an open letter to MP Randy Boissonnault

Dear Mr. Boissonnault:

I write in connection to remarks you made on November 22, during a meeting of the Standing Committee on Canadian Heritage (beginning at 11:49 here). There appears to be a misunderstanding on matters relating to legitimate, unauthorized copying of copyright-protected materials. As this misunderstanding could be widespread, a few words publicly offered may alleviate such anxiety.

You expressed concern that Canadian literature is in peril, and you attributed this to unauthorized use of such literature in universities. That some publishers and writers are encountering difficulties is not in question, but the details are much more complex than was discussed. Today’s challenges stem from an accumulation of events preceding the 2012 amendment of the Copyright Act.

Nevertheless, CanLit is here to stay. On this topic, the work of Nick Mount (Professor, Department of English, University of Toronto) is invaluable, as he is respected on both sides of this debate. In Arrival: The Story of CanLit (2017), Mount details CanLit’s birth, midwifed as it was by profuse government spending during the booming post-WWII economy. As to CanLit’s trajectory: “Canada is producing many more writers and many more books than ever before … there has never been a better time to be a Canadian reader.”

History informs us that reading brings forth writing.

Returning to your remarks, you spoke highly of your studies at Oxford. You might be interested to know that Oxford is mentioned by name in the very first copyright statute: the Statute of Anne (1710). A condition for receiving copyright was that the libraries of Oxford, Cambridge, and other similar institutions, should receive a complimentary copy of the protected book, printed “upon the best paper,” apparently to survive the handling by many grubby hands. Since then, copyright law has undergone numerous changes, but the principle remains: certain measures of unauthorized use are legitimate as they serve larger social goals.

Despite this, universities are increasingly paying for all uses, through licenses with publishers. A multitude of briefs have been submitted to the Standing Committee on Industry, Science and Technology; expenditures are given in detail and speak to the rising trend of relying more on institution-wide licenses for journals and books. Also, Michael Geist (Canada Research Chair in Internet and E-commerce Law, University of Ottawa) has just published a series on his blog which addresses this topic; for instance, see here.

If I may, there is one aspect of your remarks that I find troubling; you suggested sitting down with student leaders to ensure Canadian writers have sufficient funding. The implication is that students are responsible for the challenges endured by some Canadian writers. Nothing could be further from the truth. When students independently engage in unauthorized copying towards completion of their homework, projects, presentations etc.—that is, when they incorporate bits and pieces of text, imagery, multi-media—such copying falls within fair dealing (the principal exception within the Copyright Act, which supports learning). When guided by their teachers, content circulated likely fell within fair dealing, or, as Geist illustrates, was already paid for through an institutional license.

Moreover, a blanket fee, charged to all students, ignores the reality that many disciplines do not engage with Canadian literature, or literature of any kind. To levy such a fee on all students is, at best, inappropriate. At worst, it is unconscionable.

We are leaving our next generations with some intractable problems including climate change, ballooning healthcare costs, the need to develop new industries, and the desperate need to diversify our markets. Fortunately, there are many bright, hardworking, dedicated students, overcoming their ever present hardships, rising to meet these challenges. But even so, the political solution to a shortfall in income among writers should not be a transfer of funds from the group that is even more impoverished.

Regards,
Meera Nair, Ph.D.
Constituent and Parent

good news

Today marks World Book and Copyright Day. The United Nations explains the choice of date as “a symbolic date for world literature,” in part because 23 April 1616 marked the deaths of Miguel de Cervantes, Inca Garcilaso de la Vega, and William Shakespeare. The connection between title and titans seem at best, tenuous — World Writers Day might have been better? — but we may as well take the opportunity to celebrate the successes of Canadian writers and publishers.

In The Daily, issued by Statistics Canada on 23 March 2018, data for 2016 reveals that “The Canadian book publishers industry generated operating revenue of $1.6 billion in 2016, down 0.6% compared with 2014.”

That may not seem like cause for celebration. But it is easily good news, when placed in context: 2016 was a difficult year for the industry as a whole. In an article from Publisher’s Weekly, dated to 25 August 2017, Jim Milliot wr0te: “Although total revenue of the world’s 50 largest book publishers topped $50 billion in 2016, last year was not an easy one for global publishing giants. Less than half of the top 50 publishers posted revenue gains in 2016, with the balance reporting sales declines.”

