what are now recognized as user rights. With Canada at the brink of adding twenty years to its copyright term, those user rights—principle among them, fair dealing—become all the more vital.

To that end, Tanya Aplin and Lionel Bentley offer a more positive view of limitations as being supported by the Berne Convention—a view that encourages robust application of fair dealing or other domestic statutory exceptions. In Global Mandatory Fair Use (2020) they begin with an enticing prospect: “Imagine an international instrument that does not merely oblige [conferring] rights on copyright holders… but also mandates limitations. Imagine, too, that such an instrument requires parties to permit use of material that has been taken from from existing works, irrespective of the purpose of so doing, but only on the condition that the use is in accordance with fair practice (p.1).”

Aplin and Bentley then reveal that imagination is not required, as the instrument already exists—it is none other than Article 10 (1) of the Berne Convention: Certain Free Uses of Works.

With exceptional detail, the authors excavate the deeper history, meaning, and application of Article 10 (1). Their scholarship may well blunt the ease with which the Berne Convention is currently thrown up as an obstacle to reliance on exceptions. Interested readers may also enjoy Aplin and Bentley’s presentation and discussion, offered through the auspices of the Program for information Justice and Intellectual Property in late January. As to how their work may be supported and operationalized, with a nod to Emily Hudson, Aplin suggests that cultural institutions might be a place to start.

Hudson’s work, Drafting Copyright Exceptions (2020) details her exploration of environments of practice of exceptions in Australia, Canada, the United Kingdom and the United States during the early 2000s. Her Canadian focus begins in the years following our landmark decision CCH Canadian v. Law Society of Upper Canada (2004) and it’s re-introduction of the language of “rights” with respect to use in Canada. (It is worth remembering that in Canada’s first fair dealing case, Zamacois v. Douville (1943), the presiding judge emphasized the presence of user rights within the system of copyright, namely the right to quote. See here for some details.)

Noting the “muted” impact of CCH on Canadian institutions, a fact Hudson situates on our judicial and legislative histories, aided and abetted by the past dominance of collective management, she also draws attention to the uneven distribution of copyright knowledge and expertise across Canadian institutions. More than ten years after Hudson’s fieldwork, capacity building in Canada should remain a priority, particularly in light of the standards, guidelines and purported customs which permeate evaluation of use of copyright-protected work.

As stated at the outset, “fair practice” is the cornerstone on which fair dealing or other exceptions rest. Comprising, as Aplin and Bentley describe, “a plurality of considerations,” it is telling that the authors mention “custom and trade” among elements of fair practice but do so with some reservations. Referencing the work of both Kenneth Crews and Jennifer Rothman, Aplin and Bentley write:

… [Thus Crews is] highly dubious about the role of fair use guidelines and observes that the guidelines are not law, reflect a minimalistic view of fair use and risk fixing understandings of fair use and undermining its flexibility. [Similarly, Rothman] views using custom to evaluate ‘fairness’ as disadvantageous because of its tendency to be treated as a ceiling rather than a floor, in effect narrowing fair use. In Professor Rothman’s view, there can be a role for custom to play but it must be measured against a framework of factors: ‘the certainty of the custom, the motivation for the custom, the representativeness of the custom, how the custom is applied (both against whom and for what proposition), and the implications of the custom’s adoption’ (p.171-173).

Aplin and Bentley then suggest: “Customs that are ‘uniformly recognised and supported’, formulated as an ‘aspirational set of practices’ rather than as litigation avoidance techniques, are developed ‘with a diverse representation of interests’ and applied to those who participated in the custom generation or were represented in that process, should be given more weight.”

Imagine that.

term extension — redux

In Posts on February 15, 2021 at 8:18 pm

An illustration of the works of Lawren Harris, which now are in Canada's public domain.

Mount Robson, by Lawren Harris (1885-1970). A recent arrival to Canada’s public domain.

