‘Negotiating with the Dead’

When it became evident that our copyright term was to be extended by twenty years, with no measures to mitigate the excess damage wrought by such action, Margaret Atwood’s book of this title kept returning to mind. A foray into the relationships that exist between writers and writing, a book where the word copyright did not feature among those ruminations, the title nonetheless feels apt for the days ahead.

Works of long-since-dead authors will now—in the best of situations—literally become objects of negotiation. This is purportedly to the benefit of those authors’ heirs, whereas on balance the true beneficiaries will be international publishing conglomerates and collective societies. In the worst of situations though, works will simply fade away with no surviving copy to emerge seventy years after their authors’ deaths. Those authors will be forgotten, and the public domain will remain poorer.

Atwood has been a prominent advocate for a stronger scope of protection in the name of copyright, famously remembered for her characterization of exceptions as expropriation and theft during a Standing Committee Meeting of the Department of Canadian Heritage in 1996. Two decades later, when she gave the 2016 CLC Kreisel Lecture at the University of Alberta, fair dealing was called out by name. Nonetheless, that lecture was a delight to listen to, grounded as it was on Atwood’s own experiences of being a Canadian writer.

It is her life that lies at the foundation of Negotiating, which took form through the Empson Lectures at the University of Cambridge in 2000. The combination of literature, literary criticism, book history, and history itself, written as only Margaret Atwood can, makes for compelling reading. In this book she comes perhaps closest to answering an age-old question about writing: what does it mean to write? There is no neat and tidy answer; at the very least it is blood, sweat, and tears amid negotiations between oneself, the society of the living, but also that of the dead.

To be sure, financial wherewithal is relevant to any impetus to write. Money appears approximately three times among the 74 reasons for writing taken “from the words of writers themselves (xx-xxii).” Yet, perhaps unintentionally, Atwood lays bare why copyright was not, nor ever will be, a broad determinant of success (either literary or material) for Canadian writers and publishers. From identifying the limitations of the Canadian publishing sector in the early to mid-twentieth century (to say there was disinterest in Canadian authors is putting it mildly), to stripping away the facades of originality and individuality (which underpin copyright’s structure of rights) in literary endeavor, there is much here to remind us that Canada’s phenomenal success in developing literary talent (see here and here) has occurred despite copyright, not because of it.

After borrowing the book repeatedly from the Edmonton Public Library, I had to buy it. Or rather, I had to buy it in the original form. Because what I had borrowed was a book titled On Writers and Writing, by Margaret Atwood, identified as a Canadian reprint of her earlier work, Negotiating with the Dead.

My preference was to buy Negotiating; in the peculiarities of my own mind, somehow it felt more authentic. As it turned out though, my instincts were correct. The two books are not the same. The difference lies, not in Atwood’s words, but in the representation of what copyright is. While both books specify the copyright as belonging to O.W. Toad (the name of Atwood’s enterprise), similarity ends there.

In Negotiating, published by The Press Syndicate of The University of Cambridge, readers are told: “This book is in copyright. Subject to statutory exceptions and to the provisions of relevant collective licensing agreements, no reproduction of any part may take place without the written permission of Cambridge University Press (emphasis mine).”

There it is. A clear indication that statutory exceptions exist and are relevant; meaning that some reproduction might not require permission. Whereas in Writers, published by Emblem (an imprint of McClelland & Stewart, a division of Random House of Canada Limited, a Penguin Random House Company), readers are told that permission is always needed for even a particle copied:

“All rights reserved. The use of any part of this publication reproduced, transmitted in any form or by any means, electronic, mechanical, photocopying, recording, or otherwise, or stored in a retrieval system, without the prior written consent of the publisher – or, in the case of photocopying or other reprographic copying, a license from the Canadian Copyright Licensing Agency – is an infringement of the copyright law (emphasis mine).”

Despite what a publisher might prefer, Canada’s Copyright Act permits unauthorized uses of insubstantial parts of a work and unauthorized uses of substantial parts which comport with fair dealing or other exceptions. As the Supreme Court (with unanimity) stated in 2004, “the fair dealing exception is perhaps more properly understood as an integral part of the Copyright Act than simply a defence. Any act falling within the fair dealing exception will not be an infringement of copyright (para 48).” And yet, willful misinformation is standard fare among books issued in Canada.

Given the stunting of our public domain by term extension, fair dealing is even more important now as it provides some allowance of use of older, protected, material. But even a large and liberal interpretation of fair dealing, as required by our Supreme Court, is no substitute for a vibrant public domain.

With the Act expected to undergo change this year, Canada could still introduce a system of registration associated to a longer term of copyright. Owners of works which continue to be commercially successful fifty years after an author’s death, will likely choose to register and thus receive the additional twenty years of protection. Whereas works that did not have such longevity with respect to commercialization, and works that were never intended for revenue generation, would likely not be registered and thus would enter the public domain without the twenty year delay. Such a system was recommended by a former Industry Committee to uphold our obligations under CUSMA, ensure that commercial works which may benefit by a longer term are able to capture that gain, and continue to grow the public domain.

