Meera Nair

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copyright and religion; a contentious mixture

In Posts on June 14, 2015 at 6:20 am

Discussions of copyright and religion are fraught with risk for the same reason; that it is extremely difficult to find middle ground.

Two weeks ago, an article in the Huffington Post raised what, on the surface, looks like a clear-cut demonstration of violation of intellectual property rights. But, as is often the case with these rights, careful reading brings to light a more complex matter.

The article, published on 6 June 2016, concerns the work of Vancouver photographer, Dina Goldstein. Although the Huffington Post indicates that Goldstein is seeking damages from a foreign newspaper for its use of her work, the article does not identify which body of law is relevant to Goldstein’s claim. Goldstein is entitled to be offended by the criticism levied at her; however, it is open to debate as to whether any laws were broken at all.

Images from Goldstein’s collection Fallen Princesses were used to support an argument from the Irish Catholic newspaper Alive!, of the need for families to raise children with hope. Specifically, the hope that arises from the Christian faith: “The sure hope of heaven gives us a joy here and now that even suffering cannot undermine. The fairy tales have it right.” The Huffington Post quotes Goldstein as saying:

My photograph … was deliberately manipulated into forming a criticism about parents who do not promote religion within the household. This sentiment is seething with the classic Catholic guilt trip I reject … In fact, this argument is completely opposed to my own way of raising a family, without religion.

In the same article, Goldstein acknowledges that her “socially critical work is ‘meant to attract discourse.'” However, the photographer objected “to the newspaper’s cover displaying neither a credit to her, nor an indication there’s a relevant story inside.”

DINA-GOLDSTEIN-IRISH-NEWSPAPERCloser examination of both the Alive! cover and the accompanying article do not easily support these remarks. It is true that the Alive! cover does not make mention of Goldstein by name, but there is a reference to an article in the lower right hand corner: “Being a child of parents with no faith is tough, see page 7.”

On page seven, the article begins with: “Photographer Dina Goldstein … .” The article deals with Goldstein’s work in depth, detailing highlights of the collection and Goldstein’s philosophy about the collection. In terms of crediting a creator, or invoking a creator’s work to a specific cause, these are matters of moral rights which serve to protect the personal connection between art and artist. As most readers know, the scope of protection varies. However, among observing countries, the right of attribution (acknowledging the creator) and integrity (treating the work with respect) are common. Ireland observes both (so too does Canada).

But the immediate question is whether moral rights prescribe a specific placement of attribution? Irish law is silent as to how attribution should be carried out. Known as the paternity right in their Copyright and Related Rights Act, Chapter 7 – Section 107 states: “ … the author shall have the right to be identified as the author and that right shall also apply in relation to an adaptation of the work.” Thus it is plausible that crediting Goldstein through the article would serve as observant of moral rights under Irish law.

[As an aside, the Copyright Act of Canada is slightly more detailed in its language of moral rights: “The author of a work has …  the right to the integrity of the work and, …  where reasonable in the circumstances, to be associated with the work as its author by name or under a pseudonym and the right to remain anonymous.” But the caveat of “where reasonable in the circumstances” also allows for the possibility that the attribution might not be placed according to the creator’s wishes.]

On the matter of the integrity of the work, Irish law is quite intriguing. Chapter 7 – Section 108 states: “… the author of the work shall have the right to object to any distortion, mutilation, or other modification of, or derogatory action in relation to, the work which would prejudice his or her reputation …” (emphasis mine). The two photographs of Goldstein’s, portrayed by Alive!, were not distorted, mutilated or modified. The representation is faithful to Goldstein’s original images. But we should consider the possibility that featuring Goldstein’s work in the newspaper, is a “derogatory action … which would prejudice his or her reputation.”

The Alive! article quotes Goldstein as saying: “I am a fierce realist so I wanted the princesses to be in real life situations with problems of their own.” The article further quotes Goldstein as “raging against the happily-ever-after motif” spoon-fed to the young. Neither quotation is attributed to any particular press interview or article, but Goldstein’s website contains an extensive collection of material so it is plausible that these quotations are accurate. Alive! uses Goldstein’s work and her remarks as a background to advance their own argument; that believing in “happily ever after” is a fundamental belief, and a worthwhile one, in the Christian tradition.

At this stage, a claim based upon moral rights infringement looks less robust; rather than a violation of moral rights, the use of the images melds well with fair dealing. In Ireland, like Canada, criticism and review are protected purposes if the creator receives sufficient acknowledgement (see Chapter 6 – Section 51). It would not be possible to convey the force of Goldstein’s work, without showing some of the work. Where Alive! may have erred, is to speculate that Goldstein’s work is deliberately an attack on Christianity and a style of parenting. From the article:

But is [Goldstein] raging against the Christian message of hope in the fairy stories or against the culture of despair which has infiltrated both society and her own life? She seems to think we should stop telling children stories with happy endings. That kids need to realize that real life stories don’t end that way.

Alive! continues in this vein, about people who have lost sight of God, emphasizing that “hope and happiness, not despair, are the realistic attitude to life.”

Goldstein has not been shy about voicing her views on religion; but she has also articulated that her work is art, not a parenting manual. In 2009, when Fallen Princesses was unveiled, Cheryl Rossi, writing for Vancouver Courier, states:

Her Fallen Princesses photos aren’t meant for kids, Goldstein says, and she’s not shielding her daughter, now four, from Disney. “I don’t want to ruin her bubble,” she said. “She’ll learn that life is complicated and tough eventually.”

In a more recent interview Goldstein states that she would not deprive her young daughters of the enjoyment of Disney productions or merchandise, emphasizing that children are too young to understand the concepts behind Goldstein’s imagery. Goldstein is unequivocal: “These images are made for adults.”

So is there a legitimate complaint here, and if so, what is it? Was the photograph unfairly used in a manner that is derogatory to Goldstein’s reputation? Have the musings of Alive! cast aspersions to Goldstein’s character? Or, was the condemnation of Goldstein’s work merely criticism? Criticism that necessarily required explanation and therefore invocation of Goldstein’s work?

