preparation

When the Copyright Act was last amended in 2012, the government of the day sought to accomplish a number of objectives. The summary of Bill C-32 (unveiled for first reading on 10 June 2010) detailed the legislative intent:

(a) update the rights and protections of copyright owners to better address the challenges and opportunities of the Internet, so as to be in line with international standards;
(b) clarify Internet service providers’ liability and make the enabling of online copyright infringement itself an infringement of copyright;
(c) permit businesses, educators and libraries to make greater use of copyright material in digital form;
(d) allow educators and students to make greater use of copyright material;
(e) permit certain uses of copyright material by consumers;
(f) give photographers the same rights as other creators;
(g) ensure that it remains technologically neutral; and
(h) mandate its review by Parliament every five years.

The language of (c) and (d) is clear; “greater use” implies greater than what had previously been feasible. The specific mention of of education as a permissible purpose of fair dealing and the introduction of exceptions to facilitate digital distribution by libraries or distance education programs, suggested that educators, libraries and students could enjoy greater use of copyright materials. With respect to (e), the implementation of exceptions for time or format shifts, the making of backups, and the creation of non-commercial user-generated content were all to the advantage of consumers. Yet the previous government’s insistence that digital locks reign supreme, rendered many of the new exceptions inert and reduced previous possibilities for unauthorized use of copyright material.

In 2010, it was no secret that the digital locks provision of Bill C-32 was modeled on the United States’ Digital Millennium Copyright Act of 1998. Since its inception, the supremacy of locks in the United States has been systematically challenged through triennial reviews. Advocates for the lifting of blanket prohibition on circumvention could plead their case to the Librarian of Congress; if successful, they were granted a three-year lifting of the prohibition. (A notable reprieve occurred in 2006, in relation to educational uses of audio-visual works.) The latest review occurred in 2015; Mila Owen and Henry Thomas describe the outcome.

By the time C-32 was under discussion in Canada, it was abundantly evident that American overreach in protection of digital locks was impeding legitimate unauthorized uses (such as fair use) under American law.

Michael Geist declared Bill C-32 as “flawed but fixable.” However, the government refused to entertain thoughts of adjusting the prohibition on breaking digital locks; despite the logic that breaking a lock for a non-infringing use, should not trigger a charge of infringement. At a Standing Committee meeting on 25 November 2010, Minister of Canadian Heritage James Moore appeared unconcerned about the wider implications of casting locks as sacrosanct; in response to a question posed by Liberal Member of Parliament Marc Garneau, about the inconsistency in the government’s actions, Moore gave a peculiar answer:

[It] is a question about balance, and as far as my personal digital media consumption habits, I personally choose to buy products that don’t have digital locks. It’s my right as a consumer to be able to do that. As we’re seeing increasingly with technology, certainly the music industry, the television industry, and the film industry are creating products where people have the right to shift things from one format to another. … if you look at all the submissions we have received–we’re talking about music, television, video, video games, the software industry–everybody believes that if they’ve invested money, labour, and effort to create products and decide to protect those products by whatever mechanisms they choose to digitally, they should be allowed to do that. And consumers are free to purchase or not purchase those devices.

Garneau then questioned Jean-Pierre Blais (Assistant Deputy Minister, Cultural Affairs, Department of Canadian Heritage) about digital locks, with specific reference to fair dealing:

I would like to ask for clarification on the issue of digital locks and fair dealing. Would you say that in this bill digital locks trump everything? For example, if somebody wants to produce educational materials under fair dealing but they have digital locks on them, would the person be prevented from doing so?

It required repeating the question, but Garneau was finally given an answer:

Garneau: Let me ask specifically about education. That’s the one I brought up. Do digital locks trump the use of material, copyrighted material, for educational purposes under “fair dealing”?
Jean-Pierre Blais: In the bill, as drafted, the answer is yes.

As we approach 2017, perhaps Minister Marc Garneau could share his past experiences with Minister Mélanie Joly and Minister Navdeep Bains as they prepare for the mandated review of the Copyright Act.

 

throwing away opportunity

With twenty-twenty hindsight, it is only too easy to look back on policy choices and sigh over missed opportunities.

What if, in 1959, the federal government under John Diefenbaker (1895-1979) had not scrapped development of the A.V. Roe (Avro) Arrow? To be sure it was a complex decision, but in that process, a great deal of Canadian expertise in the aerospace industry was thrown away. I am not speaking metaphorically: valuable documents, schematics and prototypes were destroyed; some of the greatest Canadian talent summarily dismissed. (Fortunately for them, many of those scientists and engineers received a warm welcome from NASA.)

