Meera Nair

Posts Tagged ‘fair dealing’

ten years on

In Posts on July 30, 2019 at 8:12 pm

Ten years have passed now since Fair Duty came into existence. In July 2009, having recently completed my doctorate, the title to my dissertation served as inspiration for the name of my blog. (Had I known then that this venture in writing would continue beyond a decade, I might have named it something else.) My dissertation had involved examining university policies with respect to application of fair dealing in the hands of graduate students, doctoral candidates in particular. That project had been prompted by my own earlier experiences.

Just prior to the unveiling of CCH Canadian v. Law Society of Upper Canada —a unanimous decision by the Supreme Court of Canada, affirming fair dealing in the realm of research—I was at the post-defense, deposit-the-thesis, stage of my MA and thus jumping through the requisite copyright-hoops. After reading CCH, and looking forward with the naiveté of a doctoral student, I assumed the end of institutional limitations on students-and-fair dealing was nigh. Yet during my data gathering of 2007, 2008 (and confirmed again in 2009), it was evident that policies concerning use of copyright-protected material by graduate students still reflected a pre-CCH attitude.

Any disappointment with my own community was mitigated by the one inescapable challenge that faced institutions and students alike: meeting the copyright stipulations of Library and Archives Canada (LAC). Before digital distribution became the norm, that venerable institution offered greater exposure and enjoyment of graduate students’ works, through the medium of microform. At that time, the condition for inclusion with LAC was to abide by stringent rules with respect to use of third-party work in theses and dissertations. Even in 2009, CCH’s promise was not enough to overcome fair dealing’s ill-fated twentieth century history. (More on that another day.)

(Fortunately, LAC’s conditions now reflect an awareness that fair dealing is relevant to graduate students’ work; although LAC does so without actually using the words “fair dealing.”)

Ten years ago, I came to the conclusion that, whether driven by caution or misunderstanding, or both, Canadian institutions regarded fair dealing as lawful in the hands of a student, up to the point of depositing a thesis or dissertation in the institution’s library. But thereafter, with the added exposure through LAC and potential for further distribution, institutions appeared to believe that fair dealing no longer applied.

Today, despite favorable (almost coaxing) judicial and statutory developments of fair dealing, perhaps because deposit now means in a publicly available institutional repository, I wonder if caution might still be narrowing institutional positions on fair dealing, when exercised towards the creation of a thesis or dissertation by graduate students.

If apprehension still exists, David Vaver beckons. He has spoken to these issues for over 20 years. Apart from numerous journal articles, he has also written three books: Intellectual Property Law: Copyright, Patents, Trade-marks, (1997), Copyright Law (2000), and Intellectual Property LawCopyright, Patents, Trade-marks (2nd ed. 2011).

Before even touching fair dealing, Vaver would remind us all to begin from first principles—what is copyright?

Section 3.1 of the Copyright Act states: “For the purposes of this Act, copyright, in relation to a work, means the sole right to produce or reproduce the work or any substantial part thereof in any material form whatever … .”

If a reproduction is insubstantial then copyright does not arise. And if one needs more than the inherent logic of that conclusion, in CCH the Supreme Court of Canada indicated, that where “the amount taken from a work is trivial, the fair dealing analysis need not be undertaken at all because the court will have concluded that there was no copyright infringement (para. 56).”

Beginning then from the question of substantiality, and drawing from all three of Vaver’s books:

One should first screen out what cannot in law be a substantial part. ‘Part’ means ‘portion’ not ‘particle.’ A copyright owner cannot therefore control every particle of her work, any little piece the taking of which cannot affect the value of her work as a whole. Copying ten such particles is as inoffensive as copying one.

The lesson here is to curtail any temptation to measure the aggregate of uses from a single third-party source.

Vaver, of course, acknowledges that quantity alone does not determine substantiality; quality is a consideration. As he wrote in various ways, is the taking of something distinctive from a third-party work? Is it something into which the author expended “skill, effort or ingenuity.” Is it the heart of the work? In the context of academic research, it may be that the answer is “Yes.” When developing one’s own ideas, we are looking for portions of other works that exemplify either their merits or shortcomings. This is how we form the basis of our own analyses and from there derive new conclusions.

And that is precisely why we have fair dealing. To encourage research (and other activities beneficial to the public interest) that relies on reproduction of substantial parts of other works.

In Copyright Law (2000), and again in his 2011 publication, Vaver specifically addressed the nexus of research, fair dealing, and graduate students’ works:

A doctoral thesis is clearly written for research purposes, even though copies are routinely deposited in the National Library and other public libraries and the thesis is destined for publication. Research is part of process that routinely involves dissemination of results and supporting evidence to facilitate further research, including open review, criticism and verification (emphasis mine).

It is worth remembering that Copyright Law lay at the heart of CCH. And Vaver’s 2011 book was also cited in SOCAN v. Bell (2012), another, unanimous, Supreme Court decision relevant to fair dealing in research.

More precisely, in SOCAN, the Supreme Court gave a resounding “Yes” to the question of whether music previews constituted fair dealing in the hands of consumers. That affirmation came by affording consumer-activity recourse to the word “research.” Readers may recall that the Court was asked to weigh in on the very nature of what “research” is:

 SOCAN offers the definition of “research” as being “the systematic investigation into and study of materials and sources in order to establish facts and reach new conclusions.” Moreover, SOCAN argues, the goal of the “research” must be for the purpose of making creative works, since only uses that contribute to the creative process are in the public interest (para. 20.)

The Supreme Court disagreed with SOCAN’s definition:

Limiting research to creative purposes would also run counter to the ordinary meaning of “research”, which can include many activities that do not demand the establishment of new facts or conclusions. It can be piecemeal, informal, exploratory, or confirmatory. It can in fact be undertaken for no purpose except personal interest. It is true that research can be for the purpose of reaching new conclusions, but this should be seen as only one, not the primary component of the definitional framework (para. 22.)

Good news as this was, it is worth noting that SOCAN’s desired (narrower) definition of research, “systematic investigation … study of materials… to establish facts and reach new conclusions,” very neatly encapsulates what graduate students do. Furthermore, through writing theses and dissertations, those same students are making creative works, and thus still meet SOCAN’s view that serving the public interest only occurs through creation of literary, dramatic, artistic and musical works. If one takes SOCAN’s opinion as representative of the preferred stance of copyright-owners, it is reassuring to see that graduate student work would have no difficulty in qualifying as “research” under those expectations.

But of course, settling the purpose of the use is only the first step of determining fair dealing.

In terms of the fairness analysis, SOCAN was not a particularly taxing occasion for the Court. With recourse to CCH and the earlier Copyright Board decision on this matter, the remainder of the analysis was dispatched with great efficiency (paras. 37-49). One element carries neatly into the topic at hand; it arose under the exploration of whether there are alternatives to consumers using previews when choosing music for purchase. The Court reminded us that: “A dealing may be less fair if there is a non-copyrighted equivalent of the work that could have been used, or if the dealing was not reasonably necessary to achieve the ultimate purpose (emphasis mine, para. 44).”

