Meera Nair

Archive for the ‘Posts’ Category

six factors if necessary

In Posts on February 24, 2017 at 9:58 am

But not necessarily six factors.

Below is some of the content I covered yesterday during a panel discussion Fair Dealing–Where do we go from here?  With the aim of simplifying the fairness analysis, I drew attention to some pre-CCH Canadian case law (see here and here).  My thanks to the University of Alberta for the opportunity to participate in the discussion.

Earlier this week, I mentioned Canada’s progress in developing a mutually respectful system of copyright, one that does more than pay lip-service to creativity. Fair dealing plays its part in this system of limited rights, as is necessary to maintain the goal and structure of copyright set some three hundred years ago. That fair dealing has become part and parcel of the legal landscape is perhaps best exemplified by remarks from a Federal court judge: “I don’t think this case is as profound as you and others made it out to be.”

Fair dealing is here to stay; students and teachers have every reason to make use of it.

However, it would be reasonable to say that there is still a great deal of timidity among educational institutions over actually using fair dealing.

The principal element of a decision of fair dealing is the contextual analysis to determine if a use is fair. This approach was set via CCH Canadian where the Court relied on six factors for analysis: (i) purpose of the dealing; (ii) character of the dealing; (iii) amount of the dealing; (iv) alternative to the work; (v) nature of the work; (vi) effect of the dealing on the work. These factors were included in fair dealing policies developed by national educational bodies and subsequently implemented at institutions across the country.

But therein lies a problem. While it is essential to remember that fairness is embedded in context, we have also to remember that the six factors cited are not sacrosanct. In CCH Canadian, the Supreme Court also emphasized that the framework of exploration must be malleable. That discussion of fair dealing is hailed as a progressive development because it struck down the 20th century tendency to see copyright, or exceptions thereto, in terms of mechanical rules to be applied without consideration of context. By simply adopting new rules, we risk that estimable gain of progressive development.

To be sure, rules carry some value in setting general guidelines for institutions as a whole. When fashioning policies for use of copyrighted works, the 10% / 1 chapter position of the prevailing policies is a reasonable starting point. If more is desired, then discussion with copyright personnel is the next step. Yet the larger goal should be to encourage thought with regard to any decision to copy. Fair dealing is not, and never should be, confined to the perspective of measure.

A challenge to such copyright literacy is the six-factor analysis. Intimating that teachers carry out such an expansive consideration risks evoking horror, even paralysis, in that audience. But that audience is well-positioned to grasp a more tailored analysis.

Fair dealing is not used purely to obtain reference materials; fair dealing also shows itself in the creative effort of developing learning resources. Such resources benefit from the inclusion of quotations, images, charts/tables etc. Inclusion of any one of these items may well be legitimate simply by virtue of being an insubstantial portion of a larger work; yet it is beneficial to engage in a fairness analysis. Particularly, as such cases lend themselves to a two-factor examination that everyone is capable of understanding and executing:

1. What is the purpose of using the copyrighted material?

Mere conventional thinking would tell us that the purpose is education, and education is one of the permissible categories of s.29 Fair Dealing. But a more precise answer pays dividends in terms of risk management. Teachers choosing to use particular materials should be clear (at least to themselves) as to how that content serves an educational objective. The answer need not be couched in pedagogical jargon, it could be as simple as it “illustrates a concept.” This modest exercise of thought sharpens focus on both the objective and the material, and (inadvertently perhaps) places a curb on the amount copied. Without resorting to stipulations of measure, such consideration encourages the teacher to use only what is needed, nothing more.

2. How is the material distributed?

We ought not to forget that teachers stand in the fair dealing shoes of their students. Hence, distribution should be in light of what is necessary to meet the needs of that finite group. Placing content in a secure, password-protected learning platform, or via handouts in class, serves that goal. Whereas posting content to a public website is not as confined in its reach. (I am not ruling out wider distribution such as placing a dissertation in an open-access institutional repository–more on that another day). In any case, if students were then to circulate the carefully curated material, there is no liability to the teacher or institution.

To those who are concerned at the seeming loss of four factors, they have not disappeared.  Rather, they are subsumed by the situational aspects of this type of copying. As noted above, the aspect of amount is implicit to considered thought regarding why a work (or portions thereof) is being copied. The question of alternative resources becomes less germane as the explicit language in Alberta v. Education rules out the implication that schools ought to purchase a copy of every conceivable work for every conceivable student. (And if the work copied is from institution-wide subscription resources, this factor becomes irrelevant.) The nature of the work tends to be published material, eminently suited to fair dealing. As to effect, the Supreme Court has emphasized that such dealings should not be read in the aggregate. And the Copyright Board has explicitly rejected the former dictum of anything worth copying is worth paying for (para 110 here and  para. 217 here).

To some that may sound harsh, but only until one realizes that the Board has not ruled out paying for copying when appropriate. The Board only rejected a century-old proposition which was inspired by the conduct of a rival publisher. The Board, like the Supreme Court, now emphasizes a holistic examination of any dispute.

On a different note; in 2016 I met an American lawyer who was–to put it plainly–in awe of Canada and our development of fair dealing. Three Supreme Court decisions, progressive amendments passed by government, two Copyright Board decisions, and fifteen years of considered dialogue led by legal scholars, practicing lawyers, university counsels and many, many librarians. In part wonderment, part frustration, she asked: “What are you waiting for?

 

fair dealing week 2017

In Posts on February 19, 2017 at 7:23 pm

Tomorrow marks the start of Fair Dealing Week in Canada. There is much to be proud of with the steady advance in the realm of exceptions, gained not by intemperate action but by deliberative thought on the part of the judiciary, the government, the Copyright Board, and, institutions and individuals across the country. A moment of celebration and pride is warranted.

Yet, significant challenges remain. Educational institutions continue to be a favorite target with copyright owners. Those who take aim at fair dealing lack a cogent argument grounded in either legality or economics, and so must rely on hyperbole. The picture painted is that educational institutions steal from an industry which is on its deathbed, to the detriment of those individuals who carry the very soul of the nation.

In the absence of informed discussion, emotion can masquerade as logical thought. With our sesquicentennial year upon us, the emotion index will likely exceed what hysteria we have already seen. Unfortunately, many Canadians (and their representatives in government) are unaware of the nuance of copyright, that it is a system of limited rights. This post is written with the hope of reaching some of those individuals.

For those who do not yet know what fair dealing means in an educational environment, have a look at Student Life without Fair Dealing. This presentation was created a few years ago by Annie Ludbrook of Ryerson University; it remains the best illustration of how necessary fair dealing is to learning, and takes only a minute or two to view.

And, if interested in a larger story, please see below.


“Millions of times a day copyright material is probably shared in this country.”[1]

That phrase stood out among the miscellany that a Sunday-morning excursion into Twitter had unearthed. Said by a Federal court judge, it was in reference to a dispute over unauthorized uses of material protected by copyright. This dispute (later resolved in favour of fair dealing) is only one of many skirmishes in an ongoing Great Battle in the realm of copyright. Ever since it became apparent that digital technology set on world-wide networks has considerable potential for distribution, copyright holders and copyright users alike have claimed those streams of sharing. To some, sharing represents a threat to the very production of creative material; to others, such sharing is creativity’s salvation.

