when copyright and tragedy overlap

It seemed unlikely that my two blogging interests would ever intersect—the dispassionate system of copyright versus the vivid emotion that accompanies recollections of Canada’s worst instance of terrorism. But such is the case today.

It is nearly 37 years since the bombing of Air India 182 on 23 June 1985, with the loss of all 329 people aboard. Their deaths were the outcome of a plot conceived and executed from within Canada. Among the victims were 280 Canadians, including 137 who were under the age of 18.

For decades, Canada’s preference was to distance itself from this tragedy. As I wrote last year: “[At the time] Canada’s seemingly progressive multiculturalism policies collided with the nation’s actual disinterest in its brown-skinned population. Politicians sought support in vote-rich immigrant communities without expending the effort needed to understand the turmoil brewing in the Indian Canadian community. Namely, the extent of hatred for the Indian government by some members of the community.”

That fury was meted out on innocent Canadians. And yet, today, more Canadians are likely aware of the past atrocities committed in India, than the retaliation that transpired here immediately afterwards. It does not help that Canada’s eventual probing of this tragedy, painstaking work carried out by committed public servants, is almost unfindable. Herein lie the copyright aspects—even when one knows what to look for, government documents pertaining to Air India 182 are very difficult to locate.

The first detailed exploration into events surrounding the bombing came in 2005. At the request of Anne McLellan (then serving as Deputy Prime Minister and Minister of Public Safety Canada) the Honourable Bob Rae was tasked with exploring those painful events to determine if a wider public inquiry would be appropriate. He described events prior to the bombing, the horror of that day and thereafter, and the ensuing Canadian indifference. From his report, Lessons to be Learned:

It has been a challenge, first because providing public policy advice in an area so fraught with emotion and conflict is difficult, second because the intellectual puzzle shrinks in comparison to the courage and example of those citizens who lost so much. There is an Irish saying that at times the world can break your heart. That certainly happened on June 23, 1985.

What was most striking from the copyright-perspective was this notice in the frontmatter.

Such an approach to copyright, crown copyright no less, was almost unheard-of in 2005. Rae’s effort to increase the circulation, and thus understanding, of this report, was innovative at the time. I can only hope that his intentions bore at least some fruit.

When looking for this report, a natural place to start is the Library and Archives Canada website. Yet this report does not surface, even when searching for “Lessons to be learned”.

Subsequent searches on the broader topic and keywords relating to Air India 182 also yielded nothing.

At least Rae’s work can be found as archived content at the Public Safety website. The same cannot be as easily said for Rae’s successor on this topic. Retired Supreme Court Justice John Major was appointed to lead a comprehensive inquiry (as recommended by Rae). The scale of which was daunting, but Major lost no time in addressing perhaps the most pressing need: to give those who suffered unimaginable loss, a voice on the Canadian stage. The first report The Families Remember, was released in 2007 ahead of completion of the inquiry.

[The families of the victims] have already waited much too long for their stories to be told. The publication of this report will mark the first opportunity for Canadians, and particularly young Canadians, to be able to fully understand the tragedy that befell many of their fellow citizens … Parents and children, scholars, scientists, doctors, social workers, business people, artists, humanitarians and students, perished as a result of that cowardly act of terrorism.

Yet Major’s work in its entirety is almost invisible. Officially described as the Report of the Commission of Inquiry into the Investigation of the Bombing of Air India Flight 182, spanning multiple volumes, it makes no appearance at the Public Safety website. (Nor does it appear under its companion name: Air India Flight 182: A Canadian Tragedy.) This, despite that the website explicitly offers a search category “Remembering Air India Flight 182.” 

Enacting that search reveals only three entries: Rae’s Lessons to be learned, the seven-page response to Major’s final report (which spanned hundreds of pages), and a progress report dated to 2011.

The WayBack Machine, courtesy of the Internet Archive, reveals that this limited offering dates back to at least 2013. This despite that Major’s inquiry was completed and released in full to the Canadian public on 17 June 2010. Further adding to the peculiarity is that the complete details of the final report, and the activity pertaining to the inquiry, are stored under the auspices of Libraries and Archives Canada, but (again) are not discoverable through their own search function. One needs a savvy librarian, wise to the intricacies of government documentation, to find it.

