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Fair Duty by Meera Nair
from Fair Dealing to Fair Duty, understanding the limits of copyright
Updated: 12 min 42 sec ago
Investor-State Dispute Settlement (ISDS) reappeared in the news last week. Writing for Toronto Star, Les Whittington alerts Canadians that our country is on the receiving end of a claim of $3.5 billion by the owner of the Ambassador Bridge which connects Windsor and Detroit. “Matty Moroun … is claiming damages from Ottawa in connection with Canada’s plan to help build a second bridge linking Ontario to Michigan at Detroit.”
It is the ISDS mechanism established within the North American Free Trade Agreement (NAFTA) that is providing the avenue of complaint for Moroun. I have written about ISDS before (most recently, see here); in essence, foreign corporations have recourse to sue governments, via private tribunal, when government or judicial actions of the home country are deemed to compromise the foreign investment. ISDS were introduced ostensibly to provide security to corporations when dealing in countries with less-than-robust systems of law, but has now become part and parcel of most bi-lateral or multi-lateral trade agreements. The recently agreed upon Comprehensive Economic and Trade Agreement (CETA) between Canada and the European Union, and the pending Trans-Pacific Partnership (TPP) which is described as the largest trade agreement negotiated outside of the World Trade Organization, are no exceptions. From a Canadian perspective though, it is perplexing that any government of Canada should embrace the continuance of ISDS in trade agreements.
Whittington draws from a newly–released compilation of actions against NAFTA governments, authored by Scott Sinclair for the Canadian Centre for Policy Alternatives (CCPA), to observe that, disproportionately, Canada receives most of the action. It could be argued that Canadian trade with the United States is of higher volume than that of Mexico, and thus such proportion is inevitable. One could also argue that Canada’s past commitments to public-wellbeing are more likely to impede a laissez-faire mantra, and that is why we attract unwanted attention. A day after Whittington’s article, Thomas Walkom also weighed in via Toronto Star: “… 69 of the 77 complaints made against governments in the three countries were leveled against public policy measures in areas such as environmental protection, land-use planning, drug regulation and health care.”
Whittington observes that the Canadian government sees concerns of ISDS as overdrawn; with respect to CETA, he quotes a representative: “Investment protections have long been a core element of trade policy in Canada and Europe, and will encourage job-creating investment and economic growth on both sides of the Atlantic.” But, in March of last year, Public Citizen issued a report which comprehensively illustrates that ISDS offers protection far beyond what occurred in the past and that “… countries bound by ISDS pacts have not seen significant FDI increases, [whereas] countries without such pacts have not lacked for foreign investment (p.3).” And in that same report, Public Citizen illustrates precisely how deleterious actions under ISDS are to public well-being.
For instance, both Uruguay and Australia have drawn fire for their anti-smoking efforts (larger warning labels and plain packaging requirements), despite the fact that the World Health Organization commends such effort. (Jim Armitage, writing for The Independent last fall, described in detail Uruguay’s success in reducing smoking rates among its population.) Yet tobacco company Phillip Morris, is challenging both countries by way of ISDS. As noted by Public Citizen, “Philip Morris is demanding compensation from the two governments claiming that the public health measures expropriate the corporation’s investments in violation of investor rights established in Bilateral Investment Treaties (p.2).” Neither Uruguay’s health success nor the fact that Australia’s regulations were upheld by its Supreme Court, will have much sway in the tribunal operations of ISDS.
Under ISDS, disputes are managed by a trio of corporate attorneys who rotate among the positions of representative and judge. These tribunals are not answerable to any electorate and do not address public well-being as a court of law would do when confronted with the same dispute. Even if one is willing to accept that such critical decisions are rendered outside the forum of any country’s judiciary, the lack of statutory guidance to the outcome is extraordinary; Public Citizen writes:
If a tribunal rules against a challenged policy, there is no limit to the amount of taxpayer money that the tribunal can order the government to pay the foreign corporation. Such compensation orders are based on what an ISDS tribunal surmises that an investor would have earned in the absence of the public policy it is attacking. The cases cannot be appealed on the merits. There are narrow technical and procedural grounds for annulment. Firms that win an award can collect by seizing a government’s assets if payment is not made promptly. Even when governments win cases, they are often ordered to pay for a share of the tribunal’s costs. Given that the costs just for defending a challenged policy in an ISDS case total $8 million on average, the mere filing of a case can create a chilling effect on government policymaking, even if the government expects to win (p.2-3).
For Canadians, that last sentence is not conjecture; Walkom writes “[In 2013] … the Ontario government paid a U.S.-based company $15 million to withdraw its complaint.” Moreover, the phrase “would have earned in the absence of the public policy it is attacking” should send chills down everyone’s spine. Clean air, clean water, access to medicine, and, worker and public safety, all sit on the cost side of any ledger. It is unrealistic to expect that measures addressing these social needs would have been voluntarily adopted by entire industries, and then maintained by those industries, without some prodding from government. The appropriate forum to address dispute between corporate expectation and government commitment to public well-being, can only be a court of law.