SOCAN had “argued that there were other methods available, like advertising, to help users identify potential music for purchase. Many of the service providers, for example, offered album artwork, textual descriptions, and user-generated album reviews (para. 45).” But the Court declined to accept that argument, concurring instead with the Copyright Board’s earlier assessment that “[l]istening to a preview probably is the most practical, most economical and safest way for users to ensure that they purchase what they wish (para. 46).”

This is the crux of the matter from where to consider whether inclusion of a work, or a portion thereof, is fair dealing. Herein is why a dealing will be “reasonably necessary.” Because the inclusion must be in aid of the purpose of the user. In this context, a research question must have been addressed. Therefore, inclusion of third-party work, must support the process of exploration necessary to meet this goal.

Crafting the work that conveys this scholarly journey, making those decisions about inclusion of other works, these are functions that invariably flow from engagement between student and supervisor; and later, with the examining committee. These senior members of the field will be looking for students’ own voices—their own expression of their own ideas—buttressed by other voices, but only as needed to confirm the student’s mastery or skill with the subject. An excessive quotation will be called out, as will gratuitous illustrations. The legitimacy of what was used and how much was used, depend on the subject and the particular method of exploration, and the guidance of experts in the field.

It is not the purview of copyright practitioners to assess the use of those other works; those decisions are the responsibility of qualified members within each discipline, under whose aegis the work is offered. Lest that should alarm the professoriate, their responsibility is discharged simply by remaining true to the principles of the vocation they have chosen.

By virtue of successful completion of a graduate degree, the most vital element of the fairness analysis—as to why specific uses of third-party works are necessary—will have been successfully navigated.

fair dealing week 2019

In Posts on February 24, 2019 at 7:36 pm

Fair Dealing week begins tomorrow with seminars, workshops, and discussion spanning the country. It speaks well of the efforts of post-secondary communities to raise understanding of its importance. Many fair dealing stories will circulate this week; I have one of my own to add. Fair dealing is personal.

My parents emigrated from India to Canada in the 1960s. As to why they chose Canada, my mother later explained the decision as a process of elimination. Both had grown up through the country’s Independence struggle and lived the life of noncooperation, whatever hardship it may have entailed. So Britain never made the list. The United States was given some consideration; but, in my mother’s words: “We had all wept over Uncle Tom’s Cabin.” And so “No” to a society that was still struggling to provide civil rights to all its citizens. Canada? It seemed nice, inoffensive. Years later my mother gave me these memorable words: “I didn’t realize we had left one colonized nation, only to join another.”

That the undercurrent of being a colonized nation still seemed to permeate Canada in the twentieth century hints at how close to the surface that current was in the years immediately following Confederation. Canadian industry was particularly affected, including the publishing sector. I cover some of this history in “The Geopolitics of Nineteenth-Century Canadian Copyright, as seen by some British Authors, in the recently published Canada 150 Special Issue of the Papers of the Bibliographical Society. This paper complements an earlier work of mine, “The Copyright Act of 1889—A Declaration of Independence,” published by the Canadian Historical Review, which examined the same events, from documents compiled by the British Government. Taken together, it is a reminder that copyright policy cannot be enacted in a vacuum–the effect of change is conditioned by history.

Returning to the theme in hand, prior to leaving India, my mother was a Lecturer in Mathematics and a freelance writer of some repute. In Canada, while my brother and I were young, she stayed home with us but would occasionally return to writing. However, multiculturalism was not yet a gleam in anyone’s eye, and diversity in publishing nonexistent. The views of a visible minority woman, no matter how educated, no matter how capable with her pen, were of little interest to the editors of the day. (No amount of copyright could change this.) And without the approval of the gatekeepers, there was no means to reach an audience.

My mother’s assays in writing were infrequent as it was a period of coming to grips with total responsibility for housekeeping and child rearing amid the inescapable isolation of immigrants, not to speak of the deflation of rejections. But one rejection will always stand out in my mind, because the work was praised by the editor (from Macleans no less) but still declined as it had been forestalled in timeliness. The cause of the delay? A well-meaning intermediary had insisted that my mother’s quoting of one sentence from Subject India, by H.N. Brailsford, required copyright clearance.

Because of that inept advice, my mother had dutifully written to the book’s publisher, who had then contacted Brailsford’s widow, who sent back a charming letter saying how happy she was that her husband’s work was still being read. But this provision of consent took time to reach Canada; in the meantime, Macleans had already chosen their content.

Fair Dealing matters. Individual writers, musicians and artists should not need to be well-versed in the intricacies of copyright law, to benefit by exceptions to copyright defined in the law. It falls to teachers, administrators, and distributors to have the confidence of knowing that unauthorized use may be lawful.

Note: Subject India is now available through the Internet Archive.

fair dealing week 2018

In Posts on February 25, 2018 at 6:27 pm

Tomorrow marks the start of Fair Dealing Week for 2018. It is an opportunity to bring concentrated attention to this particular exception, which is practiced every day by Canadians in their pursuit of learning and  creative endeavor (i.e. see here and here).

Broadly speaking, exceptions are statutory provisions which provide the means by which one may engage in legitimate, unauthorized uses of copyright-protected material. Taken together, exceptions delineate the essential space in which the fundamental construct of the system survives—that, in order to foster creativity, the system must operate as a set of limited rights.

Fair dealing enables Canadians to continuously build the capacity for creative thought; capitalizing on that thought is managed through the rights of control found within the system of copyright. More precisely, exposure to copyrighted work facilitates creation of future work. But the elapsed time between these two stages of creative endeavor leaves fair dealing vulnerable, as the modest amounts copied under fair dealing are viewed as a threat to copyright owners’ well-being.

Worse, fair dealing is tarred by accusation that it is bringing about the demise of Canadian literature. Emotional arguments lacking logic coupled with selective data are paraded before Members of Parliament as reason to curtail the scope of fair dealing. Such arguments would have us believe that but for the collective licensing regimes imposed on captive Canadian taxpayers, students, and their families, CanLit would never have gained its prominence. Fortunately, logical argument and expansive data employed by a noted member of Canada’s writing scene tell a different story.

In Arrival: The Story of CanLit, Nick Mount’s painstaking exploration describes CanLit as an outcome of a confluence of many events: post-WWII affluence, the reaction thereto, the Centennial celebrations, some (perhaps unintentional) prodding by George Grant, and … . [You must read the book!] Not surprisingly though, the catalyst was money:

[Affluence] paid for new spaces in which its artists could perform and exhibit. It paid for new universities with departments devoted to studying and fostering music, drama, literature, and the visual arts; for new campuses with their own galleries, theatres, radio stations, magazines, publishers, and book-stores. It built new houses with new hi-fis that need playing and new bookshelves that needed filling, and it built new shopping malls in which to buy the new records and new books …. Affluence paid for the salaries that bought the homes that filled with the babies that filled the universities, both creating and conditioning the first generation for whom culture was a mass-market product (p.25).

