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.

fair use of Faulkner

A story in circulation yesterday concerned a claim of infringement over the use of nine words in a film. (See Dave Itzkoff of the New York Times here, Holbrook Mohr writing for AP through the Times Colonist here, and Ted Johnson writing for Variety here). The literary estate of William Faulkner objected to the inclusion of Faulkner’s wording from Requiem for a Nun (1950): “The past is never dead. It’s not even past.” Woody Allan, in Midnight in Paris (2011), has a character proclaim: “The past is not dead. Actually, it’s not even past. You know who said that? Faulkner. And he was right. And I met him, too. I ran into him at a dinner party.”

Fair use called out, loud and clear. It is almost beyond belief that the estate thought this case could be won (more on that below). Judge Michael P. Mills, of the Northern District of Mississippi, states the issue and his decision at the outset:

At issue in this case is whether a single line from a full-length novel singly paraphrased and attributed to the original author in a full-length Hollywood film can be considered a copyright infringement. In this case, it cannot.

Making it clear that the estate had provided little in the way of argument, Mills nevertheless considers if fair use is applicable and then proceeds with a fair use analysis. (I avoid most specific details but — spoiler alert — the opinion tells all.)

After accepting evidence that Faulkner’s work is still under copyright, Mills explains that a charge of infringement rests on “substantial similarity,” which “is measured by considering the qualitative and quantitative significance of the copied portion in relation to the plaintiff’s work as a whole.” Beginning with the statutory language of fair use and its four-factor analysis as given in 17 U.S.C. § 107, Mills reminds us that fair use has been defined as: “a privilege in others than the owner of the copyright to use the copyrighted material in a reasonable manner without his consent.” Then he unveils his analysis.

(i) Purpose and character of the use.  This determines whether the later work moves forward from the original work, “… with new expression, meaning, or message; it asks, in other words, whether and to what extent the new work is transformative.” Comparing Faulkner’s book to Allen’s movie, Mills is explicit in the dissimilarity of the two uses of the nine words. The time, setting and characters are not at all the same, and the intent of the wording conveys an entirely different argument: “On one hand is a serious attempt to save someone from the death penalty, and on the other is a fiancé trying to get a leg up in a fleeting domestic dispute.” The shift in genre and medium (serious literature to romantic comedy, book to film) coupled with the “miniscule  amount borrowed” essentially decides the case. The transformative element is so great as to “[diminish] the significance of considerations such as commercial use that would tip to the detriment of fair use.”

(ii) Nature of the copyrighted work.  Faulkner’s estate attempted to resist the applicability of fair use to excerpts from the book, on grounds that a precedent setting case (Campbell v. Acuff-Rose Music, Inc.) had upheld fair use in application to parody but Allen’s movie was not a parody of Faulkner’s book. Mills is not distracted by the misdirection: “The court declines to determine whether or not [the movie’s] use constitutes a parody because it has found the work to be highly transformative under the first factor, whether parody or not.”

(iii) Amount and substantiality of the portion used in relation to the copyrighted work as a whole.  Faulkner’s estate had argued that while the work was not quantitatively significant, the use was infringement because of the qualitative nature of the wording: “[it] describes the essence of [the book].” Mills does not agree, saying that the argument addressed the qualitative merit of a theme, not the expression of the theme. Themes, like ideas, are not copyrightable–only their expressions are. In this case, expressions of the theme occur several times throughout the book and thus the copied words represented only “a fragment of the idea’s expression.” Mills then adds this gem: “This analysis is not influenced by the quote’s subsequent fame as a succinct expression of the theme. Qualitative importance to society of a nine-word quote is not the same as qualitative importance to the originating work as a whole.”

