Meera Nair

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how Canadian education really hurts creators

In Posts on October 16, 2017 at 8:12 pm

Last week, this tweet made the rounds:

The article referenced insists, yet again, that Canada’s 2012 copyright amendments are the reason for declining fortunes among Canadian publishers and creators.

Such a lopsided assessment of Canada and copyright is nothing new. While it is important that members of the education community continue to press Members of Parliament to engage in a comprehensive exploration of this matter, it is as important to turn our gaze inwards and redress the real failure of Canadian education with respect to nurturing creators and creative activity.

The creators I speak of are not those who belong to any union or collective society; most of these creators are still under-age.

Two weeks ago, a mother said to me, “My daughter is terrified of using anything off the Internet.” The daughter is of middle-school-age, and the source of that terror: dire edicts driven in at school. Thou shalt not steal from the internet for the purpose of schoolwork.

Judicial pronouncements notwithstanding, this is not an isolated misconception.

If generations of Canadian students are instilled with the view that education and creativity are contingent on permission from others; that every scrap of content (even when employed for something as innocuous as homework) must be paid for, Canada’s future looks bleak.

The irony of the current situation is that too many Canadian creators are deemed to have been ruined by virtue of our inclusion of “education” into fair dealing, while the fact is that too many Canadian educators are unaware of fair dealing to begin with. Fair dealing would certainly protect a student who wants to use a published picture, a video-clip, or a quotation of text, towards fulfilling an assignment, regardless of the provenance of that content.

Moreover, in addition to fair dealing, the Copyright Act offers many avenues by which a student’s copying in aid of learning finds legitimacy. But are educators aware of these measures?

For instance, are they aware of the importance of S29.21? Hailed by Ruth Okediji as a mark of integrity by Canada, that we as a nation support the type of copying that is the very foundation of creative effort, S29.21 is quite capable of also sheltering a school project. Northrop Frye’s immortal words bear repetition; poetry can only be made out of other poems…

Are Canadian educators aware of the very structure and language of the grant of copyright? S3.1 clearly indicates taking an insubstantial amount of work would not raise a question of infringement.

Continuing along the lines of first principles, do Canadian educators understand the existence of the public domain? That not every artifact (whether in print or digital) is protected by copyright. Facts and ideas are never protected material; copyright is only gained by creation of original expression. A grant of copyright will expire; from that time forward, anyone may use the creation for any purpose. And the exercise of a statutory exception renders protected-material, in that instant, as public domain.

Returning to the situation at hand, what about the long-sought-after Internet exception S30.04? Its language is clumsy, but given that Canadian education fought for this exception, to see it lying by the wayside is frustrating. Granted, the exception is framed in the language of “institution,” but it is only logical that a student attending an institution could rely on the same protection. Given the forceful language surrounding plagiarism in all educational institutions, it is safe to say that the attribution requirement will be met. (Further conditions limit the exception to some degree, but in the context of a student working on an assignment, those conditions will likely also be met.)

But, for simplicity, fair dealing is all that needs be said about an individual student engaged in learning. S.29 states: “Fair dealing for the purpose of research, private study, education, parody or satire, does not infringe copyright.” There are no fixed conditions; multiple Supreme Court decisions emphasize the contextual nature of fair dealing and provide guidance on determining fairness. The typical uses put forward by students (for a picture here, a quotation there) would easily stand up under such an analysis.

Children, teenagers and post-secondary students should not have to take on the task of learning all about copyright before they can comfortably do their homework. That responsibility falls squarely on Canadian educators. While it is undoubtedly easier to simply adopt a no-copying regime, it will not place Canada on any strong footing in a global economy where success is determined by a country’s capacity to think broadly, to be creative, and to develop knowledge-based industries.

Ideally, the word copyright would never need to be uttered to one under the age of 21. But as life is less than ideal, the best we can do for students is to reassure them that their constructive use of broad shoulders of the past to stand on, is not unlawful.

Students today are confronting a world not of their making, but are being handed the responsibility to fix it. To be able to rise to this demand, they need to engage fulsomely with the resources around them to further their creative aspirations, to cultivate their capacity to see something that others cannot, and to dream beyond the constraints of contemporary problems. This cannot happen if copyright angst is the manner in which students choose how to learn.

the golden age

In Posts on September 4, 2017 at 11:15 am

Another Labour Day has arrived and a new school year is underway. It seems befitting to continue exploring the often tension-ridden relationship between creators of educational material and users thereof. As I described last week via Policy Options: “the story of an ongoing disaster for writers and publishers—supposedly due to errant Supreme Court justices and negligent government—has played out in the press, at international gatherings and in literary journals.” Attacks on the post-secondary sector have been increasingly brazen this year;* for those who are becoming fatigued by the degree and volume of misinformation, I would like to share two points of good news.