But Mount is quick to point out that affluence did not extend to the writers and publishers themselves:

For all the new GNP, it was still tough to make a living from literature in Canada in the 1960s. The publisher of the most commercially successful writers of the period, McClelland & Stewart, flirted with bankruptcy throughout and after the CanLit boom. …. Most writers lived cheaply and at times precariously, surviving on small grants, the occasional teaching or writer-in-residence contract, sometimes even their writing (p.26-27).

To those who insist that fair dealing in educational institutions will bring about a decline in Canadian writing, Mount offers compelling evidence indicating that the problem is not unauthorized use of portions of novels but a lack of interest in entire novels to begin with:

Saskatchewan and British Columbia require students to read a novel or two, but Canadian literature is once again optional in Ontario high schools. At eleven of Canada’s largest twenty universities, English and French, you can complete a major in literature without any of it being Canadian. (At all twenty, you can complete a B.A. without ever reading a Canadian poem or novel (p.292)).

Mount’s data should invite sober reflection on the part of Canadian literary nationalists. Curtailing fair dealing seems unlikely to revive interest in adding Canadian content to Arts education in Canada; instead, curtailing fair dealing points to reducing circulation of Canadian content.

In academic degree specialties focused on Canadian literature, required reading material is likely already assigned as books. Thus, the impact of lessening fair dealing’s capacities will be on those programs that might only refer to Canadian content for supplemental purposes. In these cases, it is only too likely that a disinterested professor or teacher, coupled with risk-averse administrations, will choose to avoid using those supplemental pieces entirely.

If the damage could be confined to reducing the presence of Canadian literature in the academy; well, many of us could just sigh and say it was a self-inflicted wound. To lobby for copyright in the name of Canada without understanding Canada’s particular history in this area is simply a repetition of what has been done before. But, diminishing fair dealing entraps all disciplines, reducing that capacity to nurse creative thought essential to later creativity in all perspectives of arts and science. And what will be most painful to accept will be how unnecessary such action was. For, as Mount writes, “Canadian literature is more alive and more exciting than ever (p.292).”

Mount does not stint on detail: Canadian writers are increasing in number, their work is being published at home and internationally, new Canadian presses are blossoming, the quality of work is constantly ascending, and the depth and breadth of literature produced reflects both the diversity within the country and its coming-of-age on the world scene. Mount’s conclusion bodes well for Canadian literature now and Canadian creativity to come: “Quite simply, there has never been a better time to be a Canadian reader (p.293).”

Mount’s words complement those of Justice Barnes, who presided over Blacklocks v. Canada (A.G), 2016. That dispute revolved around limited sharing, for the purpose of research, of two proprietary articles legitimately obtained through a subscription; see here for my coverage.  The following lines seem particularly apropos at this time of year:

What occurred here was no more than the simple act of reading by persons with an immediate interest in the material. The act of reading, by itself, is an exercise that will almost always constitute fair dealing even when it is carried out solely for personal enlightenment or entertainment (para. 36).

Happy Fair Dealing Week.

how Canadian education really hurts creators

In Posts on October 16, 2017 at 8:12 pm

Last week, this tweet made the rounds:

The article referenced insists, yet again, that Canada’s 2012 copyright amendments are the reason for declining fortunes among Canadian publishers and creators.

Such a lopsided assessment of Canada and copyright is nothing new. While it is important that members of the education community continue to press Members of Parliament to engage in a comprehensive exploration of this matter, it is as important to turn our gaze inwards and redress the real failure of Canadian education with respect to nurturing creators and creative activity.

The creators I speak of are not those who belong to any union or collective society; most of these creators are still under-age.

Two weeks ago, a mother said to me, “My daughter is terrified of using anything off the Internet.” The daughter is of middle-school-age, and the source of that terror: dire edicts driven in at school. Thou shalt not steal from the internet for the purpose of schoolwork.

Judicial pronouncements notwithstanding, this is not an isolated misconception.

If generations of Canadian students are instilled with the view that education and creativity are contingent on permission from others; that every scrap of content (even when employed for something as innocuous as homework) must be paid for, Canada’s future looks bleak.

The irony of the current situation is that too many Canadian creators are deemed to have been ruined by virtue of our inclusion of “education” into fair dealing, while the fact is that too many Canadian educators are unaware of fair dealing to begin with. Fair dealing would certainly protect a student who wants to use a published picture, a video-clip, or a quotation of text, towards fulfilling an assignment, regardless of the provenance of that content.

Moreover, in addition to fair dealing, the Copyright Act offers many avenues by which a student’s copying in aid of learning finds legitimacy. But are educators aware of these measures?

For instance, are they aware of the importance of S29.21? Hailed by Ruth Okediji as a mark of integrity by Canada, that we as a nation support the type of copying that is the very foundation of creative effort, S29.21 is quite capable of also sheltering a school project. Northrop Frye’s immortal words bear repetition; poetry can only be made out of other poems…

Are Canadian educators aware of the very structure and language of the grant of copyright? S3.1 clearly indicates taking an insubstantial amount of work would not raise a question of infringement.

Continuing along the lines of first principles, do Canadian educators understand the existence of the public domain? That not every artifact (whether in print or digital) is protected by copyright. Facts and ideas are never protected material; copyright is only gained by creation of original expression. A grant of copyright will expire; from that time forward, anyone may use the creation for any purpose. And the exercise of a statutory exception renders protected-material, in that instant, as public domain.

Returning to the situation at hand, what about the long-sought-after Internet exception S30.04? Its language is clumsy, but given that Canadian education fought for this exception, to see it lying by the wayside is frustrating. Granted, the exception is framed in the language of “institution,” but it is only logical that a student attending an institution could rely on the same protection. Given the forceful language surrounding plagiarism in all educational institutions, it is safe to say that the attribution requirement will be met. (Further conditions limit the exception to some degree, but in the context of a student working on an assignment, those conditions will likely also be met.)

But, for simplicity, fair dealing is all that needs be said about an individual student engaged in learning. S.29 states: “Fair dealing for the purpose of research, private study, education, parody or satire, does not infringe copyright.” There are no fixed conditions; multiple Supreme Court decisions emphasize the contextual nature of fair dealing and provide guidance on determining fairness. The typical uses put forward by students (for a picture here, a quotation there) would easily stand up under such an analysis.

