Meera Nair

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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.

 

celebrating a parody, 49 years later

In Posts on April 5, 2016 at 8:00 pm

The inclusion in 2012, of education, in the categories qualifying for fair dealing, has received disproportionate attention, made up of as much umbrage as applause. Far more important additions made at the same time, parody and satire, have almost gone unnoticed. Their protection was long overdue.

The first case in Canada to address parody against a charge of copyright infringement was Ludlow Music Inc. v. Canint Music Corp (1967). The dispute centred on the song This Land Is Your Land, written by Woody Guthrie (1912-1967). Canadian songwriter Alec Somerville, of The Brothers In Law, crafted new lyrics to Guthrie’s tune and retitled the song as This Land Is Whose Land.

But distribution was short lived. In a case which began on 6 April 1967 and ended on 10 April 1967, Somerville’s creation was declared as infringing upon the copyright of Woody Guthrie’s work. Jackett P. of the Exchequer Court of Canada granted an injunction restraining further sales of the album.

It must be noted that royalties were offered for use of the tune of Guthrie’s creation, under the premise that there were two copyrights at issue: (1) the copyright of the tune and (2) the copyright of the lyrics. While Somerville relied on Guthrie’s tune, Somerville’s lyrics were entirely his own creation. However, that offer was rejected and Jackett P. decided that both tune and lyrics are encircled by a song’s copyright.

Ironically, the tune was hardly Guthrie’s alone. Nick Spitzer of NPR writes:

Guthrie had a keen ear for the recordings of Virginia’s Carter Family, and he was not afraid to borrow. A 1930 gospel recording, “When the World’s on Fire,” sung by the Carters, must have provided the tune for what would become “This Land Is Your Land.”

In Ramblin Man: The Life and Times of Woody Guthrie (2004), biographer Ed Cray further traces the tune to the southern gospel hymn Oh my loving brother. But this too is hardly surprising. Creative effort necessarily relies, consciously or not, on borrowed aspects of earlier works–creativity is always a collaborative undertaking. Skillful borrowing is the very essence of parody as it must capture the distinctiveness of the original creation and the creator.

An essay published in The Spectator on 20 May 1853, makes this point forcefully:

Every line ought to make us say, that is pure Tennyson or pure Browning, as the case may be; though the notion of the poem as a whole being connected with Tennyson’s or Browning’s name, should be an instant cause of laughter. … The parodist, then, to be successful, must have the most delicate sense of literary form and the fullest sympathy of comprehension for the work of those he parodies, as well as a true sense of humour and a special dexterity in the use of words and phrases.

That capacity, to invoke an original, to have a fullest sympathy of comprehension of the parodied work, as well as to couple humour with dexterity when crafting a new work, might have been written with Somerville in mind. Just as Guthrie’s work was in reaction to the  syrupy nature of Irving Berlin’s creation God Bless America, Somerville provided a more accurate and irreverent view of Canadian history. His variation on Guthrie’s song was expressly intended for release in 1967, the year of Canada’s centenary. (The album carrying the song was titled Exposé 67.)

Yet that fact likely added to the problem; the dispute was not settled on musicology alone. In 1959, Ludlow Music Inc. had licensed Guthrie’s work for adaptation and distribution in Canada, via revisions prepared and performed by The Travellers. The rights for this authorized Canadian version were held by Ludlow Music Inc. and the song was to play a prominent part in the centennial celebrations of 1967:

This song is a patriotic song and has been widely distributed in schools throughout Canada. The song will again be published in 1967 by the Centennial Commission in the songbook “Young Canada Sings — “Le Jeune Canada Chante”, 10,000 copies of the songbook will be distributed throughout Canada. Attached … is a copy of a letter from The Centennial Commission to Ludlow Music, Incorporated requesting permission to use the song “This Land is Your Land”. Ludlow Music, Inc., has consented to such use in both 1966 and 1967 (para. 11).

Ludlow Music Inc., unimpressed with Somerville’s work, sought to protect the innocence of the Canadian public:

… the use of words which are in bad taste and insulting to the Canadian public with the music of the composition “This Land is Your Land” will cause incalculable damage to the Plaintiff and destroy the meaning and acceptance of the song in the minds of the Canadian public (para. 12).

It is difficult to assess Canadian sensibilities of 49 years ago, but likely we are more resilient today. Canadians may judge for themselves, the merits of This Land Is Whose Land.

 

 

 

omitting facts, ignoring logic

In Posts on March 3, 2016 at 7:18 pm

Yesterday John Degen (poet, novelist and executive director of The Writers’ Union of Canada) presented his views concerning copyright and education via The Hill Times. The publication is behind a paywall, making it less than easy to acquire, read, or rebut. But if one is trying to lobby Parliament, the venue of publication is appropriate.