First, this is not new.

There is a long history behind today’s dispute. Since the inception of copyright as a component of statutory law, copyright holders have sought to make copyright as expansive as possible and lessen any obligations that serve public interest as a whole. The Statute of Anne (titled An Act for the Encouragement of Learning…) provided copyright under conditions; as I have written before: “the privilege of the original exclusive right of reproduction came with the requirement that for each book published, nine copies were to be given to various university libraries, printed on nothing less than the best paper.” That requirement was decried, reneged on, and eventually discarded but not before many decades of familiar rhetoric had been unleashed.

When it became vividly evident that the statutory condition of library deposit (some called it the educational deposit) was being ignored, a professor of law protested vehemently. In A Vindication of the Right of the Universities of Great Britain to a copy of every new publication Edward Christian wrote:

When I hear much pity and commiseration expressed for the rights of poor authors, I wish to respect the rights of poor students, a class of men from whom poor authors themselves must derive their origin, and without whose successful labours nothing valuable in literature is ever likely to have existence. … By every honourable author [the deposit] would be paid with alacrity, as a debt of justice and gratitude, for the benefit which he must or might have derived from these common foundations of science.

Christian was not unaware of the objections raised to the requirement of deposit; he continued:

… It is sometimes observed, that besides the loss of the copy…, the author or proprietor will suffer considerably by the diminution in the sale of the work, when the members of the University have an opportunity of perusing it gratuitously. But that seems to be a fallacious and sophistical argument; for if the University thinks it worth purchasing, then the sale of one copy does precisely the same mischief to the author’s interest as the donation of that copy.

Christian’s words bring to mind those who insist that a librarian practicing fair dealing on behalf of students is unacceptable, despite the fact that the law (see Copyright Act, 30.2(1)) has long since allowed such practice. Moreover, our Supreme Court has repeatedly emphasized that fair dealing is effectively transferable—in 2004, librarians were permitted to act on behalf of their patrons; in 2012, an ISP and teachers could stand in the fair dealing shoes of subscribers and students respectively.

In any event, the early 19th century is an intriguing period of history. Ronan Deazley writes: “When one thinks of notable debates … in nineteenth century Britain one thinks of … the parliamentary wrangles surrounding the Copyright Amendment Act 1842,” but he brings readers’  attention to events related to a proposed 1808 amendment, titled:

Bill for the further encouragement of Learning in the United Kingdom of Great Britain and Ireland, by securing to the Libraries of the Universities, and other public libraries, copies of all newly-printed books, and books reprinted with additions, and by further securing the copies and copyright of printed Books to the authors of such books, or their assigns, for a time to be limited.

Copyright holders protested; in the decades that followed, the familiar trope of starving authors reappeared. With Romanticism in full bloom, William Wordsworth penned these lines:

… For ‘Books’!” Yes, heartless Ones, or be it proved
That ’tis a fault in Us to have lived and loved
Like others, with like temporal hopes to die
No public harm that Genius from her course
Be turned; and streams of truth dried up, even at their source!

After three hundred years, a change of dialogue would be much appreciated. Which leads me to my second point; such dialogue can exist.

In May of this year, I attended Congress 2017 at Ryerson University, taking the rare opportunity to explore my interest in all things related to books. During one session, a representative from Canadian Publishing made the remark that he did not see himself in the debate about copyright/fair dealing, or authors/readers. That the labour expended by homegrown Canadian presses remains unseen and unaccounted for. As we ran out of official time, he and his colleague stood with me in the hallway so that conversation could continue. To their credit, when I mentioned the millions of dollars that Canadian universities spend on content,** they were surprised, and wishful. If only a fraction of those funds came to them, their situation would be different.

Allied to the challenges of securing income for small presses is the challenge of securing writers. The next day I listened to a publishers’ panel and was struck by one remark in particular: they nurture young talent but when an author “finally writes something with the potential to make money,” that opportunity is given to a larger, weightier press. All publishers present agreed on one thing: that it was essential to sell beyond Canadian borders. The Canadian market is simply not large enough to sustain them. This is, and has always been, the problem.