What if, in 1932, a federal Combines Investigation (anti-competition) into the behaviour of the American film industry, had been tried in a federal court, instead of a provincial court? Commissioner Peter White had decisive evidence that American studios operated as a cartel in Canada. With the public increasingly aware that independent Canadian filmmakers were being denied exposure in Canadian theaters, opinion was favourable to introducing some manner of a quota to encourage domestic creative effort, as other countries had done. But confusion over constitutional authority ultimately saw the case tried in Ontario, where American studios had their branch-plant distribution offices in residence. The charges were dropped.

And what if Prime Minister Mackenzie Bowell (1823-1917) had carried on the work of his predecessor Prime Minister John Thompson (1845-1894) who fought long and hard to develop a Canadian publishing industry? Thompson had worked tirelessly for years to gain the right of Canadian book printers to supply their own market, through legitimate licensing agreements with U.K. publishers. Such an agreement would have developed a Canadian publishing sector with the potential, as even English officials noted, to command the entire North American market. (Imagine an alternate universe where Toronto, not New York, had been the centre of publishing for North America.) But Thompson’s untimely death left Canada without a champion and the publishing industry duly took form as a branch-plant operation.

[sigh]

But nothing cuts quite so sharply as watching your current government throw away an opportunity.

The Federal Government of Canada has reintroduced Bill C32, now under the name of Bill C11. The amendments remain unchanged. While there are some good elements (i.e., parody, satire and education can become legitimate categories of fair dealing, persons with print-disabilities have a somewhat broader allowance for works to be converted into an amenable format, and an exception for noncommercial mash-ups could facilitate individual creative effort) those measures pale beside the mandated obedience to technological protection measures (digital locks). No circumvention is permitted, even for the legitimate exceptions brought in by the same bill.

Music, film, publishing, software and gaming industries have members who use locks. Those same industries also have members who do not. It is a matter of choice; vendors will decide for themselves whether the use of locks supports the growth of revenue or not. Honourable James Moore, Minister for Canadian Heritage, declares this a market situation, in which the Conservatives are unwilling to intervene:

The movie industry has digital locks on some films and not others … An informed consumer makes the right choices. If people don’t want to buy a piece of software or a movie that has a digital lock, they don’t have to.

If Minister Moore is correct, and there is no reason to think otherwise, then there is no need to drag protection of locks into the Copyright Act. If a copyright holder wishes to prosecute an individual for copyright infringement, it makes no difference whether the individual picked a lock or not to commit that infringement. But since the Copyright Act governs not just consumer behavior but also creative adventurism, embedding protection for digital locks into the Act removes any balance in the system of copyright. If a work is locked, and there is no allowance for legitimate lock-picking, all exceptions become null and void. It is painful to watch Canada adopt American maiden ideas of 1998, namely their Digital Millennium Copyright Act (DMCA), instead of the subsequent international awareness, as of 2011.

By sheer luck (three minority governments) Canada avoided embedding protection for digital locks into law. Over the last 13 years we have had the luxury of watching how creativity and markets adjusted to digital technology set upon world-wide networks. Now there is a more measured awareness that new media technologies offer a promise that is greater than any of the earlier conceived perils. It is also well known that, the efforts of RIAA notwithstanding, the U.S’s own protection for digital locks did not ensure the growth of their music industry. At a conference at McGill University held in 2007, Bruce Lehman, architect of American efforts to protect digital locks at home and abroad, said: “… attempts at copyright control have not been successful, at least with regards to music.”

One official reason for embracing digital locks lies within the WIPO Internet Treaties. Christine Dobby writing for the Financial Post says:

The bill’s passage will also allow Canada to ratify the World Intellectual Property Organization internet treaties it signed in 1997. Canada is one of only a handful of the 89 signatory countries that has yet to implement the treaties

The number of countries that have implemented the treaty is irrelevant. The larger question is: what is the substance of the treaties? These treaties were conceived of by the sound-recording industry in the mid-90s (the height of digital angst) expressly to protect their assets upon a digital landscape. But it was by no means a unanimous international exercise — the language of the treaties was hotly disputed; Michael Geist gives the fuller story in From “Radical Extremism” to “Balanced Copyright” — Canadian Copyright and the Digital Agenda.  And, as he has also revealed, the Federal Government is aware that Bill C32/C11 goes far beyond what is required to comply with these treaties.