And if there is a complaint, is there an avenue of redress for Goldstein? I am unfamiliar with the sturdiness of Ireland’s regimes of fair dealing, moral rights and defamation; if an Irish reader would like to comment, please do.

On a different note, Goldstein’s work is phenomenal. In an interview with Fanny Kiefer, Goldstein remarks: “… [the] characters are symbols, to convey a scenario.” Fallen Princesses is dramatic and touches a chord by the recasting of familiar characters among the all-too-real feelings of desperation that pervade life. The rude-awakening that marriage can be, the trauma of cancer, and other realities, are conveyed masterfully.

With my bent for maintaining copyright as a set of limited rights (as it has been for 305 years), the best part of Goldstein’s work is this: no reprisals from the Disney Corporation. When questioned by Kiefer as to whether Goldstein had sought permission from Disney, and did Disney call upon publication of the pictures, the answer to both questions was No.

Nor should there have been any reason for Disney involvement. But the persona of Disney and its ironclad grip upon its characters is legendary to the point of discouraging putative artists and even well-heeled lawyers from using Disney materials. Goldstein’s story is a happily-ever-after of an entirely different nature.

a lesson from the Copyright Board

In Posts on May 31, 2015 at 7:35 am

On 22 May 2015 the Copyright Board released its decision concerning tariff rates for copying carried out in provincial and territorial governments (excluding that of the Province of Quebec). The rates set by the Board fell far short of what Access Copyright had requested; some commentaries indicate that the returns would not cover the costs of the tariff proceedings.

The Board came to its decision via a number of factors, including: (i) scrutinizing Access Copyright’s claim of the extent of both its repertoire and business relations; (ii) deferring appropriately to fair dealing, given the integral nature of the exception within the system of copyright; and (iii) being mindful that copyright only applies when a substantial part of a work has been reproduced.

For commentary, see Michael Geist (here and here), Howard Knopf (here and here), Bob Tarantino (here) and Bobby Glushko (here). To which I add my own. The decision underlines that institutional systems of fair dealing, which includes assessment of substantiality (the threshold of copyright), remain contextual affairs. This lesson is not transparently evident, but it is there.

Copyright owners receive their rights through Section 3.1 of the Copyright Act: “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 … .” Thus, if the reproduction is insubstantial then copyright does not arise.  This was explicitly stated in CCH Canadian (2004); as Tarantino writes : “… the Supreme Court of Canada [indicates] in its discussion of fair dealing, that where “the amount taken from a work is trivial, the fair dealing analysis need not be undertaken at all because the court will have concluded that there was no copyright infringement.”

But as Tarantino (and the Copyright Board) remind us, the Supreme Court has also indicated, via Robinson v Cinar (2013), that substantiality is “a flexible notion … a matter of fact and degree”, to be decided “by its quality rather than its quantity.”

In its discussion about substantiality, the Board concluded that: “… without the benefit of a qualitative analysis and without even knowing which portions of a work were copied, … 1 to 2 pages of a work [to a maximum of 2.5% of the entire work] are a reasonable approximation in establishing non-substantiality (para. 204).” This measure has been greeted with enthusiasm but it is imperative that educational institutions not sleep walk into creating a de facto ceiling to insubstantiality. It bears emphasizing that the Board has contextualized its own remarks; this measure is appropriate when little or no information is available about the copying.

In terms of institutional practices–where post-secondary communities have endeavoured to develop resources and engage personnel, all to assist faculty in their understanding of appropriate uses of copyrighted material–it is viable to apply a qualitative assessment and allow for the possibility of copying more.

In Intellectual Property (2011), David Vaver makes a valuable point in connection to assessment of substantiality: “One should first screen out what cannot in law be a substantial part. ‘Part’ means ‘portion’ not ‘particle.’ … Copying ten such particles is as inoffensive as copying one (p.182-183).” As is often quoted, but appears not to receive sufficient consideration, facts are not eligible for copyright. Furthermore, processes are unlikely to meet the threshold of originality to be granted copyright. (Arguably, it is ill-advised to be creative when teaching students a process.) It is then likely that in fields of natural science, life science, mathematics and computer science, the threshold of substantiality may be higher. Even in fields typically considered to be more creative, it remains possible that a taking of more than 2.5% will not contravene substantiality when the qualitative analysis is undertaken.

The Copyright Board’s statement should be read in the same spirit as the Fair Dealing Guidelines developed by the Association of Universities and Colleges Canada (AUCC) and Colleges and Institutes Canada (CIC). Those instructions are baselines supporting legitimate unauthorized copying and more copying is always a possibility when individuals are suitably informed, or have access to informed support. It is the combination of baseline rules and discretionary support that constitute an institutional practice of fair dealing.

The Board takes note of the Supreme Court’s measured approach to unauthorized copying in institutional settings:

In CCH, the Supreme Court of Canada stated that fair dealing can be made out either by demonstrating that there exists a general practice that is based upon an enumerated fair-dealing purpose, and, is in fact, fair, or by demonstrating that a particular copying event … was fair dealing (para. 223, citing para. 63 of CCH Canadian).

It was the lack of a robust practice on the part of the provincial and territorial governments involved in the tariff negotiations that resulted in the Board’s scrupulous attention to every incident of copying in the evidentiary sample collected in agreement with Access Copyright and the governments (paras. 223-225).

Generally speaking, post-secondary educational practices in Canada are closely modeled upon the Great Library Access Policy that was at issue in CCH Canadian. Meaning, the policy prescribes minimums, with copying beyond the minimum contingent upon informed discussion. But informed discussion itself can unwittingly be curtailed. Fortunately, the Board reminds institutions to avoid slavish attention to rules to the extent of diminishing the contextual nature of fair dealing. As readers likely know, in CCH Canadian, the Supreme Court followed six factors with which to explore the fair dealing issue at hand; the Board emphasizes that these factors themselves must not become rigid: “… the list of factors … is not an exhaustive list, and fairness is a matter of impression.” The Board continues with a quotation from the work of Giuseppina D’Agostino:

[p]arties pleading fair dealing, and courts ultimately deciding those events, should exercise flexibility when interpreting fair dealing: raise factors germane to the case and assess evidence to support them. Whether there are six factors, seven factors, or four factors should not be the driving preoccupation … (para. 267 citing p. 197 of  The Copyright Pentalogy).

