my remarks to the Industry Committee

Last Wednesday I had the pleasure of appearing before the Standing Committee on Industry, Science and Technology, to speak on the subject of the copyright review.  Also participating were Carys Craig (Associate Professor of Law at Osgoode Hall Law School) and Patti-Anne Tarlton (Chief Operating Officer of Ticketmaster, Canada).

Due to internal delays, the meeting was quite late in starting. Unfortunately, Carys and I had flights to catch that evening and so were unable to fully participate in discussion with Members of Parliament.

My remarks drew from the brief I submitted some months ago. In my allotted time I endeavored to place emphasis on the importance of supporting our next generations as they hone their capacity for creative and innovative thought—a capacity that Canada needs. I also reminded the Committee that altering copyright law must be placed in the context of Canada’s particular copyright history–a history where our law was designed to support foreign corporations.

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Good afternoon. My name is Meera Nair, I am the copyright officer for the Northern Alberta Institute of Technology, but I am here in my capacity as an individual. For nearly fifteen years, my research interest has been with systems of copyright, both contemporary and historical.

One of the challenges in dealing with copyright is that people tend to forget that it was designed to regulate industries. Because of an accident of vocabulary, it now includes individuals. People also forget the baggage we have carried for 150 years; that our system was largely designed by other countries, to serve their advantage. To the extent that we have successful writers, musicians, artists and publishers, those gains came despite the system, not because of it.[1]

So, what are we talking about? The system of copyright is composed of two parts; there are rights of control and there are rights of use. Why do we have it? For a very long time, we had no purpose. Copyright was simply one of 29 responsibilities handed to the Federal Government in 1867, with no explanation attached. But if we look at our multicultural roots—the influence of both civil law and common law—we see a shared goal: to protect the process of creativity.[2] While our Supreme Court has operationalized this as seeking a balance between creators and users,[3] it might be helpful to take one step back and simply think about this process; how do we enhance it? How do you assist individuals to maximize their creative potential? And from that, there is reasonable historical data to believe that larger social wellbeing will follow.

I am drawing from the work of B. Zorina Khan, an economist who explored American intellectual property policies at the time of their nation building years. The U.S. deviated from the IP norms of the day, and instead focused on educating its people and creating a framework which encouraged everyone to enter the arena of creativity.[4]

A part of that framework was the theft of other nations’ work—to be clear, I am not recommending that. But we could adopt the best aspect of current American policy: their structure of fair use. It would give leeway for new ideas to take form. It bears remembering that the United States has capitalized on this, with repeated development of billion-dollar industries.[5]

A speaker from an earlier meeting alluded to challenges faced by Americans with respect to fair use; he quoted Lawrence Lessig as saying: “Fair Use was simply the right to hire a lawyer.” Just to put that in context; Lessig wrote those words after losing a pivotal Supreme Court case in the United States. He had led a constitutional challenge, arguing that Congress had overstepped its bounds by lengthening copyright term. The loss was hard to take; while fair use is meaningful, it is no substitute for shorter copyright terms.

Adding to Lessig’s distress was likely the reality that the United States had made a bit of mess of fair use in later 20th century. They are correcting that misstep; but at the time, their courts began treating fair use as simply a response to market failure.

Fortunately, the Canadian judiciary has already ensured that Canada can avoid such a self-defeating approach.[6] Creativity is a cumulative affair; whether we are talking about books, music, software, medicines or a free press, creativity relies on exposure to and use of prior work. Some uses must remain above the cycle of permission and payment, if creativity is to be sustainable.

In 2012 we came up short on fair use.[7] But one pleasant addition stood out: Section 29.21 (known as the YouTube/MashUp exception). I would have called it the Creativity exception. It gives future Canadian creators some reassurance that their government does not wish them to be prosecuted for doing what Canada needs them to do–which is to hone their creative skills.