The spectre of copyright term extension has returned to Canada as the Federal Government seeks to fulfill its CUSMA obligation to extend the term from life-plus-fifty years to life-plus-seventy years. Canadians have been invited to comment regarding the “[adoption of] measures to mitigate the potential implications of this longer term of protection.”

As Michael Geist writes, with only a month allotted for Canadian input (during a pandemic), this has all the appearance of “consultation theatre,” particularly as a credible and comprehensive evaluation of many proposed changes to the Copyright Act, including term extension, was carried out by the INDU Committee assembled in 2017-2018. In their words:

[The Committee] favours extending the term of copyright, but only if CUSMA is ratified. The Committee expects that rights-holders will benefit from term extension, but also notes the arguments made against it. The Committee believes that requiring rights-holders to register their copyright to enjoy its benefits after a period equal to the life of the author plus 50 years would mitigate some of the disadvantages of term extension, promote copyright registration, and thus increase the overall transparency of the copyright system. 

But as Geist also writes: “The government is not inclined to support the committee’s recommendation.” Even more disappointing is the sight of the present government denigrating the painstaking work of the former INDU Committee members and analysts by questioning the legitimacy of their recommendation. In the consultation document, this government writes: 

The approach recommended by INDU raises serious questions in the context of Canada’s international obligations, as well as the costs that would be borne by copyright owners and the duplication of administrative efforts that might result. Numerous international treaties to which Canada is a party (e.g., Berne) prohibit the imposition of any ‘formalities’ [such as registration] that would need to be satisfied for foreign works to benefit from copyright protection in Canada (p. 9).

The dire warning of “international obligations” is not a new tactic when it comes to matters of copyright; this bogey man returns each time Canada deviates from the path of copyright maximalism. But maximalism in itself is not an international obligation. As the World Intellectual Property Organization (WIPO) makes abundantly clear, while the Berne Convention sets minimum standards of protection, including a prohibition on registration for foreign copyright-owners, all protection is limited by time: “As to the duration of protection, the general rule is that protection must be granted until the expiration of the 50th year after the author’s death (emphasis in original).”

The present government takes further aim at registration: “with new pressure on copyright owners to register their works, such an approach would likely result in increased costs in the form of registration fees and associated administrative and legal costs, particularly for owners of copyright in multiple works (p. 9).” Through their analyses of all submissions to the 2017-2018 Copyright Review, librarians Jennifer Zerkee and Stephanie Savage shed some light as to whom such copyright owners might be:  

(Savage and Zerkee showcased their research during the ABC Copyright 2020 Fall Series and provided their slides to University of Alberta’s Education and Research Archive.)

It will come as no surprise that enthusiasts for term extension hail from commercial arenas. Broadly speaking, corporate entities with large holdings of commercially successful works have the potential to gain revenue through longer periods of control. They are the epitome of “owners of copyright in multiple works.” But to suggest that such companies are ill-equipped to handle the administration and costs of registration lacks conviction. And whether the copyright owner is a corporation, or an author’s heirs, the necessity of registration will not arise for decades, allowing ample evidence to accrue as to whether registration will enhance anyone’s coffers.

Moreover, as the prior INDU committee noted, a registration system ensures transparency and, by extension, allows users a better means to gauge what is or is not in the public domain. Such a state of affairs not only provides libraries, archives, and museums with more stable ground on which to practice their public missions (a need recognized by this government), but also offers smaller independent creators and publishers security to practice their crafts as well. 

There will always be those who insist that increasing the scope and duration of copyright provides both individuals and industry with greater incentive to invest in creative activity. But Eldred v. Ashcroft (2003), the ill-fated constitutional challenge to American copyright extension at the U.S. Supreme Court, remains a salient rebuttal to this catechism.

At that time, a bevy of noted economists placed the monetary gain of term extension as negligible: “Because the additional compensation occurs many decades in the future, its present value is small, very likely an improvement of less than 1%.” While the majority of the Justices allowed the term extension, dissenting Justice Breyer offered this memorable riposte: “What potential Shakespeare, Wharton, or Hemingway would be moved by such [a gain]? What monetarily motivated Melville would not realize that he could do better for his grandchildren by putting a few dollars into an interest-bearing bank account?” (Further details here.)

