Meera Nair

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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.

excerpts

In Posts on December 19, 2018 at 5:06 pm

Last week marked the end of submissions to the committees of Industry and Heritage. It now falls to analysts to sift through data and testimony, and assist Members of Parliament as they consider the next steps for Canada and copyright.

The most disturbing aspect of this review to-date, has been observing the predominantly uncritical response to two fabrications: (1) that Canadian Literature is in peril; and (2) that a collective license via Access Copyright is the seeming solution to the seeming problem.

(Note: In a recent column, Kate Taylor conveys this happy news: “Canada’s literary culture is healthy: Writers keep writing and Canadian-owned publishers are publishing as many titles as ever, while independent bookstores are also stable.”)

Left under-articulated is the very real risk that Canada will remain on the sidelines in a world governed by knowledge economies. This is not merely about the unfairness of holding students captive to a market that is no longer relevant, it is about the regressive attitudes to creative activity that students are subjected to.

And so, I hastened to submit one more brief, this time to the Standing Committee on Canadian Heritage, before the deadline. What follows are some excerpts.


I commend this department’s interest in supporting Canadian artists across the spectrum of creative endeavor. However, I ask that you expand your scope of inquiry to include not only the artists we have today, but those to come tomorrow. Given the tenor of dialogue so far, students are particularly vulnerable to assume costs that are irrelevant to their studies, and irreconcilable to their means. Moreover, our youth are not being afforded the fullest opportunity to further their creative instincts through measures already available under the law. Copyright chill and abuse are real.

I reminded the Committee of our past history with the system of copyright, that it was designed to the advantage of other nations. The stunning success of Canadian Literature, with both writers and publishers deserving praise, is due to efforts outside the arena of copyright. Nick Mount, Canada’s leading authority on the subject, has been unequivocal on this point. (See also his submission to the copyright review.)

I then sought to clarify the misconception that the decline in educational collective licensing was principally due to the 2012 amendments; that in fact,

The catalyst for the exodus from collective licensing occurred two years prior. In 2010, Access Copyright sought a 1300% fee increase. Granted, the earlier fee was out of date; an increase commensurate with inflation would not have attracted much attention. But given the extent of the increase, coupled with not only heightened requirements of reporting (which raised concerns of privacy) but also an effort to redefine the very nature of copyright (something only Parliament may do), many institutions began to give serious consideration to the viability of managing their operations internally.

Drawing from a talk I gave in 2011 (based on academic literature and the publicly released Friedland report), I emphasized that Access Copyright’s operation had been challenged from the very start. It sought to serve two masters (writers and publishers); but as publishers held most of the cards,

Access Copyright bolstered payments [to writers], regardless of whether works were used in educational institutions. Unfortunately, that set the stage for an unsustainable operation. Despite some evolution, it continues today. The payments provided by Access Copyright to its creator affiliates through its Payback system, rely on creation of work, rather than the use thereof. As Access Copyright’s creator affiliates grow in number, one should expect that fees will escalate just to keep pace with distribution payments.

Yet, today, many parties have called for compulsory collective licensing of educational copying.

This is particularly disturbing given the volume of evidence that detail the rise in direct licensing between educational institutions and third-party publishers, licenses that include both journals and books, and allow for both access and reproduction. Furthermore, Canadian institutions are increasing their selection of open educational resources as primary textbooks. Taken together, we see not only the present, but a future where Access Copyright’s services are relied on less and less, but would cost more and more.

Let there be no mistake: compulsory collective licensing would place an unnecessary and unfair burden on students. When too many students are financing their education through debt, it is more than cavalier to dismiss the cost as merely that of a case of beer. Governments and educational institutions have an ethical obligation not to impose waste on students’ meagre resources.

Further to students’ disadvantage are ongoing misunderstandings about legitimate, unauthorized use of protected material. Some of the instances of copyright chill and abuse that have been brought to my attention:

  1. A parent informed me that her twelve-year-old had come home “scared to death,” all because of a strident lecture at school. A teacher had forbidden the students from engaging with content found via the Internet, a prohibition expounded in the name of copyright. 
  2. A parent informed me that her daughter’s creative efforts, posted to YouTube, had been removed. This budding filmmaker said to her mother: “I didn’t know it was wrong.” To be clear, she did nothing wrong. YouTube’s overzealous content-identification system had resulted in the take-down of her lawful creation.
  3. A group of worried students showed me a notice from a copyright-owner, threatening them with serious consequences if they had the temerity to quote from his father’s work, without first seeking his permission and making payment.
  4. A parent sent me a Use of Technology agreement required at the local high-school. Parents were asked to give consent such that the school may search a student’s smartphone if the school “feels” that a rule has been broken. Among the rules listed: “honour copyright.” This may be due to the misplaced fear that schools could be liable for the activity of students; it speaks to the reality that administrations prefer to play it safe and discourage young people from lawful uses of copyright-protected materials.

Such misinformation spread among our nascent creators is not what will place Canada in positions of strength in decades to come:

If we train generations of Canadians into believing that creative effort, scientific inquiry, technological advancement, or a free press, are all predicated on a system of permission-then-payment, Canada’s creative future looks bleak.

This will be all the more painful when we consider that current technology and current modes of engagement offer promise to young creators today. They now enjoy what eluded Canadian creators in the nineteenth century: the capacity to promote themselves at minimal cost. Upcoming creators have the opportunity to find their own audience;[1] a lack of publisher no longer limits awareness of Canadian talent.

Given that our Prime Minister has particular interest in fostering the next generations, it would be entirely appropriate for the Department of Canadian Heritage to give particular attention to how youth, students, and amateur creators, fare under the system of copyright, as it exists now and how it may change next year.

I closed with six recommendations. As the Heritage website has not yet been updated, my complete brief is here.

As I write this, my daughter is finishing her third year of engineering studies. The outcome of the copyright review is not likely to have any direct bearing on her remaining time as an undergraduate student, but there are many more like her to come.