A timely reminder as the post-secondary community moves forward with solidifying their institutional systems of fair dealing.

Feb 23-27, celebrating fair dealing

In Posts on February 19, 2015 at 9:23 pm

February 23-27 marks Fair Use Week in the United States, and thus by association, Fair Dealing Week for other jurisdictions. The Association of Research Libraries (ARL) is promoting a community celebration of these limits upon copyright that enable the system of copyright to live up to its mandate to promote creativity, advance knowledge and bolster innovation, and reap just rewards not only for the creators involved but for the creators yet to come as well. ARL pays particular attention to Canada: “… in Canada, fair dealing is a critical right of the user intended to facilitate balance in copyright law and accommodate freedom of expression.”

Readers may remember that user rights gained prominence in Canada in 2004, via CCH Canadian. Writing for the Supreme Court of Canada, in a decision supported with unanimity, Chief Justice Beverley McLachlin states:

The fair dealing exception, like other exceptions in the Copyright Act, is a user’s right. In order to maintain the proper balance between the rights of a copyright owner and users’ interests, it must not be interpreted restrictively (para.48).

The Supreme Court has consistently reminded Canadians that copyright is a set of limited rights, and that those limits are critical to the proper functioning of the system as a whole. Yet, even after 11 years of well-articulated, thoughtful reminders, it remains that copyright is often perceived as a measure of absolute control. Such perception is cultivated perhaps unintentionally by people/organizations who have a genuine desire to behave in a law-abiding manner and thus restrict behaviour that need not be restricted. With time, we may hope that such misunderstanding will subside. More potent and damaging is the conduct of members within the publishing community who actively promote misinformation.

For instance, consider the following notice that graces the frontmatter of far too many books:

All rights reserved. No part of this publication may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopying, recording, or any information storage and retrieval system, without permission in writing from the publisher.

If one unpacks this passage, the first sentence is correct. All the rights offered within copyright law have been reserved to the benefit of the copyright holder. At this juncture though, one should remember that extensive as those rights are, copyright holders are not permitted the right to refuse exceptions defined within the same law.  Copyright holders cannot pick the parts of the Copyright Act they wish to accept, and the parts which are to be dispensed with. But the sentence that follows in the passage tries to do exactly that; it categorically denies unauthorized use, despite the fact that fair dealing, fair use, and a host of other exceptions, can allow reproduction and transmission, by whatever means, without the consent of the publisher.

 

Update – February 28, 2015

Fair Dealing / Fair Use week sparked an outpouring of dialogue about our exceptions for unauthorized use. My favorite was Jonathan Band’s description of the many sightings of fair use in the daily life of a legislative assistant.

And, it was with great pleasure that I contributed the following posts to Harvard Library and the Office for Scholarly Communication, and University of Toronto Scholarly Communications and Copyright Office. My thanks to Kyle Courtney and Daniela Cancilla for the invitations to participate with their respective universities.

North of 49, posted February 24, 2015: “The proximity of the United States to Canada occasionally leads to some confusion north of the 49th parallel; in common parlance, fair use eclipses fair dealing. I cannot resist reminding others: we are Canadian; our exception is fair dealing. Yet it is only appropriate to also say that Canada has benefited greatly by American fair use. From our vantage point, we were able to appreciate the opportunity provided by flexibility in the language of exceptions, suffer the worst of fair use’s growing pains by proxy, and step ahead of such pain in our own development of exceptions.” To read more, see link or pdf.

Fair Dealing: Protector of the Public Domain, posted February 27, 2015“This past week marked Fair Dealing / Fair Use Week 2015. It was pleasing to see many Canadians within the educational community taking interest in our system of copyright. But, I confess to some disappointment that this interest should have blossomed only belatedly – after 2012. True, in that year the Copyright Act was revised with increased scope given to exceptional uses of copyrighted material. Also true, in 2012 the Supreme Court handed down two more decisions emphasizing the merits of fair dealing. But we cannot lose sight of the fact those decisions were based upon our previous Act which did not include any provision for “education.” Nor can we forget our Court began speaking to the importance of fair dealing a full decade earlier, emphasizing that fair dealing is our mode of entry into the public domain.” To read more, see link or pdf.

a $3.5 billion reminder

In Posts on January 18, 2015 at 3:19 pm

Investor-State Dispute Settlement (ISDS) reappeared in the news last week. Writing for Toronto Star, Les Whittington alerts Canadians that our country is on the receiving end of a claim of $3.5 billion by the owner of the Ambassador Bridge which connects Windsor and Detroit. “Matty Moroun … is claiming damages from Ottawa in connection with Canada’s plan to help build a second bridge linking Ontario to Michigan at Detroit.”

It is the ISDS mechanism established within the North American Free Trade Agreement (NAFTA) that is providing the avenue of complaint for Moroun. I have written about ISDS before (most recently, see here); in essence, foreign corporations have recourse to sue governments, via private tribunal, when government or judicial actions of the home country are deemed to compromise the foreign investment. ISDS was introduced ostensibly to provide security to corporations when dealing in countries with less-than-robust systems of law, but has now become part and parcel of most bi-lateral or multi-lateral trade agreements. The recently agreed upon Comprehensive Economic and Trade Agreement (CETA) between Canada and the European Union, and the pending Trans-Pacific Partnership (TPP) which is described as the largest trade agreement negotiated outside of the World Trade Organization, are no exceptions. From a Canadian perspective though, it is perplexing that any government of Canada should embrace the continuance of ISDS in trade agreements.

