Meera Nair

Posts Tagged ‘Canada Day’

now what?

In Posts on July 1, 2017 at 9:00 pm

The Day is done; candles have been blown out in some quarters, tears continue to be shed in others. 150 years of something–whether it is the lifetime of Canada or a chapter in millennia of a First Nation–has been duly marked/celebrated/decried. Now what?

In terms of copyright, we can expect continued calls for stronger copyright to better support Canadian writers. Ignored will be the detail of copyright deficit–that more control invariably means more Canadian dollars going to non-Canadian entities. Also omitted will be any hint that such calls have been in existence for the entirety of Canadian autonomy with respect to copyright, with no appreciable denting of that deficit to show for it. That copyright alone cannot be the salvation of Canadian culture (assuming that our culture is under threat) will also be absent from discussion.

Perhaps we could set aside copyright for a moment and think about that word: culture. Described by Raymond Williams as one of the most complicated words in the English language, it spans the entirety of our collective lived experiences.

Through the past 150 years, Canada has only too often demonstrated narrow-minded thought. Beginning with an unapologetic objective to rid the country of indigenous people,* followed by the Chinese Head Tax, the Komagata Maru, the internment of Japanese Canadians, the rejection of Jewish refugees, … . The situation for visible minorities improved somewhat in the later 20th century, with racism taking on a slightly more polite tone. (Although, children of colour attending school in the ’70s will likely have evidence to the contrary.) And it is difficult to forget the national indifference to the tragedy of Air India Flight 182 in 1985.

Yet Canada has developed a credible capacity, not merely to mouth the importance of protecting minority rights, but to actively encourage the virtue of diversity. The underlying theme for the last 30 years or so is that we are all in this together and we all do better together. Some pride is warranted; it has been possible to find unity without imposing uniformity. But can this be sustained, or is the best of Canada behind us?

Paula Simons, writing for the Edmonton Journal, reminds us not to rest on our laurels. That systemic racism is still part of our landscape, and extremism is on the rise: “for all our lauded tolerance, this was also the year when six peaceable Canadians, at prayer in a Sainte-Foy neighbourhood mosque, were shot in the back and killed in the midst of their devotions.”

With an eye to building on the effort of our prior angels, to what extent are we aware of our collective history? Is that history within reach of all Canadians? In this regard, copyright cannot be ignored. Two proposals come to  mind; one is already underway, the other I offer as an idea.

1) For years, Amanda Wakaruk (copyright librarian for University of Alberta) has publicized the challenges inherent to maintaining accurate information about Canada as a whole, due to the archaic practice of Crown copyright. In her capacity as a private citizen, she has introduced a petition Fix Crown Copyright:

Decades of stakeholder requests to abolish or at least update the Crown copyright provision in the Copyright Act have been largely ignored. This has resulted in a barrier to the re-use of government publications prepared for and paid for by Canadian taxpayers. For example, the refusal of government departments to allow for the copying of content made freely available on their web sites, and then deleted from those same sites, resulted in the loss of countless digital government works in recent years. (Note that very few government publications continue to be produced in paper.)

Removing copyright protection from government works made available to the public will allow individuals, corporations, and other organizations to make better use of these important resources. It will also allow librarians to continue their role as stewards of government information in a digital world. …

The petition will remain open until 23 September 2017.

2) Volumes of scholarship about Canada are, for the most part, confined to the university community. Painstaking explorations that uncover the past, both its pain and glory, are not easily available to the Canadian reader who wishes to learn more.

For instance, I recently sought two books published by University of Toronto Press: (i) The Man from Halifax: Sir John Thompson, Prime Minister (1985) by P.B. Waite; and (ii) Essays on the Constitution: Aspects of Canadian law and politics (1977) by Frank R. Scott. Both are rich in their contribution to understanding the past, both could be staple reading for anyone interested in the idea and existence of Canada. But neither can be easily purchased (the odd copy may exist in a few select used-bookstores) and both have limited visibility in university libraries.

We cannot fault any publisher for letting production lapse when there is no market. And yet these are quintessentially Canadian books; written by Canadians, issued by a Canadian press, and intended without embarrassment as expressly for Canadian readers. Which raises the question: when such books are no longer actively produced or peddled for sale, can they not be made widely and freely available via an open license?

A requirement of an academic appointment is to engage in scholarly effort; to that end, scholars enjoy publicly funded salaries and research grants. With respect to publication, university presses are eligible for support from the Canada Book Fund. University libraries then pour more money into the purchase of information resources; data collected for 29 university libraries show aggregate spending in 2014-2015 as $305,046,488 (see page 4 here). Between government provision of public money, and university spending thereof, could some funds be set aside to convert old printed books into ebooks?

This does not require a change to the system of copyright–it requires consent from copyright owners of existing content, and, cooperation from institutions  If consent is given, and if institutions would share the necessary costs of labour and money, more Canadian content could reach more Canadian readers.