As I have written before, today’s challenges are as old as Canada itself; 19th century Canadian publishers were shut out of, not only foreign markets, but their own market. Without government support, the publishing sector could not grow. And the support that Canada wished to give, was denied by the political influence of publishers and copyright holders from both the UK and the US.

It was not until the later 20th century, amid the demise of Ryerson Press, that explicit government support emerged for Canadian publishers. (A delightful bonus from Congress 2017 was listening to Clive Powell’s presentation regarding the Ryerson Press archives). That support has continued, but, as noted last year by Kate Edwards (executive director of the Association of Canadian Publishers) in The World Needs More Canada, support had remained static for the prior fifteen years. Even so, in that same article, Dan Wells (publisher of Windsor-based Biblioasis) had this to say: “… this really is the golden age of independent publishing in Canada.”

Wells’ enthusiasm aside, it need not mean we are not to try to focus attention on our homegrown publishers and writers. But it is unwise to take that step via copyright and blanket licensing. Efforts to manufacture a market out of legitimate unauthorized uses of copyrighted materials can only backfire. As I pointed out last week, the dual rise of (i) licensing of content directly between publishers and institutions; and (ii) openly licensed educational resources, points to a future where less proprietary information moves unsanctioned through academic corridors. To the extent that Canadian educators rely on educational publishers, that field is dominated by foreign firms. Just as demands for a uniform stamp of copyright in the 19th century did not serve Canadian publishers well, the call for uniformity through blanket licensing will again disproportionately benefit the competitors of our publishers.

For those who thrive on conflict, continuing to demonize educators and librarians as the enemy of writers and publishers is a desirable state of affairs. But as to whether this approach will benefit the writers and publishers in whose name the conflict is waged, is doubtful for the simple reason that copyright does not care about a Canadian writer, or a Canadian publisher. If we wish to target our own publishing sector and our own writers, we need to find another way.

For instance, provincial governments are taking active interest in developing open educational resources. Could not funds be set aside for grants to educational institutions (whether in the K-12 range or post-secondary) for partnerships with Canadian publishers, writers, artists, archivists, geographers, scientists, botanists and historians to develop Made-In-Canada content? Some educational institutions have their own facilities for printing; others are looking at the viability of establishing print-on-demand. A modest printing fee may well be more lucrative to local creators than the small margins available under a mass-market publishing model. Students and Canadian creators could all benefit.

There can be no easy solution to these problems, but conversation is more productive than acrimony. And so, to those two gentlemen, thank you.

 

Notes:

The Walrus recently published this missive, “How Universities Manage to Avoid Paying Writers for Their Work,” by Patrick Warner. He writes: “… why should writers, among the lowest-paid skilled workers in Canada—whose average income is less than 50 percent of the median national wage—be asked to subsidize the education system by making early contributions to the public domain?” Warner makes no mention of the millions spent by post-secondary institutions on content; instead he devotes considerable energy to marking librarians as a source of copyright discontent and enablers of unauthorized use: “… librarians had complained for decades that copyright law prevented them from offering better services to their users: desktop delivery of documents and electronic reserves being two services technology could easily allow.” Left unsaid is the prevalence of licensing of library resources; librarians are often operating under campus wide-licenses from content providers, many of whom allow electronic access and distribution.

** For instance, in 2013, then-President Stephen Toope wrote of the $25 million paid by the University of British Columbia alone for content, including $14 million spent directly on books by faculty and students. Last year, the Canadian Association of Research Libraries indicated that their 31 member libraries had collectively spent $293 million for information resources in 2014-2015. If the expenditures of smaller institutions are included, the number will be even higher.

now what?

In Posts on July 1, 2017 at 9:00 pm

The Day is done; candles have been blown out in some quarters, tears continue to be shed in others. 150 years of something–whether it is the lifetime of Canada or a chapter in millennia of a First Nation–has been duly marked/celebrated/decried. Now what?

In terms of copyright, we can expect continued calls for stronger copyright to better support Canadian writers. Ignored will be the detail of copyright deficit–that more control invariably means more Canadian dollars going to non-Canadian entities. Also omitted will be any hint that such calls have been in existence for the entirety of Canadian autonomy with respect to copyright, with no appreciable denting of that deficit to show for it. That copyright alone cannot be the salvation of Canadian culture (assuming that our culture is under threat) will also be absent from discussion.

