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Fair Duty by Meera Nair
from Fair Dealing to Fair Duty, understanding the limits of copyright
Updated: 1 hour 25 min ago
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.
This past week, news broke concerning the Harper Government’s consideration of a new exception to Canada’s Copyright Act. A benefit solely for those involved in the creation and distribution of political advertisements, the proposal can only undermine three hundred years of statutory design on copyright law, which has progressively ensured broad language with flexibility to anonymous creators and users alike.
Reports began on October 8 from CTV and the Globe & Mail, with the CBC providing further details on October 9 (including posting the undated Cabinet presentation document). Michael Geist posted commentary on both the 8th and 9th, and copyright enthusiasts around the country are shaking their heads in disbelief and dismay.
Briefly, Prime Minister Harper and his cabinet are entertaining the thought of an exception to copyright that is only applicable to the political establishment. From the Cabinet document came this:
The exception means greater certainty for the political actors who want to use copyright content in their advertisements:
The rationale offered by the government is that politicians should be held accountable for their statements and actions, and this exception would ensure that the public is kept informed. The opposition parties see it as a thinly veiled attempt to facilitate the use of attack ads. While our Government is content to claim method, their behaviour is madness of Shakespearean proportions.
First, we already have an exception to address the use of copyrighted material; fair dealing protects unauthorized use for the purposes of research, private study, criticism, review, news reporting, parody, satire and education, provided the use is fair. Political parties should apply the law under the same constraints as all Canadians (if anything, in a more edifying manner).
Second, using published material to report or contradict political opinion is part and parcel of civil society as it exists. If a member of the political realm gives a speech, a reporter may quote from the speech. An opponent may choose to quote out of context. The audience may find such a tactic repugnant, but it is hardly new.
Third, in the copyright amendments of 2012, this same Government introduced a new exception, unofficially titled the YouTube exception which supports the creation of user-generated content. Section 29.21 is suited to the creation of both commentary and fantasy. While I find attack ads loathsome, they are creative expression and may draw upon the exception.
Fourth, the issue of moral rights is given short-shrift by this Government’s proposal. It claims that moral rights of creators would not be affected, via the logic that creators have likely waived those rights. Moral rights protect the integrity and reputation of a work and its creator respectively. Canadian law forbids allying a work to a cause if the creator objects. To blithely indicate that the Government will not suffer for misusing a work is further evidence that this government only cares about legal liability, not ethical conduct.
Fifth, this desire to embed a copyright change in an omnibus budget bill flies in the face of this Government’s own stipulation of a five year, comprehensive review cycle of the Copyright Act. If musicians and students, librarians and broadcasters must wait to plead their case until 2017, this Government must abide by the same rule.
Finally, the Government’s proposal makes curious distinctions that undermine the universality of the grant of copyright and the use of exceptions. That it is designed for a small segment of Canadians is reprehensible. So too is the manner in which genre and medium are parceled out. For instance, news articles may be used but not photographs or music. Documentaries are not eligible for mining (even though documentarians are among the greatest users of exceptions to copyright, making reciprocation only appropriate). Fictional works are also not eligible, despite fiction being a rich resource for modern commentary. Presumably though, fiction that has passed into the public domain may be drawn upon—I await the invocations of Caesar, Macbeth and Hamlet.
Canada has enjoyed ten years of jurisprudence that yielded a fair dealing regime capable of addressing all situations with flexibility, to the benefit of all Canadians. To muddy up the Copyright Act with a narrowly worded, politically-minded exception places future courts in the awkward position of having one approach when adjudicating copyright for Canadians and a separate approach when adjudicating copyright for Canadian politicians. This will not facilitate the understanding or practice of the system of copyright in Canada.
As I caught up on my reading, I discovered that course packs continue to make headlines. The September 17th issue of Outlook India featured “Copy This” by Gautam Bhatia; a few days later, The Varsity (University of Toronto’s student newspaper) published “After Access Copyright” by Iris Robin. Both articles speak to the continued need to probe the use of course packs with nuance.