Children, teenagers and post-secondary students should not have to take on the task of learning all about copyright before they can comfortably do their homework. That responsibility falls squarely on Canadian educators. While it is undoubtedly easier to simply adopt a no-copying regime, it will not place Canada on any strong footing in a global economy where success is determined by a country’s capacity to think broadly, to be creative, and to develop knowledge-based industries.

Ideally, the word copyright would never need to be uttered to one under the age of 21. But as life is less than ideal, the best we can do for students is to reassure them that their constructive use of broad shoulders of the past to stand on, is not unlawful.

Students today are confronting a world not of their making, but are being handed the responsibility to fix it. To be able to rise to this demand, they need to engage fulsomely with the resources around them to further their creative aspirations, to cultivate their capacity to see something that others cannot, and to dream beyond the constraints of contemporary problems. This cannot happen if copyright angst is the manner in which students choose how to learn.

integrity

In Posts on May 24, 2017 at 5:46 pm

Last week I had the pleasure of participating in the Copyright User Rights Access to Justice Symposium hosted by LTEC (Law and Technology) Lab of Windsor Law. The presentations were impressive in their depth and breadth; ensuing discussions illustrated that the intersection of user rights with access to justice is an extensive mine for exploration. Congratulations, and thanks, are due to Pascale Chapdelaine, Erica Lyons, and all the staff who contributed to the makings of a thoroughly enjoyable event.

At the outset, we were reminded that we stood in the realm of the Anishinaabe, the territory of the Three Fires Confederacy of First Nations, comprising the Ojibway, the Odawa, and the Pottawatomie. Such words take on particular significance, convinced as I am that aboriginal legal traditions, particularly those pertaining to land, are instrumental to the underpinnings of the system of copyright. We are accustomed to thinking of the Copyright Act as bijural; arguably, influenced as it is by three modes of law (aboriginal, civil and common), the Act is trijural. This perspective framed my presentation; more details will come another day.

For now, my focus is in connection with a remark made in passing by Ruth Okediji. In the context of discussion about the non-commercial user-generated content exception, Professor Okediji stated what we all know to be true – that this behavior is universal.  But her next words were striking: “Canada had the integrity to acknowledge it.” It was an exalting moment to hear such recognition, to which I may add: Canada should encourage it, as ought any country that values creativity. Creativity does not occur through set rules and methods; creativity operates in its own ecosystem according to an unpredictable dynamism of encounter and engagement, including reimagining and re-creation. Playing with work that has come before is the very foundation of creativity.

My conference junket continues next week at Congress, beginning with a public event concerning the upcoming review of the Copyright Act (jointly hosted by the Association of Canadian College and University Teachers of English and the Canadian Society for Digital Humanities) on Monday, May 29 at 1:30pm in KHW61. It is to be followed by a retreat to the 19th century via a joint event held by the Bibliographic Society of Canada and the Canadian Association for the Study of Book Culture. I hope to ensure that Sir John Thompson—a man of integrity, who was committed to the rule of law—is not forgotten in our sesquicentennial commemorations.

fair dealing week 2017

In Posts on February 19, 2017 at 7:23 pm

Tomorrow marks the start of Fair Dealing Week in Canada. There is much to be proud of with the steady advance in the realm of exceptions, gained not by intemperate action but by deliberative thought on the part of the judiciary, the government, the Copyright Board, and, institutions and individuals across the country. A moment of celebration and pride is warranted.

Yet, significant challenges remain. Educational institutions continue to be a favorite target with copyright owners. Those who take aim at fair dealing lack a cogent argument grounded in either legality or economics, and so must rely on hyperbole. The picture painted is that educational institutions steal from an industry which is on its deathbed, to the detriment of those individuals who carry the very soul of the nation.

In the absence of informed discussion, emotion can masquerade as logical thought. With our sesquicentennial year upon us, the emotion index will likely exceed what hysteria we have already seen. Unfortunately, many Canadians (and their representatives in government) are unaware of the nuance of copyright, that it is a system of limited rights. This post is written with the hope of reaching some of those individuals.

For those who do not yet know what fair dealing means in an educational environment, have a look at Student Life without Fair Dealing. This presentation was created a few years ago by Annie Ludbrook of Ryerson University; it remains the best illustration of how necessary fair dealing is to learning, and takes only a minute or two to view.

And, if interested in a larger story, please see below.


“Millions of times a day copyright material is probably shared in this country.”[1]

That phrase stood out among the miscellany that a Sunday-morning excursion into Twitter had unearthed. Said by a Federal court judge, it was in reference to a dispute over unauthorized uses of material protected by copyright. This dispute (later resolved in favour of fair dealing) is only one of many skirmishes in an ongoing Great Battle in the realm of copyright. Ever since it became apparent that digital technology set on world-wide networks has considerable potential for distribution, copyright holders and copyright users alike have claimed those streams of sharing. To some, sharing represents a threat to the very production of creative material; to others, such sharing is creativity’s salvation.

But the contemporary clash of views is not the first Great Battle fought in the name of copyright. Matthew Arnold, renowned poet and social commentator of 19th century England, bestowed the title on a Royal Commission which probed the very structure of copyright as a grant of monopoly power and openly questioned its usefulness. Eventually, the outcome supported the continuance of copyright as it was designed and has functioned so ever since.

But a critical point has almost been lost to history; the decision was not unanimous. Ten of the fifteen commissioners attached dissenting opinions to the final report, dissatisfaction brewed even among the victors. One could say that the only element of absolute unanimity was the implicit boundary that circumscribed any assertion of copyright: copyright was a means to govern the conduct of players in the commercial book market.

Meaning, copyright was a trade regulation imposed on corporate entities. Yet by virtue of what will long be rued as a poor choice of vocabulary, today the language of copy suggests that copyright may privatise the intellectual and creative activity of individuals.

Copyright falls within a branch of law addressing what has come to be known as intellectual property, a phrase of equally dubious construction. We are told that Thomas Jefferson was the first to associate intellectual creation as property, a word expressly chosen in order to break with the English tradition of declaring such rights as monopolies (a practice of control that functioned to the detriment of the people in England).[2]

Ironically, three centuries later, intellectual property rights are just as capable of being harnessed towards monopolistic behavior. For instance, efforts by literary estates to curtail scholarly work,[3] a steep escalation of textbook costs,[4] and the thirty-year effort it took to reach an international agreement allowing some manner of adaption and distribution of copyrighted materials to aid visually-disabled people,[5] should disabuse anyone of the notion that copyright can do no harm.

A cogent argument for some control over intellectual creations does exist. It is reasonable that writers, artists, musicians, et al, should receive remuneration when their creations are exchanged in a professional marketplace. Many will agree that the likelihood of development of creative effort is heightened when there is assurance of some rights of control after creativity has been exercised. But perpetual furor over copyright eclipses a vital factor: that control is insufficient to bring about creativity.