Perhaps we could set aside copyright for a moment and think about that word: culture. Described by Raymond Williams as one of the most complicated words in the English language, it spans the entirety of our collective lived experiences.

Through the past 150 years, Canada has only too often demonstrated narrow-minded thought. Beginning with an unapologetic objective to rid the country of indigenous people,* followed by the Chinese Head Tax, the Komagata Maru, the internment of Japanese Canadians, the rejection of Jewish refugees, … . The situation for visible minorities improved somewhat in the later 20th century, with racism taking on a slightly more polite tone. (Although, children of colour attending school in the ’70s will likely have evidence to the contrary.) And it is difficult to forget the national indifference to the tragedy of Air India Flight 182 in 1985.

Yet Canada has developed a credible capacity, not merely to mouth the importance of protecting minority rights, but to actively encourage the virtue of diversity. The underlying theme for the last 30 years or so is that we are all in this together and we all do better together. Some pride is warranted; it has been possible to find unity without imposing uniformity. But can this be sustained, or is the best of Canada behind us?

Paula Simons, writing for the Edmonton Journal, reminds us not to rest on our laurels. That systemic racism is still part of our landscape, and extremism is on the rise: “for all our lauded tolerance, this was also the year when six peaceable Canadians, at prayer in a Sainte-Foy neighbourhood mosque, were shot in the back and killed in the midst of their devotions.”

With an eye to building on the effort of our prior angels, to what extent are we aware of our collective history? Is that history within reach of all Canadians? In this regard, copyright cannot be ignored. Two proposals come to  mind; one is already underway, the other I offer as an idea.

1) For years, Amanda Wakaruk (copyright librarian for University of Alberta) has publicized the challenges inherent to maintaining accurate information about Canada as a whole, due to the archaic practice of Crown copyright. In her capacity as a private citizen, she has introduced a petition Fix Crown Copyright:

Decades of stakeholder requests to abolish or at least update the Crown copyright provision in the Copyright Act have been largely ignored. This has resulted in a barrier to the re-use of government publications prepared for and paid for by Canadian taxpayers. For example, the refusal of government departments to allow for the copying of content made freely available on their web sites, and then deleted from those same sites, resulted in the loss of countless digital government works in recent years. (Note that very few government publications continue to be produced in paper.)

Removing copyright protection from government works made available to the public will allow individuals, corporations, and other organizations to make better use of these important resources. It will also allow librarians to continue their role as stewards of government information in a digital world. …

The petition will remain open until 23 September 2017.

2) Volumes of scholarship about Canada are, for the most part, confined to the university community. Painstaking explorations that uncover the past, both its pain and glory, are not easily available to the Canadian reader who wishes to learn more.

For instance, I recently sought two books published by University of Toronto Press: (i) The Man from Halifax: Sir John Thompson, Prime Minister (1985) by P.B. Waite; and (ii) Essays on the Constitution: Aspects of Canadian law and politics (1977) by Frank R. Scott. Both are rich in their contribution to understanding the past, both could be staple reading for anyone interested in the idea and existence of Canada. But neither can be easily purchased (the odd copy may exist in a few select used-bookstores) and both have limited visibility in university libraries.

We cannot fault any publisher for letting production lapse when there is no market. And yet these are quintessentially Canadian books; written by Canadians, issued by a Canadian press, and intended without embarrassment as expressly for Canadian readers. Which raises the question: when such books are no longer actively produced or peddled for sale, can they not be made widely and freely available via an open license?

A requirement of an academic appointment is to engage in scholarly effort; to that end, scholars enjoy publicly funded salaries and research grants. With respect to publication, university presses are eligible for support from the Canada Book Fund. University libraries then pour more money into the purchase of information resources; data collected for 29 university libraries show aggregate spending in 2014-2015 as $305,046,488 (see page 4 here). Between government provision of public money, and university spending thereof, could some funds be set aside to convert old printed books into ebooks?

This does not require a change to the system of copyright–it requires consent from copyright owners of existing content, and, cooperation from institutions  If consent is given, and if institutions would share the necessary costs of labour and money, more Canadian content could reach more Canadian readers.

Copyright maximalists constantly tell us that Canadian culture is near death–that Canadian themed content will cease to be written unless copyright is strengthened. They neglect to point out how much existing Canadian content cannot be read at all.