Bhatia expertly takes readers through an ongoing dispute whereby in 2012 Oxford University Press, Cambridge University Press and Taylor & Francis, instigated a lawsuit against a copy shop operating at Delhi University. The alleged crime was copyright infringement in the production of course packs. (I had previously written about the suit here.) Further coverage from Spicy IP indicates that many of the excerpts reproduced fell within the quantitative measure of 10% (see here and here) that is considered fair use by American courts in the context of education. The guidance of 10% is also followed by many Canadian educational institutions.
Bhatia indicates that Indian educational institutions are being pressed to adopt blanket-licenses with respect to provision of course packs. Aware of the culture of licensing and market-superiority that was once the predominant atmosphere of copyright in North America, particularly in the United States, Bhatia writes:
Even in Canada, a country immensely richer than India, the problem has been noticed. Canadian universities initially agreed to a licensing arrangement that was pegged at a reasonable price. Once they opted in, however, the price steadily increased, until it became unsustainable.
Canadian courts have been far more sympathetic to the predicament of universities and students than their American counterparts. In two important cases, they eschewed the economic approach, identified [fair dealing] as a “user’s right”, and imposed the burden of proving direct financial damage upon the publishing houses. The publishing houses were unable to meet this challenge.
On reflection, that is hardly surprising. If students are not allowed to copy, it is not the case that they will spend ten times the money upon the original textbook. In most instances, they will simply be unable to do so. They will not buy the book at all. And if that is true in a country as rich as Canada, it is certainly true—in a much stronger sense—for one as poor as India.
Turning to The Varsity article; Robin writes that course pack fees have increased since the university moved away from its Access Copyright blanket license. On cue, representatives from writers’ organizations provided comments of the I-told-you-so variety. Whereas Lisa di Valentino considers the larger question of why and suggests: “More likely, this is an issue with communication, specifically between the library and the instructors.” Noting Robin’s coverage – that the University of Toronto is engaging in outreach to acquaint teachers with a better understanding of copyright and case law, as well as the myriad of possibilities to reduce costs to students – di Valentino concludes with:
UofT (and other AC-less institutions) is going through a transition phase. Procedures and protocols are changing in ways that directly affect how instructors do their jobs. Copyright is not just for lawyers and librarians anymore. Copyright literacy is fast becoming a necessary element of faculty members’ toolkits.
As publishers, teachers, and students wrestle with the seeming problem of piracy (with its seeming solution of licensing), it is important to remember that copyright only applies to “substantial” reproductions of work. An insubstantial portion of a work does not qualify for protection (see Section 3.1 of Canada’s Copyright Act, or Section 14 of the Indian Copyright Act). We only need to rely on exceptions such as fair dealing when the amount reproduced exceeds the insubstantial, and is not already legitimate use by other means (i.e., library-subscriptions, open-access, publicly availablility, or Creative Commons).
Fair dealing should never be summarily reduced to a measure of quantity – fair dealing can amply support reproducing 100% of a work, depending on the circumstances. However, from an administrative perspective, using a guide of 10% is prudent; the amount is not only cautious but it may not even cross the threshold of substantial. As long as teachers are aware that 10% is not the ceiling, and that fuller scrutiny via the framework offered in CCH Canadian facilitates a legitimate decision to copy, the flexibility possible within the system of copyright will be preserved.
Congress 2014 was held at Brock University this past spring; included among the customary panel discussions was a series of debates concerning copyright, fair dealing, licensing and open access. Titled Copyright and the Modern Academic, the series sought to widen discussion about the means by which information flow is facilitated in learning, teaching and research. Videos of the series are available at the Canadian Association of Learned Journals (see here) and at the Brock Video Centre (see here).
