Meera Nair

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Indigenous paradigms

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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


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

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

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

my brief for the Copyright Review

In Posts on June 1, 2018 at 11:14 am

As submitted to the Standing Committee:

Thank you for this opportunity to contribute to the examination, and potential revision, of the Copyright Act. This subject has occupied my attention for nearly fourteen years, through life as a graduate student, teacher, researcher, administrator, and parent.

Copyright is a seemingly straight-forward provision; a measure within law that allows a copyright owner to monetize intellectual effort, by controlling (among other things) the right of reproduction. This control is not absolute; it is limited in time by expiry and in space by some rights of use (those statutory exceptions defined in the Copyright Act). Taken together, rights of control and rights of use form the system of copyright and might foster future creativity.

An impediment to fruitful operation of the system is the misunderstanding that authors lie at the heart of the system. Whereas the system was only designed to bring some stability among feuding 18th century publishers. Nevertheless, for over three centuries, control via copyright expanded in depth and breadth, always through the plea that authors were living in poverty. One may rightly ask: if authors are still in dire straits after 308 years of copyright expansion, is copyright their real problem and can it provide a meaningful solution?

The rhetoric escalates with every revision of the Copyright Act; copyright is deemed essential to the very existence of Canadian culture. But copyright is a blunt instrument; it cannot distinguish between literary superstars and novice writers, between fostering a homegrown operation and an international publishing conglomerate, and, between writing for an audience and writing for financial gain. Revision of the Act must be carefully handled, with the commercial trade imbalance kept uppermost in mind.

On the following pages are my recommendations for action the Federal Government could undertake, with (and without) change to the Copyright Act. Four themes are addressed:

  • Preserving Canadian content.
  • Deterring copyright abuse.
  • Fostering Canadian creativity, exceptions and other means.
  • The system of copyright, in support of reconciliation.

Regards,
Meera Nair, Ph.D.
Edmonton, AB

 

good news

In Posts on April 23, 2018 at 6:29 am

Today marks World Book and Copyright Day. The United Nations explains the choice of date as “a symbolic date for world literature,” in part because 23 April 1616 marked the deaths of Miguel de Cervantes, Inca Garcilaso de la Vega, and William Shakespeare. The connection between title and titans seem at best, tenuous — World Writers Day might have been better? — but we may as well take the opportunity to celebrate the successes of Canadian writers and publishers.

In The Daily, issued by Statistics Canada on 23 March 2018, data for 2016 reveals that “The Canadian book publishers industry generated operating revenue of $1.6 billion in 2016, down 0.6% compared with 2014.”

That may not seem like cause for celebration. But it is easily good news, when placed in context: 2016 was a difficult year for the industry as a whole. In an article from Publisher’s Weekly, dated to 25 August 2017, Jim Milliot wr0te: “Although total revenue of the world’s 50 largest book publishers topped $50 billion in 2016, last year was not an easy one for global publishing giants. Less than half of the top 50 publishers posted revenue gains in 2016, with the balance reporting sales declines.”

In comparison then, the next sentence from Statistics Canada is even more gratifying: “Operating expenses decreased 1.4% to $1.5 billion, resulting in an operating profit margin of 10.2%.” In light of global trends, to have any profit margin at all may claim congratulations to that sector.

Reading further, the data continues on a positive theme:

Total sales amounted to $1.5 billion in 2016. Of total sales, Canadian book sales increased 0.5% from 2014 to $1.4 billion in 2016, while all other sales declined 7.9% to $108 million. Of the $1.4 billion in Canadian book sales generated in 2016, 53.8% was attributable to foreign controlled firms, while 46.2% was generated by Canadian controlled firms. Domestic sales accounted for 81.0% of Canadian book sales, while export sales made up the remaining 19.0%. Exports sales increased 11.8% in 2016 to $260.5 million. … Canadian authors accounted for 51.1% of total sales in 2016, up from 48.9% in 2014.

So Canadian book sales increased, under near parity of influence between publishing firms under foreign control and Canadian control. Given that through most of Canada’s existence, our reading and book-selling landscape was overwhelmingly dominated by foreign publishers and printers, this is good news indeed. Moreover, while only 19% of Canadian book sales went to export markets, the fact that those sales increased by nearly 12 % in the space of two years is positively noteworthy. Canadians (both writers and publishers) are making their mark on this world.