* Roberta Jamieson, featured on CBC Ideas for 30 June 2017, pulled no punches in her telling of the past 150 years. And yet, offers much optimism for the road ahead.

“a plea to the academics”

In Posts on June 13, 2017 at 8:08 am

If we want writers to flourish, then it is vital to maintain the spaces of legitimate-unauthorized use provided within the system of copyright.

That was the gist of my remarks for a public event concerning the upcoming review of the Copyright Act, held during Congress 2017. I had one objective in mind: to reach the professoriate. Particularly those individuals who are passionate about literature, books, publishing and Canada. That community is the one that may be best able to cut through the political rhetoric that swirls around the word copyright.  They could offer a well-grounded discussion of what the system of copyright is and how it helps or hinders the telling of stories. And so I titled my presentation as A Plea to the Academics.

The call for papers which prompted my participation asked two questions. The first enquired how might those involved with the enterprises of education and research respond to accusations of widespread pilfering of creative works? The second query asked those same individuals how might they demonstrate the value gained by maintaining a robust limit upon the grant of copyright? My answer was that researchers and educators should do what they do best: research and educate. This was not intended as a witty response; I was quite serious. Beyond a handful of dedicated scholars, the majority of the Canadian professoriate is unaware of the structure of copyright law, its particular history in Canada, and the very real risk Canadians face of being drawn into a strict no-copy-without-payment regime with the ensuing loss to creativity (i.e., see here).

It is likely safe to assert that no government has ever lost votes by declaring allegiance to its writers. Thus, copyright owners, or their representatives, have an easy argument to draw from when lobbying for more restrictive copyright laws; they blithely connect stronger copyright with authorial well-being, claiming that an attendant benefit will eventually flow to the general population. The argument lacks credible evidence, and logic, but given the highly emotional setting of the dialogue, countering the argument requires a deeper understanding of the backstory to literary creation. Limitations upon copyright are critical to building a book industry and to the creation of books themselves. To that end, I drew upon the words and experiences of three writers (Margaret Atwood, Charles Dickens, and Ved Mehta) to illustrate a different perspective about copyright and the creation of literature.

But I have no doubt that literary scholars and book enthusiasts would have more such stories to tell.

My notes, with a few slides embedded, are available through the Association of Canadian College and University Teachers of English.

integrity

In Posts on May 24, 2017 at 5:46 pm

Last week I had the pleasure of participating in the Copyright User Rights Access to Justice Symposium hosted by LTEC (Law and Technology) Lab of Windsor Law. The presentations were impressive in their depth and breadth; ensuing discussions illustrated that the intersection of user rights with access to justice is an extensive mine for exploration. Congratulations, and thanks, are due to Pascale Chapdelaine, Erica Lyons, and all the staff who contributed to the makings of a thoroughly enjoyable event.

At the outset, we were reminded that we stood in the realm of the Anishinaabe, the territory of the Three Fires Confederacy of First Nations, comprising the Ojibway, the Odawa, and the Pottawatomie. Such words take on particular significance, convinced as I am that aboriginal legal traditions, particularly those pertaining to land, are instrumental to the underpinnings of the system of copyright. We are accustomed to thinking of the Copyright Act as bijural; arguably, influenced as it is by three modes of law (aboriginal, civil and common), the Act is trijural. This perspective framed my presentation; more details will come another day.

For now, my focus is in connection with a remark made in passing by Ruth Okediji. In the context of discussion about the non-commercial user-generated content exception, Professor Okediji stated what we all know to be true – that this behavior is universal.  But her next words were striking: “Canada had the integrity to acknowledge it.” It was an exalting moment to hear such recognition, to which I may add: Canada should encourage it, as ought any country that values creativity. Creativity does not occur through set rules and methods; creativity operates in its own ecosystem according to an unpredictable dynamism of encounter and engagement, including reimagining and re-creation. Playing with work that has come before is the very foundation of creativity.

My conference junket continues next week at Congress, beginning with a public event concerning the upcoming review of the Copyright Act (jointly hosted by the Association of Canadian College and University Teachers of English and the Canadian Society for Digital Humanities) on Monday, May 29 at 1:30pm in KHW61. It is to be followed by a retreat to the 19th century via a joint event held by the Bibliographic Society of Canada and the Canadian Association for the Study of Book Culture. I hope to ensure that Sir John Thompson—a man of integrity, who was committed to the rule of law—is not forgotten in our sesquicentennial commemorations.

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.