As Zerkee notes, one “creator/rights-holder” (Broadview Press) argued against term extension during the Copyright Review. Broadview Press is an independent Canadian publisher; their work is highly acclaimed, particularly their value-added editions of public domain works. In this regard, they exemplify what is too often glossed over by copyright maximalists: that the public domain can, and does, provides fodder for creative, commercial activity. Not only did Broadview Press argue against term extension, they recommended “that Canada protect or reduce the length of copyright term to be no more than ‘life of the author plus 50 years’.” 

The government is accepting submissions on the topic of copyright term extension until March 12, 2021.

Update March 30, 2021

The government agreed to extend the deadline for submissions to this consultation. My submission is here.

Update December 11, 2021

The government has posted all submissions. (Mine in its official capacity is here.)

a life well lived

In Posts on August 14, 2020 at 10:39 am

As I write this, India is about to waken to its annual Independence Day celebrations. A befitting day to post this entry.

In memory of Leila K. Nair (1931-2020)

Throughout my life, my dear mother was the guiding hand, voice of reason, and rock to lean on for those days when I could not stand unaided. For all of you who have so kindly praised this blog, you must know that she faithfully read almost every entry, offering up her own take on the wording—prose for me to consider and to reject if I did not like it. It was rare when I did not use her words, or make them into my own.

My mother taught me how to play with words, to experiment. She instilled in me the understanding that every first, second, and third draft was necessarily only a precursor to the next draft, and that a lengthy sentence, when done correctly, can carry a theme with substance. Perhaps my favorite moment was a comment she made in 2016, words to the effect of: “I’ve tried for years to encourage you to be more assertive; Menzies has finally dragged it out of you!” (For her pleasure on that point, my thanks to Heather Menzies and the Writers Union of Canada.)

My mother’s upbringing was unconventional. Shunning both the British and the Indian caste system, my blue-blooded grandfather had elected to become a penniless school teacher in a small cantonment town, called Pyawbwe, in upper Burma (now known as Myanmar). Penniless, because all the better-salaried teaching appointments were in government-schools that answered to the British authorities. Whereas his school was one of a string of “National Schools” that dotted rural Burma, where an occasional IOU for a month’s salary was not unknown. Long before non-cooperation became the formal mantra of the Independence-movement, my grandfather had adopted its ideals and strategy.

That it invariably condemned the family to an extremely modest living, was simply the sacrifice required of those generations. As my mother had told me, even as a young child, one knew that “nothing else mattered.” Colonialism was stripping those countries bare, the inhumanity of British rule perhaps most exemplified by the Bengal famines. (For anyone interested, I recommend watching Shashi Tharoor’s 2015 Oxford Union speech — the motion under debate was: “Britain Owes Reparations to Her Former Colonies.”)

Life in Burma came to an abrupt halt for my mother when Pearl Harbour was bombed. With the likelihood of attacks in their region, the family hastily fled (securing standing-room-only passage on one of the few remaining steamers departing for India). Less than a week later, their house was bombed to rubble. And so my mother, of Indian descent, returned to India as a refugee.

War-time, coupled with the Independence movement, and then the challenge of building a country from less-than-nothing, shaped the opportunities (or lack thereof) for those generations. But, my grandparents (Narayanan Nambiar and P.V. Kalyanikutty) were determined that both my aunt and mother should be well-educated. It did not matter that it took my grandfather’s entire salary to pay their tuition and room/board during their college years. My aunt became a lawyer, my mother a mathematics lecturer.

Years later, in Canada, my mother returned to demystifying calculus for undergraduate students. It was so evident that they adored her. I enjoyed reading their teaching evaluations. Two that remain etched in memory are: “Mrs. Nair remembers what it is like to be a student,” and, “Although my grade may not reflect it, I have learnt a great deal this term.” As it later turned out, one of my daughter’s teachers had been one of my mother’s students—she was so happy to tell me what a difference my mother had made for all those struggling to find comprehension in mathematics.