In comparison then, the next sentence from Statistics Canada is even more gratifying: “Operating expenses decreased 1.4% to $1.5 billion, resulting in an operating profit margin of 10.2%.” In light of global trends, to have any profit margin at all may claim congratulations to that sector.

Reading further, the data continues on a positive theme:

Total sales amounted to $1.5 billion in 2016. Of total sales, Canadian book sales increased 0.5% from 2014 to $1.4 billion in 2016, while all other sales declined 7.9% to $108 million. Of the $1.4 billion in Canadian book sales generated in 2016, 53.8% was attributable to foreign controlled firms, while 46.2% was generated by Canadian controlled firms. Domestic sales accounted for 81.0% of Canadian book sales, while export sales made up the remaining 19.0%. Exports sales increased 11.8% in 2016 to $260.5 million. … Canadian authors accounted for 51.1% of total sales in 2016, up from 48.9% in 2014.

So Canadian book sales increased, under near parity of influence between publishing firms under foreign control and Canadian control. Given that through most of Canada’s existence, our reading and book-selling landscape was overwhelmingly dominated by foreign publishers and printers, this is good news indeed. Moreover, while only 19% of Canadian book sales went to export markets, the fact that those sales increased by nearly 12 % in the space of two years is positively noteworthy. Canadians (both writers and publishers) are making their mark on this world.

Yet, despite evidence of a resilient industry and successful writers, there are many who will continue to insist that because of fair dealing, the Canadian writing enterprise is suffering—that because Canadian educators may legitimately use some portions of published material without authorization, returns to Canadian publishers are compromised, which will lead to a decline in writing in Canada.

As I wrote in my last post, drawing from the work of one of Canada’s most respected authorities on Canadian Literature — Arrival: the Story of CanLit by Nick Mount — Canadian content is simply not being prescribed for curriculum as it used to be. A point I did not emphasize then, but bears mentioning now, is Mount’s enthusiasm regarding the proliferation of writers and books in Canada:

The country is producing many more writers and many more books than ever before, books by and about many different kinds of Canadians than ever before. It also has more readers—they’re just spread out now, among so many books, and so many more ways to read, that it’s hard to see them all (p.293).

According to Statistics Canada, domestic sales have declined by 1.9% since 2014. However, educational titles increased by 4.9%.  This is intriguing, given the publishing industry’s own investigation concerning the selection of resources for use in Canadian classrooms. A report titled Digital Trends and Initiatives in Education—The Changing Landscape for Canadian Content (produced by the Association of Canadian Publishers and released in March 2017) provides a comprehensive examination of the education sector’s approach to choosing resources, to the conclusion that openly licensed content has become a notable component of resources in both the post-secondary and K-12 sectors (p.24).

Michael Geist covered the report in some detail and observes: “… despite the ACP’s insistence in lobbying efforts that copyright is at the heart of publisher concerns, copyright and fair dealing are limited to a single reference with no discussion or analysis. … The report provides several recommendations, none of which involve copyright reform.”

The report’s authors express concern for: (i) the reduction in prescription of Canadian content in the K-12 sector; and (ii) the lack of guidance for teachers for evaluation of free or openly licensed content. They write:

… without clear direction, teachers may continue to use material that has not been appropriately vetted for use in an educational setting. This belief is not intended to diminish the role teachers play in selecting the right content for their students, but rather serves to highlight the fact that teachers do not all have the time nor the expertise to thoroughly evaluate or authenticate every piece of content accessed by themselves or their students (p.4).

I cannot speak to that concern—it is a matter of discussion best left to teachers. The report’s authors press the need for using good Canadian content in our schools–this is perhaps a good time to ask again, What is Canadian Content? In any case, it remains that in the hands of one who has diligently studied/explored a subject, and whose passion to communicate is evident, even a Twitter thread can form educational content. This past Sunday’s reading included a 12-part lesson by Joanne Hammond, describing the events leading to the establishment of reserves in British Columbia, replete with archival maps and images.

To return to the celebration of World Book and Copyright Day, though it is repetition, Mount deserves to have the last word: “The country is producing many more writers and many more books than ever before.”

fair dealing week 2018

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.