But the contemporary clash of views is not the first Great Battle fought in the name of copyright. Matthew Arnold, renowned poet and social commentator of 19th century England, bestowed the title on a Royal Commission which probed the very structure of copyright as a grant of monopoly power and openly questioned its usefulness. Eventually, the outcome supported the continuance of copyright as it was designed and has functioned so ever since.

But a critical point has almost been lost to history; the decision was not unanimous. Ten of the fifteen commissioners attached dissenting opinions to the final report, dissatisfaction brewed even among the victors. One could say that the only element of absolute unanimity was the implicit boundary that circumscribed any assertion of copyright: copyright was a means to govern the conduct of players in the commercial book market.

Meaning, copyright was a trade regulation imposed on corporate entities. Yet by virtue of what will long be rued as a poor choice of vocabulary, today the language of copy suggests that copyright may privatise the intellectual and creative activity of individuals.

Copyright falls within a branch of law addressing what has come to be known as intellectual property, a phrase of equally dubious construction. We are told that Thomas Jefferson was the first to associate intellectual creation as property, a word expressly chosen in order to break with the English tradition of declaring such rights as monopolies (a practice of control that functioned to the detriment of the people in England).[2]

Ironically, three centuries later, intellectual property rights are just as capable of being harnessed towards monopolistic behavior. For instance, efforts by literary estates to curtail scholarly work,[3] a steep escalation of textbook costs,[4] and the thirty-year effort it took to reach an international agreement allowing some manner of adaption and distribution of copyrighted materials to aid visually-disabled people,[5] should disabuse anyone of the notion that copyright can do no harm.

A cogent argument for some control over intellectual creations does exist. It is reasonable that writers, artists, musicians, et al, should receive remuneration when their creations are exchanged in a professional marketplace. Many will agree that the likelihood of development of creative effort is heightened when there is assurance of some rights of control after creativity has been exercised. But perpetual furor over copyright eclipses a vital factor: that control is insufficient to bring about creativity.

Creative effort does not occur by the presence of rights alone. Creativity needs knowledge, awareness, skill, diligence, luck, fodder, and something else that lacks capture in a single word; loosely speaking, this indefinable element is a capacity to envision that which others may not. A confluence of all these elements might result in developments in art, music, literature, or science.

In this light, the creative process seems less and less the purview of law, and more and more some manner of alchemy, or worse. According to Voltaire: “One must be possessed of the Devil, to succeed in any of the arts.”[6] Alternatively, one constant theme regarding creative effort is to engage with other creative effort. William Faulkner’s advice: “Read, read, read. Read everything — trash, classics, good and bad …. You’ll absorb it. Then write.”[7] Or this declaration from Margaret Atwood: “The first thing I did when starting this project was to reread the play. Then I read it again. Then I got my hands on all the films of it that I could find, and watched them. Then I read the play again… then I read it again, backwards.”[8]

And yet, law dominates discussions of fostering creative effort. Likely because law is specific, law can be written down, law can be upheld, or, violated and then wielded as an instrument of retribution. Addressing the law meets a political goal—to show that something is being done. Three centuries ago, copyright law was created under the façade of supporting starving authors; that trope reappears as each development in media is cast as a threat to literary or other artistic endeavors. The refrain repeats: Dire consequences will lie ahead for society as a whole, unless something is done.

Today, the repercussions of amending copyright law far exceed the mandate of trade regulation. Technological development has brought us to a point where we live our private lives through copies. Unauthorized use is a vital step to creativity and needs protection.

Fair dealing is a very modest exception to the monopoly of copyright. A fair dealing of copyrighted work must not only fit within prescribed categories of use (education is among them) but must also survive a fairness analysis. The educational community takes its responsibilities seriously; no institution would sanction unrestrained copying as fair dealing. Yet this is the image presented by those who prefer to cast fair dealing as something to fear and something to blame.

Footnotes:

[1] Justice Barnes, quoted by Graham C. Gordon, Loonie Politics. 24 September 2016.

[2] The praecursor to copyright were the printing privileges bestowed upon guilds; the most powerful among them holding control over the printing of widely used classes of books such as catechisms, bibles, ABCs, and lawbooks. Philosopher John Locke condemned all monopolies as hoarding money and property to the detriment of the kingdom and was particularly incensed at the system which enabled booksellers to charge high prices for poorly produced books.

[3] A case of note was the unwillingness of James Joyce’s estate to recognize fair use in scholarly work; see Schloss v. Estate of James Joyce.

[4] For instance, “…new textbook prices increased by a total of 82 percent over [2002-2012],” see Students Have Greater Access to Textbook Information, U.S. Government Accountability Office. There does not appear to be comparable data for Canadian students, but as products are generally more expensive to purchase in Canada, it is unlike that the situation would be better on this side of the border.

[5] James Love, “A Treaty for the Blind?Fordham Intellectual Property, Media and Information Journal (2006), Vol. 22 Issue 12. See also Meera Nair, “Wonderful news from Marrakesh,” in FairDuty, 6 June 2013,

[6] Quoted in Nancy Mitford’s Voltaire in Love (London: Hamish Hamilton, 1957).

[7] “The Best Writing Tips From William Faulkner,” 25 September 2013, Huffington Post.

[8] Margaret Atwood, 24 September 2016, The Guardian.

Sir John Thompson

In Posts on December 11, 2016 at 10:55 am

We are told he is the best Prime Minister Canada never had. Sir John Sparrow David Thompson served only two years in that capacity; an untimely death on 12 December 1894 cut short his stewardship. But his contributions to Canada spanned much longer than those two years would suggest.

Under Sir John A. Macdonald, Thompson held the position of Justice Minister (sworn in on 26 September 1885), a responsibility he maintained to his death. While deeply respected by his Conservative colleagues, Thompson’s sterling character did not always meet with approval from all; one party stalwart moaned: “He won’t even consider whether a thing is good for the party until he is quite sure it is good for the country.”[1]

As Justice Minister, Thompson undertook the monumental task of giving Canada its own Criminal Code. Working closely with a bi-partisan committee, the result was a statute that reflected Thompson’s skills as jurist, and dedication as a Canadian. His first biographer, J. Castell Hopkins, would argue that the Code was far more deserving to be named for its maker than the Code Napoleon. Thompson also served as an arbiter in the Bering Straits dispute between Canada and the United States, and he staunchly supported the position that Canada should set its own copyright course—that indeed Canada had the right to do so as a self-governing Dominion.

Thompson’s commitment to the rule of law, fairness and justice were unparalleled, earning him praise from both sides of the aisle. He was, in a word, a statesman. Throughout though, he was confronted by the internecine Catholic/Protestant mistrust, a challenge that has largely faded from Canadian memory but was as potent in its time as the misplaced-hostility over multiculturalism is today. Thompson, a Methodist turned Catholic, initially turned down Governor General Lord Stanley’s request to assume the helm following Prime Minister Macdonald’s death—Thompson felt that his Catholicism would provoke trouble for the government. But when MacDonald’s successor John Abbot resigned on account of poor health, Thompson agreed to lead the Conservative Party and thus too the Government of Canada.

My interest in Thompson was sparked during my doctoral exploration of Canadian copyright history.[2] In 1889, under Thompson’s guidance, the Canadian Copyright Act was amended as necessary to address the complexities of Canada’s geographic and political position, caught as the country was between American capitalism and British imperialism. Passed with unanimity by Canadian parliamentarians, the Act encouraged the development of a national publishing industry by ensuring the legitimate reprinting of works of foreign authors, through a compulsory royalty. This measure applied only if the copyright holder did not seek publication in Canada within one month of publication elsewhere. Canadian readers and all authors would have benefited.