Degen is entitled to his opinions, but does readers a disservice by the distortion of history he presented. There might have been reasonable entertainment value from the diatribe, had the issue not involved the intellectual property rights of generations to come. Our parliamentarians could be forgiven for initially thinking that the copyright amendments of 2012 jettisoned the entirety of Section 3.1 (rights of copyright owners), exclusively to the benefit of teachers and students.

But may we assume that any Member of Parliament, in the face of such a hysterical outburst, as opposed to considered judgments from the Supreme Court of Canada, will investigate the rights and wrongs of the matter? That investigation would lead to the following facts:

  • Copyright is a system of limited rights, whereby the limits ensure balance is struck between the rights of copyright owners and rights of copyright users.
  • Fair dealing is one means by which limits are exercised; fair dealing is not piracy.
  • Fair dealing allows for some unauthorized uses of copyrighted material, subject to a fairness analysis.
  • That analysis was shaped by the Supreme Court of Canada in 2004; the justices have since walked-the-walk on multiple occasions.
  • In 2012, the range of fair dealing was expanded from only the options of private study and research, to include education, parody and satire.
  • Every Supreme Court decision supporting fair dealing occurred before the 2012 amendments took effect. Meaning, the inclusion of education was superfluous to establishing balance between owners’ rights and users’ rights.
  • Educational institutions make significant payments for purchased or licensed materials; the difference now is that such payments tend to flow directly to copyright owners and not to a middle-man collective entity such as Access Copyright.
  • Perfunctory announcements of declines in author’s incomes are, no more than perfunctory! One has to look at the larger context of any situation. A favorite report pointed to by The Writers’ Union (and Access Copyright) is a creation by PricewaterhouseCoopers which paints a dire picture of declining income to the educational textbook industry, with the seeming conclusion of an impending loss of quality educational content. However, the analysis within the report omits such basic details as the advent of quality content via open education resources and the global economic mayhem which began in 2008 and ensured individuals/institutions had less dollars to spend for years thereafter. Details are here.
  • The process of setting tariffs by the Copyright Board is complex, and educational institutions themselves are puzzled at the lack of involvement by national representatives. But to attribute a spiteful motive to Canadian education as a whole is hardly worthy of anyone who claims to be a standard bearer for the preservation of Canadian culture.

Some weeks ago Degen’s colleague Heather Menzies also presented her interpretation of history with respect to educational uses of copyrighted material; my rebuttal is here. It appears that the Writers’ Union of Canada is eager to wrap copyright in the maple leaf and hope that Canadians will overlook the absence of facts or logic.

 

fair use denied — part IV

In Posts on February 25, 2016 at 6:25 am

A copyright strike, a brief history of fair use, and the creative process; see Part I, Part II, and Part III.

IV. factors one, two and three of fair use

(1) The purpose and character of the use.

American commentary regarding the purpose of use tends to dwell upon the language of “tranformative”.[1] Entering fair use dialogue in 1994 via the Supreme Court decision Campbell v. Acuff-Rose, Inc., “transformative” was defined as “altering the original with new expression, meaning, or message.”[2] The scope of the definition has grown; now one may also probe whether the copy “served a different function from the original.”[3]

But the situation at hand does not lend itself to a claim of transformative. The use of the copy was for the same function as the original: the enjoyment of listening to the music. AL (despite being a budding filmmaker) did not have any pretensions to greater utility or message when she chose to include music with her conversation.

Fortunately, the lack of a transformative quality does not diminish the fairness of the purpose of this use. To engage in play is worthy of protection under fair use. If adults are to properly utilize the system of copyright to achieve its Constitutional imperative of “promoting the progress of science and the useful arts,” as detailed in Part III (of play and progress), it is vital to foster the spirit of play in our youth.

Thus, play is a suitable purpose and, in this instance, was undertaken with noncommercial motives.

(2) The nature of the copyrighted work.

Conventional wisdom has been that the more creative the copied work, the more this factor will not favour fair use. Returning again to Campbell (1994) the Supreme Court stated, “this factor calls for recognition that some works are closer to the core of intended copyright protection than others, with the consequence that fair use is more difficult to establish when the former works are copied.”[4] Yet,  in that same case, where the Court was evaluating a parodic-creative work, against its input-creative work, the Court also stated that the question of “nature” was of little help and declined to pronounce any assessment for this factor: “This fact, however, is not much help in this case, or ever likely to help much in separating the fair use sheep from the infringing goats in a parody case, since parodies almost invariably copy publicly known, expressive works.”[5]

Subsequently, various Appeals’ courts have emphasized that this factor neither assists with, nor detracts from, an argument of fair use.[6] The same should be said in this situation of play.

(3) The amount and substantiality of the portion used in relation to the copyrighted work as a whole.

It is taken as a matter of logic that the less one copies, the more likely the copying will be assessed as fair. Would-be fair users are instructed to examine the copied work from both a qualitative and quantitative perspective. Dire warnings are cast about taking the heart of a work, that one should avoid replicating the most distinctive aspects of a work. Yet for the use employed here, incorporating a recognizable song is the purpose, much like in the instance of parody as established in Campbell.

