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Libraries, archives' role in making orphan works accessible up for debate at WIPO

Sara Bannerman - Thu, 2016/05/12 - 12:46
Discussion of the internationalization of copyright limitations and exceptions, such as expanded exceptions to copyright for libraries, educational institutions, and people with disabilities, continue this week at the World Intellectual Property Organization (WIPO)'s Standing Committee on Copyright and Related Rights.

Discussions of access provisions in international copyright have been ongoing since 2004 and have, so far, resulted in the establishment of the 2013 Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired or Otherwise Print Disabled.  Today's discussions focused on building on the work done under the Marrakesh Treaty to see the possible establishment of an international instrument internationalizing copyright limitations and exceptions for libraries and archives.  International provisions are necessary because, as I note in chapter 4 of my book, International Copyright and Access to Knowledge (Cambridge UP, 2016):
libraries face a number of problems as they attempt to provide both traditional and new services to their users – many related to new technologies. Digitization, license agreements imposed by publishers of electronic journals and books, and Technological Protection Measures (TPMs) all introduce problems of access, preservation,and maintaining copyright exceptions. Moreover, the globalized possibilities of resource sharing, which take place increasingly across borders, are undermined by the territoriality of copyright law. IFLA, the ICA, and others suggest that a treaty is the best way to ensure that a minimum set of limitations and exceptions for libraries and archives exist, and that they apply in cross-border environments. (76)*One focus of today's WIPO discussions was on the topic of orphan works, or copyright works where the copyright owner can't be found.  Libraries and archives are often the "adoptive parents" of orphan works; they are in a position to facilitate access to these works, especially through digital means.  However, copyright regimes often stand in the way, as can differing national regimes.  The International Federation of Library Associations and Institutions (IFLA), which is active at the meetings, notes that:
...there is a lot of progress to be made, with as many different copyright regimes there as there are states, each giving different types and degrees of protection if any at all. Moreover, as digital technologies bring about radical change in the information environment, a failure to act is the same as going backwards. This is why IFLA is engaging in support of change both at the global (WIPO) level, and nationally.SCCR delegates. © WIPO 2016. Photo: Emmanuel Berrod.

 IFLA is asking for "changes which would give libraries the right to work across borders, to give access to orphan works, and to import books which are available in other countries."  For them, "the goal – an international framework which frees up libraries and librarians – is worth the effort."  After all, IFLA explains, "it’s through exceptions and limitations to copyright that we can do our job."

Current proposals that are on the table for orphan works (see page 34-39 of the current working document) would allow entities such as libraries to reproduce, make available to the public, and otherwise use orphan works.  Some proposals apply these provisions, as well, to retracted works (African Group, Equador, India), and some would require remuneration to authors or copyright owners who are subsequently identified (Equador).  However, there is no consensus among states on such proposals, with the United States and the European Union among the key detractors.

The chair's summary of today's discussion is expected to be disseminated tonight.

Tomorrow's discussions are expected to focus on the internationalization of exceptions and limitations for educational and research institutions and for persons with other disabilities.

For those following the discussion, a number of groups are blogging and tweeting from WIPO:
My June 2015 post about these negotiations is here.
* Discount code for International Copyright and Access to Knowledge: Bannerman2015

Canadian Government Officials Confirm TPP Will Raise Pharmaceutical Costs

Michael Geist Law RSS Feed - Wed, 2016/05/11 - 08:32

Critics of trade agreements such as the TPP and the Canada-EU Trade Agreement has emphasized that a key concern is that deals will lead to increased costs for pharmaceutical drugs. At a recent Standing Committee on Health hearing on the development of a national pharmacare program, officials with Health Canada confirmed that they expect prices to increase but remain unsure about how much (hat tip: Blacklock’s Reporter). The exchange came from questions by NDP MP Don Davies:

Mr. Davies: Canada has just signed two trade deals, CETA and the TPP, which have new intellectual property provisions. All the literature and opinions I’ve read indicate that this will delay the introduction of generics to market for some time. I’m seeing estimates of two years as about what it’s going to take. Ms. Hoffman, has the department done some analysis on the likely impact of TPP and CETA, and is it true that those trade deals will likely increase the prices that Canadians pay for pharmaceuticals and add a little bit of mud to that already dirty picture?

Ms. Hoffman [Health Canada]: Yes, some analysis has been done. There’s a large number of people, not the least of whom are in the generics industry, who are attempting to estimate what incremental costs will be. The maximum amount of extended protection that brand drugs could get in the Canadian marketplace would be two years. In reality, given the intersection of data protection, patent remaining, patent life, and so on, it’s likely to be considerably less, on average, for most products. But every day that a patent product remains in the marketplace beyond what is currently the case is a day when the generic equivalent is not in the marketplace. One can calculate the incremental cost. This is why measures such as the work being done through the pCPA , and some changes that may be in the offing for PMPRB, are so important.
   