But the passage of the 1889 Act required disengagement from Imperial copyright law, as also from the blanket pronouncements of the recently-formed Berne Convention. Thompson argued, not for Canadian autonomy, but for recognition of the autonomy as it already existed in the British North America Act of 1867 and had further developed in the decades following Confederation. Unfortunately, although Thompson held the better argument, the political clout of British and American publishing industries ensured that such recognition was withheld.

British intransigence towards Canada stemmed in part from the desire to bring about an Anglo-American copyright treaty; Canada was a valuable bargaining chip. Even before a treaty of sorts eventually transpired, the Canadian market was offered up by savvy copyright holders who sought private arrangements with American publishing houses. If assured that no similar arrangement would be made with a Canadian printer, American publishers were willing to provide some compensation to the owner. As P. B. Waite describes, the tone was not always benign: “You will get no compensation whatever from us, if you permit any Canadian house to publish your work.”[3]

These practices were so widespread as to merit inclusion in a Royal Commission on Copyright. Aware of the gentleman’s agreement among American publishers (some might say honour among thieves), whereby the right to continued publication was reserved to the house that gained first publication, the Commissioners observed:

[S]ecured from competition … it is worth while for [American publishers] to rival each other abroad in their offers for early sheets of important works. We are assured that there are cases in which authors reap substantial results … and instances are even known in which an English author’s returns from the United States exceed the profits of his British sale …. (para. 242)..

Notably, that same Commission report supported the measures that Canada would later attempt to enact in 1889 (paras.206-207).

When the long-desired Anglo-American Treaty came into being, it provided much less benefit than what Canada had offered. The United States would not abandon its manufacturing clause—ensuring the betterment of American industry and loss to the British counterpart—meaning that foreign authors could only obtain copyright for works set and printed within the United States. Faced with that expensive proposition, English authors and publishers were left with little to show for the years of waiting. Following the passage of the American Copyright Bill, C.J. Longman (of the House of Longman) did not mince words:

The Act … offers protection—on conditions—to any British author.  There are already signs that the value of this protection may be over-estimated in this country. It is desirable therefore to point out that to those writers whose published works are before the world, … but have failed to attract the attention of pirates, the Act gives no advantage. If there had been any prospect of republishing those books profitably, the enterprising American publisher would certainly have availed himself of his chance when he could have had them for nothing.  ….
– “The American Copyright Bill,” The Economic Review 1.2 (1891).

Despite the inadequacies of the American arrangements, the British Crown continued to refuse Canada’s requests for independent action regarding copyright. Even though Sir Charles Trevelyan had emphasized for years that partnering with Canadian publishers would allow England to gain the upper-hand in the reprints market of North America as a whole. That logic, not to mention the greater benefit for English authors, fell on deaf ears. English authors and copyright holders could neither envisage altering the model of monopoly copyright, nor tolerate diversity within colonial implementation of the law.

Thompson continued to press his case with clarity, evidence, and appeals to the rule of law. Invited to serve as a member of the Queen’s Privy Council, he traveled to London in December 1894 to be sworn in. In the days prior to the ceremony, Thompson discussed the copyright issue with members of the Colonial Office, and achieved some recognition of the legitimacy of Canada’s position: “… the claim of the Canadian legislature is a good one, and the burden of proof that it is contrary to public policy rests on those who contest it.”[4] But whatever ground Thompson had gained, was never to be capitalized on. Within hours of the swearing-in ceremony Thompson collapsed at Windsor Castle and died. He was forty-nine.

Without Thompson’s leadership, Canada could not achieve meaningful independence on matters relating to copyright.

Notes:

[1] Quoted by Gordon Donaldson in The Prime Ministers of Canada (Doubleday Canada Limited, 1994) p.53

[2] I cover this period of  history in detail in “The Copyright Act of 1889–A Canadian Declaration of Independence,” Canadian Historical Review, Vol. 90, Issue 1, p.1-28.

[3] Quoted by Peter B. Waite in “Sir John Thompson and Copyright, 1189-1894: Struggling to break free of Imperial Law,” Bulletin of Canadian Studies.  Vol.6 No.2, p.36-49.

[4] Ibid.

 

Blacklock’s Reporter, the stories within the story

In Posts on November 15, 2016 at 8:46 pm

On 10 November 2016, Justice Barnes of the Federal Court released his decision for Blacklock’s Reporter v. Canada (A. G.), a case involving unauthorized circulation of two news articles among a handful of staff members working within the Federal Government. The articles had been legitimately obtained via an individual subscription to the site Blacklock’s Reporter, but the copyright owners claimed that the subsequent downstream uses were infringement. Justice Barnes disagreed, and declared fair dealing. “There is no question that the circulation of this news copy within the Department was done for a proper research purpose. There is also no question that the admitted scope of use was, in the circumstances, fair (para 33).”

Briefly, the two articles were read by Sandra Marsden, President of the Canada Sugar Institute, through her own subscription to Blacklock’s ReporterShe subsequently shared the content with Patrick Halley of the International Trade Policy Division of the Federal Government, who in turn passed the articles on to five other staff members. Throughout, their concern was the manner in which information provided by Marsden and Stéphanie Rubec (a government media relations officer) was used and not used, respectively.

In the eyes of the copyright owners, the sharing by Ms. Marsden, and the subsequent sharing within the department, were a violation of the terms and conditions governing the use of the news service. In the claim, Blacklock’s Reporter sought compensation, not by way of six individual subscriptions (each priced at $148), but via a department-wide site license of $17,209. At the end of the day though, Justice Barnes was more than satisfied that the discrete sharing of articles was reasonable; it was fair dealing.

The decision handed down contains a few gems. One in particular is weighty in its simplicity: “The act of reading, by itself, is an exercise that will almost always constitute fair dealing even when it is carried out solely for personal enlightenment or entertainment (para. 36).”

The decision is well-written and straightforward; it brings to mind the comments of James Grimmelmann (Professor of Law, University of Maryland) after an American appeals’ court supported the HathiTrust initiative: “The [decision] is sober, conservative, and to the point; it is the work of a court that does not think this is a hard case.” The same could be said of Justice Barnes’ work. Indeed, during the trial, Graeme C. Gordon of Loonie Politics quotes Barnes as saying, “I don’t think this case is as profound as you and others made it out to be.”

But what might be routine in the hands of Justice Barnes is scarcely so for readers. Particularly given the detailed commentary provided during the trial by Loonie Politics (Day One begins here) and the Centre for Internet Policy and Public Interest Clinic (CIPPIC’s complete summary is here). Emotions on the side of Blacklock’s Reporter ran high–a naked hostility to fair dealing is evident. While that in itself is not surprising, the degree to which the Federal Government was targeted as a private market, is.

In fairness to Blacklock’s Reporter, such action did not appear to be a part of their initial business model. When the owners put up their shingle in 2012, they did so with noble aspirations—to return to the days when “newspapers were run by journalists for citizens,” with the aim of providing serious news about the functioning of government. At the time, writing for the Tyee, Shannon Rupp observed the goal as being a return to the “old-fashioned business model [when] newspapers were part of their community and their links with the audience were authentic, involving a mutual loyalty that served to maintain readership.”

