An Open Letter

February 20, 2010

Honourable Tony Clement
Minister of Industry
House of Commons
Ottawa, Ontario
K1A 0A6

Re: Copyright for Canadians

Dear Minister Clement,

In September 2009 I responded to the Federal Government’s call for input towards revision of Canada’s copyright law. You and your colleague, Minister Moore, appeared genuine in your efforts to design a copyright policy that will be forward thinking and operate for the betterment of all Canadians. As previous ministers of both Liberal and Conservative inclination have shown a disturbing tendency to look to the American entertainment industry for input to Canadian law, your position was a refreshing change. However, my optimism has faded in light of the following matter.

During the consultations the Canadian Federation of Students (CFS) attended a town hall meeting in Toronto. As speakers were to be chosen by lottery, the students were aware that they might not be afforded the opportunity to speak. They prepared a flyer stating the CFS position on copyright and tried to distribute it amongst other attendees. Their proposal included: expanded fair dealing, regulation of technological protection measures, a proposal of “notice and notice” to limit ISP liability, and the elimination of crown copyright. Notably, this position is shared by many Canadians, including those involved in the high-technology growth industries, education, and the independent music industry. This same position would also be described as anathema to the American-backed members of the entertainment sector.

The distribution of the flyer was halted by the event’s organizers and security staff informed the students to desist or be removed from the premises. That representatives of the Federal Government of Canada felt the need to prevent the peaceful distribution of a flyer is discouraging at best and a violation of Charter rights at worst. I asked my Member of Parliament, Bill Siksay, to investigate the matter.

Mr. Siksay’s office forwarded to me the response received from your ministry. In a letter signed in your name, it states:

The town hall events were very popular and the Toronto event filled up weeks in advance. Recognizing that time would not permit everyone a chance to speak, a lottery system was used to give all participants an equal opportunity to make their views known. As I understand, CFS chose to distribute leaflets at the event in response to this lottery system. Based on the need to ensure that participants at the event were able to efficiently and securely register and access the meeting room, CFS representatives were requested to not conduct this activity at the venue.

I asked Ben Lewis, the Communication Coordinator of the CFS, for a comment on this letter. He indicated that neither he, nor any other students involved, had been contacted by the Minister’s office. He concluded saying:

The notion Mr. Clement puts forward that our handing out of flyers to interested parties in any way interfered with registration for the event is completely unfounded.
Respectfully,
Ben Lewis

It is perplexing that the students were not offered the opportunity to explain their actions. Instead of extending that measure of courtesy, governmental staff chose to malign the behavior of the students. Far beyond any concerns I have of copyright law, this event further diminishes the integrity of the Federal Government of Canada.

A colleague of mine has often told me that such integrity exists only in the eyes of the naive; regrettably, he may be right. However, at this time I choose to believe otherwise and ask that you redress this matter.

Sincerely,

Meera Nair, Ph.D.
Burnaby, BC

cc: Bill Siksay, Honourable Member of Parliament
cc: Canadian Federation of Students

145 excuses

For those of you who read my blog, my thanks and apologies for the long silence. I have a 145 little ones to shepherd this semester (at the time of my contract agreement, the course had only 101…)

Yesterday I had the pleasure of listening to Siva Vaidhyanathan of the University of Virginia speak about his upcoming book The Googlization of Everything. One theme he used was that of public failure. What happens when public institutions fail to respond to a challenge?

“Challenge” is a mixture of opportunity and necessity.

The consultation period for copyright has closed; around 8,000 submissions were sent in. That is remarkable and inspiring; Canadians have an interest in the subject, and recognize the necessity of involving themselves in the political process. But, to what extent have our educational institutions taken that step?

Outside of the general body of Canadians, the largest constituency group in Canada that benefits by fair dealing is the academic community. Students, teachers, librarians, and administrators all explicitly or implicitly benefit by this measure of unauthorized reproduction. I know that many individuals from academia made submissions to the Federal Government. But how many institutions made a contribution in their own name?

Using the search tool from the consultation website, I did a quick test. Searching on “University of British Columbia” I found four submission documents — two from individuals who have a current or past association to the university, one from a national student’s association, and one concerning a research repository project. Two other hits on the search, were in reference to the Vancouver roundtable discussion (Prof. Mira Sundara Rajan, of the Faculty of Law, participated.) It appears that there was no submission from the university as a whole. Although, perhaps not all submission documents have been processed … I could yet be pleasantly surprised.