Creative effort does not occur by the presence of rights alone. Creativity needs knowledge, awareness, skill, diligence, luck, fodder, and something else that lacks capture in a single word; loosely speaking, this indefinable element is a capacity to envision that which others may not. A confluence of all these elements might result in developments in art, music, literature, or science.

In this light, the creative process seems less and less the purview of law, and more and more some manner of alchemy, or worse. According to Voltaire: “One must be possessed of the Devil, to succeed in any of the arts.”[6] Alternatively, one constant theme regarding creative effort is to engage with other creative effort. William Faulkner’s advice: “Read, read, read. Read everything — trash, classics, good and bad …. You’ll absorb it. Then write.”[7] Or this declaration from Margaret Atwood: “The first thing I did when starting this project was to reread the play. Then I read it again. Then I got my hands on all the films of it that I could find, and watched them. Then I read the play again… then I read it again, backwards.”[8]

And yet, law dominates discussions of fostering creative effort. Likely because law is specific, law can be written down, law can be upheld, or, violated and then wielded as an instrument of retribution. Addressing the law meets a political goal—to show that something is being done. Three centuries ago, copyright law was created under the façade of supporting starving authors; that trope reappears as each development in media is cast as a threat to literary or other artistic endeavors. The refrain repeats: Dire consequences will lie ahead for society as a whole, unless something is done.

Today, the repercussions of amending copyright law far exceed the mandate of trade regulation. Technological development has brought us to a point where we live our private lives through copies. Unauthorized use is a vital step to creativity and needs protection.

Fair dealing is a very modest exception to the monopoly of copyright. A fair dealing of copyrighted work must not only fit within prescribed categories of use (education is among them) but must also survive a fairness analysis. The educational community takes its responsibilities seriously; no institution would sanction unrestrained copying as fair dealing. Yet this is the image presented by those who prefer to cast fair dealing as something to fear and something to blame.

Footnotes:

[1] Justice Barnes, quoted by Graham C. Gordon, Loonie Politics. 24 September 2016.

[2] The praecursor to copyright were the printing privileges bestowed upon guilds; the most powerful among them holding control over the printing of widely used classes of books such as catechisms, bibles, ABCs, and lawbooks. Philosopher John Locke condemned all monopolies as hoarding money and property to the detriment of the kingdom and was particularly incensed at the system which enabled booksellers to charge high prices for poorly produced books.

[3] A case of note was the unwillingness of James Joyce’s estate to recognize fair use in scholarly work; see Schloss v. Estate of James Joyce.

[4] For instance, “…new textbook prices increased by a total of 82 percent over [2002-2012],” see Students Have Greater Access to Textbook Information, U.S. Government Accountability Office. There does not appear to be comparable data for Canadian students, but as products are generally more expensive to purchase in Canada, it is unlike that the situation would be better on this side of the border.

[5] James Love, “A Treaty for the Blind?Fordham Intellectual Property, Media and Information Journal (2006), Vol. 22 Issue 12. See also Meera Nair, “Wonderful news from Marrakesh,” in FairDuty, 6 June 2013,

[6] Quoted in Nancy Mitford’s Voltaire in Love (London: Hamish Hamilton, 1957).

[7] “The Best Writing Tips From William Faulkner,” 25 September 2013, Huffington Post.

[8] Margaret Atwood, 24 September 2016, The Guardian.

Blacklock’s Reporter, the stories within the story

In Posts on November 15, 2016 at 8:46 pm

On 10 November 2016, Justice Barnes of the Federal Court released his decision for Blacklock’s Reporter v. Canada (A. G.), a case involving unauthorized circulation of two news articles among a handful of staff members working within the Federal Government. The articles had been legitimately obtained via an individual subscription to the site Blacklock’s Reporter, but the copyright owners claimed that the subsequent downstream uses were infringement. Justice Barnes disagreed, and declared fair dealing. “There is no question that the circulation of this news copy within the Department was done for a proper research purpose. There is also no question that the admitted scope of use was, in the circumstances, fair (para 33).”

Briefly, the two articles were read by Sandra Marsden, President of the Canada Sugar Institute, through her own subscription to Blacklock’s ReporterShe subsequently shared the content with Patrick Halley of the International Trade Policy Division of the Federal Government, who in turn passed the articles on to five other staff members. Throughout, their concern was the manner in which information provided by Marsden and Stéphanie Rubec (a government media relations officer) was used and not used, respectively.

In the eyes of the copyright owners, the sharing by Ms. Marsden, and the subsequent sharing within the department, were a violation of the terms and conditions governing the use of the news service. In the claim, Blacklock’s Reporter sought compensation, not by way of six individual subscriptions (each priced at $148), but via a department-wide site license of $17,209. At the end of the day though, Justice Barnes was more than satisfied that the discrete sharing of articles was reasonable; it was fair dealing.

The decision handed down contains a few gems. One in particular is weighty in its simplicity: “The act of reading, by itself, is an exercise that will almost always constitute fair dealing even when it is carried out solely for personal enlightenment or entertainment (para. 36).”

The decision is well-written and straightforward; it brings to mind the comments of James Grimmelmann (Professor of Law, University of Maryland) after an American appeals’ court supported the HathiTrust initiative: “The [decision] is sober, conservative, and to the point; it is the work of a court that does not think this is a hard case.” The same could be said of Justice Barnes’ work. Indeed, during the trial, Graeme C. Gordon of Loonie Politics quotes Barnes as saying, “I don’t think this case is as profound as you and others made it out to be.”

But what might be routine in the hands of Justice Barnes is scarcely so for readers. Particularly given the detailed commentary provided during the trial by Loonie Politics (Day One begins here) and the Centre for Internet Policy and Public Interest Clinic (CIPPIC’s complete summary is here). Emotions on the side of Blacklock’s Reporter ran high–a naked hostility to fair dealing is evident. While that in itself is not surprising, the degree to which the Federal Government was targeted as a private market, is.

In fairness to Blacklock’s Reporter, such action did not appear to be a part of their initial business model. When the owners put up their shingle in 2012, they did so with noble aspirations—to return to the days when “newspapers were run by journalists for citizens,” with the aim of providing serious news about the functioning of government. At the time, writing for the Tyee, Shannon Rupp observed the goal as being a return to the “old-fashioned business model [when] newspapers were part of their community and their links with the audience were authentic, involving a mutual loyalty that served to maintain readership.”

Returning to the case in hand; news of this dispute was first brought to our attention by Teresa Scassa in August when she described the extent of litigation being brought forward by the news site:

[lawsuits are pending against] a total of 7 federal government departments and agencies and 3 Crown corporations and agencies. Blacklock’s provides articles on a subscription basis only; it accuses the various defendants of having accessed copies of its articles without having subscribed to the service and in breach of their copyrights. The defendants argue that Blacklock’s “employs a pattern of writing misleading or inaccurate articles about an organization with the expectation that these articles would be accessed and shared internally.” They then allege that Blacklock’s files access to information requests to uncover details of such access and distribution in order to issue claims for damages for copyright infringement. Essentially, they contend that Blacklock’s is engaged in copyright trolling.