The recording industry goes to great lengths to penetrate individual consciousness with lyrics and music (the goal being to embed a desire for purchases of singles, albums, and concert tickets). But when cultural artifacts penetrate lives, those artifacts will show themselves in the personality of those lives. Sometimes the display is purely passive; for instance, the act of listening to music. But for others, the creative among us, passivity eventually gives rise to new production.

Replication and imitation are the foundations upon which future creativity is built. Judge Richard Posner of the United States Court of Appeals for the Seventh Circuit makes this point forcefully:

The pervasiveness of borrowing in literature is captured in Northrop Frye’s dictum that “poetry can only be made out of other poems; novels out of other novels.” Frye had some tart words about copyright. He notes the challenge to the assumptions underlying the copyright law posed by “a literature which includes Chaucer, much of whose poetry is translated or paraphrased from others, Shakespeare, whose plays sometimes follow their sources almost verbatim; and Milton, who asked for nothing better than to steal as much as possible out of the Bible.”[7]

The instinct to replicate and imitate needs to be nurtured early in life if those individuals are to become creative adults.

For the purposes of a conventional four-factor analysis of AL’s situation, the quantitative/qualitative aspects illustrate a minimal taking of Wildest Dreams. Only 36 seconds of the song were copied, and of that only 17 seconds were clearly audible. Of those 17 seconds, the first 12 seconds were purely instrumental. In the remaining five seconds of clarity, a listener would have heard the following lyrics: “He said let’s get out of this town – Drive out of the city.”[7]

At best, those lyrics would be described as one complete sentence and one sentence fragment. The audible quantity of music and lyrics represent a negligible portion of the song and thus ought to be considered fair. And even if one must consider the entire 36 seconds, such a snippet should comfortably be considered fair in light of both the purpose of play (above) and consideration of the effect upon the market as per the fourth statutory factor, to be covered in tomorrow’s concluding installment.

Canadian readers may be relieved to know that our courts acknowledge that evaluation of quantity should be considered in light of the prevailing purpose and the work under consideration. For instance, it is implausible that using a partial quantity of an image would serve any purpose; one either takes all of it or none of it. Copying an entire work for parody or private study may be reasonable, given the nature of the use. Whereas copying an entire work for the purpose of published criticism, may not be appropriate. Our Supreme Court has emphasized many, many times that an evaluation of fair dealing (or other exceptions) is always a contextual investigation. Of course, “play” in Canada is well protected by a number of avenues; see Part I.

 

Notes

[1] In the wake of the Ninth Circuit’s instruction to copyright owners to consider fair use before issuing a takedown notice, Jeff Roberts writes: “ … for practical purposes, the deciding factors are usually whether the new work is transformative and if it will impact the market for the original work.” See “Mom wins huge fair use ruling in Prince “dancing baby” case,Fortune, 24 September 2015.  More recently, see Emily Hong argues that a comparative creation of hers is “transformative and doesn’t necessarily offer a substitutable good.” See “What Beyoncé and Justin Bieber taught me about fair use,” Slate, 25 January 2016.  (For any Canadians reading this, our Supreme Court has never required transformative use; see Meera Nair, “no surprise“.)

[1] Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994).

[2] Authors Guild, Inc. v. HathiTrust 755 F.3d at 97.

[3] See note 2 above.

[4] Ibid.

[5] For instance, Author’s Guild v. Hathi Trust (2nd Circuit 2013); Sony Computer Entertainment America, Inc., vs. BLEEM LLC, (9th Circuit 2000); and Triangle Publications, Inc. vs. Knight-Rider Newspapers, Inc. (5th Circuit 1980).

[6] Northrop Frye, Anatomy of Criticism: Four Essays (Princeton: Princeton University Press, 1957) at 95-104, quoted by William M. Landes & Richard A. Posner, The Economic Structure of Intellectual Property Law (Cambridge: Belknap Press, 2003) at 59-60.

[7] Wildest Dreams is available for viewing and listening at vevo.com, and the lyrics are available from metrolyrics.com.

fair use denied — part III

In Posts on February 24, 2016 at 5:32 am

For earlier installments of fair use denied, a story of wildest dreamssee Part I and Part II.

III. of play and progress

Fair use’s flexible language is often lauded as the reason behind the United States’ enviable record of innovation. As a consequence, other countries view a flexible exception as a style worth emulating.[1] However, such adoration of fair use overlooks one vital aspect of creative success—the process which leads to a creative mind. And while we cannot definitively prescribe that process, we can situate the process within the atmosphere of intellectual property.