Which leaves only one other reason: to placate the United States. Steven Chase, writing for the Globe and Mail, does not mince words:

The Harper government is using its new majority to remove a long-standing trade irritant with the U.S. government by passing a law that will crack down on digital piracy and expand protection for copyrighted materials in Canada.

The salt in the Canadian wound is that the United States itself has softened its stand on digital locks. Under the guidance of the U.S. Librarian of Congress educational uses of some locked copyright material is permitted. So too is use of those materials for documentary films and noncommercial videos.

And, above all, the United States has the flexible language of fair use, with all the innovative potential that exception yields.  If we must look to American law for inspiration, there are better aspects to draw from.

Canada is one of only a handful of countries that has some autonomy in setting its own intellectual property agenda.  Our framework of trade with the United States was established through the Canada-US Free Trade Agreement (1988) and broadened through the North American Free Trade Agreement (1994). Arguably, newer trade issues have arisen since then – border flow and access-to-competition are important. But giving away the store now does not secure Canadian well-being in the future.* Whereas if Canada set priority on fostering creativity and innovation at home, the United States would not be our only significant market.

* Blayne Haggart has written about Canada’s domestic copyright autonomy in From “Radical Extremism” to “Balanced Copyright” — Canadian Copyright and the Digital Agenda. Commentary about Canada-U.S. trading issues can be found at his blog.

and this one is for teachers …

Tomorrow we shall see what form of copyright amendment is coming back to Parliament for debate and realization into law. If the inclusion of “education” to fair dealing has survived the campaign to discredit it (see here and here) and becomes a legitimate category in fair dealing, this will help to protect teaching practices. But, if education should not survive, we can still do quite a bit with fair dealing as it exists.

As has been written many times on this blog, fair dealing is not license to copy and distribute at will. It is a nuanced exception within the system of copyright. But the atmosphere of copyright, at this time, is one of confusion.

The movement away from Access Copyright bundled licenses towards more varied approaches for purchasing and distributing learning materials is a positive step. Monopoly practices never produce quality and variety to the benefit of consumers; it doesn’t matter which industry one talks about. Unfortunately, the adjustment is messy. Post-secondary teachers across Canada are unsure of what materials they can copy. A recent article from the Canadian Press sums up the situation:

The resulting wariness means students aren’t getting the same course material they received in the past as guarded professors choose to simply eliminate material from classes they teach rather than risk a lawsuit. … Libraries and copyright officers have been swamped with work this fall, trying to clear the course materials assigned for classrooms.

Sorry as I am to hear that, the larger problem is the degree to which existing teaching practices are scrutinized for copyright infringement. Individual teachers have been implicitly, or explicitly, instructed to remove any copyrighted material from display during lectures. Such a directive has no basis in law. It ignores fair dealing entirely. The purposes of criticism and review (found within existing fair dealing) favour the use of quotations, illustrations, diagrams, flow charts, film clips and software snippets – in short, any copyrighted material – when such inclusion serves the purpose of conveying concepts to students. To fortify this behaviour under fair dealing, attribution is important. But with citation being the backbone of academic practice, it is likely that teachers already take care to identify their source materials to students.

Furthermore, bans on inclusion of copyrighted material in a lecture presentation ignore the status of the teacher as an author in his or her own right and the originality that implies. Preparing a lecture is much more than assembling a sequence of copyrighted material. Teachers bring their own language into the lecture, shaped as it is by their own perspectives. And they exercise the skill and judgment befitting an original creation as described by Chief Justice Beverly McLachlin in CCH Canadian.*

A lecture is an original  expression of an idea. Said another way, a lecture is a copyrightable work on its own merits. The fact that this work contains copyrighted elements is not a negation of the copyright status of those elements but neither does it require permission or payment for those elements. This is precisely the behaviour that fair dealing protects; provided one can fall within the existing categories of private study, research, criticism, review and news reporting.

(If this all sounds too esoteric, Canada has an appropriate example of a successful fair dealing defense of an inclusion of copyrighted work into a new work. In this case, a photograph was incorporated into a news story.)

Of course the question will arise, can this work  – known as the lecture – be distributed to students? That is a decision for the copyright holder of the work, namely the author-teacher. I read of Professor Jeremy Richards’ decision to remove some elements before distributing his slides to students – that is his prerogative. I do not have much sympathy for students who require a lecture-to-go. Professor Richards makes a cogent point that students could gain more by taking notes by hand instead of “letting it all wash over [them].” But in any case, the decision to distribute remains at the discretion of the individual who created the whole work, not the copyright holders of the constituent parts.

Good Luck.