We need our next generations to be at their best to address the intractable problems that are being left for them to solve. Drawing from the combined wisdom of Julie Cohen and the late Oliver Sachs, it is important for individuals to play with whatever content they are interested in, to cultivate a capacity to see something that others cannot, to build the curiosity and determination that we hope will carry them into ground-breaking intellectual effort across all disciplines.[8] Much is being made of our innovation agenda—we will not get innovation just for the asking, we need to nurture it.

Regardless of whether we have strictly enumerated exceptions, or a more flexible condition of fair use, we cannot gain the fullest potential on either unless we adjust the current language of digital locks.

This Committee has been asked repeatedly to do more to support Canadian writers and Canadian publishers; this is a worthy goal. But I hope proposed solutions will not include billing students for materials already paid for, or worse, billing students for works that are not prescribed at all.

Moreover, if we want to target Canadian operations, copyright is not an effective means. More money will leave the country than will stay in. As I wrote in my brief: “Copyright is a blunt instrument; it cannot distinguish between literary superstars and novice writers, between fostering a homegrown operation and serving an international conglomerate, or, between writing for an audience and writing for financial gain.”

As I mentioned at the start, our Act draws from both our common-law and civil-law ancestry. The Copyright Act has long been recognized as being bi-jural; we cannot help but see two of our Founding Nations in it. However, the third is present. Indigenous paradigms about creative endeavor and property are implicit to the system of copyright as we practice it today.[9]

Acknowledging this will not solve the difficulties encountered by Indigenous communities with respect to protecting their intellectual property. But given the objectives of the Truth and Reconciliation Commission, we ought to recognize that the Copyright Act is tri-jural.

I would like to close by acknowledging that we have gathered on the lands of the Algonquin people.

I look forward to your questions. Thank you.

 

[1] Meera Nair, “History begins with geology (a response to Margaret Atwood),” Fair Duty, 20 September 2016.

[2] “Where social utility meets with natural rights is in the belief that creativity itself is valued. Otherwise, the underlying purpose of copyright in either tradition becomes meaningless, raising the question of why have such laws at all? Therefore, natural rights must apply to everyone, including past, present, and future creators. Likewise, consideration of societal benefit must ensure that future creative processes are not stifled by the system purporting to encourage creative effort;” Meera Nair, “Copyright and Ethics—an Innisian Exploration,” (2009) Global Media Journal (Can. Ed.) Vol. 2, Iss. 1, (23-39) 30, .

[3] “…a balance between promoting the public interest in the encouragement and dissemination of works of the arts and intellect and obtaining a just reward for the creator …;” Théberge v. Galerie d’Art du Petit Champlain inc., 2002 SCC 34 at para 30.

[4] Those policies fostered American ascendency from, “an undistinguished developing country with an agricultural economy to world leader in less than one century;” B. Zorina Khan. The Democratization of Invention: Patents and Copyright in American Economic Development, 1790-1920. (Cambridge: Cambridge University Press, 2005) 5.

[5] Meera Nair, “Outdated copyright law hinders innovation and growth,” Edmonton Journal, 12 September 2018. Details here.

[6] Fortunately, Canada has already taken steps to avoid falling down this rabbit hole; “The availability of a licence is not relevant to deciding whether a dealing has been fair. As discussed, fair dealing is an integral part of the scheme of copyright law in Canada. Any act falling within the fair dealing exception will not infringe copyright. If a copyright owner were allowed to license people to use its work and then point to a person’s decision not to obtain a licence as proof that his or her dealings were not fair, this would extend the scope of the owner’s monopoly over the use of his or her work in a manner that would not be consistent with the Copyright Act’s balance between owner’s rights and user’s interests;” CCH Canadian v. Law Society of Upper Canada, 2004 SCC 13 [CCH] at para 70.

