Meera Nair

Posts Tagged ‘images’

a miscast legacy

In Posts on September 3, 2019 at 8:35 pm

At the Copyright Review (2017-2018), one element of consensus among copyright owners and users alike was that students are certainly entitled to practice and benefit from fair dealing. With a new school year underway, I hope that educational administrators remember this and give students sufficient breathing space in connection to their learning.

Yet, it seems that anxiety still stalks authority when leaving students unattended with fair dealing. Uses of imagery seem especially fraught with tension. As imagery cannot be measured by any standard yardstick, its use immediately becomes suspect. Whereas the only distinction is that – to be fair – most, if not all, images have to be presented in their entirety to be useful. This does not mean, nor was it intended to mean, that the use is automatically excluded from fair dealing.

Despite the now well-entrenched CCH (2004) model of analysis guiding fair dealing—the critical elements being that we look at each situation comprehensively, and, that the use must serve the purpose for which it was chosen—use of imagery seems to provoke a combination of tension and amnesia. This may be due to a miscast legacy dating to fair dealing’s first experience in a Canadian courtroom: Zamacois v. Douville and Marchand (1943).

At issue was the reproduction of an article written by Miguel Zamacois, a citizen of France, which had been published in a French journal (Candide) and reprinted in a Quebec newspaper (Le Bien Public) together with a commentary by a local writer. A representative of a society of French writers claimed infringement on Zamacois’ behalf.

The proprietors of Le Bien Public, Raymond Douville and Clement Marchand, based their arguments principally on: (i) Zamacois’ ineligibility as a plaintiff; (ii) Zamacois’ creation pertained to matters of a political nature (WWII) and thus was not a literary work; (iii) provisions within the Berne Convention that favoured unauthorized reproduction of political or economic news; and (iv) the terms of a prior contractual arrangement with the French society (since lapsed). Invoking fair dealing was a measure of last resort. But when making the case for fair dealing, Douville and Marchand also drew particular attention to the fact that reprinting the article had not enhanced the paper’s commercial position.

The rationale of Douville and Marchand might have been deemed immaterial to the court’s eventual decision that infringement had been found and fair dealing had been denied. Indeed, a summary of the case issued later by Carswell, expresses bemusement as to why “the learned judge” had devoted such effort to exploring all aspects of the defendants’ arguments, as “the Convention has no statutory effect in Canada. The rights of authors are protected by the terms of the Copyright Act and that Act allows no reproduction of such articles without the consent of the author, except for the minor right of quotation on the basis of ‘fair dealing.’”

Such a statement baldly misrepresented fair dealing’s scope. Moreover, Carswell’s writer missed the critical point—a question of fair dealing is necessarily a contextual matter. Facts, and the circumstances in which they are imbedded, matter. Predating CCH by 61 years, Justice Angers gave Canadians an exemplar to follow in the years to come—a contextual analysis. He began from where one would expect, with reference to English authority, Copinger on the Law of Copyright (7th edition):  “It may be fair dealing to take a substantial part [of a work].” But noting that the article in question was of French provenance, he took care to also explore literary criticism and newspaper practices in that nation’s tradition. The depth and breadth of Anger’s exploration illuminates that matters of infringement generally pertained to commercial reproduction, that good faith was relevant, and that each situation is distinctive and must be assessed according to its own context.

In this case, Angers denied the claim of fair dealing, not because it was a copy of an entire article, but because it did not satisfy conditions under which an entire article could have been reproduced. He was precise in the language of his exploration and conclusion:

Yet Angers’ painstaking exploration of the applicability of fair dealing was quickly lost. The following year, in The Canadian Law of Copyright (1st ed.) by Harold Fox, the case is reduced to citations for isolated pronouncements such as, “Obviously quotation of a work in its entirety is not fair dealing.”

Fox’s language is disappointing; he expanded the object under consideration, arguably a literary article of a political bent, to the general terminology of “work.” Which entails all literary, dramatic, artistic and musical expressions. Moreover, his lack of precision as to the setting undermined the potential for fair dealing in categories other than literary criticism. In the years that followed, Zamacois v. Douville became synonymous with the general statement that fair dealing could not apply if the entirety of a work was reproduced.

The fullest extent of misunderstanding was on display in 1997 when, during an appeal concerning fair dealing with respect to imagery in an article published by the Toronto Star, the trio of judges then comprising the Ontario Court of Appeals said:

We were referred to the case of Zamacoïs v. Douville (1943)…  To the extent that this decision is considered an authority for the proposition that reproduction of an entire newspaper article or, in this case, a photograph of a magazine cover can never be considered a fair dealing with the article (or magazine cover) for purposes of news summary or reporting, we respectfully disagree.

Interpretation had moved from stretching the truth to jettisoning it entirely. There is no logical basis to equate a literary essay to a newspaper summary. That alone should have curtailed any blanket statements of what Zamacois v. Douville did or did not represent. Nor is a newspaper summary equal to an image. That a picture is worth a thousand words can only ever be an idiom, not a statement of fact. The only direct influence Angers’ work could have exerted on the Toronto Star appeal was the method of evaluation—a contextual analysis. (Which, fortunately, the Ontario Court of Appeals engaged in, but without citation to Angers.)

Reviewing the Toronto Star’s successful appeal, David Allesbrook wrote: “The ‘fair dealing’ exception will now achieve more prominence. The courts will be asked to consider the circumstances of the copying more forgivingly than they have in the past. It will be interesting to see how forgiving they will turn out to be.”