Returning to the case in hand; news of this dispute was first brought to our attention by Teresa Scassa in August when she described the extent of litigation being brought forward by the news site:

[lawsuits are pending against] a total of 7 federal government departments and agencies and 3 Crown corporations and agencies. Blacklock’s provides articles on a subscription basis only; it accuses the various defendants of having accessed copies of its articles without having subscribed to the service and in breach of their copyrights. The defendants argue that Blacklock’s “employs a pattern of writing misleading or inaccurate articles about an organization with the expectation that these articles would be accessed and shared internally.” They then allege that Blacklock’s files access to information requests to uncover details of such access and distribution in order to issue claims for damages for copyright infringement. Essentially, they contend that Blacklock’s is engaged in copyright trolling.

Justice Barnes did not address the allegation of trolling but did remark that “there are certainly some troubling aspects to Blacklock’s business practices (para. 22).” These aspects are described by Graeme C. Gordon on Day 4 of the trial:

… there were two witnesses — one from Canadian Museum of History and the other from Canadian Mortgage and Housing Corporation — who both gave testimony of their poor experiences with Blacklock’s.  One of the witnesses said she felt “sort of duped into creating this situation.”  She also said Koski “didn’t seem to be accepting the answers that I was giving him” and that he wrote negative articles that were “misleading” and “misrepresenting” of facts.

CIPPIC indicates that the Museum of History and the Mortgage and Housing Corporation each acquiesced to demands for a $12,000 fee rather than face a legal challenge. CIPPIC also draws attention to the unwillingness of Blacklock’s Reporter to include a comment sent by a staff member in connection to the sugar tax story, before the article was posted:

Ms. Rubec stated that she had spent hours providing a comment only to be told Blacklock’s would print that the Department had provided “no comment”, she had followed up with an email the evening prior to publication, and still the article was not updated when it went live the following morning. She testified that she had been “frustrated” by the exchange.

Justice Barnes addresses this point and adds a footnote that must not be missed: “Not withstanding Ms. Rubec’s several on-the-record responses, [the article] improperly attributed “no comment” to the Defendant. This is a practice Mr. Korski adopts when he does not accept or approve of the answers he is given from a source; see Exhibits … and confirmed by Mr. Korski’s testimony (para.9 / footnote 1).”

Returning to the dispute itself, Justice Barnes brings much-needed clarity to the manner in which terms and conditions, when unilaterally imposed upon consumers, must be interpreted:

As the drafter of [its stipulated terms and conditions], Blacklock’s is bound to the interpretation most favourable to the users of its copy which, in this case, permitted Ms. Marsden’s distribution to the Department for a non-commercial purpose, and by implication, permitted a similar use by Mr. Halley (para. 43).

In his analysis of the unauthorized use, Justice Barnes begins with the observation that fair dealing “is a well-recognized right under the Act (para. 24),” and later confirms that neither copyright owners nor copyright users are permitted to pick and choose which parts of the system of copyright they will adhere to: “Absent consent, subscribers and downstream users are subject to the obligations imposed upon them by the [Copyright] Act. But at the same time they enjoy considerable protection afforded to them under the statutory fair dealing provisions (para. 44).”

And, with what might be my favorite remark, Justice Barnes firmly rejects the all-too-often asserted claim that every use of a copyrighted work represents lost income and thus must be compensated for:

It also goes without saying that whatever business model Blacklock’s employs it is always subject to the fair dealing rights of third parties. To put it another way, Blacklock’s is not entitled to special treatment because its financial interests may be adversely affected by the fair use of its material (para 45).

Readers may be curious, as I was, about the ancestry of the Blacklock in Blacklock’s Reporter. The news site takes its name from the late Thomas H. Blacklock (1873-1934), a revered member of the press from a bygone era. His career as a journalist including writing for multiple organizations within Canada as well as covering WWI. Respected by colleagues and readers alike, he was one of Canada’s best political correspondents of the early 20th century. At the time of Blacklock’s death, Prime Minister Robert Borden recounted this story:

In one of the campaigns when Mr. Meighen and Mr. King were rivals, they engaged in long-range verbal hostilities that were rather ineffective on both sides. Blacklock became impatient and wrote to Meighen a letter which Tom afterwards showed to me. It was keenly critical of the course Meighen was pursuing; and I recall one phrase which ran something like this: ‘Please bear in mind that the people of Canada are not in the least interested in your opinion of Mr. King or in Mr. King’s opinion of you.’ Meighen took the letter in very good part; and showed it to several of his friends. …
[Blacklock] was a rare spirit, and his memory will not pass from those who knew him best.
– Sir Robert Laird Borden, Letters to Limbo, University of Toronto Press (1972)

The Right Honorable Arthur Meighen spoke at Blacklock’s funeral, saying “there would be few citizens of Canada … whose passing would leave behind so many to speak well of their life and work (The Border Cities Star, 6 August 1934).”

During the trial Blacklock’s Reporter argued that, in order to sustain its operations, it was essential to aggressively police its copyright. Be that as it may, if aggression means misrepresenting facts in order to mount a sting operation, the organization ought to consider changing to a more appropriate name, one without the baggage of ethics and civility.

Commentaries on this decision abound; see Teresa Scassa, Howard Knopf, Michael Geist, Adam Jacobs. But CIPPIC shall get the last word: “The decision represents a solid affirmation of fair dealing rights, and one that should serve to deter copyright trolls from bringing meritless claims against obvious fair dealing practices in the future.”

 

what is Canadian content?

In Posts on November 6, 2016 at 6:35 pm

The mantra that our cultural creators are essential to the soul of Canada is doing double duty these days. Not only is it invoked in connection to the pending copyright review, but it has provoked a public consultation regarding Canadian content in a digital world. Melanié Joly, Minister of Canadian Heritage, caught the attention of many when she publicly supported the claim that the internet is only a vehicle for consumption of culture with, as Michael Geist writes, culture being confined to “movies, television or music.”

It seems that on Minister Joly’s internet, worldwide networks only function in service of those industries that make an obvious contribution to GDP, be it in Canada or in another country. On her internet, there is no plethora of public domain content collected by volunteers and posted (legitimately) at Project Gutenberg or IMSLP. There is no impetus to share knowledge in the selfless manner exhibited by Sal Khan (founder of the Khan Academy) or John Page (a Silicon Valley software engineer who sought a better solution to mathematics instruction than the weighty tomes inflicted upon his son). There are no scholarly repositories, managed online, such as those pertaining to Emily Dickinson or L.M. Montgomery. There is no growing array of open-access quality-textbooks like those found at BC Campus or OpenStax.  And there are no individuals who facilitate the development of creative effort by sharing well-written, well-researched, and well-curated material. Maria Popova’s site BrainPickings comes to mind; it deserves to be declared an international treasure.

Those clamouring for Canadian content do not appear to give much thought as to what goes into developing that content. Financial well-being is as far as they go. Yet creative effort does not occur by the presence of money alone. Creativity needs knowledge, awareness, skill, diligence, luck, and something that lacks capture in a single word; loosely speaking, this indefinable element is a capacity to envision that which others may not.

That aside, the insistence on the importance of Canadian content invites the question – what is Canadian content?