Whittington draws from a newly–released compilation of actions against NAFTA governments, authored by Scott Sinclair for the Canadian Centre for Policy Alternatives (CCPA), to observe that, disproportionately, Canada receives most of the action. It could be argued that Canadian trade with the United States is of higher volume than that of Mexico, and thus such proportion is inevitable. One could also argue that Canada’s past commitments to public-wellbeing are more likely to impede a laissez-faire mantra, and that is why we attract unwanted attention. A day after Whittington’s article, Thomas Walkom also weighed in via Toronto Star: “… 69 of the 77 complaints made against governments in the three countries were leveled against public policy measures in areas such as environmental protection, land-use planning, drug regulation and health care.”

Whittington observes that the Canadian government sees concerns of ISDS as overdrawn; with respect to CETA, he quotes a representative: “Investment protections have long been a core element of trade policy in Canada and Europe, and will encourage job-creating investment and economic growth on both sides of the Atlantic.” But, in March of last year, Public Citizen issued a report which comprehensively illustrates that ISDS offers protection far beyond what occurred in the past and that “… countries bound by ISDS pacts have not seen significant FDI increases, [whereas] countries without such pacts have not lacked for foreign investment (p.3).” And in that same report, Public Citizen illustrates precisely how deleterious actions under ISDS are to public well-being.

For instance, both Uruguay and Australia have drawn fire for their anti-smoking efforts (larger warning labels and plain packaging requirements), despite the fact that the World Health Organization commends such effort. (Jim Armitage, writing for The Independent last fall, described in detail Uruguay’s success in reducing smoking rates among its population.) Yet tobacco company Phillip Morris, is challenging both countries by way of ISDS. As noted by Public Citizen, “Philip Morris is demanding compensation from the two governments claiming that the public health measures expropriate the corporation’s investments in violation of investor rights established in Bilateral Investment Treaties (p.2).” Neither Uruguay’s health success nor the fact that Australia’s regulations were upheld by its Supreme Court, will have much sway in the tribunal operations of ISDS.

Under ISDS, disputes are managed by a trio of corporate attorneys who rotate among the positions of representative and judge. These tribunals are not answerable to any electorate and do not address public well-being as a court of law would do when confronted with the same dispute. Even if one is willing to accept that such critical decisions are rendered outside the forum of any country’s judiciary, the lack of statutory guidance to the outcome is extraordinary; Public Citizen writes:

If a tribunal rules against a challenged policy, there is no limit to the amount of taxpayer money that the tribunal can order the government to pay the foreign corporation. Such compensation orders are based on what an ISDS tribunal surmises that an investor would have earned in the absence of the public policy it is attacking. The cases cannot be appealed on the merits. There are narrow technical and procedural grounds for annulment. Firms that win an award can collect by seizing a government’s assets if payment is not made promptly. Even when governments win cases, they are often ordered to pay for a share of the tribunal’s costs. Given that the costs just for defending a challenged policy in an ISDS case total $8 million on average, the mere filing of a case can create a chilling effect on government policymaking, even if the government expects to win (p.2-3).

For Canadians, that last sentence is not conjecture; Walkom writes “[In 2013] … the Ontario government paid a U.S.-based company $15 million to withdraw its complaint.” Moreover, the phrase “would have earned in the absence of the public policy it is attacking” should send chills down everyone’s spine. Clean air, clean water, access to medicine, and, worker and public safety, all sit on the cost side of any ledger. It is unrealistic to expect that measures addressing these social needs would have been voluntarily adopted by entire industries, and then maintained by those industries, without some prodding from government. The appropriate forum to address dispute between corporate expectation and government commitment to public well-being, can only be a court of law.

Harold Innis (1894-1952) once remarked upon the brilliant achievement that was the development of law; that law represented “an alternative to force.” True, in the 21st century, citizens of nation states do not fear marauding armies traipsing through the streets in a hostile takeover of the nation. But we should not lose sight of the fact that nations can be taken over in a far more insidious way; losing the supremacy of our judiciary and the autonomy of our government should be an early warning sign.

poems out of other poems

In Posts on December 10, 2014 at 6:50 pm

December 11 marks the death of John Gillespie Magee, Jr. (1922-1941). Born to an American father and a British mother, Magee opted to join the Royal Canadian Air Force in 1940 to serve with the Allied Forces during WWII (the United States had not yet entered the war). Killed in flight during a training exercise, Magee’s name continues to circulate via his poem High Flight; he may be forever known as the pilot poet.

High Flight

Oh! I have slipped the surly bonds of Earth
And danced the skies on laughter-silvered wings;
Sunward I’ve climbed, and joined the tumbling mirth
of sun-split clouds — and done a hundred things
You have not dreamed of — wheeled and soared and swung
High in the sunlit silence. Hov’ring there,
I’ve chased the shouting wind along, and flung
My eager craft through footless halls of air…

Up, up the long, delirious, burning blue
I’ve topped the wind-swept heights with easy grace.
Where never lark, or even eagle flew —
And, while with silent, lifting mind I’ve trod
The high untrespassed sanctity of space,
Put out my hand, and touched the face of God.

Each sentence surpasses the previous; and the last line lingers inexorably: “Put out my hand and touched the face of God.” The denizens of Wikipedia have traced the phrase “touched the face of God” to an earlier work by Cuthbert Hicks, a poem titled The Blind Man Flies. Some other phrases of Magee’s are also found in other poems. It is a reminder of Northrop Frye’s edict: “Poetry can only be made out of other poems; novels out of other novels. … All this was much clearer before the assimilation of literature to private enterprise concealed so many of the facts of criticism.”

That creativity is an effort in recycling has gained heightened attention in the digital age. Where we once might have talked about chapbooks and scrapbooks, we now speak of user-generated content (UGC). To be sure, digital technology has enhanced both the tools for creative effort as well as the means to distribute the outcome of such effort. But the fact remains that creativity has always relied on inclusion of prior work. In our pre-digital world, amateur recycling of copyrighted materials would either have escaped notice, or been tolerated; today, copyright holders are more likely to resent such behavior and claim infringement.