 

[1] Canada’s Instagram poet Rupi Kaur comes to mind; her own self-promotion led to a publisher and then 77 weeks on the New York Times’ best-seller list; see Tariro Mzezewa, New York Times. Similarly, 2011 Canada Reads’ winner Terry Fallis began his successful journey via his own podcasts; see Shannon Rupp, The Tyee. Martin Kerr is a much-loved singer/songwriter/musician based in Edmonton; through his own talent and hard work, he has been independently producing music for ten years. Kerr began by singing in markets and festivals; today he sells out the Winspear Centre. One generation earlier that would have been an impossibility. With dreams of making it big, too many musicians were conscripted by record companies and emerged with only debt to show for it.

a guest post from Carys Craig

In Posts on December 17, 2018 at 7:09 pm

In connection to the current review of Canada’s Copyright Act, I was recently invited to appear before the Standing Committee on Industry, Science and Technology. Dr. Meera Nair also testified at the televised meeting, and her insightful comments are available here. My remarks to the Committee—which focused on technological neutrality, balance, user rights and the public domain—are posted below, with thanks to Meera.


Thanks to the Committee. My name is Carys Craig. I’m a professor at Osgoode Hall Law School at York University, and I have been teaching and researching in the copyright field for almost 20 years. I’m a co-signatory of the Canadian IP Scholars Brief, about which you heard last week. The views I’ll express here are my own.

I’m going to begin by speaking to some guiding principles underlying Canada’s copyright system, which I hope might inform the Committee’s thinking about a variety of issues before it, and then I’ll highlight a few key proposals that I believe reflect these principles.

The Committee has heard from certain stakeholders that Canada’s copyright laws have fallen behind the pace of technological development, and that urgent reforms are needed in order to ‘catch up’. I would urge the Committee to be skeptical of such claims, and to resist pleas for technology-specific statutory amendments that will protect market incumbents while hampering the use and development of information technologies.

I have written about the principle of technological neutrality at length.[1] The best way to ‘future proof’ our law is not to regulate the technical minutiae in response to the pleas of industry lobbyists, but to seek to ensure the consistency of the legislation, in its purpose and effect, across time and technologies. This requires steady reliance on guiding principles, functional standards, and core concepts; not narrow, technical, and inaccessible rules that will require constant revisiting.

The task, then, is to keep the policy focus on copyright’s overarching purpose as technologies evolve, maintaining the balance between protection and the public domain that best supports the creation and dissemination of expressive works, and a vibrant cultural sphere.

Indeed, in the 2012 case of Entertainment Software v SOCAN, the Supreme Court of Canada agreed with my statement that technological neutrality requires that “the traditional balance between authors and users should be preserved in the digital environment.”[2]

As Justice Abella wrote in the earlier case of Robertson v Thompson, this means that, when confronting questions about copyright and the internet,  “the public benefits of this digital universe should be kept prominently in view.”[3]

If copyright law is a lever to encourage learning and creative exchange, the Internet and digital technologies have advanced this goal enormously. Unduly curtailing their use in the name of protecting authors typically flies in the face of copyright’s rationale.

This hints at the absurdity of much of today’s copyright rhetoric. Consider how strange it is — how facially false it should be — to portray, as the self-interested antagonists of Canadian authors, our public educational institutions, students and the scholarly and research community, librarians, archivists and academics (all the while casting a handful of commercial publishers, collectives, and content industry representatives as the natural allies of Canadian authors and the arts.)

This is the same tired narrative that powerful interests have employed to justify ever-stronger copyright protection for centuries. It’s time to see past it and imagine a better functioning system of incentives and rewards, offering more public benefits and imposing fewer social costs.

The reality is that copyright does a disservice to today’s creators not because of its limits and exceptions, but because of the restrictions that it places on creativity and sharing, the monopolistic interests that it helps to preserve, and its failure to actually attend to the real needs of the artists it is said to serve.

Today, more than ever before, the line between creators and users, between authors and the public, is more rhetorical than it is real. Today’s users are authors and authors are users, authors are students and educators, they are consumers and curators.

The task for lawmakers is not to ‘reprioritize authors’, as some have said, but to recognize the changing nature of authorship and the shifting realities of the information economy.

And so this big picture brings me to my more concrete proposals:

First, this should mean resisting calls to further strengthen owners’ rights and remedies. If the objective is to assist authors, copyright is a blunt tool indeed — and with stronger copyright there is, inevitably, collateral damage to the public domain, to free expression, public education and the functioning of the internet.

Secondly, this must mean recognizing and safeguarding copyright limits and exceptions, and respecting user rights, consistent with the internationally acclaimed jurisprudence of our Supreme Court and the constitutional right of free expression.

This takes a variety of forms.

It supports the move to an open, flexible and general fair use defence that is not limited to particular purposes but capable of evolving to embrace new uses that are consistent with the objectives of the Copyright Act (for example, by adding “such as” to the fair dealing provisions and codifying the Supreme Court’s fairness factors).[4]

It supports shielding fair uses from the chilling effects of potential moral rights liability by clarifying that fair dealing and other exceptions are also defences to moral rights claims.

It means ensuring that neither digital locks[5] nor boilerplate contracts[6] are permitted to override user rights by foreclosing otherwise lawful uses.

It also means protecting and preserving the public domain (in the same sense that one might protect a nature preserve from private appropriation).[7]

This must include finding ways to minimize the harmful impacts of any term extension (for example, by imposing additional formalities or costs on those who would claim protection beyond Berne’s ‘life plus fifty years’).

It also includes finding ways to support the creation of accessible intellectual or knowledge commons (for example, by providing a right of retention for authors to deposit publicly funded research in accessible online repositories,[8] and by opening up government works to the public domain.)

As a final thought, I would note that this government prides itself on its feminist agenda, and should consider what that means in the copyright context.[9] Good copyright policy is concerned not only with providing economic incentives but also with advancing equality; and equality requires access to affordable education, access to knowledge, and supports an ethics of sharing and collaboration.

Leadership in this field cannot mean simply reinforcing 20th century models of private profit and control; it must mean preparing the copyright system to embrace the potential of the 21st century while reflecting Canadian values.

With that, I thank you for your attention, and look forward to your questions.

 

[1] E.g., Carys J. Craig, “Technological Neutrality: Recalibrating Copyright in the Information Age” 17.2 Theoretical Inquiries in Law. 601 (2016); Carys J. Craig, “Technological Neutrality: (Pre)Serving the Purposes of Copyright Law” in Geist (ed), The Copyright Pentalogy: How the Supreme Court of Canada Shook the Foundations of Canadian Copyright Law (2014).