I was particularly interested in the third debate, Access Copyright—Friend or Foe, with speakers Howard Knopf and Roanie Levy. Knopf is a lawyer with Macera & Jarzyna, author of Excess Copyright, and a long-standing advocate for a more nuanced understanding of copyright and fair dealing. Levy is the Executive Director for Access Copyright, formerly General Counsel and Director of Policy & External Affairs for Access Copyright, and equally passionate about the roles of protection and licensing towards development of content. (Fuller biographies of both speakers are given approximately 5:30 minutes in.)
The arguments of Knopf and Levy were lively and thought-provoking, but what remains uppermost for me is the first issue raised from the audience at the beginning of the Q/A (at approximately 58 minutes in). It focused upon Access Copyright’s licensing terms that protect teachers and students in the context of teaching and learning, but not the subsequent behaviour of the student:
Most of us use Blackboard or Moodle; we upload links to articles, we upload articles, we create wikis, we want students to comment, we are creating a discourse community among our students asking them to critically analyze concepts or issue … It is not surprising that many times students download those articles and then those articles could now be posted on a student’s blog or on a student’s Facebook page … we all know how things move across the Internet. … I would personally find [the licensing terms] quite limiting, if I had to worry about that (emphasis mine).
Levy was reassuring that the discourse community, composed as it is of students and teachers (more broadly speaking, the educational body associated to the license) were safe within their actions. Levy was also emphatic that the educational community did not extend to the world at large: “students need to be made aware that content cannot just be shared with the entire world … sharing proprietary content that is not their own should not be encouraged.”
To which Knopf immediately stated that such sharing should be encouraged: “if what the student or professor is doing is fair dealing.”
Levy’s and Knopf’s remarks are not mutually inconsistent – quite the opposite in fact. Each statement reinforces the other. It is entirely plausible, and beneficial, for teachers to simultaneously state that piracy is undesirable and fair dealing is desirable. Discussion will, over time, encourage students to understand the nuance and care that goes into an evaluation of fair dealing. In the more immediate future, such conversation between teachers and students further exemplifies that post-secondary institutions take this matter seriously and are developing systems of good practice that amount to more than merely posting rules to a website.
Regrettably, with time running out and other questions waiting for attention, the crux of the first question was not addressed. More specifically, does a teacher have to worry about the personal conduct of a student outside the activities encouraged within class, with materials licensed at the choice of the teacher? The short answer is No.
A longer answer would suggest that in the scenario where a student’s personal behaviour is alleged as infringing, the copyright holder of the material in question might bring a complaint to the attention of the ISP providing the platform used by the student. Depending on the jurisdiction, the ISP might remove the material (under notice-and-takedown as found in American law) or forward the complaint to the student (under notice-and-notice as set within Canadian law). In neither case is the teacher involved.
An even longer answer would suggest that if anyone should insinuate that the teacher and/or university were liable, a look at CCH Canadian will quickly allay any worries. While that case is known best for its support of fair dealing, the Justices also confronted a claim that libraries were responsible for the conduct of its patrons with regard to self-serve photocopiers. Chief Justice Beverley McLachlin, writing for a unanimous court, rejected that claim:
[E]ven if there were evidence of the photocopiers having been used to infringe copyright, the Law Society lacks sufficient control over the Great Library’s patrons to permit the conclusion that it sanctioned, approved or countenanced the infringement. The Law Society and Great Library patrons are not in a master-servant or employer-employee relationship such that the Law Society can be said to exercise control over the patrons who might commit infringement. … Nor does the Law Society exercise control over which works the patrons choose to copy, the patron’s purposes for copying or the photocopiers themselves (para 45).
If the Supreme Court of Canada has deemed that a library is not responsible for activity conducted within its premises, with materials provided by the library and via the library’s own equipment, because of an absence of control of people, materials, or equipment, then it is illogical to suggest that a teacher is liable for activity of a student, carried out by the student’s own initiative, on a platform independent of the classroom.