The conventional premise of intellectual property rights is that such rights enhance the likelihood of creative effort by assuring individuals that their work will not be for naught. Yet the asserted causality between advances in art, science and technology, and heightened levels of intellectual property protection, may be more rhetoric than substance.[2] History offers compelling illustration of creative epochs which were accompanied by little or no intellectual property protections.[3]

Taking our cue from history, it is reasonable to assert that the process of creativity is affected by the ability of individuals to engage with existing/past creations; that is, to act freely upon informal or casual creative impulses. Such freedom is not something that may be turned on or off at will, it is an internal instinct shaped by the surrounding culture of thought. The capacity to let one’s mind roam, to see something that others do not, to explore without conscious objective–to embark upon play—is essential to developing the creative process.

This theme was articulated by Julie Cohen more than a decade ago. While eschewing the proposition that exceptions are users’ rights, Cohen emphasizes that any theory of authors’ rights must be informed by an accompanying theory of the user. Cohen writes: “Both copyright law and policy have shown little interest in understanding the processes by which these roles are performed, nor in inquiring what users need to perform their roles in a way that optimizes the performance of the copyright system as a whole (348).”[4]

Denoting the user as a “situated user”, Cohen makes plain that appropriation of pre-existing cultural goods are part and parcel of the self-development of individuals. The path to creativity includes consuming pre-existing works in a variety of ways. From the humble copy, to reworking that copy, to a seemingly original creation, the route to creativity necessarily includes those intermediary destinations. The stimuli that provoke eventual creative activity are varied; friends, family, teachers, formal and informal learning, advertising, popular culture – all contribute to an awareness of existing cultural goods. Exposure to, and re-communication of those goods, might provoke only a fleeting, partial inspiration which will not take tangible form for many years to come. But for that eventual, socially-prized, creation to come into being, the system of copyright must protect what Cohen describes as play of culture:

… process by which culture bends and folds unpredictably, bringing new groups, artifacts and practices into unexpected juxtaposition.  … [It] emerges from the full spectrum of behaviour of situated users. Consumption, communication, self-development, and creative play, merge and blur into one another, and the play of culture is the result (373).

An overt consciousness of the supposed-illegality of using others’ works must condemn future society to a very narrow realm of creative discovery. Whereas, if individuals are free to explore with the enthusiasm of play, the capacity to foster ideas and cause development in ways that cannot be predicted, is heightened.

But “the Child is father of the Man;”[5] to carry the sense of play into adulthood, it needs first to be protected in childhood. Part IV continues tomorrow.

 

Notes

[1] In 2007, Israel imported much of American fair use into its domestic law. “(a) Fair use of a work is permitted for purposes such as: private study, research, criticism, review, journalistic reporting, quotation, or instruction and examination by an educational institution. ­­­(b) In determining whether a use made of a work is fair within the meaning of this section the factors to be considered shall include, inter alia, all of the following: (1) The purpose and character of the use; (2) The character of the work used; (3) The scope of the use, quantitatively and qualitatively, in relation to the work as a whole; (4) The impact of the use on the value of the work and its potential market. (c) The Minister may make regulations prescribing conditions under which a use shall be deemed a fair use;” see Copyright Act [Isr.], 5768-2007, 2007 LSI 34 (2007) at § 19.
In 2011, Ireland’s Department of Enterprise, Trade and Innovation sought submissions concerning copyright amendment, with an express interest in examining “ …US style ‘fair use’ doctrine to see if it would be appropriate in an Irish/EU context.” Interestingly enough, the terms also stated that if suitable changes were not possible under the current constraints of EU copyright directives, Ireland would make recommendations for changes to those EU directives. <http://www.deti.ie/science/ipr/copyright_review_2011.htm> website no longer available. However, press coverage remains; see John Kennedy, “Radical copyright reform law to boost Ireland’s digital economy?” SiliconRepublic 9 May 2011.
Also in 2011, the Government of the United Kingdom explored fair use fulsomely. While electing to refrain from moving forward with a flexible exception (a decision influenced by strong opposition from the creative industries), it publicly acknowledged the merits of a flexible exception; see Ian Hargreaves, Digital Opportunity—A Review of Intellectual Property and Growth, May 2011.
Meanwhile, in a gentle progression of events which began in 2002, Canada has quietly erased the rigidity of fair dealing and brought it very close to fair use. See Michael Geist, “Fairness Found – How Canada Quietly Shifted from Fair Dealing to Fair Use,” The Copyright Pentalogy: How the Supreme Court of Canada Shook The Foundations of Canadian Copyright Law (Ottawa: University of Ottawa Press, 2013). Another Canadian asset in terms of flexibility is its exception for non-commercial user-generated content; for details see Peter K. Yu, “Can the Canadian UGC Exception Be Transplanted Abroad?”(2014) Intellectual Property Journal 26 175-203.