[2] Entertainment Software Association v. Society of Composers, Authors and Music Publishers of Canada 2012 SCC 34, at para. 8.

[3] Robertson v. Thomson Corp. 2006 SCC 43 at para. 79.

[4] I wrote in support of adopting fair use in Canada in, e.g., Carys J. Craig, “The Changing Face of Fair Dealing in Canadian Copyright Law: A Proposal for Legislative Reform” in Geist (ed.), In the Public Interest: The Future of Canadian Copyright Law (2005).

[5] Footnote 64 of the USMCA’s Article  20.67(1) potentially gives Canada a small window of time to improve its anti-circumvention provisions in this way. We should take this opportunity to ensure that appropriate limits and exceptions are grandfathered from the Treaty’s highly restrictive TPM provisions. I argued against such anti-circumvention measures, and in favour of digital lock exceptions and user protections, in Carys J. Craig, Digital Locks and the Fate of Fair Dealing in Canada: In Pursuit of ‘Prescriptive Parallelism,  13 Journal of World Intellectual Property 503 (2010).)

[6] The UK’s Copyright, Designs and Patents Act, s.30A(2) offers an example that Canada should follow of the statutory protection of fair dealing against contractual override.

[7] I wrote about how to best conceptualize the public domain and its protection in, e.g., Carys J. Craig, “The Canadian Public Domain: What, Where, and to What End?” 7 Canadian Journal of Law and Technology 221 (2010).

[8]  Belgian copyright law offers one example of such a provision (though I would recommend shortening any permitted embargo period).

[9]  I wrote about this in my blog post for Education International: ‘Ready for Real Change? Copyright, Education and the Quest for Equality’ (25-04-18). See also Craig, Turcotte and Coombe, “What is Feminist About Open Access?: A Relational Approach to Copyright in the Academy”  1.1 Feminists@law 1 (2011).

my remarks to the Industry Committee

In Posts on December 16, 2018 at 8:50 am

Last Wednesday I had the pleasure of appearing before the Standing Committee on Industry, Science and Technology, to speak on the subject of the copyright review.  Also participating were Carys Craig (Associate Professor of Law at Osgoode Hall Law School) and Patti-Anne Tarlton (Chief Operating Officer of Ticketmaster, Canada).

Due to internal delays, the meeting was quite late in starting. Unfortunately, Carys and I had flights to catch that evening and so were unable to fully participate in discussion with Members of Parliament.

My remarks drew from the brief I submitted some months ago. In my allotted time I endeavored to place emphasis on the importance of supporting our next generations as they hone their capacity for creative and innovative thought—a capacity that Canada needs. I also reminded the Committee that altering copyright law must be placed in the context of Canada’s particular copyright history–a history where our law was designed to support foreign corporations.


Good afternoon. My name is Meera Nair, I am the copyright officer for the Northern Alberta Institute of Technology, but I am here in my capacity as an individual. For nearly fifteen years, my research interest has been with systems of copyright, both contemporary and historical.

One of the challenges in dealing with copyright is that people tend to forget that it was designed to regulate industries. Because of an accident of vocabulary, it now includes individuals. People also forget the baggage we have carried for 150 years; that our system was largely designed by other countries, to serve their advantage. To the extent that we have successful writers, musicians, artists and publishers, those gains came despite the system, not because of it.[1]

So, what are we talking about? The system of copyright is composed of two parts; there are rights of control and there are rights of use. Why do we have it? For a very long time, we had no purpose. Copyright was simply one of 29 responsibilities handed to the Federal Government in 1867, with no explanation attached. But if we look at our multicultural roots—the influence of both civil law and common law—we see a shared goal: to protect the process of creativity.[2] While our Supreme Court has operationalized this as seeking a balance between creators and users,[3] it might be helpful to take one step back and simply think about this process; how do we enhance it? How do you assist individuals to maximize their creative potential? And from that, there is reasonable historical data to believe that larger social wellbeing will follow.

I am drawing from the work of B. Zorina Khan, an economist who explored American intellectual property policies at the time of their nation building years. The U.S. deviated from the IP norms of the day, and instead focused on educating its people and creating a framework which encouraged everyone to enter the arena of creativity.[4]

A part of that framework was the theft of other nations’ work—to be clear, I am not recommending that. But we could adopt the best aspect of current American policy: their structure of fair use. It would give leeway for new ideas to take form. It bears remembering that the United States has capitalized on this, with repeated development of billion-dollar industries.[5]

A speaker from an earlier meeting alluded to challenges faced by Americans with respect to fair use; he quoted Lawrence Lessig as saying: “Fair Use was simply the right to hire a lawyer.” Just to put that in context; Lessig wrote those words after losing a pivotal Supreme Court case in the United States. He had led a constitutional challenge, arguing that Congress had overstepped its bounds by lengthening copyright term. The loss was hard to take; while fair use is meaningful, it is no substitute for shorter copyright terms.

Adding to Lessig’s distress was likely the reality that the United States had made a bit of mess of fair use in later 20th century. They are correcting that misstep; but at the time, their courts began treating fair use as simply a response to market failure.

Fortunately, the Canadian judiciary has already ensured that Canada can avoid such a self-defeating approach.[6] Creativity is a cumulative affair; whether we are talking about books, music, software, medicines or a free press, creativity relies on exposure to and use of prior work. Some uses must remain above the cycle of permission and payment, if creativity is to be sustainable.

In 2012 we came up short on fair use.[7] But one pleasant addition stood out: Section 29.21 (known as the YouTube/MashUp exception). I would have called it the Creativity exception. It gives future Canadian creators some reassurance that their government does not wish them to be prosecuted for doing what Canada needs them to do–which is to hone their creative skills.

We need our next generations to be at their best to address the intractable problems that are being left for them to solve. Drawing from the combined wisdom of Julie Cohen and the late Oliver Sachs, it is important for individuals to play with whatever content they are interested in, to cultivate a capacity to see something that others cannot, to build the curiosity and determination that we hope will carry them into ground-breaking intellectual effort across all disciplines.[8] Much is being made of our innovation agenda—we will not get innovation just for the asking, we need to nurture it.