This is now a project; surveying from west to east, to find out which universities involved themselves in the consultation process. If anyone has specific information, and would like to share, please drop me a note… I have much searching and reading ahead…

My Submission…

My letter to the Ministers and my submission…

September 4, 2009

Honourable James Moore
Minister of Canadian Heritage and Official Languages
House of Commons
Ottawa, Ontario
K1A 0A6

Honourable Tony Clement
Minister of Industry
House of Commons
Ottawa, Ontario
K1A 0A6

Re: Submission for Copyright Consultation

Dear Ministers Clement and Moore,

Thank you for the opportunity to convey input to the copyright consultation process. As evidenced by the volume of submissions, Canadians are eager to engage with the task of designing a copyright law that mediates between the challenges and opportunities of digital technology coupled with world-wide networks of circulation. However, given the polarity of opinion on this subject, responding to Canadian input will not be easy. One way forward is to consider, not only the content of opinion, but the line of thought that underwrites each remark or submission. The unspoken debate addresses the construction of copyright itself.

Many Canadians have unconsciously voiced a salient element of our current law, that copyright is a limited right. This needs to be consciously voiced now. Copyright is not, and has never been, a grant of absolute control. However, technology combined with licensing offers the possibility of such control. To succumb to that temptation means changing a structure of cultural policy that has been in place since its inception in 1710. Is Canada prepared for the consequences of such a change? Do we even know what the consequences could be?

To say the least, caution is advisable. I hope you will both be guided by a view often expressed at the roundtable discussions, the townhall meetings, and the submissions, namely, the importance of fair dealing. Fair dealing upholds the limitation upon a copyright holder’s reach. It is designed to enhance individual creativity through learning, teaching, and research – the ingredients necessary for innovation to thrive in Canada.

The challenge, and benefit, of fair dealing is that its legitimacy is not granted by the copyright holder, but is achieved through the actions of those wishing to use the copyrighted material. This places added responsibility upon individuals, which could be fostered through our educational and library institutions. Doing so would place Canadian creators on strong footing; it is in the space outside of a copyright holder’s reach that critical thought can flourish and enable new developments in both technological form and creative content. Something Canada cannot afford to ignore in the much-touted knowledge economy of the day.

Please find below my submission towards amending the Copyright Act. For your convenience, I have also attached this document as a pdf file.

These remarks are my own, and not the opinion of any institution I work with. I write this based on my experiences as a student, small business owner, researcher, educator, and parent.

Regards,

Dr. Meera Nair
Burnaby, British Columbia

Imbalance in Voice

Michael Geist has posted a synopsis of last night’s “townhall” meeting in Toronto, concerning the copyright consultations. It is disappointing to hear that the event was geared towards the interests of the entertainment industry; this diminishes my appreciation for the consultation process itself. Until now, I had some hope that the Ministers of Industry and Heritage were genuine in their effort to hear from all Canadians.

Reviewing the comments posted to Prof. Geist’s blog, Ben Lewis’s remarks raise a very disturbing point:

Myself and a few other representatives of the Canadian Federation of Students attended the town hall, although we did not “win” the right to speak.

Knowing that this might be the case, we brought some flyers to distribute beforehand detailing our position on expanded fair dealing, regulation of TPMs, “notice and notice”, and the elimination of crown copyright.

Unfortunately, event organisers immediately sent hotel security guards after us who stated that we either needed to put the flyers away or we would be removed from the premises. Alarming and frustrating to say the least. So much for the idea of it being a “public town hall”

This sounds suspiciously like a violation of the Canadian Charter of Rights and Freedoms. Section Two states.

Everyone has the following fundamental freedoms:
(a) freedom of conscience and religion;
(b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;
(c) freedom of peaceful assembly; and
(d) freedom of association.

If the meeting yesterday had been purely a private affair, I would not be so concerned. But this was ostensibly a public gathering. And yet, a determined effort was made to silence dissenting opinion…

Breaking Ranks

August is flying by, and the deadline for submission of opinions to the consultation process is fast approaching – September 13, 2009. (I’m still working on mine…) Both the Canadian Alliance of Student Associations and the Canadian Federation of Students have submit thoughtful and well articulated proposals.

Unfortunately, I must break ranks with my host community – the Association of Universities and Colleges of Canada. With all due respect to the AUCC staff, I have concerns with some of their remarks, particularly this one:

Students and professors need to know that they are not breaking copyright law when they engage in teaching and learning activities that involve the use of publicly available works on the Internet. Copyright law should be amended to clarify that publicly available works on the Internet can be used for education and training purposes without infringing copyright.

Judging by the positions of the two student associations, students in Canada are already aware that accessing publicly available material from the Internet is a legitimate activity. There are a variety of ways that such behaviour could be considered legitimate, but, as always, fair dealing is the most viable. The access generally sought after in the name of learning, teaching and research is already on firm ground through fair dealing.