As I leafed through pages of my mother’s notes – brief histories of various events in her life – her words on the teaching of mathematics (and the role of textbooks therein) may resonate to some readers of this blog:

In India, a stone thrown into the air taught me, and helped me teach, certain physical principles, which landed without much fanfare in either case. The same purpose is suggested in textbooks here, using an object thrown from a flying plane, or a rocket that has been blasted off. Inoffensive projectiles, given the appearance of rocket-science, make circumscribed minds already intimidated by the subject, turn tail. University textbooks, the size of encyclopedias have pictures of pretty trains, complete with level crossings and cute characters with flags, to introduce the concept of velocity. India gets by in relative comfort with a bald definition of velocity as the rate of change of displacement, in drab paperbacks without margins or borders to save on paper.

Those were also the days of polite racism in Canadian professional circles. In that regard, the university was one place where my mother was moderately protected. Tall, always impeccably dressed in a silk sari, she cut a commanding presence in the classroom. But outside of the university, too many Canadians were dismissive of the immigrant woman, regardless of the fact that her written and spoken English was better than theirs, and that her command of Canadian history and political affairs was impressive. (We have a signed note by the late Pierre Berton attesting to as much.)

But Pierre Berton was the anomaly. It was very difficult to gain acceptance from editors and publishers. Something I have written about here and here. Diversity of voice was not yet a governing principle in the media. Despite that, on some occasions, my mother’s work was published. As she once told me, “not bad for the sari-clad woman.”

Even though her short-term memory was starting to fail, the English literature of her grade-school days stayed with my mother. Effortlessly, verse flowed from her; there was a poem or sonnet for even the most mundane elements of daily life.

Recently, she launched forth with a selection from Ben Johnson. These two lines seem to sum up her guiding principle:

In small proportions we just beauties see;
And in short measures life may perfect be.

Words to live by.

LKNair_1963 - 1600x900

Leila K. Nair died on July 31, 2020 at Royal Columbian Hospital in New Westminster, British Columbia, Canada. A heartfelt thank you to all the people involved—paramedics, social workers, doctors and nurses from the ER and Palliative Care Departments—for their loving, compassionate care, ensuring a peaceful ending.

July 30, 2021  One year on…

a last bastion of equality

In Posts on July 27, 2020 at 8:37 am

The building was more modest in 1975, but the Port Moody Library was a source of much joy for our immigrant family.

Some articles make one’s head spin. They project good argument, seemingly backed by facts and figures, maybe a dash of pathos, and even a tone of earnestness in pursuit of the betterment of all.

And yet, facts may be incomplete, pathos closer to hype than history, and the earnestness, in aid of simplistic responses to complex problems.

Such was my reaction when I encountered Kenneth Whyte’s 3000+ word opinion piece in Saturday’s Globe and Mail titled, “Overdue: Throwing the Book at Libraries.” Whyte blames libraries for the precarious state of authors, publishers, and booksellers. His argument that borrowing books represent lost sales is buttressed by an array of figures (drawing heavily from American data) about declining author incomes and ongoing struggles of booksellers and publishers. (Left unsaid is that writing, publishing and selling books have been precarious ventures for well over 300 years.)

Whyte offers two solutions: (i) increase the flow of money to libraries to enable them to pay more for their acquisitions; or (ii) restrict access to library books. With respect to (ii), he suggests that library titles be limited in number, without regard to the size of the population it serves. “Readers will be forced to choose between waiting months to borrow a popular volume or acquiring it at retail.” In short, remove access to books from people who need it the most – those who cannot afford to buy books.

Whyte’s suggestion regarding money merits closer inspection:

Perhaps adults, then, should pay for the right to borrow books for entertainment – something in the range of a Netflix fee, $12.99 a month (those below a certain income level could be exempted from the charge). Or maybe Ottawa’s “public lending right” program, which at present throws a few beans at guileless authors in compensation for the use of their works in libraries, could be vastly expanded (and adopted in the U.S.)