Regardless of whether we have strictly enumerated exceptions, or a more flexible condition of fair use, we cannot gain the fullest potential on either unless we adjust the current language of digital locks.

This Committee has been asked repeatedly to do more to support Canadian writers and Canadian publishers; this is a worthy goal. But I hope proposed solutions will not include billing students for materials already paid for, or worse, billing students for works that are not prescribed at all.

Moreover, if we want to target Canadian operations, copyright is not an effective means. More money will leave the country than will stay in. As I wrote in my brief: “Copyright is a blunt instrument; it cannot distinguish between literary superstars and novice writers, between fostering a homegrown operation and serving an international conglomerate, or, between writing for an audience and writing for financial gain.”

As I mentioned at the start, our Act draws from both our common-law and civil-law ancestry. The Copyright Act has long been recognized as being bi-jural; we cannot help but see two of our Founding Nations in it. However, the third is present. Indigenous paradigms about creative endeavor and property are implicit to the system of copyright as we practice it today.[9]

Acknowledging this will not solve the difficulties encountered by Indigenous communities with respect to protecting their intellectual property. But given the objectives of the Truth and Reconciliation Commission, we ought to recognize that the Copyright Act is tri-jural.

I would like to close by acknowledging that we have gathered on the lands of the Algonquin people.

I look forward to your questions. Thank you.

 

[1] Meera Nair, “History begins with geology (a response to Margaret Atwood),” Fair Duty, 20 September 2016.

[2] “Where social utility meets with natural rights is in the belief that creativity itself is valued. Otherwise, the underlying purpose of copyright in either tradition becomes meaningless, raising the question of why have such laws at all? Therefore, natural rights must apply to everyone, including past, present, and future creators. Likewise, consideration of societal benefit must ensure that future creative processes are not stifled by the system purporting to encourage creative effort;” Meera Nair, “Copyright and Ethics—an Innisian Exploration,” (2009) Global Media Journal (Can. Ed.) Vol. 2, Iss. 1, (23-39) 30, .

[3] “…a balance between promoting the public interest in the encouragement and dissemination of works of the arts and intellect and obtaining a just reward for the creator …;” Théberge v. Galerie d’Art du Petit Champlain inc., 2002 SCC 34 at para 30.

[4] Those policies fostered American ascendency from, “an undistinguished developing country with an agricultural economy to world leader in less than one century;” B. Zorina Khan. The Democratization of Invention: Patents and Copyright in American Economic Development, 1790-1920. (Cambridge: Cambridge University Press, 2005) 5.

[5] Meera Nair, “Outdated copyright law hinders innovation and growth,” Edmonton Journal, 12 September 2018. Details here.

[6] Fortunately, Canada has already taken steps to avoid falling down this rabbit hole; “The availability of a licence is not relevant to deciding whether a dealing has been fair. As discussed, fair dealing is an integral part of the scheme of copyright law in Canada. Any act falling within the fair dealing exception will not infringe copyright. If a copyright owner were allowed to license people to use its work and then point to a person’s decision not to obtain a licence as proof that his or her dealings were not fair, this would extend the scope of the owner’s monopoly over the use of his or her work in a manner that would not be consistent with the Copyright Act’s balance between owner’s rights and user’s interests;” CCH Canadian v. Law Society of Upper Canada, 2004 SCC 13 [CCH] at para 70.

[7] Numerous organizations sought to discredit fair use; “… to each objection raised, a nuanced explanation or rebuttal exists;” see Meera Nair, “Fair Dealing at a Crossroads,” From Radical Extremism to Balanced Copyright—Canadian Copyright and the Digital Agenda, ed. Michael Geist (Toronto: Irwin Law, 2010): 90-120 (103).

[8] “Both copyright law and policy have shown little interest in understanding the processes by which these roles are performed, nor in inquiring what users need to perform their roles in a way that optimizes the performance of the copyright system as a whole (348).” See Julie Cohen,“The Place of the User in Copyright Law,” Fordham Law Review, Vol. 74, (347-374) 348, 2005. “Imitation and mastery of form or skills must come before major creativity;” see Oliver Sacks, “The Creative Self” in The River of Consciousness (2017) 137.

[9] Meera Nair, “Indigenous paradigms,” Fair Duty, 25 June 2018.

an open letter to MP Randy Boissonnault

In Posts on November 27, 2018 at 7:35 pm

Dear Mr. Boissonnault:

I write in connection to remarks you made on November 22, during a meeting of the Standing Committee on Canadian Heritage (beginning at 11:49 here). There appears to be a misunderstanding on matters relating to legitimate, unauthorized copying of copyright-protected materials. As this misunderstanding could be widespread, a few words publicly offered may alleviate such anxiety.

You expressed concern that Canadian literature is in peril, and you attributed this to unauthorized use of such literature in universities. That some publishers and writers are encountering difficulties is not in question, but the details are much more complex than was discussed. Today’s challenges stem from an accumulation of events preceding the 2012 amendment of the Copyright Act.

Nevertheless, CanLit is here to stay. On this topic, the work of Nick Mount (Professor, Department of English, University of Toronto) is invaluable, as he is respected on both sides of this debate. In Arrival: The Story of CanLit (2017), Mount details CanLit’s birth, midwifed as it was by profuse government spending during the booming post-WWII economy. As to CanLit’s trajectory: “Canada is producing many more writers and many more books than ever before … there has never been a better time to be a Canadian reader.”

History informs us that reading brings forth writing.

Returning to your remarks, you spoke highly of your studies at Oxford. You might be interested to know that Oxford is mentioned by name in the very first copyright statute: the Statute of Anne (1710). A condition for receiving copyright was that the libraries of Oxford, Cambridge, and other similar institutions, should receive a complimentary copy of the protected book, printed “upon the best paper,” apparently to survive the handling by many grubby hands. Since then, copyright law has undergone numerous changes, but the principle remains: certain measures of unauthorized use are legitimate as they serve larger social goals.

Despite this, universities are increasingly paying for all uses, through licenses with publishers. A multitude of briefs have been submitted to the Standing Committee on Industry, Science and Technology; expenditures are given in detail and speak to the rising trend of relying more on institution-wide licenses for journals and books. Also, Michael Geist (Canada Research Chair in Internet and E-commerce Law, University of Ottawa) has just published a series on his blog which addresses this topic; for instance, see here.