* While in this blog I have focused upon the development of the framework of inquiry for fair dealing as brought about through CCH Canadian, the case had another side: a discussion of originality. On that point the Chief Justice wrote:

For a work to be “original” within the meaning of the Copyright Act, it must be more than a mere copy of another work. At the same time, it need not be creative, in the sense of being novel or unique. What is required to attract copyright protection in the expression of an idea is an exercise of skill and judgment. By skill, I mean the use of one’s knowledge, developed aptitude or practised ability in producing the work. By judgment, I mean the use of one’s capacity for discernment or ability to form an opinion or evaluation by comparing different possible options in producing the work. This exercise of skill and judgment will necessarily involve intellectual effort. The exercise of skill and judgment required to produce the work must not be so trivial that it could be characterized as a purely mechanical exercise (para.16).

An open letter to the Right Honourable Stephen Harper

June 2, 2011

Prime Minister’s Office
House of Commons
Ottawa, Ontario
K1A 0A6

Re: Bill C-32, An Act to amend the Copyright Act

Dear Mr. Prime Minister,

With Parliament set to resume under a majority government many Canadians expect legislative matters to move ahead quickly. Judging by your campaign platform, and recent remarks made by the Minister of Industry, Christian Paradis, amendments to the Copyright Act are imminent. I ask that Canadians be permitted a measure like American fair use. Despite strenuous opposition during the public consultation of 2009, the principles of fair use are viable in Canada. And such a measure is a vital component of the structure necessary to promote innovation in a digital economy. Canada is well-placed to carry out this change; the same cannot be said for all nations.

One of your peers, the Right Honourable David Cameron, bore the humiliation of hearing the founders of Google describe the unfitness of the U.K. copyright regime in terms of promoting innovation. The executives explained to Prime Minister Cameron that it would not have been possible to create Google in the U.K. as the application involves taking unauthorized snapshots of content from the internet at any given point in time. It was the latitude available within American law to capture these snapshots that lay at the foundation of the development of a world-leader in search engine technology. To his credit, Prime Minster Cameron ordered a review of copyright, culminating in the release of the Hargreaves Report last month. The report makes many recommendations but indicates that the U.K. cannot realistically implement fair use, not because of shortcomings in fair use, but because of the restrictions posed by EU law.

As Canada is not subject to such restraints, it would be a pity to neglect this opportunity. Fair use operates under a very simple principle; that copyright is not absolute. The limit of copyright’s ambit is to ensure that individuals may use the past to add to the future. Given that it is not possible to foresee precisely what combination of talent and input materials are needed to foster prize-wining literature, groundbreaking research, innovative digital technologies, or thought-provoking art, the best the law can do is to maintain its flexibility in what could be considered a legitimate, unauthorized use of copyrighted material.

Canadian copyright law includes an individual exception known as fair dealing. But this measure is very specific in purpose; at this time Canadians may consider unauthorized use of copyrighted material only if the intent is for research, private study, criticism, review or news reporting. Conditions are attached. One cannot randomly claim fair dealing; a case-by-case, multi-facetted inquiry is necessary to justify one’s actions. In 2004, the Supreme Court of Canada offered a framework to guide our use of fair dealing and Canadians are becoming familiar with this approach. You may be interested to know that this framework shows much similarity to the American model of fair use, together with some important improvements. Perhaps the most critical being that the framework itself is to be kept flexible as not even our Justices can predict what Canada will need in the future.

To that extent, Canadians are already on a path to fair use. However, a Canadian entrepreneur is constrained in a way that her American counterpart is not. While American fair use provides a similar set of categories, the list is prefaced with the words, “for purposes such as.” Herein lies the critical difference; creative and entrepreneurial-minded people can proceed with their ideas unshackled by premature regulation. A point best stated by Fred von Lohmann, a prominent American attorney, who observed that the United States tended to “innovate broadly first, and regulate narrowly later.”

Detractors of fair use insist that this measure is untenable even in the United States – they claim that fair use is fraught with uncertainty. Academic scrutiny does not support that claim, in fact there is compelling counter-evidence. Recent works by Pamela Samuelson and Barton Beebe (leading scholars in the United States) illustrate the predictability of fair use, particularly if one looks at similar applications of the measure. By that I mean consider the setting of each use – be it in art, or technology, or research etc.