Aware of the risk to our creative instincts by overt copyright consciousness, as part of the 2012 amendments to the Copyright Act, the Canadian government brought in an exception to protect UGC activities. Found in Section 29.21, the exception is titled as Non-commercial User Generated Content and begins with, “It is not an infringement of copyright for an individual to use an existing work or other subject-matter or copy of one, which has been published or otherwise made available to the public, in the creation of a new work … .”

As all such amendments to copyright have been, S29.21 was controversial from the outset. It pleased few. The exception addresses solely non-commercial creations, thereby offering little assistance to professional artists, and comes with conditions that appear too onerous for amateurs to follow. But closer inspection suggests that S29.21 is not far removed from the analysis that must accompany fair dealing in Canada (fairness and attribution are key to both).

Notably, Canada is the only country that has taken such a progressive step. Peter Yu, an internationally acclaimed intellectual property scholar, argues passionately that a similar exception be included in proposed modifications to the Copyright Ordinance of Hong Kong. Yu also expertly discredits naysayers who profess that Canada’s amendment violates international obligations.

From its infancy on, S29.21 was dubbed the YouTube clause; a title perhaps more fitting in spirit than jurisdiction. The moniker notwithstanding, the scope of 29.21 is vast. Any form of copyrighted work is eligible for consideration, not merely music or video. Teresa Scassa, also a highly acclaimed scholar in the world of intellectual property, writes:

From one perspective it is a licence to build on the works of others; from another it is a potentially sharp curtailment of the scope of a copyright holder’s ability to control the use of their work. In the end, the scope and importance of the UGC exception may come down to how its limiting provisions are interpreted: and in this regard, the direction already charted by the [Supreme Court of Canada] in its recent copyright decisions will likely have great bearing.

Scassa goes on to remind us that the Supreme Court of Canada has taken a strong stance on the issue of balance between rights of control and rights of access. Their directive should feature prominently if lower courts must assess a copyright claim against the limits of the UGC exception.

So, in celebration of Magee’s life and work, and the creative process in general, readers might enjoy this UGC creation by SongOfTheOpenRoad. High Flight’s words are elegantly scripted and interspersed with beautiful imagery. Set upon the musical score of Return/Reunion by Basil Poledouris, the result is much more than the sum of its parts.

 

librarians and books in WWI

In Posts on November 9, 2014 at 6:42 pm

Books in the Trenches – drawn by Edgar Wright

The book is not a history, nor an official report of results accomplished; but, as far as I have been able to make it, a human-interest story of what books and reading have meant to the morale of the army and to the individual soldier and sailor in helping them to win the war and preparing them for their return to civil life (p. viii).

 

So wrote Theodore Wesley Koch (1871-1941), scholar and librarian (last featured here), in Books in the War – the Romance of Library War Service.

Posted to London in 1917 by the Librarian of Congress, Koch became aware of British efforts to supply their soldiers with books, “in camp, trench and hospital.” By the time Koch returned, the United States had entered the war and Koch was asked to assist in the promotion of Library War Service. His chronicle of the war years was published in 1919; sadly, only a few printed copies remain in circulation. But thanks to the provision of original books from Harvard University, University of California and University of Wisconsin, digital replicas are available for the benefit of all via Internet Archive and HathiTrust Digital Library.

The initiative to provide books to the fighting forces, apparently brought out the best in people. The preliminary appeal for funding had been via private subscriptions – a one million dollar goal was quickly exceeded with nearly $2 million raised. Publishing houses joined the effort: “… discounts of from forty-five to fifty percent were not uncommon (p.10).” And some university presses and correspondence schools donated generously from their own inventories.

If there was any doubt of the value of books to soldiers, it was dispelled immediately following the launch of the libraries. Established at training bases, front line units, hospitals, convalescent homes and prisoner-of-war camps, and staffed by librarians (many of whom were volunteers), the libraries were much needed and much loved. Drawing upon original letters, reports and conversations, Koch meticulously described the impact made by the availability of reading material. His research was extensive. British sources included details of library programs for colonial troops and Koch gave the full extent of the reach of library books in World War I.

The outpouring of the soldiers’ gratitude fills many pages of Koch’s work; choosing a favorite thank-you is difficult. But one anecdote remains prominent for me:

‘Please send us some books. We ain’t got no books at all. We are regulars and get just as lonesome as national guards.’ This was the appeal sent by a private from a small camp to a public librarian in the East. Into the first of several shipments the thoughtful-librarian slipped a supply of candy and tobacco. The response was immediate. ‘If you ever done good to a man you done good to me,’ wrote the soldier, ‘but please don’t waste no more space for eats. Just send the books.’ (p.23).

The span of reading material provided to the men was vast. That fiction would be in high demand was expected, but many requests came in for vocational training material as soldiers endeavored to maintain the knowledge and skills necessary for their civilian trades. So too were requests for material that would aid a soldier’s realm of duty. Koch gave the details of a request from a private in the Engineers’ Corps of Camp Devon:

[He] asked for books which would explain the psychology of camouflage. He was something of an artist and had been successful with colour photography.  … Material was found for him and he succeeded in hiding guns so well with paint that he deceived his own captain (p.31).

But beyond technical matters, also desired were books of poetry, literature, biography, mathematics treatises, and, maps and histories of the regions where soldiers were posted. Newspapers and magazines were no less appreciated by men far removed in space and time from life back home. And, given the diversity of cultures among the soldiers, materials were needed in Arabic, French, Greek, Hebrew, Italian, Russian, Spanish and Yiddish, just to name a few of the languages spoken. It is no exaggeration to say that most soldiers emerged from World War I more well-read or better educated than when they entered.