To request amendment to the law to engage in legitimate activity concedes infringement where none has happened. This is not merely peculiar, it is dangerous. If this amendment is tailored as a special exception solely for educational institutions, other Canadians who perform the same activity, but are not sheltered by an educational institution, will be at risk for a charge of infringement.

And to hide behind such an amendment means universities and colleges are choosing to exempt themselves from understanding and upholding their individual obligations under the terms of copyright law. The latitude that is permitted by fair dealing, precisely for the kind of work carried out by the students, teachers, researchers and librarians of these institutions, comes with the obligation to use fair dealing responsibly.

Fortunately, our two student bodies seem up to the task, as are Canadian librarians. (The CLA position paper, available from the August 10, 2009 submissions on the consultation website, makes for good reading.) It would be nice if universities and colleges would follow.

More re: Consultations

Laura Murray has posted her contribution to the recent Ottawa roundtable concerning revisions of the Copyright Act. (Thank you Laura.) I share her concern that fair dealing’s usefulness will be eradicated if implicated within licensing programs. As it is, the academic community tends to bestow more rights upon copyright owners than the law actually provides.

For various reasons, there is a presumption that use of copyrighted material relies on permission from the copyright holder. Past efforts to protest have been met with indignation, and academic representatives were seen as wanting everything for free. I have written on this issue before, with respect to the consultations of 2004:

…a frequent theme of discussion was that manufacturers of tables, chairs, and software are not asked to give away their work for free, so why should creators be requested to do so? Lost in the argument was the fact that no-one had asked creators to make their work available for free, instead, free work was asked to be made available—that existing free rights of access to copyrighted work should be respected and protected.

[I know, pretty shameless to cite my own paper…]

I hope the efforts of Laura and many others come to fruition, and that fair dealing receives the support of the Federal Government of Canada. But to what extent will the academic community, as a whole, utilize fair dealing? The palpable unwillingness to engage with fair dealing as it is currently available is alternately puzzling and disturbing. Particularly in light of the strong support provided to fair dealing by the Supreme Court of Canada.

In 2004, through what has come to be known as CCH Canadian , fair dealing was unanimously declared as integral to the system of copyright as a whole. This despite the fact that “It is impossible to define fair dealing.” Aware of the challenge this poses, the Supreme Court Justices provided Canadians with a cogent and astute framework to guide use of copyrighted work in a manner consistent with fair dealing. Yet in the years since, only one academic body has promoted CCH Canadian. In December 2008, the Canadian Association of University Teachers (CAUT) issued an Intellectual Property Advisory, explaining the case, its nuances, the framework, and appropriate use of the framework in academic institutions.

Apart from the broader constituency of Canadians as a whole, the academic community is the largest stakeholder in Canada which benefits by fair dealing. Students, teachers, researchers, and administrators all rely upon this modest measure of unauthorized reproduction. Given that the Supreme Court Justices also noted the “relevance of a custom or practice of a particular trade or industry” upon a decision of fair dealing, fair dealing’s legitimacy within academia rests upon academic engagement.

And, until I write a complete resource page for CCH Canadian, here are some references:
CCH Canadian Ltd. v. Law Society of Upper Canada, 2004 SCC 13.
Canadian Association of University Teachers. (December 2008) Fair Dealing. Intellectual Property Advisory, No.3.

Copyright Consultations

I have to deviate from my intentions for this blog, with a brief news update.  Once again, Canada is embarking on the road to change for our Copyright Act. Consultations begin today, in Vancouver, and will make their way across the country over the next two months. Althia Raj of the Winnipeg Sun reports that the Federal Government is looking to pass this legislation before 2010. This timetable may be a little ambitious.

Canadians are fortunate that (so far) our Copyright Act has not changed solely as a heated reaction to the phenomenon of file sharing. The last major revision of the Act occurred in 1997. With a combination of luck and reticence, the digital environment was left alone to take shape through both market and non-market activity. The possibilities and pitfalls of new technology coupled with world-wide connectivity have become clearer; time has allowed for a more measured evaluation. Recent comments from Heritage Minister James Moore and Industry Minister Tony Clement at the Digital Economy Conference suggest that the Federal Government will look to the future, and not to the past, as amendments are considered. Thank you to both Ministers.

But, if I may offer up my wish-list, I hope Ministers Moore and Clement will give their unequivocal support for fair dealing. Our Copyright Act is deemed to offer encouragement for creative effort, and, respect for creators. Fair dealing is the only measure within the Act that actually supports creativity.