Granted, if we look at American case history, fair use has not had an easy ride. But one could not expect that of any legal doctrine. The law grows with society and will be shaped by the promise and peril inherent to society itself. Instead of American history prejudicing Canada against fair use, the history illustrates the merit of the doctrine: interpretation of fair use adjusts over time and can correct for past misjudgment. Moreover, given the prescience of the Supreme Court of Canada, we are likely to be spared many of the growing pains our neighbors endured. There is every reason to be optimistic that flexible exceptions can serve Canada with distinction.

Unfortunately, the distrust between Canadian education and Canadian copyright collectives is limiting opportunity for everyone. While moderate voices can be found among educators and creators alike, their messages do not penetrate the institutional positions of the two sides. Indeed, I am tempted to wish a pox on the houses of Montague and Capulet alike. At issue is Bill C-32’s proposed inclusion of “education” among the categories of fair dealing. Copyright collectives insist this will lead to the wholesale appropriation of Canadian works by educational institutions. A perception that gains currency when set against the years of delay on the part of most educational institutions to actively educate personnel on legitimate use of fair dealing. Yet copyright collectives have wielded their monopoly power to absurd lengths, resulting in a proposed license that recast the very definition of copyright and sought compensation without considering the actual consumption of educational material. And caught in the middle, as always, are the writers, musicians and artists who feel short-changed by all parties.

My suggestion is that you remove the measure of “education” from Bill C-32’s proposed amendments. This will hold at bay those individuals who blithely assume education means free access. Yet it will not impede those individuals who understand fair dealing and choose to legitimately apply it. As was noted by the Federal Court of Appeal in 2010, the existing categories of fair dealing already support many activities that take place in educational settings.

There are teachers, librarians and students who have not waited for their institutions and have successfully educated themselves about the nuance of copyright and fair dealing. Those individuals make conscientious decisions of when fair dealing applies and when a creator has a legitimate claim to compensation. What has been lacking are effective means to directly negotiate with creators. However, that may be changing as the limitations of collective licensing led by third parties are increasingly evident. Messy as it may be to introduce different business models into the educational marketplace, such is the nature of markets. Competition is good, both in terms of content and business models.

In the meantime, if the controversial category of education is taken off the table, the larger needs of Canada can be served. Returning to where my story began, with Google and the U.K., the company’s submission to the copyright review emphasized that:

Fair use is regularly referred to as the key tool by which the U.S. fosters innovation … no country in the world can compete with the U.S. for the most innovative search technologies, social networks, video and music hosting platform, and for the sheer generation of the most jobs and wealth in the Internet domain. If one is looking for evidence of how innovation succeeds, the best way is to look at those places where innovation has succeeded

Thus, borrowing and modifying contemporary American and Israeli law*, I propose the following text for an amended Bill C-32:
… unauthorized use of a copyrighted work is permitted for purposes such as: research, private study, criticism, review, parody, satire, journalistic reporting, and quotation.

And as per our current Copyright Act, the appropriate requirements of attribution would be added. Whether we call this fair dealing, or fair use, is immaterial. What will matter is its flexible language. Taken together with the guidance provided by the Supreme Court of Canada in 2004, Canada’s innovative future would stand on promising ground.

Thank you for your time.

Best,
Meera

Meera Nair, PhD.
Burnaby, BC

cc: Honourable Kennedy Stewart, MP Burnaby—Douglas
cc: Honourable James Moore, MP Port Moody—Westwood—Port Coquitlam, Minister of Canadian Heritage and Official Languages

* When Israel amended its copyright law in 2007, they moved from narrow language under fair dealing to a fair use provision instead. This is quite in keeping with the Israeli effort to maintain a growth-oriented economy, under a guiding principle that innovation leads to more social welfare.

After the election

On May 2, 2011 many Canadians will head to the polls. While the election is proving to be more exciting than perhaps any one dared to dream, May 2nd is only the beginning. The composition of the government aside, the issue of governance looms large. What will the elected officials do upon the resumption of Parliament?

I assume copyright will return to the agenda. In what form, I do not know. If Bill C-32 and the Legislative Committee could be resurrected, that would be a useful starting point. Whether one’s opinion of C-32 was good, bad or indifferent, the bill contained an essential element: Parliament must review copyright every five years. That provision reinforces what ought to be an axiom; systems of law should evolve as society changes.

Moreover, C-32 and its preceding consultation invoked a robust dialogue on the subject of copyright. While the polarity of discussion was extreme, it remains that the Canadian electorate demonstrated a sharply growing interest in copyright. As I have written before, the last public consultation occurred in 2001 and elicited a modest interest from Canadians. Nearly 700 written submissions were made and approximately 300 people attended meetings across Canada. In 2009, the number of submissions received (not including form letters) ran close to 3000. Hundreds of Canadians participated through informal discussions at the consultation website and Town Hall meetings across the country were well attended in person or by electronic comment. Canadians are no longer copyright neophytes and it should be expected that the dialogue will continue to thrive.