[7] Numerous organizations sought to discredit fair use; “… to each objection raised, a nuanced explanation or rebuttal exists;” see Meera Nair, “Fair Dealing at a Crossroads,” From Radical Extremism to Balanced Copyright—Canadian Copyright and the Digital Agenda, ed. Michael Geist (Toronto: Irwin Law, 2010): 90-120 (103).

[8] “Both copyright law and policy have shown little interest in understanding the processes by which these roles are performed, nor in inquiring what users need to perform their roles in a way that optimizes the performance of the copyright system as a whole (348).” See Julie Cohen,“The Place of the User in Copyright Law,” Fordham Law Review, Vol. 74, (347-374) 348, 2005. “Imitation and mastery of form or skills must come before major creativity;” see Oliver Sacks, “The Creative Self” in The River of Consciousness (2017) 137.

[9] Meera Nair, “Indigenous paradigms,” Fair Duty, 25 June 2018.

fair use denied — part V

The conclusion to fair use denied (otherwise known as when wildest dreams collide with the creative process). For earlier installments see Part I, Part II,  Part III, and Part IV.

V. factor four and some last words

(4) The effect of the use upon the potential market for or value of the copyrighted work.

In the later twentieth century, this factor was deemed the most important element of a fairness analysis, with the peculiar logic that if a work could have been licensed, then it should have been licensed. A case which facilitated this avenue of thought is American Geophysical v. Texaco, whereby copying journal articles for the purpose of research was deemed infringement.[1] At appeal, the Court of Appeals for the Second Circuit affirmed the district court decision and emphasized that the presence of a means of licensing was reason to deny fair use.[2] As the Second Circuit represents the geographic region of New York, which is home to the core of American publishing, the decision carried further weight.

It is fitting then, that for nearly ten years, the Second Circuit has been instrumental in supporting a more nuanced interpretation of fair use. For instance, in Bill Graham Archives v. Dorling-Kindersley (2006) the Court showed a conspicuous disinterest in adding to licensing revenue even when mechanisms of licensing existed:

“It is indisputable that, as a general matter, a copyright holder is entitled to demand a royalty for licensing others to use its copyrighted work, and that the impact on potential licensing revenues is a proper subject for consideration in assessing the fourth factor.” (citations omitted). We have noted, however, that “were a court automatically to conclude in every case that potential licensing revenues were impermissibly impaired simply because the secondary user did not pay a fee for the right to engage in the use, the fourth fair use factor would always favor the copyright holder,” (citations omitted). …  Accordingly, we do not find a harm to BGA’s license market merely because DK did not pay a fee for BGA’s copyrighted images. [3]

In Authors Guild, Inc. v. HathiTrust (2013), the Court was emphatic that market impact was very precisely defined: “…  it is important to recall that the Factor Four analysis is concerned with only one type of economic injury to a copyright holder: the harm that results because the secondary use serves as a substitute for the original work….”[4]  More recently in Author’s Guild v. Google, Inc. (2015) which entailed unauthorized displays of snippets of copyrighted works, the Court sought to evaluate market harm by asking if the copying is: “done in a manner that results in widespread revelation of sufficiently significant portions of the original as to make available a significantly competing substitute (p.34).”[5]

Returning to the current situation, the excerpt used in this instance of play could not serve as a meaningful substitute for the song as a whole. If a complainant was to take the view that sanctioning the reproduction of snippets of works creates the conditions whereby an entire song could be assembled, I am happy to concede this point. Yes, it is theoretically possible. However, it would require a fair amount of serendipity—that a sufficient number of creators all favoured Wildest Dreams and have managed, between the group, to capture the entire 235 seconds of the song through independently chosen snippets. Yet even if such an extraordinary accumulation of creative instinct bore this fruit, it remains that the song as a whole is already sanctioned for enjoyment through vevo.com, making the assembly from snippets wholly unnecessary.

To be clear, using this snippet of Wildest Dreams, has no effect upon the market for Wildest Dreams. And having carried out the four-factor analysis, as required by American statutory law, the use of the snippet of Wildest Dreams in the playful manner described is consistent with fair use.