[2] Calls to remove or lighten the prevailing structure of copyright are routine today; but those calls originated over one century ago. The presumption that monopoly rights were the best mechanism to support creative endeavor was so contentious that a Royal Commission ordered examination of the issue in the late 19th century. While the Commissioners ultimately kept the monopoly structure, opinions were diverse and heated; see Paul Saint-Amour, The Copywrights: Intellectual Property and the Literary Imagination (Ithaca: Cornell University Press, 2003).

[3] Meera Nair, “Fair Dealing at a Crossroads” in ed. Michael Geist, From Radical Extremism to Balanced Copyright—Canadian Copyright and the Digital Agenda (Toronto: Irwin Law, 2010) 90 at 91.

[4] Julie Cohen, “The Place of the User in Copyright Law” (2005) Vol 74 Fordham Law Review p.348.  The lack of genuine interest in users continue today; policy makers provide lip-service attention to the necessity of balance in the system of copyright but refrain from actively supporting it. See Michael Geist’s analysis of the difference between implementation of rights of owners and rights of users as drafted in the TransPacific Partnership (TPP) agreement.

[5] William Wordsworth, “My Heart Leaps Up When I Behold”, The Complete Poetical Works (introduction by John Worley) (London: Macmillan, 1888).

fair use denied — part II

In Posts on February 23, 2016 at 6:04 am

For the first installment of this story involving Wildest Dreams and creativity-in-the-making, see Part I of fair use denied.

II. fair use — its origins and intentions

The contemporary bundle of rights comprising copyright is rooted in the customs of 16th century English publishing guilds. Their practices shaped what is often referred to as the first copyright act, the Statute of Anne. Entering into English law  in 1710[1], English colonies, of both loyalist and revolutionary tendencies, drew from the motherland when developing their own jurisprudence.

Eventually, the offshoot nations put their own stamp upon the system of copyright, including the exceptions within the system which  protect individual, unauthorized use of copyrighted works. While Commonwealth countries tended to maintain the English term and structure of fair dealing, in the United States, the exception evolved under the label of fair use.

Initially, fair use was applied only through common law practice; its genesis is usually attributed to Folsom v. Marsh (1841).[2] The dispute concerned two biographies of George Washington; in the process of adjudication Justice Story offered the following instruction to determine what is (or is not) fair use: “In short, we must often, in deciding questions of this sort, look to the nature and objects of the selections made, the quantity and value of the materials used, and the degree in which the use may prejudice the sale, or diminish the profits, or supersede the objects, of the original work.”[3]

This structure shaped fair use’s entry into American law in 1976.[4] Section 107 states:

… the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.[5]

The intent of the then-Congress was that fair use should retain the flexibility necessary to safeguard uses yet unknown. An instructional guide prepared by the Copyright Office of the Library of Congress explicitly draws attention to this necessity:

Section 107 is somewhat vague since it would be difficult to prescribe precise rules to cover all situations. … Section 107 makes it clear that the factors a court shall consider shall “include” [the four factors].  … [T]he terms “including” and “such as” are illustrative and not limitative. The legislative reports state that section 107 as drafted is intended to restate the present judicial doctrine; it is not intended to change, narrow or enlarge it in any way.[6]

According to a House Report about the 1976 Act, “… since the doctrine [of fair use] is an equitable rule of reason, no generally applicable definition is possible, and each case raising the question must be decided on its own facts (emphasis mine).”[7]

Furthermore, the four factors were to be considered in unity against the objectives of the system of copyright itself. Those objectives are clearly stated in the American Constitution: “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”[8]

But Progress takes root in Play. Part III continues tomorrow.

 

Notes

[1] 8 Anne c. C19 (1709/1710). It must be emphasized that for all the pathos (then and now) about copyright serving to protect starving authors, the statutory language was designed principally to keep order in the book trade. This period of time has received extensive coverage; Lyman Ray Patterson and Mark Rose are among the founders of this canon of scholarly work. See L.R.Patterson, Copyright in Historical Perspective (Nashville: Vanderbilt University, 1968) and M.Rose, Authors and Owners – the Invention of Copyright (Cambridge: Harvard University Press, 1993).

[2] Folsom v. Marsh  9 F. Cas. 342, (C.C.D. Mass. 1841) [Folsom]. However “… many of the points raised in Folsom were anticipated two years earlier by Justice Story in Gray v. Russell;”see William Patry, The Fair Use Privilege in Copyright Law, 2d ed. (Washington DC: The Bureau of National Affairs, Inc., 1995) at 19.

[3] Folsom at 348.

[4] That fair use eventually became a component within statutory law was not a foregone conclusion; the process took considerable time and discussion. In 1958, at the behest of the Subcommittee on Patents, Trademarks, and Copyrights, Alan Latman authored a study concerning fair use and raised two questions: (i) should fair use should be codified into law; and, (ii) if so, to what detail? His work was circulated to an advisory panel of nine copyright experts, eight of whom argued that fair use should not be codified with any attempt at specificity. See Alan Latman, “Fair Use of Copyrighted Works, Study No. 14,” Copyright Law Revision, Studies Prepared for the Subcomm. On Patents, Trademarks and Copyrights, Comm. on the Judiciary, 86th Cong. 2d Sess., (Comm. Print 1960).