However, Bill C-32 was not without flaws and a revitalized Parliament is a good place to address them. Much has been made of the impact of digital locks; the preferred solution is to ensure that circumvention of a digital lock for a non-infringing use is exempt from a charge of infringement. But as that solution still requires circumventing a lock to exercise a legitimate right, I feel the lock, not the right, should be the exception.

Also on my wish list:

1) Abolish Crown copyright. This archaic provision is an affront to the principles that copyright espouses. The tax payers of Canada pay for the operations of the Government of Canada and therefore should hold the copyright of all Crown creations.

2) Introduce penalties for misusing copyright. A frivolous copyright claim launched by a knowledgeable party should not only be dismissed but carry damages.

3) Establish into law that no contract can override (explicitly or implicitly) Fair Dealing. Otherwise copyright holders can effectively change the Copyright Act without the involvement of Parliament.

And,
4) Keep the hysteria of copyright outside of K-12 classrooms. Young students should not be burdened with the emotional responsibility of staying on the right side of the law as it pertains to learning. Particularly in light of the comprehensive license agreements that already compensate creators whose work is copied in Canadian schools. At the earliest, this subject could be broached in the post-secondary years. Parliament could take the lead by encouraging our many post-secondary educational institutions and associations to better inform themselves on the nuance of copyright – that it is a limited right. The limitation, and the right, need equal respect.

IMSLP Redux

The International Music Score Library Project has been described as the largest collection of public domain musical scores in the world. Established in Canada in 2006, the site was staffed entirely by volunteers who carefully vetted contributions for copyright compliance. Yet in 2007 the site was threatened with severe penalties by European music publishers who were concerned that IMSLP material would surface in Europe. At issue was the distinction of a public domain set by life plus fifty years in Canada, as compared to the European public domain of life plus seventy years. IMSLP shut itself down, but resurfaced a year later and continues to thrive. I previously wrote about IMSLP here.

Two days ago Michael Geist brought us news of more challenges for IMSLP. A music publishers’ association (based in the U.K.) succeeded in removing access to the site, by way of the notice-and-takedown provision of the United States’ Digital Millennium Copyright Act (DMCA). That provision of American law allows Internet Service Providers to be sheltered from liability for the conduct of their subscribers. In principle, this is good; ISPs are integral to the operation of our connected, digital world. In 2004 the Canadian Supreme Court emphasized the importance of keeping ISPs in a neutral position:

Parliament made a policy distinction between those who abuse the Internet to obtain “cheap music” and those who are part of the infrastructure of the Internet itself. It is clear that Parliament did not want copyright disputes between creators and users to be visited on the heads of the Internet intermediaries, whose continued expansion and development is considered vital to national economic growth (para. 131).

However, American policy has placed their ISPs in a less-than-neutral stance. To be immune from liability an ISP must, upon receiving notice of alleged infringement, immediately remove the offending material or possibly cut-off the subscriber. There is no due process. It is a guilty verdict first, then followed by defense (if the subscriber is knowledgeable enough to present one.)

As Michael Geist points out, we are fortunate that Bill C-32 did not propose such an extreme measure. Instead, C-32 adopted an existing system of notice-and-notice. A Canadian ISP maintains its neutrality by forwarding on a notice of complaint to the subscriber. Some measure of record-keeping is in order and ISPs are in favour of maintaining this system. During the Legislative Committee Meetings on Bill C-32, Pam Dinsmore (VP, Regulatory/Cable, for Rogers Communication Inc.) said:

In our view, notice and notice is the best and fairest way to make individuals aware that they are accused of illegal peer-to-peer file sharing while recognizing that ISPs should not unduly interfere with our customers’ online activities. While we recognize that the regime is not perfect, we believe it does result in discouraging repeat offenders. The fact that some European countries are beginning to consider notice and notice as a valid response to illegal file sharing and that some ISPs in the U.S. have notice and notice agreements with rights owners serves to underscore that Canadian ISPs have been ahead of the curve …

Later in that meeting, MPs were presented with data illustrating the effectiveness of the notice-and-notice process. Michael Geist summarized some of that discussion here.

But for all of the merit of notice-and-notice in Canada, IMSLP was still at the mercy of the DMCA. Reason being, IMSLP’s domain name is registered through an American-based company and that is where the notice was sent. IMSLP very competently dealt with the frivolous claims, and the site is accessible again. But it is a troubling reminder of the challenges that can arise for any blog, business, or artistic endeavor that has an Internet presence.