If I may, there is one aspect of your remarks that I find troubling; you suggested sitting down with student leaders to ensure Canadian writers have sufficient funding. The implication is that students are responsible for the challenges endured by some Canadian writers. Nothing could be further from the truth. When students independently engage in unauthorized copying towards completion of their homework, projects, presentations etc.—that is, when they incorporate bits and pieces of text, imagery, multi-media—such copying falls within fair dealing (the principal exception within the Copyright Act, which supports learning). When guided by their teachers, content circulated likely fell within fair dealing, or, as Geist illustrates, was already paid for through an institutional license.

Moreover, a blanket fee, charged to all students, ignores the reality that many disciplines do not engage with Canadian literature, or literature of any kind. To levy such a fee on all students is, at best, inappropriate. At worst, it is unconscionable.

We are leaving our next generations with some intractable problems including climate change, ballooning healthcare costs, the need to develop new industries, and the desperate need to diversify our markets. Fortunately, there are many bright, hardworking, dedicated students, overcoming their ever present hardships, rising to meet these challenges. But even so, the political solution to a shortfall in income among writers should not be a transfer of funds from the group that is even more impoverished.

Regards,
Meera Nair, Ph.D.
Constituent and Parent

assumptions

In Posts on October 14, 2018 at 9:10 pm

As of this writing, in the ongoing review of the Copyright Act, 87 briefs have been posted by the Standing Committee on Industry, Science and Technology. Discussion spans a variety of topics; on the volatile issue of the use of fair dealing in post-secondary institutions, there are many submissions from academic institutions, as well as Canadian writers, publishers, and representatives thereof.

Perhaps lost in that crush are students’ voices. Writing on behalf of students across the country, are two organizations: the Canadian Alliance of Student Associations (CASA) and the Undergraduates of Canadian Research-Intensive Universities. Each submission calls on the Government to leave fair dealing unchanged from its present incarnation and practice. The students are clear in their understanding of the exception—that fair dealing is not a veil for free dealing. They also appreciate that fair dealing has the capacity to reduce some of the costs of post-secondary education.

CASA’s submission reminds all that collective licensing costs attributed to post-secondary institutions will ultimately be borne by students:

Post-secondary students are directly impacted by decisions of the Copyright Board … as it is responsible for setting tariffs on copyrighted educational material. While these tariffs are billed to post-secondary institutions, they are sometimes directly passed on to students through ancillary fees … Other times, the tariff fee is paid through [the institution’s] operating budget, which constrains the institution’s ability to provide other critical resources, including updated infrastructure and quality teaching staff, to post-secondary students.

This aspect has not received as much attention as it deserves. That said, the issue of cost was raised to the Standing Committee, but only to quantify the collective license fee as equivalent to “a case of beer per student.” While this may have been an attempt to reassure the Committee that students can bear this cost, the unspoken assumption was that all students rely on excerpts (thus necessitating a fee).

In terms of how students cope with existing fees, Aran Armutlu, chairperson of the BC Federation of Students, recently had this to say:

“Assume every student is going through financial hardship.” As assumptions go, this one is more plausible.

A day later, the Scholarly Publishing and Academic Resources Coalition (SPARC) issued promising news with respect to OER:

(Even though OER was still in its infancy in 2013, SPARC had issued a challenge to the educational community: to save $1 billion by 2018.)

Consider the time frame: 2013-2018. Astute Canadians will notice the overlap with the period of time from the last amendments to the Copyright Act, to the start of the present review. To be more explicit—this is part of the backdrop to the figures proffered to the Committee that illustrated declines in copyright-related income by educational publishers.

As SPARC explains, the goal was to document the savings that accrued when a “traditional textbook” (with traditional representing a proprietary, for-cost textbook) was replaced with an OER book. The regions/levels of savings are:

U.S. & Canada Higher Ed: $921,783,169
U.S. & Canada K-12: $45,051,066
International: $38,500,000
Total: $1,005,334,235

Without further details of the Higher Ed savings, we do not know how much of the nearly $922 million dollars is specific to Canadian students. Yet, a reasonable assumption would be that millions of dollars are being saved. This is relevant to any discussion concerning declines in textbook income, or declines in licensing income from excerpts of textbooks.

Committee members could also reasonably assume that post-secondary institutions are slowly, but steadily, addressing the question posed by Mr. Armutlu: “If there are other quality options that exist that help alleviate those costs, why wouldn’t you use it?” The trend to OER is likely to increase.

Granted, at this time, OER substitution is not prevalent at all levels of study across all disciplines. But, SPARC’s data should provoke at least a modicum of curiosity against the claims that fair dealing alone is responsible for the drop in income of copyright owners, and, whether reliance on excerpts applies to the entirety of the Canadian post-secondary student population.

a different perspective

In Posts on September 24, 2018 at 7:18 pm

On 12 September 2018, the Edmonton Journal published an article of mine in print and online editions, where I emphasize the role of exceptions in the growth of billion-dollar media and content industries. Below is the original, longer form, of that article.

As the summer recess ends, Members of Parliament are returning to Ottawa to resume the business of the nation, including a review of the Copyright Act. Judging from transcripts of meetings held last spring, tensions run high among stakeholders. The general dispute is one of control versus legitimate unauthorized uses, education being a particularly thorny issue.

Transcripts of similar meetings from the 1980s, 1990s, and the 2000s, reveal that relations between educational institutions and copyright owners have always been strained. Institutions cite statutes that position copyright as a means of encouraging learning, while owners swear by the rights of the author. Both perspectives have roots in history. The Anglo-American common-law tradition placed the control of copyright, with measures of unauthorized use, as integral to developing publishing sectors. Whereas the civil-law tradition led by France argued that intellectual effort was nothing less than a living part of its creator and must be protected as such.

Yet both themes were relevant on both sides of the Atlantic. Differences were only a matter of timing. Nation-states eager to build their publishing sectors favored lesser control in the name of copyright. After creative assets were amassed, those same states offered holier-than-thou pronouncements about copyright. However, in neither tradition were authors, or students, central players in the various statutes.