(iv) Effect of the use upon the potential market.  Mills indicates that in light of analysis of the first factor, this is moot. Mills could have stopped there but goes on to say:

The court is highly doubtful that any relevant markets have been harmed by the use in [the film]. How Hollywood’s flattering and artful use of literary allusion is a point of litigation, not celebration, is beyond this court’s comprehension. The court, in its appreciation for both William Faulkner as well as the homage paid him in Woody Allen’s film, is more likely to suppose that the film indeed helped the plaintiff and the market value of [the book] if it had any effect at all.

And now this gets interesting. Mills writes that the estate had anticipated providing evidence that it usually licenses Faulkner’s content and that Allen’s use of the nine words would “adversely impact [the estate’s] ability to exploit for its financial benefit its property rights [in the book].” Mills response is unsympathetic: “The court is doubtful that any discovery to this effect will prove fruitful since the court does not consider a copyright holder to be entitled to licensing fees for fair use of his or her work.”

The estate had also attempted to argue that since other copyrighted material had been licensed for use in the film, the same treatment should apply. Mills is not impressed here either:

This court’s inquiry is whether the use of Faulkner’s quote is fair use, not whether the rest of the work used in the film would have required a license agreement. Such considerations would require several detailed inquiries into the fair use of several other works. The court notes the obvious distinction between the use of Cole Porter and Pablo Picasso’s work at the outset, however: they are used in their entirety while [Faulkner’s work] is by fragment only. Thus, the court finds this consideration to be irrelevant.

All in all, the estate’s claim rested not upon the law, but on the expectation of achieving a license. And this was not an isolated event.

Last fall, when the estate began legal action against Midnight in Paris, it also began proceedings against Northrop Grumman (a defense contractor) for its use of Faulkner’s work. The company had used fourteen words from Faulkner’s article titled “On Fear” (published in Harper’s in 1956). The wording (“we must be free not because we claim freedom, but because we practice it”) was attributed to Faulkner and appeared in a Fourth of July advertisement on the company’s web page. At the time, Alison Flood writing for The Guardian gave more details of “On Fear”; it is a reflection on the aftermath of a U.S. Supreme Court decision ordering the desegregation of schools.

While the unauthorized association of Faulkner to a defense contractor might be unpalatable to the estate, that is a claim of moral rights infringement, not copyright. (This is problematic for Americans as the United States does not observe moral rights in the manner that many other countries do.) The context and details of Northrop Grumman’s use are different but the behavior of the estate again smacks of rent-seeking. On that occasion, the estate seemed to get what it wanted; the dispute was privately settled with no details released.  Randi W. Singer and Olivia J. Greer covered this story for Intellectual Property Magazine in February 2013.

Canadians may be pleased to know that all of Faulkner’s published texts entered our life+fifty public domain on January 1, 2013.  In jurisdictions of lengthier term, they remain under lock and key, save for fair use and fair dealing.

A glimpse into the life of William Faulkner (1897-1962); Nobel laureate (1949)

In 1956 The Paris Review published an interview with Faulkner. Conducted by Jean Stein, early in their conversation she asks for Faulkner’s views of himself as a writer:

If I had not existed, someone else would have written me, Hemingway, Dostoyevsky, all of us. Proof of that is that there are about three candidates for the authorship of Shakespeare’s plays. But what is important is Hamlet and A Midsummer Night’s Dream, not who wrote them, but that somebody did. The artist is of no importance. Only what he creates is important, since there is nothing new to be said. Shakespeare, Balzac, Homer have all written about the same things, and if they had lived one thousand or two thousand years longer, the publishers wouldn’t have needed anyone since.

Race relations and civil rights were prominent in Faulkner’s stories and his life.  In light of what is happening in the United States today, readers may be interested in this passage from On Fear:

If the facts as stated in the Look magazine account of the Till affair are correct, this remains: two adults, armed, in the dark, kidnap a fourteen-year-old boy and take him away to frighten him. Instead of which, the fourteen-year-old boy not only refuses to be frightened, but, unarmed, alone, in the dark, so frightens the two armed adults that they must destroy him…. What are we Mississippians afraid of?