Last words

While the historical foundation and current structure of American copyright aims to secure the right to copy, neither constitutional imperative nor statutory language has deemed copyright a means of absolute control. It seems fitting then, to return to a cogent reminder offered by Fred von Lohmann in 2008: “Copyright law strives to strike a balance between creating adequate (not maximal) incentives for the creation and distribution of expressive works, while also ensuring widespread public access to and enjoyment of such works.”[6]

As stated at the outset, the degree to which Taylor Swift may, or may not, have any influence over the management of copyright in the production of songs that she performs, is unknown. But as a performer that prizes dialogue with her fans, perhaps Swift might consider using her influence to modify enforcement of copyright, to at least comply with the directive of the Ninth Circuit that fair use must be given consideration before the issuance of a takedown/strike notice.

Quite apart from observing the law, such consideration would help safeguard a realm of play that is necessary to bring forth future generations of song writers, musicians, artists, directors and performers. Something that, we can only hope, Swift would support.

 

Notes

[1] In 1978, publishers in the United States formed the Copyright Clearance Center and began marketing licenses for photocopy reproduction in workplace settings. Lawsuits followed shortly thereafter; “Regular reward notices began appearing in periodicals, offering monetary compensation to those who could furnish conclusive evidence of unauthorized copying. In 1985, numerous CCC-member scientific and technical journal publishers sued Texaco, a company that purchased a CCC photocopy license but, according to the CCC, had failed to accurately report the extent of its photocopying.” See Nicole B. Cásarez, Deconstructing the Fair Use Doctrine: The Cost of Personal and Workplace Copying after American Geophysical Union v. Texaco, Inc. (1996) 6 (2) Fordham Intell. Prop. Media & Ent. L.J. 640 at 644.

[2] “Despite Texaco’s claims to the contrary, it is not unsound to conclude that the right to seek payment for a particular use tends to become legally cognizable under the fourth fair use factor when the means for paying for such a use is made easier;” see American Geophysical Union v. Texaco, Inc., 60 F.3d 913 (2d Cir. 1994) at 931-32.  Rather than attempt further appeal, Texaco opted to settle; as a consequence, the licensing regime instituted by the Copyright Clearance Center of the United States was aggressively promoted; see Cásarez above note 1, at 649.

[3] Bill Graham Archives v. Dorling-Kindersley (2006), 448 F.3d 605 (2d Circ.2006),

[4] Authors Guild, Inc. v. HathiTrust 755 F.3d at 97.

[5] Author’s Guild v. Google, Inc., No. 13-4829 (2d Cir. 2015)

[6] Fred von Lohmann, “Fair Use as Innovation Policy,” 2008 Berkeley Technology Law Journal 23 (2) 1 at 10.

fair use denied — part III

For earlier installments of fair use denied, a story of wildest dreams, see Part I and Part II.

III. of play and progress

Fair use’s flexible language is often lauded as the reason behind the United States’ enviable record of innovation. As a consequence, other countries view a flexible exception as a style worth emulating.[1] However, such adoration of fair use overlooks one vital aspect of creative success—the process which leads to a creative mind. And while we cannot definitively prescribe that process, we can situate the process within the atmosphere of intellectual property.

The conventional premise of intellectual property rights is that such rights enhance the likelihood of creative effort by assuring individuals that their work will not be for naught. Yet the asserted causality between advances in art, science and technology, and heightened levels of intellectual property protection, may be more rhetoric than substance.[2] History offers compelling illustration of creative epochs which were accompanied by little or no intellectual property protections.[3]

Taking our cue from history, it is reasonable to assert that the process of creativity is affected by the ability of individuals to engage with existing/past creations; that is, to act freely upon informal or casual creative impulses. Such freedom is not something that may be turned on or off at will, it is an internal instinct shaped by the surrounding culture of thought. The capacity to let one’s mind roam, to see something that others do not, to explore without conscious objective–to embark upon play—is essential to developing the creative process.

