On 5 March 2004, newspapers across Canada were publishing articles about a Supreme Court decision unveiled the day before. I distinctly remember reading a smallish article, occupying about 15cm x 12cm of newsprint, and discovering the Supreme Court had confirmed that moderate photocopying in libraries was lawful, whether carried out independently by patrons or assisted by librarians.
If that decision and its ensuing coverage had emerged one month earlier, my reaction might simply have been one of surprise. Did we really need the Supreme Court of Canada to tell us this? After all, libraries legitimately acquire their collections, and the law already permits individuals an allowance of copying. Such a topic would hardly have seemed worthy of a news-story, let alone the attention of our highest court. Instead, the article provoked some relief on my part, all on account of a conversation that transpired a few weeks earlier.
At the time, I was finishing my MA in communication. In my thesis, I explored the legal history of common law copyright and surveyed the American copyright landscape of the day. Following existing work with regard to copyright’s foundations, I reviewed the application of John Locke’s theories of labour to the realm of intellectual property. Locke’s work rested on the premise of a “commons,” and I was intrigued by the contributions of James Tully and CB Macpherson to Lockean scholarship as they provided two opposing theories of what “commons” meant. Eventually, I reconciled those two interpretations as partners in a dance, where each is essential to the success of the whole.
And then I went looking for a picture.
I found what I wanted in a very large artbook in my institution’s library. Dance in the City was one of Renoir’s famed three-part series painted in 1883. But creating a digital image posed a problem, so I approached the Help Desk and asked, “Do we have a larger scanner?”
The suspicious glance that came back at me was a little unnerving. Followed by, “Why?”
When I explained that my intention was to use the image on a PowerPoint slide for my defense, the response was, “That would be copyright infringement.”
My thoughts at that moment: Renoir died in 1919. This can’t still be protected. Surely there can’t be copyright in an exact copy of a work already in the public domain? But aware that I was a mere graduate student, I suggested that if the 1883 image is protected content, wouldn’t my use comport with fair dealing? Because I was using it to illustrate a concept that was germane to my argument, comfortably situated within the purposes of both private study and research.
The response were words to the effect of, “Because your defense is open to the public, this could be construed as a public performance and so fair dealing does not apply.”
Back then, I was unaware of the degree of fear within educational institutions, as, through amendments to the Copyright Act in the 1980s and 1990s, and less-than-ideal-handling of fair dealing by courts, legitimate unauthorized use had been rendered almost moot. But even so, twenty years later, the characterization of displaying a picture at my defense as “a public performance” is still a head scratcher.
To be fair, that staff member directed me to a repository of digital art imagery which was licensed for use by my institution. I found another of that Renoir series, Dance at Bougival and dutifully used it, even though it was not an adequate substitute. I had chosen Dance in the City because the faces of the dancers were less visible. Like any of our laws, the system of copyright must be impersonal if it is to achieve its goals. The symbolism within the art might have been lost on my audience, but it was meaningful to me.
And then a few weeks later, came CCH and with it my interest in fair dealing as a living practice and not just a passage of text in the Copyright Act.
I could not have foreseen though, that Canada’s lack of interest in Fair Dealing would underwrite my doctoral work. Nor that I would spend the next twenty years talking about Fair Dealing, CCH, additional Supreme Court decisions, and why exceptions (or as some say, limitations) within the system of copyright are essential if Canada is serious about education, research, creativity, and innovation.
For some of those past conversations, see my posts about CCH’s ten-year anniversary, that institutions are not liable for student conduct with protected content, and the flagrant misinformation within those frontmatter notices that imply, or openly state, that copying without permission is a violation of law. And, more recently, the fact that newer business models set by copyright owners and distributors have greatly reduced reliance on Fair Dealing in educational institutions.
While at times it feels as though Canada has not made much progress towards developing widespread, informed understanding of copyright as a system of complementary parts, taking stock of the past twenty years reminds me that we started with a deficit of institutional understanding of the framework of copyright and judicial interpretation.
More work lies ahead, but as today marks the start of Fair Dealing Week 2024 I will just enjoy sharing Renoir’s stunning trio of Dance, all painted in 1883. From left to right: Dance in the Country, Dance at Bougival, Dance in the City.
I have waited twenty years to do this.
Fair Duty 