It is difficult to estimate the global cost. We can do modelling based on drugs that are in the marketplace today and try to imagine what would happen with the same mix of data protection and patent life remaining, but we’re actually talking about drugs that will be in the marketplace five, six, seven, eight, ten years and beyond. The profiled drugs and their costs and whether or not there even are generics that could replace them will depend on what’s going on in that drug marketplace.

Mr. Davies:  Is it fair to say, Ms. Hoffman, that it’s the department’s position that those two trade deals will likely increase the costs of drugs in Canada and we just don’t know how much?

Ms. Hoffman: That’s correct.

The acknowledgement that costs will go up but that the government isn’t sure how much provides further evidence that the full costs of the TPP (and CETA) are not known. Estimates of gains from the agreement are difficult to square with government evidence that there will be increased consumer costs with payments to go to foreign pharmaceutical companies.

The comments from Health Canada are also not a surprise. KEI obtained a document last month sent by the Obama Administration describing how the TPP will increase protections for pharmaceutical companies, leading to higher consumer costs. The TPP is opposed by dozens of health care groups.

Not only will the TPP and CETA lead to increased prices, but comments from the Patented Medicine Prices Review Board, an independent, quasi-judicial body created by Parliament in 1987, paint a disturbing picture of current Canadian pharmaceutical pricing. Officials from the PMPRB told the committee:

Canadian drug prices are the fourth highest of the 31 countries in the OECD, and on average Canadian prices are 26% higher than the OECD median. Canada spends more on drugs per capita and as a percentage of GDP than most other OECD countries. On the other hand, R and D in Canada continues to decline and currently stands at 5% of sales. This is the lowest recorded figure since 1988, when the PMPRB first began reporting on R and D. In contrast, the average R and D ratio for the PMPRB7 countries has held steady at about 20%.

In other words, Canada’s already high pharmaceutical costs are about to get even higher.

The post Canadian Government Officials Confirm TPP Will Raise Pharmaceutical Costs appeared first on Michael Geist.

Forget a Netflix Tax: How The Digital CanCon Review Can Shake Up the Status Quo

Michael Geist Law RSS Feed - Tue, 2016/05/10 - 08:42

Canadian Heritage Minister Mélanie Joly’s digital CanCon consultation is likely to spark calls from the cultural establishment for new levies and taxes to fund the creation of domestic content. The Internet will be the primary target with demands for a Netflix tax along with legislative reforms that would open the door to additional fees on Internet providers.

Yet an unimaginative approach that seeks to regulate the Internet imposes costs that would make Internet access less affordable and create a regulatory environment that runs counter to fundamental principles of freedom of speech and access to information. Joly should reject efforts to recycle stale policies and instead embrace the opportunity to shake up Canadian cultural policy.

My weekly technology law column (Toronto Star version, homepage version) argues that the starting point should be a shift in funding for Canadian content creation. The current model, which relies heavily on mandatory contributions from the Canadian broadcasting community, is in decline as revenues from the sector slowly shrink (the Canadian Radio-television and Telecommunications Commission recently reported that conventional television revenues declined by 2.4 per cent in 2015).

With the broadcasting sector struggling to compete against unregulated Internet services, Joly should drop mandatory contributions altogether. In their place, support for the content industries could come from four sources: federal granting programs funded through general tax revenues, benefits packages from industry mergers, allocations from spectrum licensing, and targeted tax credits that benefit Canadian producers. The change would provide more stable funding for production and marketing, while leaving broadcasters more competitive.

Online services should remain unregulated and free from mandatory contributions, but should be subject to general sales taxes. Levying GST or HST on Canadian online video services such as Shomi or CraveTV while leaving Netflix tax-free creates a tax revenue shortfall and places domestic services at a disadvantage compared to their foreign counterparts.

Canadian broadcasting and telecommunications law must also keep pace with the changing digital environment. Rules that grant the CRTC the power to determine which channels may operate in Canada should be repealed. Instead, the Commission should concentrate on consumer protection and marketplace competition.

The consumer protection issues include regulations maintaining maximum consumer choice through pick-and-pay models, truth in advertising on communications services, and guaranteed Internet access for all Canadians.

Competition encompasses an even broader range of issues including enforceable net neutrality rules to ensure that creators and consumers benefit from neutral network service without unfair preferences, safeguards against vertically integrated media giants unfairly favouring their own content, and the possibility of structural separation for companies that own significant content and carriage businesses.

As for Canada’s public broadcaster, one of the most contentious issues in recent years has been the CBC’s emphasis on digital delivery of news content. Reconciling the need for the CBC to remain relevant by embracing digital delivery with the financial impact on private sector news services could be addressed by requiring the public broadcaster to adopt an ad-free approach to its online news presence. That would ensure that it reaches digital audiences but does not directly compete with the private sector for advertising dollars. The private news services could also benefit from a change to allow tax deductions for advertising on Canadian websites.