This theme was articulated by Julie Cohen more than a decade ago. While eschewing the proposition that exceptions are users’ rights, Cohen emphasizes that any theory of authors’ rights must be informed by an accompanying theory of the user. Cohen writes: “Both copyright law and policy have shown little interest in understanding the processes by which these roles are performed, nor in inquiring what users need to perform their roles in a way that optimizes the performance of the copyright system as a whole (348).”[4]

Denoting the user as a “situated user”, Cohen makes plain that appropriation of pre-existing cultural goods are part and parcel of the self-development of individuals. The path to creativity includes consuming pre-existing works in a variety of ways. From the humble copy, to reworking that copy, to a seemingly original creation, the route to creativity necessarily includes those intermediary destinations. The stimuli that provoke eventual creative activity are varied; friends, family, teachers, formal and informal learning, advertising, popular culture – all contribute to an awareness of existing cultural goods. Exposure to, and re-communication of those goods, might provoke only a fleeting, partial inspiration which will not take tangible form for many years to come. But for that eventual, socially-prized, creation to come into being, the system of copyright must protect what Cohen describes as play of culture:

… process by which culture bends and folds unpredictably, bringing new groups, artifacts and practices into unexpected juxtaposition.  … [It] emerges from the full spectrum of behaviour of situated users. Consumption, communication, self-development, and creative play, merge and blur into one another, and the play of culture is the result (373).

An overt consciousness of the supposed-illegality of using others’ works must condemn future society to a very narrow realm of creative discovery. Whereas, if individuals are free to explore with the enthusiasm of play, the capacity to foster ideas and cause development in ways that cannot be predicted, is heightened.

But “the Child is father of the Man;”[5] to carry the sense of play into adulthood, it needs first to be protected in childhood. Part IV continues tomorrow.

 

Notes

[1] In 2007, Israel imported much of American fair use into its domestic law. “(a) Fair use of a work is permitted for purposes such as: private study, research, criticism, review, journalistic reporting, quotation, or instruction and examination by an educational institution. ­­­(b) In determining whether a use made of a work is fair within the meaning of this section the factors to be considered shall include, inter alia, all of the following: (1) The purpose and character of the use; (2) The character of the work used; (3) The scope of the use, quantitatively and qualitatively, in relation to the work as a whole; (4) The impact of the use on the value of the work and its potential market. (c) The Minister may make regulations prescribing conditions under which a use shall be deemed a fair use;” see Copyright Act [Isr.], 5768-2007, 2007 LSI 34 (2007) at § 19.
In 2011, Ireland’s Department of Enterprise, Trade and Innovation sought submissions concerning copyright amendment, with an express interest in examining “ …US style ‘fair use’ doctrine to see if it would be appropriate in an Irish/EU context.” Interestingly enough, the terms also stated that if suitable changes were not possible under the current constraints of EU copyright directives, Ireland would make recommendations for changes to those EU directives. <http://www.deti.ie/science/ipr/copyright_review_2011.htm> website no longer available. However, press coverage remains; see John Kennedy, “Radical copyright reform law to boost Ireland’s digital economy?” SiliconRepublic 9 May 2011.
Also in 2011, the Government of the United Kingdom explored fair use fulsomely. While electing to refrain from moving forward with a flexible exception (a decision influenced by strong opposition from the creative industries), it publicly acknowledged the merits of a flexible exception; see Ian Hargreaves, Digital Opportunity—A Review of Intellectual Property and Growth, May 2011.
Meanwhile, in a gentle progression of events which began in 2002, Canada has quietly erased the rigidity of fair dealing and brought it very close to fair use. See Michael Geist, “Fairness Found – How Canada Quietly Shifted from Fair Dealing to Fair Use,” The Copyright Pentalogy: How the Supreme Court of Canada Shook The Foundations of Canadian Copyright Law (Ottawa: University of Ottawa Press, 2013). Another Canadian asset in terms of flexibility is its exception for non-commercial user-generated content; for details see Peter K. Yu, “Can the Canadian UGC Exception Be Transplanted Abroad?”(2014) Intellectual Property Journal 26 175-203.