[5] 17 U.S.C. § 107 (2000 & Supp. IV 2004).

[6] Marybeth Peters (Senior Attorney Advisor), General Guide to the Copyright Act of 1976 (September 1977), United States Copyright Office, Library of Congress, at 8:2,

[7] H.R. Report No. 94-1476, 94th Cong. 2d Sess. 65(1976). Also cited in Halpern et al, Fundamentals of United States Intellectual Property Law: Copyright, Patent, Trademark, 3rd edition (Wolters Kluwer: The Netherlands, 2011) p.18.

[8] U.S. Constitution, Art. I, § 8, cl. 8.

fair use denied — a five part series

In Posts on February 22, 2016 at 6:06 am

Fair Use/Fair Dealing Week is upon us; there will be much lauding of these two exceptions over the next five days. Yet there remains one significant barrier to applying fair use in the United States. A barrier which does not arise in Canada.

I. fair use or privacy, but not both

Some time ago, a colleague came to me with a concern. A video created by her daughter, and posted to her YouTube channel, had been removed (due to an allegation of copyright infringement) and a strike had been marked against the account. The daughter, AL, is an amateur filmmaker. With patience and creative instinct, she crafts stop-action photography films. Some are set to music. In this instance though, the video removed was not one of those creations; it was a recording of a life event, with some popular music playing in the background. AL did not mind the loss of the video, but was deeply troubled at being labelled as a copyright infringer.

The question posed to me was: can anything be done about this?

Internet Service Providers (ISPs) operating in Canada need only inform their subscribers of copyright concerns. Canadian ISPs are not obliged to do the bidding of copyright owners who may or may not have a legitimate complaint. The difficulty with the American system is that their ISPs risk liability if they do not heed an allegation of copyright infringement. The system as a whole operates as guilty-until-proven-innocent, which is diametrically opposed to our Canadian presumption of innocent-until-proven-guilty. Moreover, to appeal a takedown/strike by YouTube, one must submit a counter-notification through YouTube to the very party that has claimed infringement. That these situations are not resolved by an impartial entity runs counter to a vital principle of the rule of law.

In response to AL’s distress at “having done something wrong,” I assured her that she did nothing wrong. Admittedly, it is easier to make that assessment in Canada; our Copyright Act has many options through which to protect unauthorized uses of materials, ranging from the threshold at which copyright takes effect (the substantiality of the reproduction), the allowance of incidental use, the ambit afforded by a large and liberal interpretation of fair dealing, and our express encouragement of usage of copyrighted works in the creation of non-commercial compositions.[1]  Nevertheless, American fair use has ample room to do the same. In fact, the United States Court of Appeals for the Ninth Circuit recently instructed copyright owners to consider fair use before issuing a take-down notice.[2]

But it remains that to argue against a takedown/strike, requires laying one’s identity bare. In this situation, I felt distinctly uneasy about drawing attention to AL’s portfolio. According to YouTube, multiple strikes could result in the loss of the account itself. This is not encouraging; the odds of satisfactory resolution appear low while the risk of scrutiny and punishment rises. I did not want to bring further condemnation down upon AL’s young shoulders.

So I did not suggest proceeding with the counter-notification. However, for all parents, in this five-part series I offer up my take on why such creations are law-abiding on both sides of the 49th parallel, and, why our youth should be encouraged to make them.

As noted above, we have more latitude in Canada to  create and post such work. It has been suggested to me that arguing legitimacy under Canadian law is one way to dispute a takedown/strike notice. However, that approach has no guarantee of success anymore than claiming fair use. And since this situation is an outcome of American copyright interpretation, what follows is structured by American law and custom.

Establishing the facts

AL received a copyright strike in response to a video she created and posted to YouTube, describing an outing with a new friend. In the background of her narration and video, is a portion of the song Wildest Dreams sung by Taylor Swift. Of the total 37 seconds that were recorded, only 17 seconds are clearly audible when the video is played.

Many people are involved in the production of commercially released music including composers, lyricists, musicians and singers, all of whom will have some degree of rights (copyright or performers’ rights). The complex web of rights may be assigned through contract to a single entity; often the publisher assumes those rights. But, that is not necessarily always the case. And when a song is promoted through the use of a music video, even more people are involved, including directors and other performers, with even more rights to be sorted out.

But popular press tends to focus upon performers and (perhaps unintentionally) cultivate the impression that songs belong to their performer. For instance, coverage of the removal of Swift’s back catalogue from Spotify conveyed the impression that ownership was Swift’s and identified Big Machine Music as her label. The video of Wildest Dreams is clearly marked “(c) 2015 Big Machine Records, LLC.” Yet when the video was released, and criticized for romanticizing colonialism, the press conveyed the impression that the work belonged to Swift (i.e. see The Atlantic, the guardian, and CNN).