Despite this, the figure of the starving author is the principal exhibit during any discussion of copyright. It appeared in 1710—when copyright attained a legal persona—and returned with each copyright expansion thereafter. If, 308 years later, authors are still starving, perhaps it is time to acknowledge that copyright alone cannot assure prosperity for an author. First and foremost, an author needs readers.

For Canadian authors, this challenge is not new. Even without competitors—beginning with Charles Dickens and continuing well past Harper Lee—Canada’s population was not enough to sustain Canadian authors. Even increasing the control exerted through copyright and holding students as a captive market cannot guarantee returns to Canadian authors. Particularly as foreign educational and research-oriented publications dominate the material read in post-secondary institutions.

As MPs wrestle with this review, they might consider a different perspective concerning the system of copyright—that it is not merely about what we read, view or listen to, but how we read, view and listen. Media development is enabled not by copyright, but by exceptions to copyright. Those uncontrolled spaces, where content is unprotected, allows new media to thrive, legitimately, to the benefit of a country’s economic and creative growth.

For instance, in the early twentieth-century, player pianos were in vogue. That success is directly attributable to a copyright law that did not protect music represented and conveyed through mechanical means. According to historian Harvey Roehl, in 1923 the player piano industry produced over 347,000 pianos and achieved over $100 million in sales. (In today’s American dollars, approximately $1.5 billion.) People feared that the technology would spell the death of music, but the new market for piano rolls spurred original composition. The leading player-piano manufacturers were eager to represent popular composers, selling not only their existing works, but also music composed expressly for piano-roll distribution (George Gershwin’s tale is legendary).

Another media technology worth remembering is the video cassette recorder. American film executives fought tooth-and-nail to have it killed; but in 1984, the United States’ Supreme Court ruled that the equipment was lawful. By the 1990s, the film industry was praising the new markets made available by the technology. Consumers were eager to pay for personal copies of favorite movies, which led to increased production of new films. Drawing from data compiled by the U.S. Department of Commerce and the U.S. International Trade Commission, in 1992 earnings via direct-sale to North American consumers reached $2.5 billion and in 1993 earnings from global markets were approximately $5 billion. All this out of a technology that Jack Valenti, then-president of the Motion Pictures Association of America, had likened to the Boston Strangler a decade earlier.

With respect to contemporary technology, MPs might find U.K. research to be helpful. In 2010, then-Prime Minister David Cameron ordered a review of their intellectual property law to enhance innovation and creativity in the digital age. In the ensuing report, the lead investigator Ian Hargreaves wrote: “Could it be true that laws designed more than three centuries ago with the express purpose of creating economic incentives for innovation by protecting creators’ rights are today obstructing innovation and economic growth? The short answer is: yes.” A year later, Hargreaves explained that Cameron had been particularly interested in the role exceptions had played in the development of search engines, namely Google.

This past summer, social media were buzzing in anticipation: would Google become the first trillion-dollar company? (Strictly speaking, it would have been Alphabet, parent company of Google, who could claim that title.) Apple emerged the winner; regardless, lawmakers should not forget that Alphabet exists because of Google and employs nearly 90,000 people worldwide. Of course, billion-dollar media industries with plentiful jobs do not arise solely from flexible exceptions within the system of copyright. But such industries could not arise without them.

Opponents of exceptions will criticize any amendment that appears to favour industries over authors. MPs might find strength of resolve through the work of Nick Mount, a professor of English at the University of Toronto, who is respected by authors and educators alike. In his landmark book, Arrival—the Story of CanLit, Mount illustrates that general economic prosperity enabled CanLit to reach the success we see today, and concludes by saying Canada “is producing many more writers and many more books than ever before.”


For those interested, further reading:

James Boyle (who served as an expert adviser for the British Review) on the Hargreaves Report: “Copyright is supposed to make, not to break, markets. Yet the Review found that innovative digital businesses were strangling in the tangled web of licensing copyright has created.  As technologies have developed, copyright has created right after right to deal with them, each jealously guarded by its own collection society. Pity the poor entrepreneur who wants to create a new legal business and finds that technological happenstance means multiple rights are involved. This is good for no one (except the middle-men.)”

Stephen Advokat, A new era for Hollywood, Chicago Tribune, 3 January 1986.

Fred von Lohmann, “Fair Use as Innovation Policy,” Berkeley Technology Law Journal (2008). “This article contends that copyright law’s historical tolerance for such copying as a fair use has served as an important element of both copyright and innovation policy. This is because, to the extent it permits private copying, fair use creates incentives for technology companies to build innovative new products that enable such copying. Far from being an unfair “subsidy” from copyright owners to technology innovators, this aspect of fair use has yielded complementary technologies that enhance the value of copyrighted works.”

V.S. Naipaul and copyright

In Posts on September 5, 2018 at 8:18 pm

Following V.S. Naipaul’s death (1932-2018), I picked up his books again. They had been within reach throughout my life, yet I had never been too eager to read them. Naipaul’s views about India had not sat well; a seeming hostility heightened by an adoration of Britain. That Imperial overlords had sent his grandfather from India, to serve as an indentured labourer for estate owners in the West Indies, made it even more baffling.

Whereas my maternal grandfather, in joint opposition to both his caste-conscious family and British divine right claimants, had performed his own version of Quit India by moving to casteless Burma (Myanmar). He maintained a lifelong, faithful adherence to the Gandhian vision of an independent, secular India, one that aspired to equality for all, regardless of caste or gender. From that familial background, Nobel Prize notwithstanding, the sharpness of Naipaul’s pen was too alien for my tastes.

But the man was dead now, reading a book seemed the least I could do. A House for Mr. Biswas beckoned, a 1961 paperback edition brought out by Penguin Books. I glanced at the front matter, searching for that preliminary content which might influence how a reader approaches an author’s work.

In the words of literary theorist Gérard Genette, this is the realm of the paratext; that “vestibule,” where, before stepping inside the text, a reader is presented with information that might secure “a better reception for the text.” A paratext might include a preface (those guiding words in a detached voice), or the not-so-subtle extolling of past success (the lavish praise received in the wake of an author’s earlier works).

And then there are paratexts that carry a hue of legality.