[2] Calls to remove or lighten the prevailing structure of copyright are routine today; but those calls originated over one century ago. The presumption that monopoly rights were the best mechanism to support creative endeavor was so contentious that a Royal Commission ordered examination of the issue in the late 19th century. While the Commissioners ultimately kept the monopoly structure, opinions were diverse and heated; see Paul Saint-Amour, The Copywrights: Intellectual Property and the Literary Imagination (Ithaca: Cornell University Press, 2003).

[3] Meera Nair, “Fair Dealing at a Crossroads” in ed. Michael Geist, From Radical Extremism to Balanced Copyright—Canadian Copyright and the Digital Agenda (Toronto: Irwin Law, 2010) 90 at 91.

[4] Julie Cohen, “The Place of the User in Copyright Law” (2005) Vol 74 Fordham Law Review p.348.  The lack of genuine interest in users continue today; policy makers provide lip-service attention to the necessity of balance in the system of copyright but refrain from actively supporting it. See Michael Geist’s analysis of the difference between implementation of rights of owners and rights of users as drafted in the TransPacific Partnership (TPP) agreement.

[5] William Wordsworth, “My Heart Leaps Up When I Behold”, The Complete Poetical Works (introduction by John Worley) (London: Macmillan, 1888).

poems out of other poems

December 11 marks the death of John Gillespie Magee, Jr. (1922-1941). Born to an American father and a British mother, Magee opted to join the Royal Canadian Air Force in 1940 to serve with the Allied Forces during WWII (the United States had not yet entered the war). Killed in flight during a training exercise, Magee’s name continues to circulate via his poem High Flight; he may be forever known as the pilot poet.

High Flight

Oh! I have slipped the surly bonds of Earth
And danced the skies on laughter-silvered wings;
Sunward I’ve climbed, and joined the tumbling mirth
of sun-split clouds — and done a hundred things
You have not dreamed of — wheeled and soared and swung
High in the sunlit silence. Hov’ring there,
I’ve chased the shouting wind along, and flung
My eager craft through footless halls of air…

Up, up the long, delirious, burning blue
I’ve topped the wind-swept heights with easy grace.
Where never lark, or even eagle flew —
And, while with silent, lifting mind I’ve trod
The high untrespassed sanctity of space,
Put out my hand, and touched the face of God.

Each sentence surpasses the previous; and the last line lingers inexorably: “Put out my hand and touched the face of God.” The denizens of Wikipedia have traced the phrase “touched the face of God” to an earlier work by Cuthbert Hicks, a poem titled The Blind Man Flies. Some other phrases of Magee’s are also found in other poems. It is a reminder of Northrop Frye’s edict: “Poetry can only be made out of other poems; novels out of other novels. … All this was much clearer before the assimilation of literature to private enterprise concealed so many of the facts of criticism.”

That creativity is an effort in recycling has gained heightened attention in the digital age. Where we once might have talked about chapbooks and scrapbooks, we now speak of user-generated content (UGC). To be sure, digital technology has enhanced both the tools for creative effort as well as the means to distribute the outcome of such effort. But the fact remains that creativity has always relied on inclusion of prior work. In our pre-digital world, amateur recycling of copyrighted materials would either have escaped notice, or been tolerated; today, copyright holders are more likely to resent such behavior and claim infringement.

Aware of the risk to our creative instincts by overt copyright consciousness, as part of the 2012 amendments to the Copyright Act, the Canadian government brought in an exception to protect UGC activities. Found in Section 29.21, the exception is titled as Non-commercial User Generated Content and begins with, “It is not an infringement of copyright for an individual to use an existing work or other subject-matter or copy of one, which has been published or otherwise made available to the public, in the creation of a new work … .”