Yet, despite evidence of a resilient industry and successful writers, there are many who will continue to insist that because of fair dealing, the Canadian writing enterprise is suffering—that because Canadian educators may legitimately use some portions of published material without authorization, returns to Canadian publishers are compromised, which will lead to a decline in writing in Canada.

As I wrote in my last post, drawing from the work of one of Canada’s most respected authorities on Canadian Literature — Arrival: the Story of CanLit by Nick Mount — Canadian content is simply not being prescribed for curriculum as it used to be. A point I did not emphasize then, but bears mentioning now, is Mount’s enthusiasm regarding the proliferation of writers and books in Canada:

The country is producing many more writers and many more books than ever before, books by and about many different kinds of Canadians than ever before. It also has more readers—they’re just spread out now, among so many books, and so many more ways to read, that it’s hard to see them all (p.293).

According to Statistics Canada, domestic sales have declined by 1.9% since 2014. However, educational titles increased by 4.9%.  This is intriguing, given the publishing industry’s own investigation concerning the selection of resources for use in Canadian classrooms. A report titled Digital Trends and Initiatives in Education—The Changing Landscape for Canadian Content (produced by the Association of Canadian Publishers and released in March 2017) provides a comprehensive examination of the education sector’s approach to choosing resources, to the conclusion that openly licensed content has become a notable component of resources in both the post-secondary and K-12 sectors (p.24).

Michael Geist covered the report in some detail and observes: “… despite the ACP’s insistence in lobbying efforts that copyright is at the heart of publisher concerns, copyright and fair dealing are limited to a single reference with no discussion or analysis. … The report provides several recommendations, none of which involve copyright reform.”

The report’s authors express concern for: (i) the reduction in prescription of Canadian content in the K-12 sector; and (ii) the lack of guidance for teachers for evaluation of free or openly licensed content. They write:

… without clear direction, teachers may continue to use material that has not been appropriately vetted for use in an educational setting. This belief is not intended to diminish the role teachers play in selecting the right content for their students, but rather serves to highlight the fact that teachers do not all have the time nor the expertise to thoroughly evaluate or authenticate every piece of content accessed by themselves or their students (p.4).

I cannot speak to that concern—it is a matter of discussion best left to teachers. The report’s authors press the need for using good Canadian content in our schools–this is perhaps a good time to ask again, What is Canadian Content? In any case, it remains that in the hands of one who has diligently studied/explored a subject, and whose passion to communicate is evident, even a Twitter thread can form educational content. This past Sunday’s reading included a 12-part lesson by Joanne Hammond, describing the events leading to the establishment of reserves in British Columbia, replete with archival maps and images.

To return to the celebration of World Book and Copyright Day, though it is repetition, Mount deserves to have the last word: “The country is producing many more writers and many more books than ever before.”

fair dealing week 2018

In Posts on February 25, 2018 at 6:27 pm

Tomorrow marks the start of Fair Dealing Week for 2018. It is an opportunity to bring concentrated attention to this particular exception, which is practiced every day by Canadians in their pursuit of learning and  creative endeavor (i.e. see here and here).

Broadly speaking, exceptions are statutory provisions which provide the means by which one may engage in legitimate, unauthorized uses of copyright-protected material. Taken together, exceptions delineate the essential space in which the fundamental construct of the system survives—that, in order to foster creativity, the system must operate as a set of limited rights.

Fair dealing enables Canadians to continuously build the capacity for creative thought; capitalizing on that thought is managed through the rights of control found within the system of copyright. More precisely, exposure to copyrighted work facilitates creation of future work. But the elapsed time between these two stages of creative endeavor leaves fair dealing vulnerable, as the modest amounts copied under fair dealing are viewed as a threat to copyright owners’ well-being.

Worse, fair dealing is tarred by accusation that it is bringing about the demise of Canadian literature. Emotional arguments lacking logic coupled with selective data are paraded before Members of Parliament as reason to curtail the scope of fair dealing. Such arguments would have us believe that but for the collective licensing regimes imposed on captive Canadian taxpayers, students, and their families, CanLit would never have gained its prominence. Fortunately, logical argument and expansive data employed by a noted member of Canada’s writing scene tell a different story.