The difficulty is to convey to current Canadian lawmakers the importance of the public domain. Too often, its intangibility has meant that the public domain is perceived as being of lesser value. That an author’s work is not protected somehow deems it and the author as being unworthy. Even the way older works are spoken of, that they have “fallen into the public domain,” carries an aura of degradation familiar to the plight of “fallen women.” Whereas the public domain is precisely the opposite; it enables new works to emerge. As Jessica Litman wrote in The Public Domain (1990):

To say that every new work is in some sense based on the works that preceded it is such a truism that it has long been a cliche, invoked but not examined. …  The public domain should be understood not as the realm of material undeserving of protection, but as a device that permits the rest of the system to work by leaving the raw material of authorship available for authors to use (966-968).

That this truism went unexamined and unarticulated is a testament to the difficulty of capturing the intricacy of the relationships between old works and new authors. Margaret Atwood not only undertook such an exploration but also elegantly articulated the journey that underlies every literary endeavor.

It is only fitting then that Margaret Atwood should have the last words:

… All writers must go from now to once upon a time; all must go from here to there; all must descend to where the stories are kept; all must take care not to be captured and held immobile by the past. And all must commit acts of larceny, or else of reclamation, depending how you look at it. The dead may guard the treasure, but it’s useless treasure unless it can be brought back into the land of the living and allowed to enter time once more – which means to enter the realm of audience, the realm of readers, the realm of change (p.178).

fifteen years

The Supreme Court’s decision of 4 March 2004, CCH Canadian v. Law Society of Upper Canada, ushered in a more progressive approach to copyright, by emphasizing that exceptions to copyright are a vital part of the system itself. The decision also coincided with the start of my doctoral research, at Simon Fraser University’s School of Communication. So it seemed only befitting to begin with CCH when I gave the keynote address last month at Balancing the scales: the role of fair dealing in Canada, an event organized by the Vancouver post-secondary community and hosted by Simon Fraser University.

One of the more fascinating aspects of studying systems of copyright is its variety of entry points. Enthusiasts of business, communication, economics, ethics, history, human rights, innovation, international relations, literature, philosophy, technology, and law, can all find a familiar theme within the ambit of copyright. Such an interdisciplinary nature is an asset; there are many signposts by which to navigate the route to effective public policy.

Yet copyright remains predominantly mired in the bland pronouncement of copyright is an author’s right. As to what that right means, whether copyright can achieve the expectation of authorial well-being implicit to the language of rights, that discussion is too often shunted aside. Complicating matters further in Canada is the propensity to wrap copyright in a maple leaf; a false, but politically effective, message portrays Canadian literature as dying and asserts that only more copyright can save it.

For my address, I took a little inspiration from Margaret Atwood and drew attention to the events that shaped both copyright and publishing in Canada during the late nineteenth-century. Namely, that those norms of copyright benefited only Britain and America, and deterred Canada from devising a system that would serve its own readers, writers, and publishers. The consequences of those years continue to be felt today; we cannot escape our own history. Fortunately, Canada’s ongoing success in literature is also a product of history, one carved outside of the regime of copyright.

The entire event is available here. (My presentation was the last one; click on Show Media and select: balancing_scales_role(4).mp4.)

On a personal note; that day in Vancouver, a dear friend was missing from the audience. James Woodburn Dean (1941-2019) died earlier in February. James, professor emeritus of SFU’s economics department, was an extraordinary champion of all students, regardless of their subject. His capacity for kindness was, and will remain, unparalleled to those who received it. As has been written of James, “He believed in the power of education and music and encouraged others to take bold steps.” To the extent that I can claim some success as a scholar, I am indebted to James for his indefatigable confidence in my ideas and unstinting friendship that continued long after completion of my doctorate.

Rest in peace James.

“a plea to the academics”

If we want writers to flourish, then it is vital to maintain the spaces of legitimate-unauthorized use provided within the system of copyright.

That was the gist of my remarks for a public event concerning the upcoming review of the Copyright Act, held during Congress 2017. I had one objective in mind: to reach the professoriate. Particularly those individuals who are passionate about literature, books, publishing and Canada. That community is the one that may be best able to cut through the political rhetoric that swirls around the word copyright.  They could offer a well-grounded discussion of what the system of copyright is and how it helps or hinders the telling of stories. And so I titled my presentation as A Plea to the Academics.

The call for papers which prompted my participation asked two questions. The first enquired how might those involved with the enterprises of education and research respond to accusations of widespread pilfering of creative works? The second query asked those same individuals how might they demonstrate the value gained by maintaining a robust limit upon the grant of copyright? My answer was that researchers and educators should do what they do best: research and educate. This was not intended as a witty response; I was quite serious. Beyond a handful of dedicated scholars, the majority of the Canadian professoriate is unaware of the structure of copyright law, its particular history in Canada, and the very real risk Canadians face of being drawn into a strict no-copy-without-payment regime with the ensuing loss to creativity (i.e., see here).