As all such amendments to copyright have been, S29.21 was controversial from the outset. It pleased few. The exception addresses solely non-commercial creations, thereby offering little assistance to professional artists, and comes with conditions that appear too onerous for amateurs to follow. But closer inspection suggests that S29.21 is not far removed from the analysis that must accompany fair dealing in Canada (fairness and attribution are key to both).

Notably, Canada is the only country that has taken such a progressive step. Peter Yu, an internationally acclaimed intellectual property scholar, argues passionately that a similar exception be included in proposed modifications to the Copyright Ordinance of Hong Kong. Yu also expertly discredits naysayers who profess that Canada’s amendment violates international obligations.

From its infancy on, S29.21 was dubbed the YouTube clause; a title perhaps more fitting in spirit than jurisdiction. The moniker notwithstanding, the scope of 29.21 is vast. Any form of copyrighted work is eligible for consideration, not merely music or video. Teresa Scassa, also a highly acclaimed scholar in the world of intellectual property, writes:

From one perspective it is a licence to build on the works of others; from another it is a potentially sharp curtailment of the scope of a copyright holder’s ability to control the use of their work. In the end, the scope and importance of the UGC exception may come down to how its limiting provisions are interpreted: and in this regard, the direction already charted by the [Supreme Court of Canada] in its recent copyright decisions will likely have great bearing.

Scassa goes on to remind us that the Supreme Court of Canada has taken a strong stance on the issue of balance between rights of control and rights of access. Their directive should feature prominently if lower courts must assess a copyright claim against the limits of the UGC exception.

So, in celebration of Magee’s life and work, and the creative process in general, readers might enjoy this UGC creation by SongOfTheOpenRoad. High Flight’s words are elegantly scripted and interspersed with beautiful imagery. Set upon the musical score of Return/Reunion by Basil Poledouris, the result is much more than the sum of its parts.

 

disingenuous

On Thursday, March 7th, Michael Geist described a new copyright policy at the National Post – that if a reader highlighted a portion of text with a presumed intention to copy and paste it, a pop-up window requesting payment of $150 appeared. That this pop-up was encountered while reading the work of Chris Selley, who routinely excerpts material from other news organizations in order to provide readers with a comprehensive view of Canada’s leading editorials, made this doubly perplexing. Geist noted that the National Post uses the services of iCopyright, which extols a very restrictive interpretation of fair use and fair dealing.

On Friday, Leigh Beadon, a former freelance journalist for the National Post  now writing for Tech Dirt, gave further analysis of the hypocrisy of an institution whose raison d’etre (news reporting) is shielded via fair dealing, and yet presumably denies that fair dealing is available to all Canadians. Beadon later updated the post to indicate that the pop-up activity has ceased (for now).

Beadon describes iCopyright’s interpretation of fair use/fair dealing as “a masterpiece of menacing disingenuousness.” In no uncertain terms, Geist and Beadon debunk iCopyright’s efforts to minimize the applicability of fair dealing; I would add but one more peculiarity about iCopyright’s interpretation. In its checklist of factors which affect the legitimacy of fair dealing is this astounding condition: “Is the work that was excerpted highly creative?”

It needs no mention that creativity is a term fraught with uncertainty; I doubt lawyers or judges would come to agreement on what it means, let alone individual Canadians. But it hardly matters, as questions of creativity are irrelevant. Fair dealing is an exception to copyright. If the material in question is from copyrighted work, fair dealing is an option. If the originating material is not under copyright, then we may all do what we please with the work in its entirety—no exceptions of any kind required. Fair dealing is resolved on issues such as how the work was used, to what purpose and in what setting. Whether the originating material came from a masterpiece of artistic interpretation or a banal and insipid advertisement has no bearing on fair dealing.

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.