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

300 Years of Copyright

Tomorrow marks another anniversary in the world of copyright. The Statute of Anne, considered the world’s first copyright law, came into effect on April 10, 1710. Such an august occasion demands formal attire… and allows for a lengthier entry.

1710 – 2010: Copyright Then and Now

Predating Charles Dickens’ best and worst of times, it was a contentious time. Publishers vehemently protested the loss of their markets and authors lamented the theft of their children. Daniel Defoe’s description of books as the brat of an author’s brains was a powerful, albeit curious, metaphor. If stealing a child was reprehensible, what could be said of the author who consciously sold his own child in the marketplace? Even so, a response was deemed necessary as rival printers helped themselves to the latest works and took larger share of the growing reading market. To bring order to the seeming chaos, the first copyright law came into effect on April 10, 1710.

The Statute of Anne bestowed the exclusive right of reproduction of a book upon an author, or to whom the author assigned his right, for a period of fourteen years. In all practical terms, the statute was merely a trade mechanism. Yet its prosaic identity was hidden behind a noble title, “An Act for the Encouragement of Learning by Vesting the Copies of Printed Books in the Authors or Purchasers of such Copies, during the Times therein mentioned.” The implication then was that if authors were granted control over the diffusion of their intellectual work, this would induce more creation of such work and then, society would benefit.

To be sure, the legislation paid more than lip-service to learning. The privilege of the original exclusive right of reproduction came with the requirement that for each book published, nine copies were to be given to various university libraries, printed on nothing less than the best paper. Moreover, the authorities could intervene in questions of pricing. These requirements were discarded in the three hundred years that followed, and copyright has grown far beyond the framework of books and fourteen year terms. All the while, the encouragement of learning remains the principle justification for expansion.

Today, copyright is the silent, but ever present, warden of our information-oriented lives. Each time we encounter information whether by reading, browsing, listening, or merely gazing, copyright lurks in the background. And if we should choose to copy – fear sets in. Despite the constant reportage by media on copyright related issues, copyright itself is rarely explained. As a consequence, copyright is gaining a stature that is actually denied to it by law. Copyright is not, nor has it ever been, a grant of absolute property. Its reach, while vast, is limited in both space and time. Yet copyright is commonly perceived as a grant of absolute control, with the copyright holder deciding when, and for what price, copyrighted material may be used. If the mechanism of copyright is to live up to its billing as encouragement of learning, stifling ongoing use of copyrighted material for good-faith productive purposes is not only counter-productive but also bewildering. For this very behaviour is permissible by law.

Included in Canadian law is fair dealing, a measure that facilitates the ongoing use of copyrighted material. It is an individual right and allows for unauthorized reproduction of copyrighted material for the purposes of private study, research, criticism, review, and news-reporting. Conditions are attached; citation is important as well as careful consideration of the amount of the material used, how it is used, who the intended audience is, and other concerns. Fair dealing is not license to copy anything and everything; it merely allows all individuals to participate in the creative process.

Creativity is collaborative; when we create something new, we implicitly or explicitly borrow from past exposure to other works. Fair dealing ensures that current creators pay their past debts forward to the next generation of creators. Without fair dealing, copyright descends into an outright monopoly. And monopolies have not been known to yield innovation. In a world increasingly governed by knowledge economies, turning our back on fair dealing is risky at best and foolish at worst.

In 2004 the Supreme Court of Canada unanimously supported the measure of fair dealing. Emphasizing that there is no set rule governing its use, the justices were adamant that each situation is unique and should be judged accordingly. Their ruling also clearly stated that this measure is always available. The legitimacy of a dealing is not set by the copyright holder, but by the actions of the person using the copyrighted material. It is inconsistent to assert copyright in a work, and simultaneously deny the possibility of fair dealing in that same work. However, in our digital, connected world, many attempt to do just this.