But for the archaic practice of crown copyright, independent librarians could have maintained a coherent and comprehensive digital archive of all documents relating to a horrific (and preventable) loss of Canadian lives.

As Amanda Wakaruk reminds us:

… works produced by government scientists, analysts, and researchers receive reduced visibility and impact. In addition, cultural memory organizations are unable to act as stewards for government information, resulting in losses of cultural works… Removing copyright controls from government works 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.

Restoring Air India 182 to Canadian consciousness might not be such an uphill task if its government history was not tucked away from easy public access.  

“the hill to die on”

In March of this year, Howard Knopf informed readers of a pending Supreme Court hearing: that of a private company claiming copyright infringement at the hands of a public-service provider in Ontario. The works of contention were land surveys, which are essential documents in terms of establishing boundaries to parcels of land and the rights thereto.

Until the later twentieth century, surveyors would deposit land surveys with the provincial land registry. Individuals could request copies, conditional on payment of a fee. Monies collected remained with the province; surveyors received no further compensation. That system had not attracted any displeasure; however, after the registry was digitized in the 1980s and its services outsourced to a private corporation (Teranet), which had the responsibility for scanning/uploading the surveys into a digital repository and providing copies to the public. Again, receiving a copy required payment of a statutorily prescribed fee. (Generally speaking, Teranet’s operations are shaped by agreements with the province.) Yet surveyors filed a class action lawsuit (led by Keatley Surveying Ltd.) claiming copyright infringement. They lost in the lower courts, but were given leave to appeal to the Supreme Court.

Knopf wrote: “Teranet, which is resisting the payment of additional fees to surveyors beyond that which they were paid originally for doing the survey – has never disputed the notion that copyright subsists in land surveys. Indeed, the two actual parties (Keatley and Teranet) agreed for purposes of this litigation that copyright so subsists, although this crucial issue is far from clear and certainly not obvious.”

In late September, the Supreme Court of Canada issued its decision in Keatley Surveying Ltd. v. Teranet Inc. bringing to an end the surveyors’ twelve-year odyssey to hold Teranet liable for copyright infringement. With unanimity the Supreme Court Justices declared that the land surveys had passed into the realm of Crown copyright, and thus by virtue of the arrangements made between Teranet and the Province of Ontario, no infringement by Teranet had occurred.

Crown copyright is defined in Section 12 of the Copyright Act as:

Without prejudice to any rights or privileges of the Crown, where any work is, or has been, prepared or published by or under the direction or control of Her Majesty or any government department, the copyright in the work shall, subject to any agreement with the author, belong to Her Majesty … (emphasis mine).

But despite the unanimous outcome, opinion was divided among the seven justices. The majority opinion held by four justices, led by Justice Abella, focused on the degree to which the Crown provided direction or imposed control in the preparation or publication of the work. Whereas the minority contingent, comprising three justices, including Chief Justice Wagner, gave weight to the nature of the work produced, that it should serve a public purpose (as one would expect of a government work).

From the Majority: “Relevant indicia of governmental direction or control may include the presence of a statutory scheme transferring property rights in the works to the Crown; a statutory scheme which places strict controls on the form and content of the works; whether the Crown physically possesses the works; whether exclusive control is given to the government to modify the works; the opt‑in nature of the statutory scheme; and the necessity of the Crown making the works available to the public (para. 69).”

From the Minority: “Once a court is satisfied that a work was ‘prepared or published by or under the direction or control’ of the Crown, it must then consider whether, at the time of preparation or publication, the work is a ‘government work’. This entails examining the character and purpose of the work. The work will be a ‘government work’ where the work serves a public purpose and Crown copyright furthers the fulfillment of that purposes. These will be works in which the government has an important interest concerning their accuracy, integrity, and dissemination (para 127).”

This marked the first occasion where the matter of Crown copyright was discussed by the Supreme Court. The Justices were quite direct in suggesting that Parliament revisit the principles and statutory language of the nearly 100-year-old provision. A sentiment also noted in the INDU Report of the Copyright Review (2018-2019), “Several witnesses criticized section 12 of the Act and called for its reform. In fact, no witness supported its continuation, at least in its current form—a rare point of consensus.”