Harold Innis (1894-1952) once remarked upon the brilliant achievement that was the development of law; that law represented “an alternative to force.” True, in the 21st century, citizens of nation states do not fear marauding armies traipsing through the streets in a hostile takeover of the nation. But we should not lose sight of the fact that nations can be taken over in a far more insidious way; losing the supremacy of our judiciary and the autonomy of our government should be an early warning sign.
December 11 marks the death of John Gillespie Magee, Jr. (1922-1941). Born to an American father and a British mother, Magee opted to join the Royal Canadian Air Force in 1940 to serve with the Allied Forces during WWII (the United States had not yet entered the war). Killed in flight during a training exercise, Magee’s name continues to circulate via his poem High Flight; he may be forever known as the pilot poet.
Oh! I have slipped the surly bonds of Earth
Up, up the long, delirious, burning blue
Each sentence surpasses the previous; and the last line lingers inexorably: “Put out my hand and touched the face of God.” The denizens of Wikipedia have traced the phrase “touched the face of God” to an earlier work by Cuthbert Hicks, a poem titled The Blind Man Flies. Some other phrases of Magee’s are also found in other poems. It is a reminder of Northrop Frye’s edict: “Poetry can only be made out of other poems; novels out of other novels. … All this was much clearer before the assimilation of literature to private enterprise concealed so many of the facts of criticism.”
That creativity is an effort in recycling has gained heightened attention in the digital age. Where we once might have talked about chapbooks and scrapbooks, we now speak of user-generated content (UGC). To be sure, digital technology has enhanced both the tools for creative effort as well as the means to distribute the outcome of such effort. But the fact remains that creativity has always relied on inclusion of prior work. In our pre-digital world, amateur recycling of copyrighted materials would either have escaped notice, or been tolerated; today, copyright holders are more likely to resent such behavior and claim infringement.
Aware of the risk to our creative instincts by overt copyright consciousness, as part of the 2012 amendments to the Copyright Act, the Canadian government brought in an exception to protect UGC activities. Found in Section 29.21, the exception is titled as Non-commercial User Generated Content and begins with, “It is not an infringement of copyright for an individual to use an existing work or other subject-matter or copy of one, which has been published or otherwise made available to the public, in the creation of a new work … .”
As all such amendments to copyright have been, S29.21 was controversial from the outset. It pleased few. The exception addresses solely non-commercial creations, thereby offering little assistance to professional artists, and comes with conditions that appear too onerous for amateurs to follow. But closer inspection suggests that S29.21 is not far removed from the analysis that must accompany fair dealing in Canada (fairness and attribution are key to both).
Notably, Canada is the only country that has taken such a progressive step. Peter Yu, an internationally acclaimed intellectual property scholar, argues passionately that a similar exception be included in proposed modifications to the Copyright Ordinance of Hong Kong. Yu also expertly discredits naysayers who profess that Canada’s amendment violates international obligations.
From its infancy on, S29.21 was dubbed the YouTube clause; a title perhaps more fitting in spirit than jurisdiction. The moniker notwithstanding, the scope of 29.21 is vast. Any form of copyrighted work is eligible for consideration, not merely music or video. Teresa Scassa, also a highly acclaimed scholar in the world of intellectual property, writes:
From one perspective it is a licence to build on the works of others; from another it is a potentially sharp curtailment of the scope of a copyright holder’s ability to control the use of their work. In the end, the scope and importance of the UGC exception may come down to how its limiting provisions are interpreted: and in this regard, the direction already charted by the [Supreme Court of Canada] in its recent copyright decisions will likely have great bearing.
Scassa goes on to remind us that the Supreme Court of Canada has taken a strong stance on the issue of balance between rights of control and rights of access. Their directive should feature prominently if lower courts must assess a copyright claim against the limits of the UGC exception.
So, in celebration of Magee’s life and work, and the creative process in general, readers might enjoy this UGC creation by SongOfTheOpenRoad. High Flight’s words are elegantly scripted and interspersed with beautiful imagery. Set upon the musical score of Return/Reunion by Basil Poledouris, the result is much more than the sum of its parts.
The book is not a history, nor an official report of results accomplished; but, as far as I have been able to make it, a human-interest story of what books and reading have meant to the morale of the army and to the individual soldier and sailor in helping them to win the war and preparing them for their return to civil life (p. viii).
So wrote Theodore Wesley Koch (1871-1941), scholar and librarian (last featured here), in Books in the War – the Romance of Library War Service.
Posted to London in 1917 by the Librarian of Congress, Koch became aware of British efforts to supply their soldiers with books, “in camp, trench and hospital.” By the time Koch returned, the United States had entered the war and Koch was asked to assist in the promotion of Library War Service. His chronicle of the war years was published in 1919; sadly, only a few printed copies remain in circulation. But thanks to the provision of original books from Harvard University, University of California and University of Wisconsin, digital replicas are available for the benefit of all via Internet Archive and HathiTrust Digital Library.