In Arrival: The Story of CanLit, Nick Mount’s painstaking exploration describes CanLit as an outcome of a confluence of many events: post-WWII affluence, the reaction thereto, the Centennial celebrations, some (perhaps unintentional) prodding by George Grant, and … . [You must read the book!] Not surprisingly though, the catalyst was money:

[Affluence] paid for new spaces in which its artists could perform and exhibit. It paid for new universities with departments devoted to studying and fostering music, drama, literature, and the visual arts; for new campuses with their own galleries, theatres, radio stations, magazines, publishers, and book-stores. It built new houses with new hi-fis that need playing and new bookshelves that needed filling, and it built new shopping malls in which to buy the new records and new books …. Affluence paid for the salaries that bought the homes that filled with the babies that filled the universities, both creating and conditioning the first generation for whom culture was a mass-market product (p.25).

But Mount is quick to point out that affluence did not extend to the writers and publishers themselves:

For all the new GNP, it was still tough to make a living from literature in Canada in the 1960s. The publisher of the most commercially successful writers of the period, McClelland & Stewart, flirted with bankruptcy throughout and after the CanLit boom. …. Most writers lived cheaply and at times precariously, surviving on small grants, the occasional teaching or writer-in-residence contract, sometimes even their writing (p.26-27).

To those who insist that fair dealing in educational institutions will bring about a decline in Canadian writing, Mount offers compelling evidence indicating that the problem is not unauthorized use of portions of novels but a lack of interest in entire novels to begin with:

Saskatchewan and British Columbia require students to read a novel or two, but Canadian literature is once again optional in Ontario high schools. At eleven of Canada’s largest twenty universities, English and French, you can complete a major in literature without any of it being Canadian. (At all twenty, you can complete a B.A. without ever reading a Canadian poem or novel (p.292)).

Mount’s data should invite sober reflection on the part of Canadian literary nationalists. Curtailing fair dealing seems unlikely to revive interest in adding Canadian content to Arts education in Canada; instead, curtailing fair dealing points to reducing circulation of Canadian content.

In academic degree specialties focused on Canadian literature, required reading material is likely already assigned as books. Thus, the impact of lessening fair dealing’s capacities will be on those programs that might only refer to Canadian content for supplemental purposes. In these cases, it is only too likely that a disinterested professor or teacher, coupled with risk-averse administrations, will choose to avoid using those supplemental pieces entirely.

If the damage could be confined to reducing the presence of Canadian literature in the academy; well, many of us could just sigh and say it was a self-inflicted wound. To lobby for copyright in the name of Canada without understanding Canada’s particular history in this area is simply a repetition of what has been done before. But, diminishing fair dealing entraps all disciplines, reducing that capacity to nurse creative thought essential to later creativity in all perspectives of arts and science. And what will be most painful to accept will be how unnecessary such action was. For, as Mount writes, “Canadian literature is more alive and more exciting than ever (p.292).”

Mount does not stint on detail: Canadian writers are increasing in number, their work is being published at home and internationally, new Canadian presses are blossoming, the quality of work is constantly ascending, and the depth and breadth of literature produced reflects both the diversity within the country and its coming-of-age on the world scene. Mount’s conclusion bodes well for Canadian literature now and Canadian creativity to come: “Quite simply, there has never been a better time to be a Canadian reader (p.293).”

Mount’s words complement those of Justice Barnes, who presided over Blacklocks v. Canada (A.G), 2016. That dispute revolved around limited sharing, for the purpose of research, of two proprietary articles legitimately obtained through a subscription; see here for my coverage.  The following lines seem particularly apropos at this time of year:

What occurred here was no more than the simple act of reading by persons with an immediate interest in the material. 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).

Happy Fair Dealing Week.

adjudication by algorithm

In Posts on January 3, 2018 at 8:33 am

Monday’s issue of The Globe and Mail describes new initiatives to secure better returns for the music industry when musical content is used via radio or internet. Under a joint initiative between the University of Toronto and The Society of Composers, Authors and Music Publishers of Canada (SOCAN), students are investigating how technology “… can parse through audio and video to find media using SOCAN member songs that should be paying royalties to creators and publishers.”