Copyright maximalists constantly tell us that Canadian culture is near death–that Canadian themed content will cease to be written unless copyright is strengthened. They neglect to point out how much existing Canadian content cannot be read at all.

* Roberta Jamieson, featured on CBC Ideas for 30 June 2017, pulled no punches in her telling of the past 150 years. And yet, offers much optimism for the road ahead.

July 1 tidbits

In Posts on July 5, 2013 at 6:52 am

(Yes, I know it is July 5. And many boxes are yet to be unpacked.)

Building a better understanding of fairness

Posted to InfoJustice.org, Jonathan Band and Deborah Goldman remind us that there is a sizeable body of case law concerning fair dealing and fair use for all to draw on. They write: “One of the arguments used by rights holders opposed to the adoption of open-ended fair use or fair dealing provisions outside of the United States is that those jurisdictions would lack a body of case law to guide judges, and it would take decades for such a body of case law to develop.” Band and Goldman contradict with a listing of the number of opinions available through online databases in many countries. To skeptics who scoff at the idea of global opinion gathering, I offer the reminder that even in the United States (the quantitative leader in case law), even when precedent seems to exist, a shift in context requires renewed thought. (The recent decision by the U.S. Supreme Court in Kirtsaeng v. Wiley stands out in this regard; my three-part coverage begins here.) It is unwise to limit possibilities solely by what exists as domestic precedent when more information is at hand.

That said, each country may very well apply its own cultural flavour and interpretation in its rulings. Law is as much a reflection of culture as art, music, language, food, etc. Each country has a history that shapes its own future. It is to everyone’s advantage to investigate how others confront the issue of fairness and then use the best that knowledge has to offer towards an independent decision. Canada’s progression to flexible, fair dealing has been a series of modest steps spanning a decade. (Some might say it is quintessentially Canadian). Moreover, when our Supreme Court passed its famed CCH Canadian decision, the court emulated some of the American framework for fair use but also saw fit to bring in safeguards to protect the viability of fair dealing against the then-American tendency to deny fair use when commercial considerations existed. (Detailed coverage of CCH Canadian coupled with American events can be found in my last two publications.)

In essence, a wider exploration only facilitates the understanding of fairness.

Better prospects ahead for Google Books

Also on July 1, the United States Second Circuit Court of Appeal expanded the scope of fairness by extending it to the proceedings itself. In the ongoing saga of Authors Guild et al v. Google Inc, the case was returned to the district court with an instruction: do the fair use analysis.

Google has long argued that its practice of scanning books and making limited portions available online is fair use.  At its last court room appearance in May 2013, Google appealed a district court decision of June 2012 which had stipulated that the Authors Guild could carry the case as a class action suit.  In their ruling on July 1, Circuit Judges Pierre Leval, Jose Cabranes and Barrington Parker stated:

[Google intends] to assert a “fair use defense”, which might moot the litigation. Google also claims that plaintiffs are unable to “fairly and adequately protect the interests of the class,” because many members of the class, perhaps even a majority, benefit from the Library Project and oppose plaintiffs efforts.  … Putting aside the merits of Google’s claim that plaintiffs are not representative of the certified class—an argument which, in our view, may carry some force—we believe that the resolution of Google’s fair use defense in the first instance will necessarily inform and perhaps moot our analysis of many class certification issues…

Kevin Smith, writing for Duke University, explains how vital it is that the class action status be set aside:

The process of litigating a class action is so complex and expensive that class action certification is often a signal to the defendant to settle the case.  The result is that, if a class is certified, there is much less chance that a full determination about fair use will ever be made … . It would be very unfortunate if the Google case never got to that stage.  By fighting off the class certification, Google has won for itself a better opportunity to make that argument.  And the precedent set by this decision is important, since it tells trial courts to consider fair use before they make the potentially destructive decision about class certification.  In many cases, and the Second Circuit suggests that this may be one of them, the complexity and cost of a class action might be entirely avoided because fair use would lead to a lawsuit being dismissed before it got that far.

[Smith favourably compares Google Books to HathiTrust and provides more information about the role of the Authors Guild. It is especially helpful for those of us unfamiliar with the players in the United States.]

With the road ahead cleared to argue the case on the merits and applicability of fair use, this case is poised as a definitive force in fair use dialogue. Mike Masnick’s coverage for Techdirt (the July 1 ruling, preceded by the May 8 oral arguments) encourage optimism.

As an aside, copyright enthusiasts may have honed in on the name “Leval.” Judge Leval is the author of the famed “Towards a Fair Use Standard” written in 1990 for Harvard Law Review. A telling point in his paper is:

I believe the answer to the question of justification turns primarily on whether, and to what extent, the challenged use is transformative. The use must be productive and must employ the quoted matter in a different manner or for a different purpose from the original.

While fair use continues to mature in its application, Leval offers a comfortable starting point for any analysis of fair use/fair dealing.

A befitting release date

Sara Bannerman announced the publication of her book The Struggle for Canadian Copyright. The paperback version was released on  July 1 – Canada Day – a befitting date. Congratulations Sara!