As to whether Swift has partial, or complete control, with respect to musical/artistic development, or management/enforcement of copyright, we do not know. The only information we have is that the complainant was ifpi, an international organization, based in the United Kingdom, which represents the recording industry.

It should be noted that the website taylorswift.com provides 30-second previews of songs performed by Taylor Swift, and the Wildest Dreams video is sanctioned by its copyright owner(s) to be enjoyed in its entirety via vevo.com. No doubt the first rebuttal to these facts will be that copyright law is rooted in reproduction, thus an authorization to listen is not an authorization to reproduce. But fair use beckons.

However, before one can employ fair use, fair use itself must be established. Part Two continues tomorrow.

 

Notes

[1] Section 29.21 of the Copyright Act (R.S.C., 1985, c. C-42) is an exception which protects amateur creators. I have written about this many times, for instance see poems out of other poems.

[2] Stephanie Lenz v. Universal Music (2015) D.C. No. 5:07-cv-03783-JF.  Although, drawing from AL’s situation, it appears doubtful that foreign entities will give much attention to an American court’s dictates.

 

 

looks like it is up to the Conservatives

In Posts on February 7, 2016 at 6:58 pm

On Friday, counterpunch published a detailed article by Murray Dobbin, concerning the TransPacific Partnership (TPP) Agreement and what appears to be a fog of ignorance in the halls of our Federal Government. Dobbin writes:

[The] consultation process has not penetrated the ideological bubble created by … trade department officials. In spite of the fact that by far the biggest concern of critics of the deal (including Joseph Stiglitz and a United Nations report) is the Investor State Dispute Settlement (ISDS) feature (the one that allows corporations to sue governments for regulating) … [Minister Freeland] seems to be either ill-informed or misled about its impact.

Dobbin raises concerns as to how meaningful the Government’s purported consultations are proving to be. Apparently, in response to queries from Canadians concerned about ISDS, Global Affairs Canada has offered assurances that there is nothing to worry about. As quoted by Dobbin:

“With respect to Investor-State Dispute Settlement (ISDS), the TPP will not impair the ability of Canada or its partners to regulate and legislate in areas such as the environment, culture, safety, health and conservation. Our experience under the NAFTA demonstrates that neither our investment protection rules nor the ISDS mechanism constrain any level of government from regulating in the public interest.”

Dobbin does not hesitate to point out the utter falseness of such a statement; not only has ISDS been used repeatedly against Canada, but particularly to inhibit measures taken by Canada to address environmental concerns. (We can only wonder if our Minister of the Environment and Climate Change, the Honourable Catherine McKenna, has been made aware of this.)

Environmental concerns overlap with health concerns. To add another story to Dobbin’s account: a sad day it was, when Canadians’ health placed second to American profits. Briefly, in 1997 the Canadian government of the day banned a manganese-based gasoline additive (MMT), deeming it harmful to human health. MMT’s American producers, Ethyl Corporation, took issue with this decision. It claimed expropriation, an actionable offense under the ISDS framework brought in by NAFTA. Facing a $350 million challenge, the Canadian government opted to settle. To fulfill the terms of the settlement, the ban was reversed and the country left poorer by some $19 million dollars (more than the entire budget for Environment Canada’s regulatory and compliance efforts at that time).

These details, and much more, were provided by Ken Traynor (Canadian Environmental Law Association) in 1998:

Most of the industrialized world does not use MMT as an octane-enhancer in gasoline. It is banned in many of the most smog-prone areas of the United States, including California and much of the Eastern Seaboard. Eighty-five percent of US oil refiners have confirmed that they are not currently using MMT. Alternatives exist and they are not that expensive. … And we’d get better air as a bonus.

If NAFTA did not exist, MMT would still be banned in Canada. Ethyl would have had to convince the US government to go to bat for it with the Canadian government, or sue Canada in a Canadian court. In a Canadian court, a judge can balance corporate property rights with the public interest, something glaringly absent from the deliberations of NAFTA arbitration panels.

We have two physicians in our Cabinet, the Honourable Carolyn Bennet and the Honourable Jane Philpott. Are they aware that any progressive action they may wish to take, should first be evaluated to ensure a foreign investor will not see its expected profits diminish? For that matter, what does our Minister of Justice, the Honourable Jody Wilson-Raybould think of the operation of ISDS? To put it plainly, if multinational corporations may operate in Canada, removed from all obligations to observe Canadian regulation or judicial oversight, do our citizens have any recourse to justice?

Canadians’ best hope for detailed discussion in Parliament may lie in the hands of our Official Opposition. Granted, they are the party that championed the TPP (and its further entrenchment of ISDS), but as Rick Mercer pointed out last week,  current Conservative Members of Parliament have comfortably reversed their stance on a number of issues already. If our Loyal Opposition will continue with their self-induced amnesia, ISDS would be a worthy issue to confront.