Justice Barnes did not address the allegation of trolling but did remark that “there are certainly some troubling aspects to Blacklock’s business practices (para. 22).” These aspects are described by Graeme C. Gordon on Day 4 of the trial:

… there were two witnesses — one from Canadian Museum of History and the other from Canadian Mortgage and Housing Corporation — who both gave testimony of their poor experiences with Blacklock’s.  One of the witnesses said she felt “sort of duped into creating this situation.”  She also said Koski “didn’t seem to be accepting the answers that I was giving him” and that he wrote negative articles that were “misleading” and “misrepresenting” of facts.

CIPPIC indicates that the Museum of History and the Mortgage and Housing Corporation each acquiesced to demands for a $12,000 fee rather than face a legal challenge. CIPPIC also draws attention to the unwillingness of Blacklock’s Reporter to include a comment sent by a staff member in connection to the sugar tax story, before the article was posted:

Ms. Rubec stated that she had spent hours providing a comment only to be told Blacklock’s would print that the Department had provided “no comment”, she had followed up with an email the evening prior to publication, and still the article was not updated when it went live the following morning. She testified that she had been “frustrated” by the exchange.

Justice Barnes addresses this point and adds a footnote that must not be missed: “Notwithstanding Ms. Rubec’s several on-the-record responses, [the article] improperly attributed “no comment” to the Defendant. This is a practice Mr. Korski adopts when he does not accept or approve of the answers he is given from a source; see Exhibits … and confirmed by Mr. Korski’s testimony (para.9 / footnote 1).”

Returning to the dispute itself, Justice Barnes brings much-needed clarity to the manner in which terms and conditions, when unilaterally imposed upon consumers, must be interpreted:

As the drafter of [its stipulated terms and conditions], Blacklock’s is bound to the interpretation most favourable to the users of its copy which, in this case, permitted Ms. Marsden’s distribution to the Department for a non-commercial purpose, and by implication, permitted a similar use by Mr. Halley (para. 43).

In his analysis of the unauthorized use, Justice Barnes begins with the observation that fair dealing “is a well-recognized right under the Act (para. 24),” and later confirms that neither copyright owners nor copyright users are permitted to pick and choose which parts of the system of copyright they will adhere to: “Absent consent, subscribers and downstream users are subject to the obligations imposed upon them by the [Copyright] Act. But at the same time they enjoy considerable protection afforded to them under the statutory fair dealing provisions (para. 44).”

And, with what might be my favorite remark, Justice Barnes firmly rejects the all-too-often asserted claim that every use of a copyrighted work represents lost income and thus must be compensated for:

It also goes without saying that whatever business model Blacklock’s employs it is always subject to the fair dealing rights of third parties. To put it another way, Blacklock’s is not entitled to special treatment because its financial interests may be adversely affected by the fair use of its material (para 45).

Readers may be curious, as I was, about the ancestry of the Blacklock in Blacklock’s Reporter. The news site takes its name from the late Thomas H. Blacklock (1873-1934), a revered member of the press from a bygone era. His career as a journalist including writing for multiple organizations within Canada as well as covering WWI. Respected by colleagues and readers alike, he was one of Canada’s best political correspondents of the early 20th century. At the time of Blacklock’s death, Prime Minister Robert Borden recounted this story:

In one of the campaigns when Mr. Meighen and Mr. King were rivals, they engaged in long-range verbal hostilities that were rather ineffective on both sides. Blacklock became impatient and wrote to Meighen a letter which Tom afterwards showed to me. It was keenly critical of the course Meighen was pursuing; and I recall one phrase which ran something like this: ‘Please bear in mind that the people of Canada are not in the least interested in your opinion of Mr. King or in Mr. King’s opinion of you.’ Meighen took the letter in very good part; and showed it to several of his friends. …
[Blacklock] was a rare spirit, and his memory will not pass from those who knew him best.
– Sir Robert Laird Borden, Letters to Limbo, University of Toronto Press (1972)

The Right Honorable Arthur Meighen spoke at Blacklock’s funeral, saying “there would be few citizens of Canada … whose passing would leave behind so many to speak well of their life and work (The Border Cities Star, 6 August 1934).”

During the trial Blacklock’s Reporter argued that, in order to sustain its operations, it was essential to aggressively police its copyright. Be that as it may, if aggression means misrepresenting facts in order to mount a sting operation, the organization ought to consider changing to a more appropriate name, one without the baggage of ethics and civility.

Commentaries on this decision abound; see Teresa Scassa, Howard Knopf, Michael Geist, Adam Jacobs. But CIPPIC shall get the last word: “The decision represents a solid affirmation of fair dealing rights, and one that should serve to deter copyright trolls from bringing meritless claims against obvious fair dealing practices in the future.”

 

“history begins with geology”

In Posts on September 20, 2016 at 7:21 pm

Those were Margaret Atwood’s words as she gave the 2016 CLC Kreisel Lecture at the Winspear Centre in April of this year. Broadcast this past Friday via CBC’s radio program Ideas, the lecture—in content, form, and delivery—exemplifies, yet again, why Ms. Atwood is both a national and international treasure. If contemporary politics did intrude into her account of some of the events which shaped Canada’s literary landscape, I have to reach for every shred of temerity in my possession to point it out. But it needs to be done.

When explaining the origins of The Writers’ Union of Canada, Ms. Atwood said:

[there was] no-one to represent their interests, the interests of writers, as opposed to the interests of publishers, readers and libraries. The latter three felt in their hearts that simply being read was honour enough for a writer, no money need be expected. The writers on the other hand took the quaint position that what they did was work and they ought to be remunerated by those making use of it. Plus ça change. Those taking the view that writers’ work is like air, to be had for breathing, now include many internet pundits, some former members of our recently departed government, and a great many universities – those bastions of fair dealing.

Ms. Atwood paused, and some nervously–charged laughter came forth from the audience. The Kriesel Lecture takes place under the auspices of the Canadian Literature Centre, established at the University of Alberta in 2006; some (perhaps many) of those in attendance were likely to be fair dealing practitioners.

Ms. Atwood is, of course, entitled to hold and express any opinion she chooses. But the strength of her reputation and influence requires that some clarification follows where it is needed. Listeners present at the Winspear Centre that evening, or receiving Friday’s broadcast, or those who might yet encounter the Ideas website, may come away with the impression that fair dealing is a morally and legally reprehensible ruse that enables universities to deny remuneration to copyright owners with impunity. The truth is far more prosaic, as truth tends to be. From the days of its codification into law in 1710, copyright has never been a grant of absolute control; it is a system of limited rights. Fair dealing is one such limit; nothing more, nothing less.