My current assortment of library books includes two contenders. Dal and Rice is a memoir written by Wendy M. Davis describing life in pre and post-independence India. Davis was born in England, but resides in Edmonton; as best as I can tell, the work was written in Canada. Moreover, Dal and Rice was published by McGill-Queens Press. I will tentatively say that this is Canadian content.

But I am less certain about the second book; Eleanor Wachtel’s compendium The Best of Writers & Company. I am sure it would be declared Canadian content, given the unimpeachable fact that Wachtel is a Canadian citizen by birth, and has remained here throughout the development of her admirable career. Published by Biblioasis (the regional press that commands national acclaim), the Canadian qualifications appear unassailable.

And yet, the majority of the content is the handiwork of others. The book is a compilation of the transcripts of fifteen interviews conducted by Wachtel. True, Wachtel writes the introductory text that prefaces each interview, and Wachtel shapes the dialogue by posing the questions. But it cannot be said that she wrote the responses. Those words are (presumably) the independent creation of her fifteen subjects, only three of whom are identified as Canadian (Ann Griffin, Alice Munro and Mavis Gallant).

Perhaps the hint of Canadian’ness lies in the front matter. Both books acknowledge contributions from Canadian taxpayers through the Canada Council for the Arts and the Book Publishing Industry Development Program. It sounds crass, to reduce the dialogue of Canadian letters to a matter of money, to have the temerity to ask: who paid for it? But it cannot be ignored that the patriots of Canadian content are expressly concerned with a similar question: who pays for it?

The answer, in terms of the consultation, is pointing towards a levy on the revenues of internet service providers. This mandatory contribution would be channeled towards continued development of Canadian content. In October, writing for the Financial Post, Josh Tabish of Open Media reminded all Canadians that our internet services fees are among the highest in the world. (It is no exaggeration to say that for Canadian families living in poverty, internet service already competes with food.) Three weeks later, Tabish and Denise Williams (a Coast Salish member of the Cowichan Tribes) writing for Motherboard, offered a further reminder that heightened internet service fees would hit indigenous communities the hardest.

No government should be so naïve as to believe that fees imposed on internet service providers in Canada will not be passed on to consumers. Whether it is called a levy or a tax will make no difference. As to whether the dollars accumulated will translate to more Canadian content, we will have to wait and see. The only assured outcome is less money with which even to purchase our much-vaunted Canadian content, creating the peculiar paradox of less content for Canadians.

Fortunately, the fact is that the internet will still provide delightful, educational, thought-provoking, and endearing content for everyone, from everywhere.

TPP consultation — my submission

In Posts on October 23, 2016 at 7:31 pm

Earlier this year, Canadians were invited to participate in a public consultation regarding the Trans-Pacific Partnership Agreement (TPP).  The deadline for submission is 23:59 EDT, October 31, 2016.

My submission is slightly over 4000 words in length; too much for a blog post.  Below are the closing paragraphs; the entire document is available here.

Update: A thoughtful reader alerted me to a 404 response when trying to access my submission.  If the direct link does not work, try the attachment page.


… The principle argument to join the TPP seems to be that Canada cannot afford to be left out. Even if the agreement was only a matter of tariff and subsidy reductions, that argument is weak.[1] Given the nature of the entirety of the TPP, the costs of which will be felt through heightened expenditure for medicines, diminishment of Canadian culture, elimination of future innovation, absence of attention to public well-being for fear of international reprisals, and the loss of sovereignty when such reprisals are unavoidable, one has to ask: whom is this government wishing to please by committing Canada to the TPP?  The answer does not appear to be: Canadians. One must also ask: has our existing business community been sufficiently engaged to warrant our confidence that fulfilling their wishes will lead to better living for all?

That does not appear to be the case. In 2012, Mark Carney, former governor of the Bank of Canada, indicated that instead of investing in the economy, Canadian businesses “were holding on to nearly half a trillion dollars in cash, an increase of 43 per cent since the end of the recession in 2009.”[2] Recently, the esteemed firm Deloitte, an internationally revered organization, released a damning report concerning the willingness of Canadian businesses to take the necessary steps to reinvigorate the economy. In Deloitte’s words, too many “lack an essential game-changing quality: courage.”[3]

By virtue of the TPP, the individuals that Canada most desperately needs to encourage – the innovative entrepreneur looking to develop new industries to drive the economy when our wood and water have been exhausted – will find that no amount of courage can overcome the hurdles put in place by their own government. As the actual trade measures of the TPP bring very modest gains to Canada, and the remaining components will inflict costs far in excess of those gains, adopting this agreement makes little sense beyond acquiescing to the corporate bullying that is likely happening behind closed doors. If that is the sole reason that Canada must go forward with the TPP, please be honest to Canadians about the government’s reasoning. Please do not pretend that this is solely about Trade.

The TPP is an international omnibus bill, the effects of which will be detrimental to Canadians. The greatest pain will be inflicted upon those youthful voters whom this government so assiduously courted.

Regards,

Meera Nair

 

 

[1] The C.D. Howe analysis estimates the loss to Canada for not joining the TPP; “The real GDP impact would be a negligible -0.006 percent in the first year, rising to about -0.026 percent in 2035.” The losses to existing industries are not taken lightly, but it is essential to wonder what industries could rise in their place, if unrestricted by the constraints embodied within the TPP.

[2] Michael Enright, “Canada’s cowardly CEOs are sitting on billions, rather than investing in the economy,” The Sunday Edition, 16 October 2016 <http://www.cbc.ca/radio/thesundayedition/timid-ceos-endless-war-in-syria-steve-earle-fall-in-vermont-1.3801572/canada-s-cowardly-ceos-are-sitting-on-billions-rather-than-investing-in-the-economy-michael-s-essay-1.3801574&gt;.

[3] Deloitte, The future belongs to the bold, <http://www2.deloitte.com/ca/en/pages/insights-and-issues/articles/the-future-belongs-to-the-bold.html&gt;.  As an aside, poetry lovers will enjoy the inference of Invictus by the report’s authors.

 

“history begins with geology”

In Posts on September 20, 2016 at 7:21 pm

Those were Margaret Atwood’s words as she gave the 2016 CLC Kreisel Lecture at the Winspear Centre in April of this year. Broadcast this past Friday via CBC’s radio program Ideas, the lecture—in content, form, and delivery—exemplifies, yet again, why Ms. Atwood is both a national and international treasure. If contemporary politics did intrude into her account of some of the events which shaped Canada’s literary landscape, I have to reach for every shred of temerity in my possession to point it out. But it needs to be done.

When explaining the origins of The Writers’ Union of Canada, Ms. Atwood said:

[there was] no-one to represent their interests, the interests of writers, as opposed to the interests of publishers, readers and libraries. The latter three felt in their hearts that simply being read was honour enough for a writer, no money need be expected. The writers on the other hand took the quaint position that what they did was work and they ought to be remunerated by those making use of it. Plus ça change. Those taking the view that writers’ work is like air, to be had for breathing, now include many internet pundits, some former members of our recently departed government, and a great many universities – those bastions of fair dealing.

Ms. Atwood paused, and some nervously–charged laughter came forth from the audience. The Kriesel Lecture takes place under the auspices of the Canadian Literature Centre, established at the University of Alberta in 2006; some (perhaps many) of those in attendance were likely to be fair dealing practitioners.