Since the Keatley decision was announced, numerous commentaries have been published. A complete list has been compiled by Amanda Wakaruk; a selection thereof is:

• David Bowden and Athar K. Malik, Clark Wilson, Render Unto Caesar: Supreme Court of Canada Issues First Decision Considering the Scope of Crown Copyright
• Michael Geist, “A Broad and Liberal Interpretation”: The Supreme Court Expands Copyright Users’ Rights
• Jean-Philippe Mikus, Michael Shortt, and Lina Bensaidane, Fasken Intellectual Property Bulletin, Keatley Surveying v. Teranet: Supreme Court Addresses Crown Copyright for the First Time
• Tamara Céline Winegust and Naomi Zener, B&P, Crowning Copyright – When Copyright Works are Deemed to Belong to the Government

Also, in a podcast that lived up to its billing, Carys Craig detailed the case, and the shortcomings of the outcome in Crown Copyright is NOT Boring. Provided by Stereo Decisis, hosted by Robert Danay and Hilary Young, Craig shares Knopf’s concerns, that it is far from evident that land surveys are eligible for copyright protection.

In Craig’s words, “this is the hill to die on.” She emphasizes that copyright law does not protect ideas or information, and land surveys are an embodiment of information. To provide copyright in a land survey undermines a fundamental tenet of the system of copyright.

That the Court did not address this aspect is disappointing, but nonetheless is irresistible for comment.

If the question –are land surveys eligible for copyright protection– had been raised, presumably, the Court would have started from first principles.

In Canada, copyright ensues when one creates an original work (expression) of a literary, dramatic, artistic or musical nature. While “artistic works” are defined as including “paintings, drawings, maps, charts, plans…,” not all such items are protected. The pivotal requirement is that the creation be “original.”

In 2004, in CCH, the Supreme Court famously declared that originality requires an exercise of skill and judgment that is more than trivial. Shortly thereafter, Teresa Scassa* reminded us that the Court’s words should not be read in isolation but along with the Court’s accompanying language about the importance of having a robust public domain. To do otherwise, runs the risk of extending protection to “original facts,” which Scassa defines as “facts that owe their existence to the exercise of intellectual effort.”

Looking back in more detail to the Court’s ruminations on originality in 2004:

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).

At that time, the Court was addressing a personal question: did copyright exist in the writings of a judicial decision itself? In answering the question, the Court sought a workable standard, one that fell between the endpoint possibilities of the “sweat of the brow” (on which industriousness is the principle concern) and “creativity.”  Interestingly though, the Court did not give equal attention to defining what creativity is, but, as shown above, was content to focus on what creativity is not—that it need not be “novel or unique.”

However, in the situation at hand, one must ask: what if the intellectual effort is one where novelty should be actively discouraged?

Arguably, a land survey should not be an invitation to novelty—its sole purpose is to establish facts. A land survey is created by data and mathematical/scientific operations. If two independent surveys were commissioned for the same purpose, one would expect that the outcomes would be at least similar, if not identical. And while similarity in two independent, creative works does not deny two separate claims of copyright,** it does not follow that two similar displays of independent skill and judgement must each be granted copyright.

It is at least an article of faith that facts are not protected by copyright. The rationale being, as Scassa writes, “either because they are not considered to be the product of someone’s authorial effort, or because some efforts are made for the common good and not for reward through copyright monopolies.” She provides a compelling rationale regarding the importance in distinguishing between the skill and judgment that gives rise to facts and that which gives rise to a copyright-protected work.

It may be that the difference between these two categories rests on a more precise definition of “creativity,” which I suspect no court will welcome having to define.

But it would have been satisfying to see our highest court give it a try.

* Teresa Scassa, “Original Facts: Skill, Judgement and the Public Domain” (2006) 51 McGill L.J. 253.  For more, “Copyright Reform and Fact-Based Works”, in M. Geist, ed. From “Radical Extremism” to “Balanced Copyright”: Canadian Copyright and the Digital Agenda, (Irwin Law, 2010), 571-597.

** While Sheldon et al. v. Metro-Goldwyn Pictures Corp. et al (1936) is a case from American jurisprudence, Judge Learned Hand’s ruminations on independent but identical creation of an Ode to a Grecian Urn comes to mind.

now what?

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.