The limits upon copyright ensure that creativity, innovation, and civil society may flourish, an objective which also happens to be the raison d’etre of universities. Universities handle fair dealing with care and pay fulsomely for the resources they consume. Generally speaking, limits are the mode of entry to a space where one might hope to emulate achievements of the past. All fair dealing can do is maintain the potential for a small realm of unauthorized use, legitimate under the law, where independent expression of thought may be cultivated. No doubt, some would prefer to see copyright function in absolute form, to the exclusive benefit of current copyright owners. Be that as it may, wishing does not make it so. The system of copyright must also nurture an author yet to come.

What I prefer to reflect on, to savour, is Ms. Atwood’s beautiful presentation of some of the people who contributed to the development of Canadian literature, and their efforts to build audiences and infrastructure for reception and publication of their work. The presentation itself was titled, The Burgess Shale: The Canadian Writing Landscape of the 1960s. Ms. Atwood explained that burgess shale is a particular geological formation found in Western Canada and that “history begins with geology. Geology determines what you can grow and extract, where you can build houses and so forth.”

Ms. Atwood detailed events of the 1960s and 1970s which created an environment conducive to Canadian letters. To obvious audience delight, she began with her own life story. The skills needed for the 1960s were honed in the 1950s, a decade Ms. Atwood described as “robust amateurism—acting one moment, painting sets the next.” The capacity to multi-task served that generation well, “when it was time for a bunch of kids who didn’t know what they were doing to start new publishing companies in Canada which we did in the 1960s.” Due to demographics (the Depression and WWII had taken its toll on birth rates), that generation’s services were in need: “… we stepped into a relative emptiness; we sought to fill it. We didn’t see why not.” Needs that were met creatively to say the least (the stories about the All-Star Eclectic Typewriter Revue and the Pornography Project are priceless; I will say no more than to recommend you listen for yourselves.)

But the limitations of an hour could not allow Ms. Atwood to convey a deeper geological survey of events prior to the 1940s. She remarked that Canadian literature had no presence in her early life; while an occasional Canadian creation might have appeared among the school-imposed diet of Hardy, Shakespeare, Eliot and Keats, “we weren’t taught Canadian literature as a subject in school.” A key difficulty for a Canadian author was the lack of literary infrastructure, a viciously circular problem. Canadian writers needed readers; without distribution, readers could not be had, and, without readers, distribution could not be entertained. But as to how this situation came about, that bedrock had solidified a century earlier.

The root cause was Canada’s inability to develop its own publishing industry in the 19th century. Caught between British Imperialism and American capitalism, Canadian publishers were prohibited from reprinting the bestsellers of the day, meaning those of prominent English authors, while American competitors were free to reprint those same works and capture the Canadian market. Canadian governments, of both Colonial and Dominion stature, laboured for years to develop an equitable copyright arrangement that would provide local publishing firms the option to supply their own markets and build their own capacity, by reprinting British works with permission and provision of royalties. The logic of the arrangement was consistently set aside by the British Crown, through invocation of the sanctity of copyright and the imperative of Empire. This, despite the fact that the copyright demanded of Canada did not serve Canadian writers. British copyright was to be respected in Canada, but Canadian writers, unless published in Britain, were not afforded any such protection.

British intransigence was due, not merely to slavish attention to the word “copy.” What Britain longed for was a reciprocal copyright arrangement with the United States, and Canada was the bargaining chip. Eventually reciprocity did come, but strictly on American terms: publication must use plates set in the United States, and occur prior to, or concurrent with, publication elsewhere. (Notably, the proposed Canadian offer was far more generous to the British; the proposal allowed delayed publication in Canada via imported plates.) Added to these conditions that ensured continued prosperity to American reprinters, the United States sought assurances from Britain that Canada would not interfere in American distribution in Canada.

Details of this period of time are covered in my work, “The Copyright Act of 1889—A Canadian Declaration of Independence, Canadian Historical Review (2009). For a complete monograph on the events of this time, Eli Maclaren’s work, Dominion and Agency – The Structuring of the Canadian Book Trade, 1867-1918 (2011) is stunning. Painstakingly researched, he confirms that the manner in which copyright law was applied to Canada diminished any ambition to build or support independent publishers of original Canadian material.

Even after Canada achieved some measure of copyright autonomy through amendments in 1900—when Canadian publishers could finally reproduce foreign work in conformity with the copyright owner’s wishes—the benefits of the Act principally accrued to established American publishers via branch-plant operations in Canada. Maclaren describes the dual-objectives of Macmillan Company of Canada as “[to] distribute the trade books of the London and New York houses to the Canadian market and publish textbooks for Canadian schools (p.123).” The omission of original publishing was not an oversight, original publishing was strictly frowned upon. When Frank Wise, president of the Canadian operation, requested that some manner of capital be kept available for publication of promising works, the head office made its displeasure quite clear:

… we should be more than a little surprised and displeased if you embarked upon any publishing venture of importance without consulting us. … The only kind of publishing which ought to originate in Canada is the production of school books authorized by one or the Provincial governments (p.124).

It was against this legacy that Ms. Atwood and her peers laboured. That they are to be congratulated is more than evident. But the congratulations should not eclipse what we know now—the fact that Canadian literature began even before Canada, exists during Canada and may safely be expected to endure in any Canada to come. First Nations’ culture has relied on story-telling since time immemorial, early colonists’ writings left a mark we feel even today (Susanna Moodie and Catherine Parr Trail come to mind) and even when fleeing Canada in search of markets, Canadian literature took shape under the themes of regionalism, as Nick Mount expertly uncovers in When Canadian Literature Moved to New York (2005). Mount does not valorize the writings of all Canadian expats, but lauds the importance of the Canadian community of writers, editors, and publishers that formed in New York to the advantage of Canadian writing.

It is the aspect of community that permeated Ms. Atwood’s recollections and was present in another address given earlier this year. As a keynote speaker at the Jaipur Literary Festival she invoked the theme of community on both global and individual scale. And she reminded listeners of the most intrinsic element of the community that underwrites literary effort:

Here we all are to celebrate books and authors and writing and yes, reading. Writers and readers are joined at the hip. Every act of writing presupposes a reader, even if it is your own secret journal and the future reader is you… Platforms may be changing but thanks to the Internet, reading has become more possible for more people than at any other time in history. … There is a lot more access to literacy than there used to be. …

With thanks to Margaret Atwood, and a great many universities. Those bastions of fair dealing.

omitting facts, ignoring logic

In Posts on March 3, 2016 at 7:18 pm

Yesterday John Degen (poet, novelist and executive director of The Writers’ Union of Canada) presented his views concerning copyright and education via The Hill Times. The publication is behind a paywall, making it less than easy to acquire, read, or rebut. But if one is trying to lobby Parliament, the venue of publication is appropriate.