Creating creativity

In 2006 Professor Ruth Towse posed an interesting question: How do we create creativity?* She asked the question in light of the heightened attention by national governments to creative industries. Policy makers insisted that creativity offers economic gain on a national scale, and thus it was imperative to foster creative behaviour. As Professor Towse observed then, and still holds true today, “what is meant by creativity is not clear and it is far from clear how it can be encouraged by government policies.”

Copyright is deemed to be an incentive for creative effort because it appears to facilitate trade of creative effort. And so, when speaking of creativity, advocates of copyright expansion focus almost exclusively on the financial implications of the mechanism of copyright. Reading through the transcripts of the ongoing legislative meetings for Bill C-32, a constant theme is the amount of money that can be gained or may be lost through copyright. As to how those numbers are arrived at, the transcripts do not explain.

In any event, we need not argue: copyright does bring income to some people, some of the time. But the division of income is not evenly distributed between creator and publisher, or between domestic industries and international conglomerates, or the homegrown superstar as compared to the homegrown neophyte. Those distinctions have less to do with copyright and more to do with education, training, exposure, bargaining power, sheer luck, and that ill-defined term: creativity.

In the absence of a clear understanding of what creativity is, perhaps the policy objective of creating creativity can only be approached inversely. What deters creativity is the next best question. Lack of capital is a factor. But seen from this perspective it may be easier to recognize other factors. Access to past work is important and building upon past work is necessary. Yet fear is a palpable concern (as noted in my last post.)

To give creative endeavor more shelter I proposed making fair dealing illustrative. But if we must remain locked into enumerated categories of fair dealing Professor Graham Reynolds convincingly argues that a further category be added: a protection for those who engage in transformative work. In his chapter, “Towards a Right to Engage in the Fair Transformative Use of Copyright-Protected Expression,” in From “Radical Extremism” to “Balanced Copyright…” (free download available here) he indicates that Canada would not be the first country to take such a step, and, he stresses the importance of ensuring that the anti-circumvention provisions of Bill C-32 do not render such a right null and void.

Professor Reynolds reviews some of fair dealing case law where the defendants lost. Describing the rationale for those court decisions, he shows that there is good reason to believe that transformative works could be well received in Canadian courtrooms today, if the work can meet the first requirement of category of use.

Another interesting case concerning transformative use, and a success story at that, is Allen v. Toronto Star Newspapers Ltd. It marked a moment of discontinuity in fair dealing’s twentieth century ill fortunes; the outcome diverged from the tendency to subordinate fair dealing to copyright owners’ interests and was a much-needed reminder of the collaborative and transformative nature of creative effort.

* Ruth Towse. “Copyright and Creativity: An Application of Cultural Economics,” Review of Economic Research on Copyright Issues, 2006, vol. 3(2), pp. 83-91.

Parliament to reconvene on Monday

Members of Parliament are heading back to Ottawa and the Legislative Committee on Bill C-32 will resume discussion on February 1, 2011. The transcripts from their first eight meetings are posted here.

Reading through the transcripts is sobering; the depth of misunderstanding about fair dealing impedes meaningful cooperation. The distrust of education as fair dealing is rooted in a misconception of what fair dealing is and how to handle it. Fair dealing is not free dealing. A decision of fair dealing requires a contextual exploration and must be evaluated from multiple points of consideration. As noted in CCH Canadian (2004) by the Supreme Court of Canada and repeated ad nauseum ever since.

Although the High Court seemed to break new ground in 2004, the reality is that Canadians were given similar instructions a long time ago. 1943 to be exact, in Zamacois v. Douville. See here for details.

While rights holders may decry the inclusion of education as a category in fair dealing, it remains that educational institutions offer the best atmosphere for educating Canadians in the practice of fair dealing. Encouraging teachers, students, researchers and staff to better understand the flexibility of the exception invites a better framework for cooperation and better observance of copyright law.

More input invited for Bill C-32

The Legislative Committee on Bill C-32 is soliciting further input from Canadians. In a news release dated to December 6, 2010, Canadians are invited to submit up to 10 pages of thought (if your thinking runs in the 5-10 page range, please include a one page executive summary.) The committee requested that if change is proposed, draft language would be helpful.

I suspect many will offer up suitable language; instead, I take this opportunity to draw attention to the highly toxic atmosphere that emerged in the wake of Bill C-32. Far beyond the text of copyright law itself, what will cripple Canada’s creative prospects is the enmity that sits between copyright representative associations and educational institutions.