Ms. Atwood is, of course, entitled to hold and express any opinion she chooses. But the strength of her reputation and influence requires that some clarification follows where it is needed. Listeners present at the Winspear Centre that evening, or receiving Friday’s broadcast, or those who might yet encounter the Ideas website, may come away with the impression that fair dealing is a morally and legally reprehensible ruse that enables universities to deny remuneration to copyright owners with impunity. The truth is far more prosaic, as truth tends to be. From the days of its codification into law in 1710, copyright has never been a grant of absolute control; it is a system of limited rights. Fair dealing is one such limit; nothing more, nothing less.

The limits upon copyright ensure that creativity, innovation, and civil society may flourish, an objective which also happens to be the raison d’etre of universities. Universities handle fair dealing with care and pay fulsomely for the resources they consume. Generally speaking, limits are the mode of entry to a space where one might hope to emulate achievements of the past. All fair dealing can do is maintain the potential for a small realm of unauthorized use, legitimate under the law, where independent expression of thought may be cultivated. No doubt, some would prefer to see copyright function in absolute form, to the exclusive benefit of current copyright owners. Be that as it may, wishing does not make it so. The system of copyright must also nurture an author yet to come.

What I prefer to reflect on, to savour, is Ms. Atwood’s beautiful presentation of some of the people who contributed to the development of Canadian literature, and their efforts to build audiences and infrastructure for reception and publication of their work. The presentation itself was titled, The Burgess Shale: The Canadian Writing Landscape of the 1960s. Ms. Atwood explained that burgess shale is a particular geological formation found in Western Canada and that “history begins with geology. Geology determines what you can grow and extract, where you can build houses and so forth.”

Ms. Atwood detailed events of the 1960s and 1970s which created an environment conducive to Canadian letters. To obvious audience delight, she began with her own life story. The skills needed for the 1960s were honed in the 1950s, a decade Ms. Atwood described as “robust amateurism—acting one moment, painting sets the next.” The capacity to multi-task served that generation well, “when it was time for a bunch of kids who didn’t know what they were doing to start new publishing companies in Canada which we did in the 1960s.” Due to demographics (the Depression and WWII had taken its toll on birth rates), that generation’s services were in need: “… we stepped into a relative emptiness; we sought to fill it. We didn’t see why not.” Needs that were met creatively to say the least (the stories about the All-Star Eclectic Typewriter Revue and the Pornography Project are priceless; I will say no more than to recommend you listen for yourselves.)

But the limitations of an hour could not allow Ms. Atwood to convey a deeper geological survey of events prior to the 1940s. She remarked that Canadian literature had no presence in her early life; while an occasional Canadian creation might have appeared among the school-imposed diet of Hardy, Shakespeare, Eliot and Keats, “we weren’t taught Canadian literature as a subject in school.” A key difficulty for a Canadian author was the lack of literary infrastructure, a viciously circular problem. Canadian writers needed readers; without distribution, readers could not be had, and, without readers, distribution could not be entertained. But as to how this situation came about, that bedrock had solidified a century earlier.

The root cause was Canada’s inability to develop its own publishing industry in the 19th century. Caught between British Imperialism and American capitalism, Canadian publishers were prohibited from reprinting the bestsellers of the day, meaning those of prominent English authors, while American competitors were free to reprint those same works and capture the Canadian market. Canadian governments, of both Colonial and Dominion stature, laboured for years to develop an equitable copyright arrangement that would provide local publishing firms the option to supply their own markets and build their own capacity, by reprinting British works with permission and provision of royalties. The logic of the arrangement was consistently set aside by the British Crown, through invocation of the sanctity of copyright and the imperative of Empire. This, despite the fact that the copyright demanded of Canada did not serve Canadian writers. British copyright was to be respected in Canada, but Canadian writers, unless published in Britain, were not afforded any such protection.

British intransigence was due, not merely to slavish attention to the word “copy.” What Britain longed for was a reciprocal copyright arrangement with the United States, and Canada was the bargaining chip. Eventually reciprocity did come, but strictly on American terms: publication must use plates set in the United States, and occur prior to, or concurrent with, publication elsewhere. (Notably, the proposed Canadian offer was far more generous to the British; the proposal allowed delayed publication in Canada via imported plates.) Added to these conditions that ensured continued prosperity to American reprinters, the United States sought assurances from Britain that Canada would not interfere in American distribution in Canada.

Details of this period of time are covered in my work, “The Copyright Act of 1889—A Canadian Declaration of Independence, Canadian Historical Review (2009). For a complete monograph on the events of this time, Eli Maclaren’s work, Dominion and Agency – The Structuring of the Canadian Book Trade, 1867-1918 (2011) is stunning. Painstakingly researched, he confirms that the manner in which copyright law was applied to Canada diminished any ambition to build or support independent publishers of original Canadian material.

Even after Canada achieved some measure of copyright autonomy through amendments in 1900—when Canadian publishers could finally reproduce foreign work in conformity with the copyright owner’s wishes—the benefits of the Act principally accrued to established American publishers via branch-plant operations in Canada. Maclaren describes the dual-objectives of Macmillan Company of Canada as “[to] distribute the trade books of the London and New York houses to the Canadian market and publish textbooks for Canadian schools (p.123).” The omission of original publishing was not an oversight, original publishing was strictly frowned upon. When Frank Wise, president of the Canadian operation, requested that some manner of capital be kept available for publication of promising works, the head office made its displeasure quite clear:

… we should be more than a little surprised and displeased if you embarked upon any publishing venture of importance without consulting us. … The only kind of publishing which ought to originate in Canada is the production of school books authorized by one or the Provincial governments (p.124).

It was against this legacy that Ms. Atwood and her peers laboured. That they are to be congratulated is more than evident. But the congratulations should not eclipse what we know now—the fact that Canadian literature began even before Canada, exists during Canada and may safely be expected to endure in any Canada to come. First Nations’ culture has relied on story-telling since time immemorial, early colonists’ writings left a mark we feel even today (Susanna Moodie and Catherine Parr Trail come to mind) and even when fleeing Canada in search of markets, Canadian literature took shape under the themes of regionalism, as Nick Mount expertly uncovers in When Canadian Literature Moved to New York (2005). Mount does not valorize the writings of all Canadian expats, but lauds the importance of the Canadian community of writers, editors, and publishers that formed in New York to the advantage of Canadian writing.

It is the aspect of community that permeated Ms. Atwood’s recollections and was present in another address given earlier this year. As a keynote speaker at the Jaipur Literary Festival she invoked the theme of community on both global and individual scale. And she reminded listeners of the most intrinsic element of the community that underwrites literary effort:

Here we all are to celebrate books and authors and writing and yes, reading. Writers and readers are joined at the hip. Every act of writing presupposes a reader, even if it is your own secret journal and the future reader is you… Platforms may be changing but thanks to the Internet, reading has become more possible for more people than at any other time in history. … There is a lot more access to literacy than there used to be. …

With thanks to Margaret Atwood, and a great many universities. Those bastions of fair dealing.

preparation

In Posts on June 13, 2016 at 5:38 am

When the Copyright Act was last amended in 2012, the government of the day sought to accomplish a number of objectives. The summary of Bill C-32 (unveiled for first reading on 10 June 2010) detailed the legislative intent:

(a) update the rights and protections of copyright owners to better address the challenges and opportunities of the Internet, so as to be in line with international standards;
(b) clarify Internet service providers’ liability and make the enabling of online copyright infringement itself an infringement of copyright;
(c) permit businesses, educators and libraries to make greater use of copyright material in digital form;
(d) allow educators and students to make greater use of copyright material;
(e) permit certain uses of copyright material by consumers;
(f) give photographers the same rights as other creators;
(g) ensure that it remains technologically neutral; and
(h) mandate its review by Parliament every five years.