The initiative to provide books to the fighting forces, apparently brought out the best in people. The preliminary appeal for funding had been via private subscriptions – a one million dollar goal was quickly exceeded with nearly $2 million raised. Publishing houses joined the effort: “… discounts of from forty-five to fifty percent were not uncommon (p.10).” And some university presses and correspondence schools donated generously from their own inventories.
If there was any doubt of the value of books to soldiers, it was dispelled immediately following the launch of the libraries. Established at training bases, front line units, hospitals, convalescent homes and prisoner-of-war camps, and staffed by librarians (many of whom were volunteers), the libraries were much needed and much loved. Drawing upon original letters, reports and conversations, Koch meticulously described the impact made by the availability of reading material. His research was extensive. British sources included details of library programs for colonial troops and Koch gave the full extent of the reach of library books in World War I.
The outpouring of the soldiers’ gratitude fills many pages of Koch’s work; choosing a favorite thank-you is difficult. But one anecdote remains prominent for me:
‘Please send us some books. We ain’t got no books at all. We are regulars and get just as lonesome as national guards.’ This was the appeal sent by a private from a small camp to a public librarian in the East. Into the first of several shipments the thoughtful-librarian slipped a supply of candy and tobacco. The response was immediate. ‘If you ever done good to a man you done good to me,’ wrote the soldier, ‘but please don’t waste no more space for eats. Just send the books.’ (p.23).
The span of reading material provided to the men was vast. That fiction would be in high demand was expected, but many requests came in for vocational training material as soldiers endeavored to maintain the knowledge and skills necessary for their civilian trades. So too were requests for material that would aid a soldier’s realm of duty. Koch gave the details of a request from a private in the Engineers’ Corps of Camp Devon:
[He] asked for books which would explain the psychology of camouflage. He was something of an artist and had been successful with colour photography. … Material was found for him and he succeeded in hiding guns so well with paint that he deceived his own captain (p.31).
But beyond technical matters, also desired were books of poetry, literature, biography, mathematics treatises, and, maps and histories of the regions where soldiers were posted. Newspapers and magazines were no less appreciated by men far removed in space and time from life back home. And, given the diversity of cultures among the soldiers, materials were needed in Arabic, French, Greek, Hebrew, Italian, Russian, Spanish and Yiddish, just to name a few of the languages spoken. It is no exaggeration to say that most soldiers emerged from World War I more well-read or better educated than when they entered.
The extent to which education was promoted through the libraries and librarians ranged from instruction for men whose background had not included any schooling, and hence were illiterate, to formal programs of study. A Canadian higher education venture came in for special mention from Koch:
An interesting educational experiment was carried on at Witley Camp, occupied by some of the Canadian forces in England. There the library hut of the Y.M.C.A. and the three adjacent huts were handed over by the authorities for educational purposes and became the pioneer college of the “Canadian Khaki University.” .. Credits were given for work properly done in English, French, the classics, mathematics, and agriculture. .. Examinations were held and certificates given, and men were helped to complete an interrupted academic course and to prepare themselves for satisfactory positions after the war (p.55).
Perhaps most thought-provoking among Koch’s accounts are those concerning the supply of books for prisoners-of-war. The value of books was commonly held on both sides of the Great War. Within camps, prisoners would organize themselves into teaching groups; professional and learned men of civilian days became teachers for their fellow prisoners. Koch wrote that “hundreds of schools were maintained in the prison-pens of the contending armies by the American Y.M.C.A;” the ensuing demand for thousands of volumes was met by the American Library Association. “What this meant to the prisoners in the camps cannot be overestimated; to all it meant hope and joy, to some perhaps even life and sanity (p.266).”
The Y.M.C.A’s operation reached far beyond Western Europe. A secretary writing from Siberia, indicated that the German and Austrian prisoners spent a great deal of time in study. The difficulty was that most of the books available were only in Russian. While prisoners who had a general knowledge of Russian could translate for others, eventually “thousands of German books arrived for the prisoners and so enabled many of the advanced students to continue studies interrupted by war (p.267).”
Allied forces were also recipients of bibliophile generosity. Among those stories, Koch includes the experiences of Canadian Lieutenant J.H. Douglas. His time as a prisoner of war began in a German hospital:
“Lieutenant Douglas exchanged lessons in English for instruction in French with a French captain in the hospital. They managed to have textbooks bought for them in the city and did serious work for two hours every day … [The] knowledge of French proved of great value to Lieutenant Douglas later when he was transferred to Switzerland, where he and some of his fellow prisoners were allowed to register at the University of Lausanne and took courses in engineering and French literature (p.273-274).”
World War I is not known to stand out on the historical stage for its humanity; but that some was found courtesy of librarians and books should not altogether surprise us. Koch’s work is exemplary and its digital existence, replete with all the original images, help with the quest, lest we forget.
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