In my brief I emphasize some of the points I’ve raised in this blog: the securing of writers’ income from educational uses by the Federal Court of Appeal in July 2010, the campaign of misinformation concerning the inclusion of “education” to fair dealing, the direction taken by Israel in terms of fair use and best practices, and the wisdom of Northrop Frye.

If you wish to contribute to the proceedings, submissions must be made by January 31, 2011 and sent to: CC32@parl.gc.ca

Literature did not end in 1774

A friend sent me the latest Access Copyright e-newsletter for creator affiliates. With the heading of “Canadian creators making their voices heard,” the newsletter describes a recent advertisement published in the Globe and Mail and the Hill Times. The advertisement was supported by the Canadian Authors Association, The Writers Union of Canada, other literary associations, and specifically endorsed by many renowned Canadian writers. In their eyes Bill C-32 places Canada’s digital economy at risk by undermining the work of Canada’s creative community.

To lobby the Canadian government for copyright privileges is the right of any Canadian but to present Bill C-32 as compromising Canada’s creative future is absurd. Left unsaid is any reference to other forms of taxpayer-funded support that are provided to authors. The Canada Council has played a significant role in the development of Canadian literature. Grants from the Social Sciences and Humanities Research Council should also be recognized. And while dedicated arts funding from municipalities and provinces may have declined in recent years, those contributions should not be forgotten. It is disappointing to see Canada’s literary elite taking part in the misrepresentation of the implications of Bill C-32.

But did they have a choice? The lines drawn are ugly; Bill C-32 increasingly sits as an “us or them” proposition. Said another way, it is 1774 again.

This might be a good thing.

Book history and copyright enthusiasts alike will remember 1774 as the year of Donaldson v. Beckett. In that decision the House of Lords decisively ended the custom of perpetual copyright. Publishers fought strenuously to have the decision overturned, claiming that without perpetual copyright there would not be enough time to capture revenue from book sales. They foretold of the end of publishing and with it, the loss of literature.

In The Enlightenment and The Book (2006), Richard B. Sher writes:

[Bookseller-publishers] did what they could to recruit authors to their cause by scaring them with predictions of severe decreases to their copy money if the duration of copyright were restricted by statute; their efforts met with limited success. David Hume permitted his London publishers to use his name publicly, but in private he told one of them that he did not think the elimination of perpetual copyright would be likely to have “any such bad Consequences as you imagine.” (p.25).

Professor Sher’s past, and continuing, research offer compelling evidence that the literary publishing industry did not suffer dramatic change when copyright’s expanse was curtailed in 1774.

Including education as a permissible category of fair dealing will not bring havoc to Canadian writers. Michael Geist posted an FAQ on this matter – it ought to assuage the fears of Canada’s literary community. To suggest that inclusion of education to fair dealing is an unprecedented exception and will undermine Canada’s international obligations, as the advertisement did, is simply incorrect. A colleague dryly asked, “Have they not heard of a little place called the United States?” Codified into American law in 1976, Fair Use permits multiple copies of copyrighted material for classroom use, under the condition of a fairness test. Notably, it is the same fairness test advocated by the Supreme Court of Canada in March 2004, and most recently used by the Federal Court of Appeal in July 2010. The decision of July was favorable to writers and publishers when their works are used in educational settings.

So, disappointing as it was to see that list of names, I will focus instead on the pleasure their books have brought. Memorable was the night we listened to Margaret Atwood’s explanation of her first encounter with interest received from her bank – D. almost fell over from laughing. That gem is in Payback: Debt and the Shadow Side of Wealth (of Massey Lecture fame.) My introduction to Charlotte Gray came via her biography of the lives of Susanna Moody and Catherine Parr Trail. These pioneering writers laboured under far more difficult circumstances than anything Canadians endure today. Gray mentions the difficulty of surviving on writing; Parr Trail only received “110 pounds on copyright and no royalties on the sales (p.125)” for The Backwoods of Canada. Even though the book became required reading for those considering emigration to British North America and helped keep “Mr. Charles Knights’ shaky publishing house afloat (p.126).” And Yann Martel’s Man Booker award-winning Life of Pi, beginning as it does in India, spoke to my multiple-cultural-identity-disorder. Can anyone forget the encounter at the seaside among the priest, imam and pandit?

More of my favourites to come another day. And I have every expectation that there will be even more, as of yet unwritten. Literature is much more than copyright.