The irony is that, in 1943, Angers had done precisely that. By consideration of circumstances, he found merit in the good faith approach of Douville and Marchand, and refused to issue any injunction with respect to future operations of Le Bien Public. Angers also noted that there had been no particular financial gains through the unauthorized reproduction and so reserved any decision regarding costs to be awarded: “The plaintiff has proven neither loss of profits nor damages and I doubt if he might succeed in proving either.” And, with an appreciation for posterity, Angers refused to order the surrender of remaining copies of the reprinted essay, as the only remaining copies of that issue of Le Bien Public were intended for the paper’s archive.

Imagery has as much claim to fair dealing as any other type of work. In a world where information increasingly relies on, and circulates in, visual elements, imagery plays an important part in social, historical, scientific, economic and artistic endeavors. To limit students’ capacity to work with imagery limits the development of their understanding and expertise, thereby limiting the very goal of the system of copyright itself—to advance intellectual activity.

to promote the progress

In Posts on September 16, 2012 at 2:32 pm

A colleague forwarded a dilemma to me; his publisher (of a scholarly work) was requiring copyright clearance for a map taken from an out-of-print book issued by a publishing company no longer in existence. Since the author had died in 1958, I duly calculated life plus fifty and declared the work as in the public domain.

And then I discovered this was not for a Canadian publication. As the Center for the Study of the Public Domain at Duke University points out, in the United States “only works that were published before 1923 are conclusively in the public domain.”

The operative word there is conclusively. It is conceivable that work dated after 1923 is in the public domain if certain copyright formalities were not complied with. However, assuming that this material is still under copyright, fair dealing and fair use beckon.

Canada benefits from a consistent message courtesy of our Supreme Court: that fair dealing is a user’s right and research should be given a “large and liberal interpretation.” Addedly, our Justices insist that Canada not draw artificial distinctions between commercial and non-commercial behaviour. Even before the notable decisions of the new millennium, a Court of Appeal had decreed fair dealing in the use of a copyrighted image as part of a newer creation, for a mass media publication. The Court declared that the use of the image served the purpose of the story, which was to indicate contrast over time. And, the manner in which the image was used ensured that it in no-way competed for the market of the original image.

In the matter at hand, the map appears to be a sketch of the political boundaries of early 20th century Southeast Asia, with shipping routes and distances marked in. A fitting backdrop to any contemporary discussion of trade in that region. The purpose of the use melds with fair dealing’s category of research. The amount taken is reasonable – when discussing regions, it may be necessary to reproduce an entire map to convey the geographic boundaries and political nuances of the time. (David Vaver points out this challenge for both images and poetry; see Copyright Law.) Given that the original book itself is no longer available, reproducing the map in an academic publication could hardly be seen as unfairly competing with the original work. And, while some might recommend simple substitution with an older map that is free of copyright, the contemporary author presumably has reason to choose this map for his work. Academic freedom has a place in this discussion.

But this is Canada, and the problem lies with the United States. Americans have not been so lucky with their Supreme Court; in part because the United States nurtured fair use and (as might be expected) suffered through the unpredictability of its developmental years. I deal with this issue in Fair Dealing at a Crossroads; I draw heavily from the work of Barton Beebe. Beebe conducted the first systematic analysis of all American fair use case law, spanning 1978-2005, and illustrated that fair use is not as unpredictable as previously thought. Furthermore, Beebe identified where the United States lost its way in regards to an overt emphasis upon commercial implications of fair use and indicated that more nuanced investigation of fair use is becoming the norm. Following Beebe’s work, scholars continue to examine the changing face of American fair use and suggest that cohesion and balance are taking form south of the border.

For instance, Pamela Samuelson examines fair use by way of policy-relevant clusters and determines some consistency within those clusters. In examining uses that set historical context, she points to the case Bill Graham Archives v. Dorling Kindersley Ltd. (2006), where seven small-scale reproductions of Grateful Dead concert posters were reproduced without authorization. The action was deemed fair use:

The Second Circuit noted that biographical works and cultural histories, such as this one, were types of works that typically “require incorporation of original source material for optimum treatment of their subjects.”  …  Dorling Kindersley used the images “as historical artifacts to document and represent the actual occurrence of Grateful Dead concert events.”  This was transformative because it was “plainly different” from the original purpose for which the posters were created … (Samuelson, 2573).

While Fair Use in the United States has a vast history, and spans many policy clusters, this trend to sanctioning unauthorized reproduction for transformative uses has been further corroborated. Neil Netanel writes “Many thought that Bill Graham Archives was an aberration … But six months later, the Second Circuit struck again [further emphasizing] that whether a work is transformative is key to determining fair use (p.761).”

And lest we forget, the United States has a constitutional mandate for copyright: “To promote the progress of Science and Useful Arts.” That overarching purpose is particularly relevant when discussing fair use of orphan works – those for whom the copyright owner is unidentifiable or untraceable – where the copyright protection brings no returns to anyone yet that same protection impedes further creativity.

Update: October 8, 2012. The publisher has agreed that seeking copyright clearance for the map is unnecessary.

References

Barton Beebe, “An Empirical Study of U.S. Copyright Fair Use Opinions: 1978–2005.”  U. Pa. L. Rev. 2008.

Meera Nair, “Fair Dealing at a Crossroads,” From Radical Extremism to Balanced Copyright … (ed. Michael Geist) 2010.

Neil Netanel, “Making Sense of Fair Use,”  Lewis and Clark Review, 2011.

Pamela Samuelson, Unbundling Fair Uses, Fordham Law Review, 2009.

David Vaver, Copyright Law, 2000.