All levity aside, a good starting point for all recently elected members of Parliament is an article by Lisa Sachs and Lise Johnson of the Columbia Center for Sustainable Investment. Published in November, through the Globe and Mail, Sachs and Johnson encouraged the new government to pay close attention to ISDS: “[In the TPP] we see a further evisceration of the role of domestic policy, institutions and constituents, and greater liabilities for governments and domestic stakeholders.”

 

in defense of fair dealing

In Posts on January 18, 2016 at 5:18 am

A response to Heather Menzies and the Globe and Mail.

Last Thursday, the Globe and Mail published an op/ed penned by author Heather Menzies, chair of The Writers’ Union of Canada. Ms. Menzies claims that a provision of law, fair dealing, is responsible for a decline in the income and well-being of Canadian authors. While she is perfectly entitled to her opinion, her argument is based on a number of inaccuracies.

At the outset, it must be noted that the system of copyright, since its inception as statutory law in 1710, was never intended to operate as a grant of absolute control. Rights offered in the name of copyright were limited, for the vital reason that the goals of the system of copyright (creativity and innovation) rely on some degree of unauthorized uses of prior works. The mantra that more control brings about more creativity is no more than political theatre; the age of Shakespeare, the industrial revolution, and even the 20th century offer enough evidence that creativity has thrived in periods of lesser control. Nevertheless, fair dealing enthusiasts will agree that it is as important to respect the rights afforded to authors, as to respect the use provided to future authors via fair dealing.

Ms. Menzies writes: “Authors have always made copyright legislation work for them, even though it originated in a 16th-century move to restrict the right to copy texts to the Stationers’ Company, a booksellers’ cartel based in London, England, and had nothing to do with writers.” It is true that copyright’s entrance into law was at the behest of booksellers eager to protect their assets, not necessarily their authors. Yet some authors obliged with the trope of the starving author during negotiations. In the three hundred years since, with the same trope, the rights of control in the system of copyright were systematically expanded, while the rights of unauthorized use were inexorably whittled away. Given that, at the present time, copyright is more expansive in breadth and depth than it has ever been, if authors are still starving, perhaps copyright is neither the problem, nor the solution.

As to the role of collective licensing in the management of educational uses of copyrighted material throughout Canada, it is true that Access Copyright facilitated this effort in the past. As to why post-secondary institutions no longer wish to rely on Access Copyright’s services, Ms. Menzies omits to indicate that in 2010 Access Copyright sought a 1300% increase in fees, demanded absurdly intrusive reporting requirements from institutions, and took it upon itself to redefine the very nature of copyright. (A privilege that Parliament, and no other, enjoys.) Yet post-secondary institutions continue to spend millions of dollars in purchasing and licensing fees, and make these payments directly to copyright owners. As to where those funds go after that point, it is not for an institution to say.

Furthermore, even though “education” was added to the allowable purposes of fair dealing through the amendments which came into force in 2012, three Supreme Court decisions upholding fair dealing in teaching and learning, and research, were all based upon the earlier language of fair dealing. That detail is also omitted in Ms. Menzies’ account. Instead, she opts to equate the decline of authors’ incomes with the later expansion of fair dealing and invokes a PricewaterhouseCoopers study to present dire consequences for education in Canada in the years ahead.

That study, commissioned by Access Copyright, was based upon very narrow parameters. (I provide analysis in “With due respect to PricewaterhouseCoopers.”) The study focuses upon revenue streams within the educational publishing industry and finds that revenue has declined over recent years. This observation is correlated to heightened attention paid to fair dealing by educational institutions, arriving at the seeming causality that fair dealing is to blame. Whereas in reality, there are more options for obtaining quality content at lesser or no cost. Teachers may avail themselves of publicly available material from the internet, open-access content, and material expressly developed by other teachers and local communities. As with any market, when more options are available, former monopolies must see their market-share decline. And lurking in the background of recent trends was nothing less than the global economic mayhem that began in 2008, which ensured that, across all walks of life, individuals and institutions had less money to spend. Yet the study’s authors appear unaware, or unconcerned, about larger macroeconomic conditions.

Finally, Ms. Menzies invokes the realm of First Nations’ writings and the importance of protecting their writers. No argument there. Our pantheon of writers is worthy of praise and we all benefit when that roster swells. Yet Ms. Menzies will not acknowledge that of the writers we laud today, many enjoyed their public education before the mania to count the number of words a teacher or librarian might share with their charges became the educational norm. Those writers enjoyed a more open reading environment in their classrooms; times being what they were, it was not necessary to speak of “fair dealing.” But it was fair dealing.

It would be only fair to suggest that such openness contributed to the success of members of The Writers’ Union of Canada. That they should now begrudge future generations of writers that same benefit, is truly disappointing.

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