If a reader parses that sentence, the word “should” stands out. Merely using a SOCAN member’s song, or anyone’s song, does not automatically indicate that payment is required. While it is plausible that artificial intelligence can develop a capacity to engage in the contextual analysis required to determine whether a use is legitimate or an infringement, much will depend on the human input.

(As I write this, I recall undergraduate days and a computer science professor who was fond of saying, “garbage in, garbage out.”)

In her remarks about the article Carys Craig draws on the work of Niva Elkin-Koren, who has written at length about the perils of copyright adjudication by algorithm. For instance, in Fair Use by Design (2017), Elkin-Koren argues that: “… for fair use to serve its role in the twenty-first century, the checks that it intends to create on the rights of authors must also be embedded in the design of online systems.” She reveals some disturbing findings following analysis of 10,000 removal requests sent to Google, to the conclusion that “an algorithmic regime, which is neither overseen by the public nor by any judicial entity, is extremely vulnerable to misuse.”

Misuse may be deliberate, but misuse also occurs through confusion with respect to the very nature of copyright. Too many people believe that copyright means an absolute right of control; which it never has been, nor has it ever functioned in this manner. From its implementation into statutory law (1710), copyright has been structured as a set of limited rights. But despite this 300+ year ancestry, contemporary articles rarely provide any explanation of where control begins or where control ends.

That story is told through the Copyright ActSection 3.1 states:

For the purposes of this Act, copyright, in relation to a work, means the sole right to produce or reproduce the work or any substantial part thereof in any material form whatever, to perform the work or any substantial part thereof in public …

From 3.1 we see that copyright exists only when a substantial amount of work is being reproduced. Any algorithm that deems infringement by only identifying use, has vastly overstepped its bounds. Copyright may not even have arisen, let alone finding infringement. (For more about substantial/insubstantial, see here and here.)

If a substantial reproduction has occurred, copyright owners (which may include the writers, musicians, artists, etc. that created the work) are entitled to control the use of the work, through the measures enumerated in the Copyright Act. But that control is not absolute. It is limited, not only by time (Canada maintains the life+50 copyright duration mandated by international treaty) but also by many statutory exceptions. That list begins with fair dealing:

Section 29, fair dealing “Fair dealing for the purpose of research, private study, education, parody or satire does not infringe copyright.”

Sections 29.1 and 29.2 – which provide fair dealing for “criticism or review” and “news reporting” under conditions of attribution. Writers and publishers (perhaps those associated to national newspapers) might appreciate this exception.

(Over the last fifteen years Canada’s treatment of fair dealing has evolved into a measured, progressive exception and ensures that the system of copyright remains balanced and does not devolve purely into a means of rent-seeking. For instance, see here, here, and here.)

Canada’s jewel in the crown – S29.21 “Non-commercial user-generated content,” is more colloquially known as The MashUp Exception. With conditions (amateur creation, attribution, legitimate source material, and a consideration of market effect), creativity at its most nascent is protected as lawful activity. While the scope is vast, at the very least S29.21 seems tailor-made to protect video involving a dancing cat. (For more on 29.21, see here and here.)

Or if the musical accompaniment to the cat was unintended, the unsung heroic exception of S30.7 “Incidental Use” comes to mind:

It is not an infringement of copyright to incidentally and not deliberately (a) include a work or other subject-matter in another work or other subject-matter; or (b) do any act in relation to a work or other subject-matter that is incidentally and not deliberately included in another work or other subject-matter.

Incidental use is not limited to amateur creation, nor is it confined to any specific purpose of use. That said, it has provided Canadians with some bragging rights in a particular genre; as Howard Knopf wrote over a decade ago, “This section is the envy of American documentarians … .”

The entire list of exceptions is extensive and should be part of any algorithmic effort to pronounce judgement on use of copyrighted works. In this regard, artificial intelligence could lead to better outcomes for copyright owners and users alike, if such systems are appropriately seeded, capable of learning from existing and ongoing court decisions, and attuned to the nuance that permeates application of the law. To rephrase my former professor’s words: comprehensive information in, contextual decisions out.

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.