The language of (c) and (d) is clear; “greater use” implies greater than what had previously been feasible. The specific mention of of education as a permissible purpose of fair dealing and the introduction of exceptions to facilitate digital distribution by libraries or distance education programs, suggested that educators, libraries and students could enjoy greater use of copyright materials. With respect to (e), the implementation of exceptions for time or format shifts, the making of backups, and the creation of non-commercial user-generated content were all to the advantage of consumers. Yet the previous government’s insistence that digital locks reign supreme, rendered many of the new exceptions inert and reduced previous possibilities for unauthorized use of copyright material.

In 2010, it was no secret that the digital locks provision of Bill C-32 was modeled on the United States’ Digital Millennium Copyright Act of 1998. Since its inception, the supremacy of locks in the United States has been systematically challenged through triennial reviews. Advocates for the lifting of blanket prohibition on circumvention could plead their case to the Librarian of Congress; if successful, they were granted a three-year lifting of the prohibition. (A notable reprieve occurred in 2006, in relation to educational uses of audio-visual works.) The latest review occurred in 2015; Mila Owen and Henry Thomas describe the outcome.

By the time C-32 was under discussion in Canada, it was abundantly evident that American overreach in protection of digital locks was impeding legitimate unauthorized uses (such as fair use) under American law.

Michael Geist declared Bill C-32 as “flawed but fixable.” However, the government refused to entertain thoughts of adjusting the prohibition on breaking digital locks; despite the logic that breaking a lock for a non-infringing use, should not trigger a charge of infringement. At a Standing Committee meeting on 25 November 2010, Minister of Canadian Heritage James Moore appeared unconcerned about the wider implications of casting locks as sacrosanct; in response to a question posed by Liberal Member of Parliament Marc Garneau, about the inconsistency in the government’s actions, Moore gave a peculiar answer:

[It] is a question about balance, and as far as my personal digital media consumption habits, I personally choose to buy products that don’t have digital locks. It’s my right as a consumer to be able to do that. As we’re seeing increasingly with technology, certainly the music industry, the television industry, and the film industry are creating products where people have the right to shift things from one format to another. … if you look at all the submissions we have received–we’re talking about music, television, video, video games, the software industry–everybody believes that if they’ve invested money, labour, and effort to create products and decide to protect those products by whatever mechanisms they choose to digitally, they should be allowed to do that. And consumers are free to purchase or not purchase those devices.

Garneau then questioned Jean-Pierre Blais (Assistant Deputy Minister, Cultural Affairs, Department of Canadian Heritage) about digital locks, with specific reference to fair dealing:

I would like to ask for clarification on the issue of digital locks and fair dealing. Would you say that in this bill digital locks trump everything? For example, if somebody wants to produce educational materials under fair dealing but they have digital locks on them, would the person be prevented from doing so?

It required repeating the question, but Garneau was finally given an answer:

Garneau: Let me ask specifically about education. That’s the one I brought up. Do digital locks trump the use of material, copyrighted material, for educational purposes under “fair dealing”?
Jean-Pierre Blais: In the bill, as drafted, the answer is yes.

As we approach 2017, perhaps Minister Marc Garneau could share his past experiences with Minister Mélanie Joly and Minister Navdeep Bains as they prepare for the mandated review of the Copyright Act.

 

remembering Brian Dickson (1916-1998)

In Posts on May 19, 2016 at 6:04 am

Brian Dickson, more precisely The Right Honourable Robert George Brian Dickson, was born on 25 May 1916. Appointed to the Supreme Court of Canada in 1973, he became Canada’s 15th Chief Justice in 1984. The centenary of his birth is a fitting time to remember his contribution to what many of us take for granted: the capacity of our legal system to adapt to the changing mores of Canadian society. Dickson also brought the subject of law closer to all Canadians, he championed clear, effective writing that was comprehensible on a wider scale. “We are not writing simply for legal academics or other judges. The cases we deal with … affect every man, woman, and child in the country.”

Robert J. Sharpe has written extensively about Brian Dickson in journal articles, and together with Kent Roach, authored a book (A Judge’s Journey, 2003). From the personal and professional details published, it is apparent that Dickson’s perspective on law was shaped by many chapters of his own life. As a child, he was confronted with the spectacle of ill-fated Prairie farmers who laboured for a lifetime, only to lose everything in the Depression. Following his studies in law, Dickson served in WWII; there, a severe injury resulted in an amputated leg and constant residual pain. Post WWII, he coupled a successful career as a corporate lawyer with constant public service. At the height of his corporate career, he chose to forsake it and immerse himself entirely in public service by accepting an appointment as a trial judge in Manitoba. A later appointment to the appellate court of Manitoba eventually led to his Supreme Court tenure.

Dickson’s life experiences abetted and honed his concern for maintaining harmony between the dignity of the individual and the well-being of the community. That dual priority, coupled with a brilliant mind, enriched Canadian public life for generations to come. As Chief Justice, Dickson set the tone during the early years of constitutional interpretation following the adoption of the Charter of Rights and Freedoms in 1982.

The Charter marked a prominent moment in the journey towards Canadian sovereignty. It defined our rights and freedoms, and placed ownership of those qualities firmly in Canadian hands. The Charter protected citizens against legislation enacted by governments that, despite perhaps best intentions, compromise the larger purpose of having a constitution. In the days following his appointment as Chief Justice, Dickson was keenly aware of the role of the Supreme Court as guardian of Canadians’ constitutional rights:

When there is breach of the fundamental rights and freedoms under the Charter of rights, we have been given the right, the duty and the responsibility to deal with it and it is our duty to strike [the violation] down.
–  quoted by John Hey, “The New Face of the Law,” Macleans, Vol 97, Issue 18, 1984

More than thirty years have passed since the Charter was unveiled; many Canadians are likely unaware of how contentious that desire for a Made-In-Canada constitution had been, and with what mistrust the Charter had been eyed when it did arrive. Some Canadians resisted decoupling the nation from the British yoke of sovereignty over Canadian affairs. Others worried that the courts would become too powerful, disrupting the role of Parliament. Another anxiety was that Canada was merely aping the mantra of rights emanating from our southern neighbors. But in a speech in 2013, Chief Justice Beverley McLachlin (who has described her own early perspective of the Charter as “disinterested curiosity”) gave the definitive outcome: the Charter has stood the test of time and has helped forge a uniquely Canadian society.

[The Charter] reflected the kind of society Canadians wished to build for themselves and for generations to come. While patriation symbolized the raw fact of self-determination, the Charter made a statement about the ideals to which Canada should dedicate itself. Every nation needs a basic statement of what it stands for. For Canada, the Charter was that statement. …

[T]hirty years on, I think most would say that the patriation of the constitution was vital and that the Charter has stood the test of time. Canadians, polls consistently tell us, take pride in their Charter of Rights and Freedoms. It has, quite simply, become part of the Canadian identity. And it does not hurt that in the years since its adoption the principles enunciated in the Charter have been emulated abroad and the decisions of the Supreme Court interpreting them studied by courts and scholars throughout the world.