Accustomed as I am to seeing maximalist copyright paratexts—those strident notices that, in violation of copyright law, prohibit any and all copying—this paratext was different:

Copyright © V.S. Naipaul
This book is sold subject to the condition that it shall not, by way of trade or otherwise, be lent, re-sold, hired out, or otherwise circulated without the publisher’s prior consent in any form of binding or cover other than that in which it is published and without a similar condition including this condition being imposed on the subsequent publisher (emphasis mine).

The reader was only urged to be aware that unauthorized books might be in circulation. Penguin Books likely hoped that readers would apply the market force necessary to keep rival publishers in line, but the reader is largely left alone.

Appealing to readers to maintain markets was not new, even in 1961.

Robert Spoo, an authority in both law and literature, has written extensively about courtesy paratexts, those notices used by nineteenth century American publishers to illustrate that their dealings with British books were with the consent of the British author. At that time, American copyright law did not extend to protecting foreign works; freely using British writing was a legitimate option, available to the entire American publishing industry. To manage the temptation of undercutting one another, to avoid a race-to-the-bottom in the pricing of reprints, larger American publishing houses agreed not to poach authors’ works, once a particular house had secured the author’s consent.

Consent was usually obtained with a courtesy payment from the American publisher to the British copyright-owner. While British authors and publishers fumed at their lack of control in this system, a Royal Commission on copyright carried out by the British Government (1876-1878) confirmed that many British authors and publishers profited handsomely through these arrangements (though at Canada’s expense, i.e., see here or here.)

However, these gentlemen’s agreements were not always respected, particularly when the writer was popular with American readers. A few words from the author could confer some respectability upon the publisher in the eyes of the market, and increase the likelihood of holding that market. Within Spoo’s work are examples, exhibiting a range of tone from the humble words of Robert Browning to the distinctly legal’esque language of Charles Dickens.

Returning to the Naipaul collection, a paperback copy of India, A Million Mutinies Now (a Minerva edition dating to 1990), reveals the same paratext as found in Mr. Biswas. However, a Viking Penguin hardcover offering of the same book, of the same year, extolls this:

Copyright © V.S. Naipaul, 1990
Without limiting the rights under copyright reserved above, no part of this publication may be reproduced, stored in or introduced into a retrieval system, or transmitted in any form, or by any means (electronic, mechanical, photocopying, recording or otherwise), without the prior written permission of both the copyright owner and the above publisher of this book.

It is bizarre even to suggest that the lengthy prohibition of reproduction etc., could limit the rights under copyright—given that the notice exceeds what copyright provides under law.

But this nonsensical statement makes some sense if it is read, not as prohibition to readers, but as a warning to would-be pirate publishers. The notice tells prospective resellers that the road to Million Mutinies must go through not only Viking, but Naipaul as well. From that, a reader could assume that Naipaul did not hand over all the meaningful aspects of copyright (control over reproduction etc.) to Viking.

Continuing my Naipaulian-guided exploration of copyright-paratexts; a 2011 edition of A Way in the World  (issued by Picador), begins by scrupulously noting that the book was published in 1994 by William Heinemann, in 1995 by Minerva, and then in 2001 by Vintage (Random House). It ends with the prohibition on circulation in any other form of binding or cover.

In between, the author surfaces; Naipaul’s claim of copyright for the book in 1994, and in the preface in 2011, are explicit. Curiously though, while claiming copyright required no justification, claiming authorship did: “The right of V.S. Naipaul to be identified as the author of this work has been asserted by him in accordance with the Copyright, Designs and Patents Act 1988.”

The remainder of the copyright-paratext takes on a biblical tone of crime and punishment:

All rights reserved. No part of this publication may be reproduced, stored in or introduced into a retrieval system, or transmitted in any form, or by any means (electronic, mechanical, photocopying, recording or otherwise), without the prior written permission of both the copyright owner and the above publisher of this book. Any person who does any unauthorized act in relation to this publication may be liable to criminal prosecution and civil claims for damages.

The overreach on the scope of copyright is astounding. Limitations/exceptions to copyright are always an option. So said Canada’s former Chief Justice Beverley Mclachlin in 2004: “Fair dealing is always available.”

All copyright statutes of countries participating in international treaties, will have sanctioned some degree of unauthorized use of copyrighted work. The Marrakesh Treaty (created in 2013 to support perceptually disabled people) comes to mind, but even the Berne Convention (created in 1886 ostensibly to better support authors) does not omit unauthorized uses.

Even without international prodding, countries may amend their exceptions to ensure that a system purporting to support authors has the capacity to fulfill that expectation. Canada’s best adjustment may well be S29.21.

In terms of the criminality of unauthorized use, in Canada such remedies generally pertain to commercial malfeasance; i.e., sale of the work without consent. Arguably, this paratext speaks only in terms of “may be liable” but in the hypersensitive copyright-age we live in, such a notice is enough to scare off any teacher or student from exercising fair dealing. I wonder if authors are aware of the misrepresentation of the law that is presented in their names.

Furthermore, how often do authors retain their copyright? How often do they retain it in more than name only? Does having a copyright actually translate into royalties when books are sold? What happens when books fall out of print; do the rights revert to the author? Are authors (and their estates) aware of explicit statutory provisions for reversion of rights? (Rebecca Giblin’s work, particularly the Authors Interest Project, probes these questions.)

Naipaul seemed to be aware of the importance of copyright; from his earliest publications (by André Deutsch Limited) on, Naipaul consistently declared his copyright and renewed it as necessary. That command of copyright continued even where he was not the sole author. The copyright paratext in the published correspondence between Naipaul and his family, entitled Letters Between a Father and a Son (Little, Brown and Company, 1999), tells a story of its own:

Copyright © V. S. Naipaul 1999
The moral right of the author has been asserted.

The moral right of the author is startling to say the least. There are five authors in this collection: Naipaul, his sister Kamla, their father and mother–Seepersad Naipaul and Droapatie Capildeo–and Gillon Aitken (editor of the collection and author of the introduction). Granted, V.S. Naipaul’s letters form the majority of the book, and his parents were dead at the time of publication. However, all authors ought to have been entitled to recognition and reservation of rights with respect to their own original work.

Perhaps these matters were discussed, explained, and executed with consent from the living parties.