The extent to which education was promoted through the libraries and librarians ranged from instruction for men whose background had not included any schooling, and hence were illiterate, to formal programs of study. A Canadian higher education venture came in for special mention from Koch:

An interesting educational experiment was carried on at Witley Camp, occupied by some of the Canadian forces in England. There the library hut of the Y.M.C.A. and the three adjacent huts were handed over by the authorities for educational purposes and became the pioneer college of the “Canadian Khaki University.” .. Credits were given for work properly done in English, French, the classics, mathematics, and agriculture. .. Examinations were held and certificates given, and men were helped to complete an interrupted academic course and to prepare themselves for satisfactory positions after the war (p.55).

Perhaps most thought-provoking among Koch’s accounts are those concerning the supply of books for prisoners-of-war. The value of books was commonly held on both sides of the Great War. Within camps, prisoners would organize themselves into teaching groups; professional and learned men of civilian days became teachers for their fellow prisoners. Koch wrote that “hundreds of schools were maintained in the prison-pens of the contending armies by the American Y.M.C.A;” the ensuing demand for thousands of volumes was met by the American Library Association. “What this meant to the prisoners in the camps cannot be overestimated; to all it meant hope and joy, to some perhaps even life and sanity (p.266).”

The Y.M.C.A’s operation reached far beyond Western Europe. A secretary writing from Siberia, indicated that the German and Austrian prisoners spent a great deal of time in study. The difficulty was that most of the books available were only in Russian. While prisoners who had a general knowledge of Russian could translate for others, eventually “thousands of German books arrived for the prisoners and so enabled many of the advanced students to continue studies interrupted by war (p.267).”

Allied forces were also recipients of bibliophile generosity. Among those stories, Koch includes the experiences of Canadian Lieutenant J.H. Douglas. His time as a prisoner of war began in a German hospital:

“Lieutenant Douglas exchanged lessons in English for instruction in French with a French captain in the hospital. They managed to have textbooks bought for them in the city and did serious work for two hours every day … [The] knowledge of French proved of great value to Lieutenant Douglas later when he was transferred to Switzerland, where he and some of his fellow prisoners were allowed to register at the University of Lausanne and took courses in engineering and French literature (p.273-274).”

World War I is not known to stand out on the historical stage for its humanity; but that some was found courtesy of librarians and books should not altogether surprise us. Koch’s work is exemplary and its digital existence, replete with all the original images, help with the quest, lest we forget.

Though this be method, there is madness in’t…

In Posts on October 10, 2014 at 9:38 am

This past week, news broke concerning the Harper Government’s consideration of a new exception to Canada’s Copyright Act. A benefit solely for those involved in the  creation and distribution of political advertisements, the proposal can only undermine three hundred years of statutory design on copyright law, which has progressively ensured broad language with flexibility to anonymous creators and users alike.

Reports began on October 8 from CTV and the Globe & Mail, with the CBC providing further details on October 9 (including posting the undated Cabinet presentation document). Michael Geist posted commentary on both the 8th and 9th, and copyright enthusiasts around the country are shaking their heads in disbelief and dismay.

Briefly, Prime Minister Harper and his cabinet are entertaining the thought of an exception to copyright that is only applicable to the political establishment. From the Cabinet document came this:

The exception means greater certainty for the political actors who want to use copyright content in their advertisements:
– E.g. clips from radio and television broadcast news, footage capturing a political debate or events, a newspaper or magazine article, etc.
– Could be used by all politicians and registered political parties at any level of government.

The rationale offered by the government is that politicians should be held accountable for their statements and actions, and this exception would ensure that the public is kept informed. The opposition parties see it as a thinly veiled attempt to facilitate the use of attack ads. While our Government is content to claim method, their behaviour is madness of Shakespearean proportions.

First, we already have an exception to address the use of copyrighted material; fair dealing protects unauthorized use for the purposes of research, private study, criticism, review, news reporting, parody, satire and education, provided the use is fair. Political parties should apply the law under the same constraints as all Canadians (if anything, in a more edifying manner).

Second, using published material to report or contradict political opinion is part and parcel of civil society as it exists. If a member of the political realm gives a speech, a reporter may quote from the speech. An opponent may choose to quote out of context. The audience may find such a tactic repugnant, but it is hardly new.

Third, in the copyright amendments of 2012, this same Government introduced a new exception, unofficially titled the YouTube exception which supports the creation of user-generated content. Section 29.21 is suited to the creation of both commentary and fantasy. While I find attack ads loathsome, they are creative expression and may draw upon the exception.

Fourth, the issue of moral rights is given short-shrift by this Government’s proposal. It claims that moral rights of creators would not be affected, via the logic that creators have likely waived those rights. Moral rights protect the integrity and reputation of a work and its creator respectively. Canadian law forbids allying a work to a cause if the creator objects. To blithely indicate that the Government will not suffer for misusing a work is further evidence that this government only cares about legal liability, not ethical conduct.

Fifth, this desire to embed a copyright change in an omnibus budget bill flies in the face of this Government’s own stipulation of a five year, comprehensive review cycle of the Copyright Act. If musicians and students, librarians and broadcasters must wait to plead their case until 2017, this Government must abide by the same rule.

Finally, the Government’s proposal makes curious distinctions that undermine the universality of the grant of copyright and the use of exceptions. That it is designed for a small segment of Canadians is reprehensible. So too is the manner in which genre and medium are parceled out. For instance, news articles may be used but not photographs or music. Documentaries are not eligible for mining (even though documentarians are among the greatest users of exceptions to copyright, making reciprocation only appropriate). Fictional works are also not eligible, despite fiction being a rich resource for modern commentary. Presumably though, fiction that has passed into the public domain may be drawn upon—I await the invocations of Caesar, Macbeth and Hamlet.

Canada has enjoyed ten years of jurisprudence that yielded a fair dealing regime capable of addressing all situations with flexibility, to the benefit of all Canadians. To muddy up the Copyright Act with a narrowly worded, politically-minded exception places future courts in the awkward position of having one approach when adjudicating copyright for Canadians and a separate approach when adjudicating copyright for Canadian politicians. This will not facilitate the understanding or practice of the system of copyright in Canada.