It is likely safe to assert that no government has ever lost votes by declaring allegiance to its writers. Thus, copyright owners, or their representatives, have an easy argument to draw from when lobbying for more restrictive copyright laws; they blithely connect stronger copyright with authorial well-being, claiming that an attendant benefit will eventually flow to the general population. The argument lacks credible evidence, and logic, but given the highly emotional setting of the dialogue, countering the argument requires a deeper understanding of the backstory to literary creation. Limitations upon copyright are critical to building a book industry and to the creation of books themselves. To that end, I drew upon the words and experiences of three writers (Margaret Atwood, Charles Dickens, and Ved Mehta) to illustrate a different perspective about copyright and the creation of literature.

But I have no doubt that literary scholars and book enthusiasts would have more such stories to tell.

My notes, with a few slides embedded, are available through the Association of Canadian College and University Teachers of English.

fair dealing week 2017

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.

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“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 19^th 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.

“history begins with geology”

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 19^th 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.

Literature did not end in 1774

A friend sent me the latest Access Copyright e-newsletter for creator affiliates. With the heading of “Canadian creators making their voices heard,” the newsletter describes a recent advertisement published in the Globe and Mail and the Hill Times. The advertisement was supported by the Canadian Authors Association, The Writers Union of Canada, other literary associations, and specifically endorsed by many renowned Canadian writers. In their eyes Bill C-32 places Canada’s digital economy at risk by undermining the work of Canada’s creative community.

To lobby the Canadian government for copyright privileges is the right of any Canadian but to present Bill C-32 as compromising Canada’s creative future is absurd. Left unsaid is any reference to other forms of taxpayer-funded support that are provided to authors. The Canada Council has played a significant role in the development of Canadian literature. Grants from the Social Sciences and Humanities Research Council should also be recognized. And while dedicated arts funding from municipalities and provinces may have declined in recent years, those contributions should not be forgotten. It is disappointing to see Canada’s literary elite taking part in the misrepresentation of the implications of Bill C-32.

But did they have a choice? The lines drawn are ugly; Bill C-32 increasingly sits as an “us or them” proposition. Said another way, it is 1774 again.

This might be a good thing.

Book history and copyright enthusiasts alike will remember 1774 as the year of Donaldson v. Beckett. In that decision the House of Lords decisively ended the custom of perpetual copyright. Publishers fought strenuously to have the decision overturned, claiming that without perpetual copyright there would not be enough time to capture revenue from book sales. They foretold of the end of publishing and with it, the loss of literature.

In The Enlightenment and The Book (2006), Richard B. Sher writes:

[Bookseller-publishers] did what they could to recruit authors to their cause by scaring them with predictions of severe decreases to their copy money if the duration of copyright were restricted by statute; their efforts met with limited success. David Hume permitted his London publishers to use his name publicly, but in private he told one of them that he did not think the elimination of perpetual copyright would be likely to have “any such bad Consequences as you imagine.” (p.25).

Professor Sher’s past, and continuing, research offer compelling evidence that the literary publishing industry did not suffer dramatic change when copyright’s expanse was curtailed in 1774.

Including education as a permissible category of fair dealing will not bring havoc to Canadian writers. Michael Geist posted an FAQ on this matter – it ought to assuage the fears of Canada’s literary community. To suggest that inclusion of education to fair dealing is an unprecedented exception and will undermine Canada’s international obligations, as the advertisement did, is simply incorrect. A colleague dryly asked, “Have they not heard of a little place called the United States?” Codified into American law in 1976, Fair Use permits multiple copies of copyrighted material for classroom use, under the condition of a fairness test. Notably, it is the same fairness test advocated by the Supreme Court of Canada in March 2004, and most recently used by the Federal Court of Appeal in July 2010. The decision of July was favorable to writers and publishers when their works are used in educational settings.

So, disappointing as it was to see that list of names, I will focus instead on the pleasure their books have brought. Memorable was the night we listened to Margaret Atwood’s explanation of her first encounter with interest received from her bank – D. almost fell over from laughing. That gem is in Payback: Debt and the Shadow Side of Wealth (of Massey Lecture fame.) My introduction to Charlotte Gray came via her biography of the lives of Susanna Moody and Catherine Parr Trail. These pioneering writers laboured under far more difficult circumstances than anything Canadians endure today. Gray mentions the difficulty of surviving on writing; Parr Trail only received “110 pounds on copyright and no royalties on the sales (p.125)” for The Backwoods of Canada. Even though the book became required reading for those considering emigration to British North America and helped keep “Mr. Charles Knights’ shaky publishing house afloat (p.126).” And Yann Martel’s Man Booker award-winning Life of Pi, beginning as it does in India, spoke to my multiple-cultural-identity-disorder. Can anyone forget the encounter at the seaside among the priest, imam and pandit?

More of my favourites to come another day. And I have every expectation that there will be even more, as of yet unwritten. Literature is much more than copyright.