The distinctiveness of our Charter, and its capacity to foster balance among rights for all, may very well lie in its preamble. Our cherished constitution begins with a disclaimer:

S.1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

Our guaranteed rights are limited. That statement is not as paradoxical as it sounds; in terms of individual interaction, it is not difficult to foresee that an unbridled enjoyment by individuals of their rights could lead to the violation of others’ rights.

But those justifiable limits must be carefully handled. Early on, Dickson set the standard for application of the limiting clause. In R. v. Big M. Drug Mart Ltd. (1985) he wrote:

At the outset, it should be noted that not every government interest or policy objective is entitled to s. 1 consideration. Principles will have to be developed for recognizing which government objectives are of sufficient importance to warrant overriding a constitutionally protected right or freedom. Once a sufficiently significant government interest is recognized then it must be decided if the means chosen to achieve this interest are reasonable‑‑a form of proportionality test. The court may wish to ask whether the means adopted to achieve the end sought do so by impairing as little as possible the right or freedom in question.

Shortly thereafter, Dickson went further in defining the role of courts when consideration of the Charter itself is required. In R. v. Oakes (1986) he wrote:

The Court must be guided by the values and principles essential to a free and democratic society which I believe embody, to name but a few, respect for the inherent dignity of the human person, commitment to social justice and equality, accommodation of a wide variety of beliefs, respect for cultural and group identity, and faith in social and political institutions which enhance the participation of individuals and groups in society.

Even before the Charter, Dickson had championed broader consideration of the social context of disputes, decisions and penalties. Sharpe describes a particularly poignant element of Dickson’s approach to law; in his early days as a trial judge, “… before passing sentence, he spent a day at Stoney Mountain Penitentiary and then proceeded to visit the Selkirk Mental Hospital (p.15).”

Along with situating the law within Canadian life, Dickson also ensured that decisions were accessible to all Canadians. Accessibility in this sense meant comprehensible. Dickson eschewed the formalistic, jargon ridden prose of the courts of the day; he championed clear prose, within reach of those outside of the legal sphere.

For Dickson, it was no longer sufficient for courts to rely solely on a mechanical recitation of precedent; a good judgment began from principle and was substantiated by reason. Dickson led by example and set a new standard for the Canadian judiciary. Even his criticism of the poor quality of existing judgments is precise, evocative, and leaves a reader wanting more: “Thoughts straggle across the printed page like a gaggle of geese, without form, without beginning or end, lacking in coherence, convincingness, conciseness (quoted in Sharpe and Roach, p.204).”

It may be overstating it, to say that but for Dickson most Canadians outside the purview of Law would have been unable to participate in matters of law. However, it is more than reasonable to claim that Brian Dickson’s stance hastened our opportunity.

wrapping copyright in the maple leaf

In Posts on April 24, 2016 at 7:21 am

On Friday, The Globe and Mail published “Kids will suffer if Canada’s copyright legislation doesn’t change” by Kate Taylor. I usually enjoy reading Taylor’s work; her capacity to grasp the heart of an issue by delving into underlying facts is often impressive. Unfortunately, on this occasion, her exploration is incomplete and emotion is presented as analysis.

While amendment of the Copyright Act is a year away, there should be no doubt that lobbying has begun. As per the time-honoured script, the essential step is to wrap copyright in the maple leaf. The very fabric of Canada is under assault, and only strengthening copyright can save us all. The script makes for good drama, but is short on evidence.

Taylor, like John Degen last month and Heather Menzies earlier this year, places the challenges of Canada’s educational publishing industry at the feet of the 2012 statutory expansion of fair dealing. (Such a selective invocation of Canadian copyright-related history conveniently omits any mention of the role played by Access Copyright in bringing about the decline of collective licensing.) The claim that reduced revenue from textbook sales is due to unauthorized copying is not new. But when put to the Supreme Court, after consideration of all the facts, a majority of the judges felt that the conclusion did not logically follow:

Access Copyright pointed out that textbook sales had shrunk over 30 percent in 20 years.  … [but] there was no evidence that this decline was linked to photocopying done by teachers … several other factors [are] likely to have contributed to the decline in sales, such as the adoption of semester teaching, a decrease in registrations, the longer lifespan of textbooks, increased use of the Internet and other electronic tools, and more resource-based learning (para. 33).

But the rising use of Internet-based materials does not placate those who have taken it upon themselves to protect our children. Taylor writes: “ … teachers increasingly turn to free online materials, using fewer Canadian sources in the classroom and fewer materials directly tied to the provincial curriculum. [Advocates] are concerned there is no quality control of free material.” It is entirely plausible that the causality runs the other way: teachers are finding quality materials online, materials which also happen to be free. (The Khan Academy comes to mind.) But in the hands of those opposing any dilution of the traditional publishing industry, “free” and “online” are invoked with a dismissive air at best, or a pejorative connotation at worst.

Setting aside the prospects for alternative publishing models (for now), let us assume that Taylor’s, Degen’s and Menzies’ analyses are correct.  Let us assume that all the ills of the educational publishing sector are solely the fault of fair dealing. What then? Have any of them considered that years of expanding the scope of copyright has only meant that even more Canadian dollars flow out of the country than stay in? Since before Confederation, the market north of the 49th parallel has been dominated by foreign copyright holders. First British, then American. Copyright is a blunt instrument; any discussion of remedy via copyright should not ignore the trade imbalance. Applying copyright with broad brushstrokes through blanket licensing means fewer Canadian dollars are left to focus exclusively on Canadian creators.

Copyright governs much more than educational publishing, but even if it was confined to educational publishing, an important question has been left unanswered: Do Canadian sources make up the majority of all materials in all subjects taught in primary, secondary and tertiary education in Canada? If the answer is Yes, please provide evidence. If the answer is No, it is astounding that in the name of Canada, taxpayers, students and families are being chivied to provide more of our hard-earned dollars to predominantly benefit non-Canadian entities.

The effort spent railing about fair dealing could be better spent seeking measures that will target support directly to Canadian creators. Given the renewed spirit of federal-municipal relations, why not lobby for dedicated funding for school boards to support creation of open-education resources (OER) specifically to fill the need for Canadian content? Canadian history, geography, and politics could be addressed by local writers and illustrators, in collaboration with teachers, librarians, and archivists. How about seeking some manner of matched funds, to encourage every municipality to sponsor a writer-in-residence? What about expanding the existing Public Lending Right program to address nonfiction educational materials? A little imagination could bring about surprising dividends.

A Made-In-Canada approach to education is not a new concept. Law professor Myra Tawfik describes early 19th century efforts in Lower Canada to secure appropriate learning materials for children:

Lower Canadian teachers began to write or compile their own teaching manuals and schoolbooks. Preferring these to British or American imports and wanting to print multiple copies for use in their schools, they quickly discovered that the cost of printing their manuscripts was well beyond their means. Consequently, they began to petition the House of Assembly asking that it either assume the cost of printing or grant a sum of money to defray the costs (p.81).

Notably, when the House of Assembly delivered the requested support, it came with conditions regarding price and distribution.

As Canada approaches its 150th birthday, with a nod to the spirit that prompted the Massey Commission, the creation of the Canada Arts Council, and the emphasis upon Canadian Studies’ programs, it is time to focus on Canadian creators in a meaningful way.