Through municipal taxes, many Canadians already foot the bill for public libraries. Our federal taxes also contribute financial support to aid the writing and publishing of books. (I suspect that if I look hard enough, I would see evidence of provincial funding in support of possibly both libraries and writers’ grants.) These contributions are effectively set by a means test; poorer Canadians likely do not pay property taxes and may not rise to the level of taxable income. If Whyte wishes to petition all levels of government to increase taxation on those who can afford it, and direct the monies raised to libraries, I would happily support his efforts.

But to suggest a user fee for Public Libraries is repugnant. A public library may be a last bastion of equality in modern society; it is a truly egalitarian space where all individuals have equal access to the same services regardless of income, class, or status.

(Reading Whyte’s suggestion brought to mind Libby Davies’ political memoir, Outside In (2019). When describing her efforts to assist residents living in Vancouver’s Downtown Eastside, Davies deplored those social service agencies who viewed residents as “clients” instead of “citizens.” The difference is not trivial.)

I would also happily give support to any expansion of the Public Lending Right (PLR)—a program that exclusively benefits Canadian writers. But imploring the U.S. to adopt the same program may be both fantasy and foolishness. We should be grateful that Canada’s clout does not rise to it, as Whyte neglects to consider that Canadians predominantly read content written by foreign authors. If PLRs should ever be tied to reciprocity, most of those Canadian taxpayer funds will leave the country. It would be more desirable to target Canadian money to Canadian writers, publishers and booksellers.

This aspect – that Canadian writers are not read in appreciable numbers by Canadians – has long been a source of disappointment. It dates back to pre-Confederation, when colonialists were longing for the literature of the Mother Country. Dickens and Scott were the rage, not the fare offered up by the local gentry. Yet over time, and in no small part due to public investments in writing and publishing, Canada’s literary output now holds its own, at home and abroad.

Perhaps one of the most curious aspects of Whyte’s outburst is that he refrained from any mention of the More Canada report released in December 2018. Announcing the report in the Globe and Mail, Kate Taylor wrote:

According to the report’s three organizers and authors, publishers James Lorimer, Jeff Miller and Philip Cercone, Canada’s literary culture is healthy: Writers keep writing and Canadian-owned publishers are publishing as many Canadian titles as ever, while independent bookstores are also stable. But somehow the industry’s link with Canadian readers has broken. The voluntary group of cultural professionals behind the More Canada report had sensed that; anecdotally, everybody was selling fewer Canadian books (even if more Canadian titles were being published.) So they got together to see if they could find hard evidence of a drop – which they did – and to discuss why it might have occurred. (Emphasis mine.)

The authors honed in on a particular problem, that despite the desire of Canadians to read more Canadian works, systemic problems of both discovery and cost impede heightening that connection.

Recently, those same authors produced another report: Independent Bookstores in Canada’s post-Covid Cultural Landscape. Dated to 21 July 2020, it describes heroic efforts being made by independent bookstores, supported by their local communities, to survive in our Covid-shaped world. On the topic of public libraries, these gentlemen write with no rancour:

Independent bookstores offer their communities a service that is complementary to public libraries. In fact, consumer research shows that most book readers frequent both libraries and bookstores. Library browsing and reading can substitute for book buying, but research data show that it also generates book purchases. Together, a public library branch and an independent bookstore will support and sustain higher levels of discovery and reading than either would generate on their own. Both have a common goal of encouraging book reading. Both share a commitment to the cultural goal of Canadians reading Canadian.

They call on government to address the particular needs of independent bookstores. The only time public libraries feature within the recommendations is in a request that independent bookstores may share the same discounted postal rates that libraries can rely on when shipping books.

There is much more that ought to be written about Whyte’s opinions, about his determination to cast public libraries as competitors within the book industry. I can only hope that a graduate student who has an interest in the intersection of Canada with literature or book history or intellectual property or international trade or economic development or citizenship, will draw this out in a thesis.

I’ll offer up right now my willingness to be an advisor on that project.