 

course packs at home and abroad

In Posts on October 5, 2014 at 8:21 pm

As I caught up on my reading, I discovered that course packs continue to make headlines. The September 17th issue of Outlook India featured “Copy This” by Gautam Bhatia; a few days later, The Varsity (University of Toronto’s student newspaper) published “After Access Copyright” by Iris Robin. Both articles speak to the continued need to probe the use of course packs with nuance.

Bhatia expertly takes readers through an ongoing dispute whereby in 2012 Oxford University Press, Cambridge University Press and Taylor & Francis, instigated a lawsuit against a copy shop operating at Delhi University. The alleged crime was copyright infringement in the production of course packs. (I had previously written about the suit here.) Further coverage from Spicy IP indicates that many of the excerpts reproduced fell within the quantitative measure of 10% (see here and here) that is considered fair use by American courts in the context of education. The guidance of 10% is also followed by many Canadian educational institutions.

Bhatia indicates that Indian educational institutions are being pressed to adopt blanket-licenses with respect to provision of course packs. Aware of the culture of licensing and market-superiority that was once the predominant atmosphere of copyright in North America, particularly in the United States, Bhatia writes:

Even in Canada, a country immensely richer than India, the problem has been noticed. Canadian universities initially agreed to a licensing arrangement that was pegged at a reasonable price. Once they opted in, however, the price steadily increased, until it became unsustainable.

Canadian courts have been far more sympathetic to the predicament of universities and students than their American counterparts. In two important cases, they eschewed the economic approach, identified [fair dealing] as a “user’s right”, and imposed the burden of proving direct financial damage upon the publishing houses. The publishing houses were unable to meet this challenge.

On reflection, that is hardly surprising. If students are not allowed to copy, it is not the case that they will spend ten times the money upon the original textbook. In most instances, they will simply be unable to do so. They will not buy the book at all. And if that is true in a country as rich as Canada, it is certainly true—in a much stronger sense—for one as poor as India.

Turning to The Varsity article; Robin writes that course pack fees have increased since the university moved away from its Access Copyright blanket license. On cue, representatives from writers’ organizations provided comments of the I-told-you-so variety. Whereas Lisa di Valentino considers the larger question of why and suggests: “More likely, this is an issue with communication, specifically between the library and the instructors.” Noting Robin’s coverage – that the University of Toronto  is engaging in outreach to acquaint teachers with a better understanding of copyright and case law, as well as the myriad of possibilities to reduce costs to students – di Valentino concludes with:

UofT (and other AC-less institutions) is going through a transition phase. Procedures and protocols are changing in ways that directly affect how instructors do their jobs. Copyright is not just for lawyers and librarians anymore. Copyright literacy is fast becoming a necessary element of faculty members’ toolkits.

As publishers, teachers, and students wrestle with the seeming problem of piracy (with its seeming solution of licensing), it is important to remember that copyright only applies to “substantial” reproductions of work. An insubstantial portion of a work does not qualify for protection (see Section 3.1 of Canada’s Copyright Act, or Section 14 of the Indian Copyright Act). We only need to rely on exceptions such as fair dealing when the amount reproduced exceeds the insubstantial, and is not already legitimate use by other means (i.e., library-subscriptions, open-access, publicly availablility, or Creative Commons).

Fair dealing should never be summarily reduced to a measure of quantity – fair dealing can amply support reproducing 100% of a work, depending on the circumstances. However, from an administrative perspective, using a guide of 10% is prudent; the amount is not only cautious but it may not even cross the threshold of substantial. As long as teachers are aware that 10% is not the ceiling, and that fuller scrutiny via the framework offered in CCH Canadian  facilitates a legitimate decision to copy, the flexibility possible within the system of copyright will be preserved.

teachers and students, copyright and liability

In Posts on September 1, 2014 at 2:47 pm

Congress 2014 was held at Brock University this past spring; included among the customary panel discussions was a series of debates concerning copyright, fair dealing, licensing and open access. Titled Copyright and the Modern Academic, the series sought to widen discussion about the means by which information flow is facilitated in learning, teaching and research. Videos of the series are available at the Canadian Association of Learned Journals (see here) and at the Brock Video Centre (see here).

I was particularly interested in the third debate, Access Copyright—Friend or Foe, with speakers Howard Knopf and Roanie Levy. Knopf is a lawyer with Macera & Jarzyna, author of Excess Copyright, and a long-standing advocate for a more nuanced understanding of copyright and fair dealing. Levy is the Executive Director for Access Copyright, formerly General Counsel and Director of Policy & External Affairs for Access Copyright, and equally passionate about the roles of protection and licensing towards development of content. (Fuller biographies of both speakers are given approximately 5:30 minutes in.)

The arguments of Knopf and Levy were lively and thought-provoking, but what remains uppermost for me is the first issue raised from the audience at the beginning of the Q/A (at approximately 58 minutes in). It focused upon Access Copyright’s licensing terms that protect teachers and students in the context of teaching and learning, but not the subsequent behaviour of the student:

Most of us use Blackboard or Moodle; we upload links to articles, we upload articles, we create wikis, we want students to comment, we are creating a discourse community among our students asking them to critically analyze concepts or issue … It is not surprising that many times students download those articles and then those articles could now be posted on a student’s blog or on a student’s Facebook page … we all know how things move across the Internet. … I would personally find [the licensing terms] quite limiting, if I had to worry about that (emphasis mine).

Levy was reassuring that the discourse community, composed as it is of students and teachers (more broadly speaking, the educational body associated to the license) were safe within their actions. Levy was also emphatic that the educational community did not extend to the world at large: “students need to be made aware that content cannot just be shared with the entire world … sharing proprietary content that is not their own should not be encouraged.”

To which Knopf immediately stated that such sharing should be encouraged: “if what the student or professor is doing is fair dealing.”

