Debate, a ruling, and two very good speakers made for an interesting week…
Tuesday, October 18, 2011
Debate has begun in the House of Commons with respect to Bill C11, the Copyright Modernization Act. The opposition parties voiced their concerns about the measures to protect digital locks and the government insisted such measures were necessary because: (a) copyright holders requested them; and (b) “digital locks are important for encouraging innovation” (see the opening remarks of Hon. Christian Paradis, Minister of Industry). Concurrent with his regular posts, Michael Geist is running a series titled The Daily Digital Locks Dissenter highlighting the submissions from other stakeholders who question the wisdom of absolute protection for digital locks.
In terms of the actual debate, it is disappointing that the government did not emphasize that the inclusion of education to fair dealing does not sanction rampant copying of copyrighted works in schools, as persistent misinformation has given currency. The ministers involved could have mitigated the situation by taking a clear stance at the outset. Instead, the field was left wide open for damaging allegations, such as these remarks from opposition MP Mr. Pierre Dionne Labelle:
What about lost royalties in Quebec because of the broadening of the concept of fair dealing? In fact, what is fair dealing? The law does not specify what is meant by fair dealing. This will result in the loss of $11 million annually for creators and copyright owners. Every year schools, CEGEPs and universities make 175 million copies of excerpts from protected works. Let us remember that fair dealing is a loose concept that will put an end to the right to grant or deny authorization to use a work and the right to receive remuneration for the use of a work, thus affecting the rights of 23,000 authors and 1,000 publishers in Quebec.
What is so disturbing is the avowed determination that copyright is already a grant of absolute control and fair dealing an impertinent upstart that interferes with those rights. Mr. Mike Lake, Parliamentary Secretary for the Minister of Industry, attempted to clarify the inclusion of education but did not clearly stipulate that copyright has always functioned as a set of limited rights.
Wednesday, October 19, 2011
The Supreme Court handed down a landmark ruling: that linking to content on the Internet is not the same as publication of that material and thus poses no liability to the site who creates the link. The ruling in Crookes v. Newton was set upon the issue of defamation but has broader implications. John Barber, writing for the Globe and Mail, identifies the two dimensions of this case. It can be seen as a continued thrust to protect freedom of expression, or, a practical response to the modus operandi of the Internet.
Interestingly, the ruling contains three opinions in total. The majority opinion, written by Justice Abella stipulates:
Hyperlinks thus share the same relationship with the content to which they refer as do references. Both communicate that something exists, but do not, by themselves, communicate its content. And they both require some act on the part of a third party before he or she gains access to the content. The fact that access to that content is far easier with hyperlinks than with footnotes does not change the reality that a hyperlink, by itself, is content neutral — it expresses no opinion, nor does it have any control over, the content to which it refers (para. 30).
Abella emphasizes the role of the Charter of Rights and Freedoms and the functioning of our communications’ environment:
This interpretation of the publication rule better accords with our Court’s recent jurisprudence on defamation law. This Court has recognized that what is at stake in an action for defamation is not only an individual’s interest in protecting his or her reputation, but also the public’s interest in protecting freedom of expression (para 31) … Interpreting the publication rule to exclude mere references not only accords with a more sophisticated appreciation of Charter values, but also with the dramatic transformation in the technology of communications (para 33).
But, as should be expected, the range of that environment invites further thought. There were two additional opinions. Chief Justice Mclaughlin and Justice Fish write:
While we agree in large part with the reasons of Abella J., we respectfully propose a different formulation of the test for when a hyperlink reference in a text constitutes publication of defamatory matter to which it links (para. 46)…In our view, the combined text and hyperlink may amount to publication of defamatory material in the hyperlink in some circumstances. Publication of a defamatory statement via a hyperlink should be found if the text indicates adoption or endorsement of the content of the hyperlinked text. If the text communicates agreement with the content linked to, then the hyperlinker should be liable for the defamatory content (para. 48).
And, the final opinion came from Justice Deschamps. He too agrees with the majority opinion that a hyperlink in and of itself is not defamatory but presents further information:
Proof of publication is necessary in order to establish liability for defamation. “Publication” has an established meaning in the law of defamation. It refers to the communication of defamatory information in such a way that it is “made known to a third party”…. Thus, publication has two components: (1) an act that makes the defamatory information available to a third party in a comprehensible form, and (2) the receipt of the information by a third party in such a way that it is understood (para.55).
To resolve the traditional meaning of publication against the practice of hyperlinking, Justice Deschamps proposes:
A more nuanced approach to revising the publication rule, and one that can be applied effectively to new media, would be for the Court to hold that in Canadian law, a reference to defamatory content can satisfy the requirements of the first component of publication if it makes the defamatory information readily available to a third party in a comprehensible form. In addition, the Court should make it clear that not every act, but only deliberate acts, can lead to liability for defamation (para 57).
Thursday, October 20, 2011
Professor Adrian Johns spoke at the University of British Columbia on “The Intellectual Property Defense Industry and the Crisis of Information.” (I could not attend but am enjoying the audio coverage available here.) Prof. Johns posits that intellectual property is a consequence of how the actions of the IP Defense Industry have played out over time. He says, “… going back centuries, the IP police or their predecessors have pioneered practices, that at that point were at best alegal [sic] , or maybe even illegal, but over the years the law has expanded to embrace them.”
Adrian Johns is a professor in the Department of History at the University of Chicago and author of Piracy – the Intellectual Property Wars from Gutenberg to Gates.
Friday, October 21, 2011.
Against the turmoil of contemporary controversy it was a relief to take refuge in a different century and listen to Professor Geoff Turnovksy speak at Simon Fraser University. His talk “Worldly Writers and Worldly Readers in 17th-Century France” was part of the 2011-2012 Print Culture Series. Prof. Turnovsky gave an intriguing look at the relationships embedded to authorship in the era of the French salon. He spoke of the authorial modesty of the day and the worldly society made up of a community of readers. His 2009 work, The Literary Market–Authorship and Modernity in the Ancient Regime looks very interesting but I will have to wait (the SFU library copy is already out.)
Geoff Turnovsky is an Associate Professor in the Department of French Studies for the University of Washington.