Regardless of the status of the material involved (licensed, purchased, or utilized through exceptions to copyright), teachers are not implicated by personal copyright infractions of their students.
Librarians and historians alike may well feel somber as we approach the 100th anniversary of the Le sac de Louvain, a collective punishment meted out by German forces to the people of Louvain for seeming resistance to the German presence. Included among the sites of destruction was the library of the University of Louvain. Set ablaze the night of 25 August 1914, by the next morning its contents had been reduced to ashes.
In 2013, Mark Derez, Archivist of University Archives and Art Collection Leuven (Louvain), presented the story of that destruction, response, and reconstruction. An abbreviated version of his presentation was published in 2014 by the WWI Daily. Derez writes:
The destruction of Leuven had not been unique – in four Belgian provinces, 18,000 houses were destroyed and 5,000 Belgian civilians were killed … [But] there was an emotional element at work… Of all the atrocities committed, that which spoke most to the imagination was the devastation of the university library, for in no way could it have been considered a military target. … [This assault] produced a worldwide stream of solidarity. While the war was still on, twenty-five committees were formed in neutral and Allied countries to collect money and books.
Among those who took it upon themselves to encourage donations of books by Americans and American libraries, was Theodore Wesley Koch. A scholar of Dante, and an internationally respected librarian, Koch’s appreciation of the benefit wrought by libraries for the public was all too evident. As Librarian for the University of Michigan, he had introduced measures that allowed students to borrow books (previously only the professoriate enjoyed that privilege) and allowed public access to the periodical collection.
In a publication titled The University of Louvain and its Library, produced in London and Toronto in July 1917, Koch details the history of the university and the depth and breadth of the library’s contents. It began with a bequest of 852 volumes in 1627, “rich in history and theology,” from former student Laurent Beyerlinck. Subsequent patrons and librarians worked together through a period of nearly 300 years to amass over 250,000 items including rare manuscripts, incunabula, and university archival material beginning with the original papal bull authorizing its foundation.
Koch draws particular attention to the work of C.F. de Nelis, appointed as University Librarian in 1752, whose first act was to: “… ask the Government to require Belgian printers to send to the University Library at least one copy of every book printed by them (p.17).” (A condition that sounds very much like that included within the Statute of Anne (1710), where publishers were to remit nine copies of each book produced, “printed upon the best paper,” to various university libraries.)
The library was successfully reconstructed, inside and out. But it opened in 1928 to both acclaim and controversy. Architect Whitney Warren had sought to design not merely a modern library in neo-renaissance style, but also a war memorial replete with a bell tower whose carillon would ring forth patriotic anthems. Derez describes in detail the clash between those who sought to demilitarize the halls of learning and those who wanted the atrocities to be immortalized. So too does Matthew Battles in Library: An Unquiet History (2003). The final design and play list stopped short of overt jingoism but was memorial enough to attract unpleasant attention from Germany in the next world war. Merely 12 years after it opened, the library was once again destroyed in the 1940 shelling.
The library has since been rebuilt again to Warren’s design. Complete with its bells.
The rallying of the international library community in support of public benefit continues to this day. Preservation of our past, and preparation for our future, were prominent topics of discussion at the satellite conference and the annual conference of the International Federation of Library Associations and Institutions (IFLA) held in Strasbourg and Lyon over the past few weeks. In her opening remarks, IFLA president Sinikka Sipilä spoke of strong libraries as integral to strong societies; and emphasized that “access to information supports development by empowering people to exercise their civil, political, economic, social and cultural rights, learn and apply new skills and make decisions and participate in an active and engaged civil society.”
To that end, the Lyon Declaration on Access to Information and Development was unveiled on 18 August 2014; it calls upon Member States of the United Nations to ensure that information access, sharing, and use are incorporated in the post-2015 development agenda. Details are here; at the time of this writing, 134 organizations have given their support.
Other key sites