Back to Mr. Biswas.

Indigenous paradigms

In Posts on June 25, 2018 at 8:09 am

This post is a bit late; it is my contribution to #IndigenousPeoplesDay.

In December 2017 Ministers Navdeep Bains and Melanie Joly jointly issued instructions to Members of Parliament charged with carrying out the Review of the Copyright Act. Among many details, the Ministers invited Members “to pay special attention to the needs and interests of Indigenous peoples as part of Canada’s cross-cutting efforts at reconciliation.”

Historically, Indigenous creative effort has not fared well under the modern paradigm of intellectual property rights. From looting of artifacts to casual help-ourselves approaches to indigenous design, indigenous assets, often described as cultural property and traditional knowledge, are used in ways that violate their traditions and laws. To the extent that others commercialize such assets, rarely do gains flow back to the community.

From the first meeting on, Committee members sought input from witnesses on this topic. In oral testimony, and submitted briefs, there is consensus that this challenge needs attention; this may be the one point of unity among all stakeholders of the copyright review. That in itself is encouraging.

However, it is difficult to make progress on this front under the auspices of copyright. The Copyright Act is structurally antagonistic to the principle characteristics of Indigenous cultural property and traditional knowledge, namely they lack specific authorship (which is key to claiming ownership under the Act) and may date back to antiquity (which invariably places them in what is considered the public domain*).

As we wrestle with the intricacies of this challenge, there are other ways to show support and facilitate more respectful use of Indigenous materials.

In July 2016, An Open Licensing Scheme for Traditional Knowledge was jointly put forward by the Canadian Internet Policy & Public Interest Clinic (University of Ottawa) and the Geomatics and Cartographic Research Centre (Carleton University). The scheme “aims to give Indigenous communities new tools to exert control over their traditional knowledge [and] clarify expectations of those seeking licensing rights and other downstream uses (8).”

Modeled in the fashion of Creative Commons licenses, where a visual label indicates the creator’s wishes in terms of subsequent use, the researchers revealed a slate of possible labels including: Give Back / Reciprocity; Community Consent, Use-Based / Noncommercial; Education and Research Only; etc.  They also drew attention to two other similar, active, operations with respect to labels as a means of communication: the Mukurtu Project and its sister organization Local Contexts. While communication cannot guarantee respect for the wishes of Indigenous communities, it is a starting point.

In addition, Canadians could consider that Indigenous paradigms about creative endeavor are more akin to the creative process, than modern insistence that creativity is an individual exercise and that property is strictly private. My research looks at the overlap of Indigenous paradigms with Canadian copyright law — not in terms of the specificity of legal language, but in the processes that underwrite and shape creativity itself.

To be clear, when I use the phrase Indigenous paradigms, I am not suggesting a uniformity of thought, tradition or law, across the many Indigenous communities situated within Canada. Rather, the phrase is an attempt to describe a different approach to creativity and property than that which followed in the wake of Judeo-Christian theological teachings or (for the more secular minded) the writings of John Locke. Modern conceptions of intellectual property are rooted in assumptions about property itself – chief among them, the misconception that a right of property is absolute in its control and capacity to exclude others. (Even the most treasured property – land – is subject to measures deemed essential to the public good: building codes, zoning divisions, environmental laws, etc.)

All music, art, poetry and literature are creative outcomes via time immemorial communities of musicians, artists, poets and writers. This is hardly a revelation; Northrop Frye’s words have been with us for over sixty years: “Poetry can only be made from other poems, novels from other novels. All this was much clearer, before the assimilation of literature to private enterprise concealed so many of the facts of criticism.”

Briefly, that assimilation to private enterprise was largely carried out through the introduction and expansion of copyright. Those events are intertwined with the rise of the reading public, the shaping of a book market, new technology; events that combined to alter the perspective of where art, music and literature came from. While previously art was allied to the Divine – inspired by and in service to – the Romantics were never too happy with a world in which books were articles of sale, and writers were mere producers of commodities. As authors wrestled with changing streams of income and the need to compete in a marketplace, the idea of the individual creative genius whose work is original unto himself served to shelter the esteem of an author and justify the boundary of property around a creation. Ironically though, authors themselves were never a focal point in the development of copyright law.

In concert with the universality of the process of creativity is a bond between creative artifact and the author, artist, musician etc. In intellectual property law, this has a name: moral rights. (The term is misleading; despite the somewhat pious inference, the rights reflect personal connections between the creator and the thing-created.) Among moral rights is the protection of the integrity of the work – the creative artifact has a persona,** which sits in relation to the creator.

And there might be another relationship present; Rudyard Kipling famously spoke of daemons who led the creative process, writers must “drift, wait, obey.” Contemporary writers are not shy of acknowledging this third-party, Elizabeth Gilbert and Philip Pullman come to mind. Even without this partner, writers may have the eerie feeling that their characters are writing their own story. (I welcome input from writers of fiction.)

This nexus of relationships occurs with the creative artifact situated at the centre and a community of writers engaging in relationship with it. A set of relations that is similar to the structure of Indigenous cultural property/traditional knowledge. It is the interpretation of property that differs between Indigenous and non-Indigenous paradigms; in Indigenous hands, property is far more immersive, far more relational, one belongs to the property as compared to the converse interpretation of property by non-Indigenous legal paradigms.***

As I wrote in my brief to the Standing Committee: “… recognizing indigenous traditions that we implicitly already follow, supports the objectives of the Truth and Reconciliation Commission, particularly the recurring call for better integration of indigenous law into Canadian life.

Much as we acknowledge that the physical ground beneath our feet is Indigenous territory, we ought also to acknowledge those Indigenous paradigms which serve as the foundation to our daily creative effort.


* My research offers an alternative, legitimate conception of the public domain that is more flexible in its composition — I draw from the work of Jessica Litman and our Supreme Court decisions.

** Anishinaabe legal scholar Aimée Craft reminds us that some jurisdictions have granted personhood to bodies of water. That physical or cultural property could have agency, at least in legal proceedings, is, again, not a revelation.

*** Brian Noble, “Owning as Belonging/Owning as Property …” in Catherine Bell and Val Napoleon, eds., First Nations Cultural Heritage and Law (Vancouver: UBC Press, 2008) 465.