Levy’s and Knopf’s remarks are not mutually inconsistent – quite the opposite in fact. Each statement reinforces the other. It is entirely plausible, and beneficial, for teachers to simultaneously state that piracy is undesirable and fair dealing is desirable. Discussion will, over time, encourage students to understand the nuance and care that goes into an evaluation of fair dealing. In the more immediate future, such conversation between teachers and students further exemplifies that post-secondary institutions take this matter seriously and are developing systems of good practice that amount to more than merely posting rules to a website.

Regrettably, with time running out and other questions waiting for attention, the crux of the first question was not addressed. More specifically, does a teacher have to worry about the personal conduct of a student outside the activities encouraged within class, with materials licensed at the choice of the teacher? The short answer is No.

A longer answer would suggest that in the scenario where a student’s personal behaviour is alleged as infringing, the copyright holder of the material in question might bring a complaint to the attention of the ISP providing the platform used by the student. Depending on the jurisdiction, the ISP might remove the material (under notice-and-takedown as found in American law) or forward the complaint to the student (under notice-and-notice as set within Canadian law). In neither case is the teacher involved.

An even longer answer would suggest that if anyone should insinuate that the teacher and/or university were liable, a look at CCH Canadian will quickly allay any worries. While that case is known best for its support of fair dealing, the Justices also confronted a claim that libraries were responsible for the conduct of its patrons with regard to self-serve photocopiers. Chief Justice Beverley McLachlin, writing for a unanimous court, rejected that claim:

[E]ven if there were evidence of the photocopiers having been used to infringe copyright, the Law Society lacks sufficient control over the Great Library’s patrons to permit the conclusion that it sanctioned, approved or countenanced the infringement. The Law Society and Great Library patrons are not in a master-servant or employer-employee relationship such that the Law Society can be said to exercise control over the patrons who might commit infringement. … Nor does the Law Society exercise control over which works the patrons choose to copy, the patron’s purposes for copying or the photocopiers themselves (para 45).

If the Supreme Court of Canada has deemed that a library is not responsible for activity conducted within its premises, with materials provided by the library and via the library’s own equipment, because of an absence of control of people, materials, or equipment, then it is illogical to suggest that a teacher is liable for activity of a student, carried out by the student’s own initiative, on a platform independent of the classroom.

Regardless of the status of the material involved (licensed, purchased, or utilized through exceptions to copyright), teachers are not implicated by personal copyright infractions of their students.

Louvain – 25 August 1914

In Posts on August 24, 2014 at 11:36 am

Librarians and historians alike may well feel somber as we approach the 100th anniversary of the Le sac de Louvain, a collective punishment meted out by German forces to the people of Louvain for seeming resistance to the German presence. Included among the sites of destruction was the library of the University of Louvain. Set ablaze the night of 25 August 1914, by the next morning its contents had been reduced to ashes.

In 2013, Mark Derez, Archivist of University Archives and Art Collection Leuven (Louvain), presented the story of that destruction, response, and reconstruction. An abbreviated version of his presentation was published in 2014 by the WWI Daily. Derez writes:

The destruction of Leuven had not been unique – in four Belgian provinces, 18,000 houses were destroyed and 5,000 Belgian civilians were killed … [But] there was an emotional element at work… Of all the atrocities committed, that which spoke most to the imagination was the devastation of the university library, for in no way could it have been considered a military target. … [This assault] produced a worldwide stream of solidarity. While the war was still on, twenty-five committees were formed in neutral and Allied countries to collect money and books.

Among those who took it upon themselves to encourage donations of books by Americans and American libraries, was Theodore Wesley Koch. A scholar of Dante, and an internationally respected librarian, Koch’s appreciation of the benefit wrought by libraries for the public was all too evident. As Librarian for the University of Michigan, he had introduced measures that allowed students to borrow books (previously only the professoriate enjoyed that privilege) and allowed public access to the periodical collection.

In a publication titled The University of Louvain and its Library, produced in London and Toronto in July 1917, Koch details the history of the university and the depth and breadth of the library’s contents. It began with a bequest of 852 volumes in 1627, “rich in history and theology,” from former student Laurent Beyerlinck. Subsequent patrons and librarians worked together through a period of nearly 300 years to amass over 250,000 items including rare manuscripts, incunabula, and university archival material beginning with the original papal bull authorizing its foundation.

Koch draws particular attention to the work of C.F. de Nelis, appointed as University Librarian in 1752, whose first act was to: “… ask the Government to require Belgian printers to send to the University Library at least one copy of every book printed by them (p.17).” (A condition that sounds very much like that included within the Statute of Anne (1710), where publishers were to remit nine copies of each book produced, “printed upon the best paper,” to various university libraries.)

The library was successfully reconstructed, inside and out. But it opened in 1928 to both acclaim and controversy. Architect Whitney Warren had sought to design not merely a modern library in neo-renaissance style, but also a war memorial replete with a bell tower whose carillon would ring forth patriotic anthems. Derez describes in detail the clash between those who sought to demilitarize the halls of learning and those who wanted the atrocities to be immortalized. So too does Matthew Battles in Library: An Unquiet History (2003). The final design and play list stopped short of overt jingoism but was memorial enough to attract unpleasant attention from Germany in the next world war. Merely 12 years after it opened, the library was once again destroyed in the 1940 shelling.

The library has since been rebuilt again to Warren’s design. Complete with its bells.

The rallying of the international library community in support of public benefit continues to this day. Preservation of our past, and preparation for our future, were prominent topics of discussion at the satellite conference and the annual conference of the International Federation of Library Associations and Institutions (IFLA) held in Strasbourg and Lyon over the past few weeks. In her opening remarks, IFLA president Sinikka Sipilä spoke of strong libraries as integral to strong societies; and emphasized that “access to information supports development by empowering people to exercise their civil, political, economic, social and cultural rights, learn and apply new skills and make decisions and participate in an active and engaged civil society.”

To that end, the Lyon Declaration on Access to Information and Development was unveiled on 18 August 2014; it calls upon Member States of the United Nations to ensure that information access, sharing, and use are incorporated in the post-2015 development agenda. Details are here; at the time of this writing, 134 organizations have given their support.

 

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