Degen is entitled to his opinions, but does readers a disservice by the distortion of history he presented. There might have been reasonable entertainment value from the diatribe, had the issue not involved the intellectual property rights of generations to come. Our parliamentarians could be forgiven for initially thinking that the copyright amendments of 2012 jettisoned the entirety of Section 3.1 (rights of copyright owners), exclusively to the benefit of teachers and students.

But may we assume that any Member of Parliament, in the face of such a hysterical outburst, as opposed to considered judgments from the Supreme Court of Canada, will investigate the rights and wrongs of the matter? That investigation would lead to the following facts:

  • Copyright is a system of limited rights, whereby the limits ensure balance is struck between the rights of copyright owners and rights of copyright users.
  • Fair dealing is one means by which limits are exercised; fair dealing is not piracy.
  • Fair dealing allows for some unauthorized uses of copyrighted material, subject to a fairness analysis.
  • That analysis was shaped by the Supreme Court of Canada in 2004; the justices have since walked-the-walk on multiple occasions.
  • In 2012, the range of fair dealing was expanded from only the options of private study and research, to include education, parody and satire.
  • Every Supreme Court decision supporting fair dealing occurred before the 2012 amendments took effect. Meaning, the inclusion of education was superfluous to establishing balance between owners’ rights and users’ rights.
  • Educational institutions make significant payments for purchased or licensed materials; the difference now is that such payments tend to flow directly to copyright owners and not to a middle-man collective entity such as Access Copyright.
  • Perfunctory announcements of declines in author’s incomes are, no more than perfunctory! One has to look at the larger context of any situation. A favorite report pointed to by The Writers’ Union (and Access Copyright) is a creation by PricewaterhouseCoopers which paints a dire picture of declining income to the educational textbook industry, with the seeming conclusion of an impending loss of quality educational content. However, the analysis within the report omits such basic details as the advent of quality content via open education resources and the global economic mayhem which began in 2008 and ensured individuals/institutions had less dollars to spend for years thereafter. Details are here.
  • The process of setting tariffs by the Copyright Board is complex, and educational institutions themselves are puzzled at the lack of involvement by national representatives. But to attribute a spiteful motive to Canadian education as a whole is hardly worthy of anyone who claims to be a standard bearer for the preservation of Canadian culture.

Some weeks ago Degen’s colleague Heather Menzies also presented her interpretation of history with respect to educational uses of copyrighted material; my rebuttal is here. It appears that the Writers’ Union of Canada is eager to wrap copyright in the maple leaf and hope that Canadians will overlook the absence of facts or logic.

 

in defense of fair dealing

In Posts on January 18, 2016 at 5:18 am

A response to Heather Menzies and the Globe and Mail.

Last Thursday, the Globe and Mail published an op/ed penned by author Heather Menzies, chair of The Writers’ Union of Canada. Ms. Menzies claims that a provision of law, fair dealing, is responsible for a decline in the income and well-being of Canadian authors. While she is perfectly entitled to her opinion, her argument is based on a number of inaccuracies.

At the outset, it must be noted that the system of copyright, since its inception as statutory law in 1710, was never intended to operate as a grant of absolute control. Rights offered in the name of copyright were limited, for the vital reason that the goals of the system of copyright (creativity and innovation) rely on some degree of unauthorized uses of prior works. The mantra that more control brings about more creativity is no more than political theatre; the age of Shakespeare, the industrial revolution, and even the 20th century offer enough evidence that creativity has thrived in periods of lesser control. Nevertheless, fair dealing enthusiasts will agree that it is as important to respect the rights afforded to authors, as to respect the use provided to future authors via fair dealing.

Ms. Menzies writes: “Authors have always made copyright legislation work for them, even though it originated in a 16th-century move to restrict the right to copy texts to the Stationers’ Company, a booksellers’ cartel based in London, England, and had nothing to do with writers.” It is true that copyright’s entrance into law was at the behest of booksellers eager to protect their assets, not necessarily their authors. Yet some authors obliged with the trope of the starving author during negotiations. In the three hundred years since, with the same trope, the rights of control in the system of copyright were systematically expanded, while the rights of unauthorized use were inexorably whittled away. Given that, at the present time, copyright is more expansive in breadth and depth than it has ever been, if authors are still starving, perhaps copyright is neither the problem, nor the solution.

As to the role of collective licensing in the management of educational uses of copyrighted material throughout Canada, it is true that Access Copyright facilitated this effort in the past. As to why post-secondary institutions no longer wish to rely on Access Copyright’s services, Ms. Menzies omits to indicate that in 2010 Access Copyright sought a 1300% increase in fees, demanded absurdly intrusive reporting requirements from institutions, and took it upon itself to redefine the very nature of copyright. (A privilege that Parliament, and no other, enjoys.) Yet post-secondary institutions continue to spend millions of dollars in purchasing and licensing fees, and make these payments directly to copyright owners. As to where those funds go after that point, it is not for an institution to say.

Furthermore, even though “education” was added to the allowable purposes of fair dealing through the amendments which came into force in 2012, three Supreme Court decisions upholding fair dealing in teaching and learning, and research, were all based upon the earlier language of fair dealing. That detail is also omitted in Ms. Menzies’ account. Instead, she opts to equate the decline of authors’ incomes with the later expansion of fair dealing and invokes a PricewaterhouseCoopers study to present dire consequences for education in Canada in the years ahead.

That study, commissioned by Access Copyright, was based upon very narrow parameters. (I provide analysis in “With due respect to PricewaterhouseCoopers.”) The study focuses upon revenue streams within the educational publishing industry and finds that revenue has declined over recent years. This observation is correlated to heightened attention paid to fair dealing by educational institutions, arriving at the seeming causality that fair dealing is to blame. Whereas in reality, there are more options for obtaining quality content at lesser or no cost. Teachers may avail themselves of publicly available material from the internet, open-access content, and material expressly developed by other teachers and local communities. As with any market, when more options are available, former monopolies must see their market-share decline. And lurking in the background of recent trends was nothing less than the global economic mayhem that began in 2008, which ensured that, across all walks of life, individuals and institutions had less money to spend. Yet the study’s authors appear unaware, or unconcerned, about larger macroeconomic conditions.

Finally, Ms. Menzies invokes the realm of First Nations’ writings and the importance of protecting their writers. No argument there. Our pantheon of writers is worthy of praise and we all benefit when that roster swells. Yet Ms. Menzies will not acknowledge that of the writers we laud today, many enjoyed their public education before the mania to count the number of words a teacher or librarian might share with their charges became the educational norm. Those writers enjoyed a more open reading environment in their classrooms; times being what they were, it was not necessary to speak of “fair dealing.” But it was fair dealing.

It would be only fair to suggest that such openness contributed to the success of members of The Writers’ Union of Canada. That they should now begrudge future generations of writers that same benefit, is truly disappointing.