While these changes would dramatically shift the legal and regulatory environment for Canadian culture, Joly’s initiative needs an even bigger goal to capture the public’s imagination. That could include requiring the CBC to open its content for public reuse (the government is opening its national parks, why not its national content?) or embarking on a comprehensive digitization initiative that provides the foundation for a national digital library.

Joly has encouraged Canadians to think big about Canadian cultural policy. It now falls to the government to reject the regulatory models of the past by embracing a future-focused strategy that emphasizes competition, consumer access, and the export and promotion of Canadian content for a global audience.

The post Forget a Netflix Tax: How The Digital CanCon Review Can Shake Up the Status Quo appeared first on Michael Geist.

Forget a Netflix Tax. Here’s How to Shake Up Canada’s Culture

Michael Geist Law RSS Feed - Tue, 2016/05/10 - 08:38

Appeared in the Toronto Star on May 9, 2016 as Forget a Netflix Tax. Here’s How to Shake Up Canada’s Culture

Canadian Heritage Minister Mélanie Joly’s digital CanCon consultation is likely to spark calls from the cultural establishment for new levies and taxes to fund the creation of domestic content. The Internet will be the primary target with demands for a Netflix tax along with legislative reforms that would open the door to additional fees on Internet providers.

Yet an unimaginative approach that seeks to regulate the Internet imposes costs that would make Internet access less affordable and create a regulatory environment that runs counter to fundamental principles of freedom of speech and access to information. Joly should reject efforts to recycle stale policies and instead embrace the opportunity to shake up Canadian cultural policy.

The starting point should be a shift in funding for Canadian content creation. The current model, which relies heavily on mandatory contributions from the Canadian broadcasting community, is in decline as revenues from the sector slowly shrink (the Canadian Radio-television and Telecommunications Commission recently reported that conventional television revenues declined by 2.4 per cent in 2015).

With the broadcasting sector struggling to compete against unregulated Internet services, Joly should drop mandatory contributions altogether. In their place, support for the content industries could come from four sources: federal granting programs funded through general tax revenues, benefits packages from industry mergers, allocations from spectrum licensing, and targeted tax credits that benefit Canadian producers. The change would provide more stable funding for production and marketing, while leaving broadcasters more competitive.

Online services should remain unregulated and free from mandatory contributions, but should be subject to general sales taxes. Levying GST or HST on Canadian online video services such as Shomi or CraveTV while leaving Netflix tax-free creates a tax revenue shortfall and places domestic services at a disadvantage compared to their foreign counterparts.

Canadian broadcasting and telecommunications law must also keep pace with the changing digital environment. Rules that grant the CRTC the power to determine which channels may operate in Canada should be repealed. Instead, the Commission should concentrate on consumer protection and marketplace competition.

The consumer protection issues include regulations maintaining maximum consumer choice through pick-and-pay models, truth in advertising on communications services, and guaranteed Internet access for all Canadians.

Competition encompasses an even broader range of issues including enforceable net neutrality rules to ensure that creators and consumers benefit from neutral network service without unfair preferences, safeguards against vertically integrated media giants unfairly favouring their own content, and the possibility of structural separation for companies that own significant content and carriage businesses.

As for Canada’s public broadcaster, one of the most contentious issues in recent years has been the CBC’s emphasis on digital delivery of news content. Reconciling the need for the CBC to remain relevant by embracing digital delivery with the financial impact on private sector news services could be addressed by requiring the public broadcaster to adopt an ad-free approach to its online news presence. That would ensure that it reaches digital audiences but does not directly compete with the private sector for advertising dollars. The private news services could also benefit from a change to allow tax deductions for advertising on Canadian websites.

While these changes would dramatically shift the legal and regulatory environment for Canadian culture, Joly’s initiative needs an even bigger goal to capture the public’s imagination. That could include requiring the CBC to open its content for public reuse (the government is opening its national parks, why not its national content?) or embarking on a comprehensive digitization initiative that provides the foundation for a national digital library.

Joly has encouraged Canadians to think big about Canadian cultural policy. It now falls to the government to reject the regulatory models of the past by embracing a future-focused strategy that emphasizes competition, consumer access, and the export and promotion of Canadian content for a global audience.

Michael Geist holds the Canada Research Chair in Internet and E-commerce Law at the University of Ottawa, Faculty of Law. He can be reached at mgeist@uottawa.ca or online at www.michaelgeist.ca.

The post Forget a Netflix Tax. Here’s How to Shake Up Canada’s Culture appeared first on Michael Geist.

The Interconnection Measurement Project

Freedom to Tinker - Mon, 2016/05/09 - 19:25
Building on the March 11 release of the “Revealing Utilization at Internet Interconnection Points” working paper, today, CITP is excited to announce the launch of the Interconnection Measurement Project. This unprecedented initiative includes the launch of a project-specific website and the ongoing collection, analysis, and release of capacity and utilization data from ISP interconnection points. […]

The Trouble with the TPP: My Appearance Before the International Trade Committee

Michael Geist Law RSS Feed - Fri, 2016/05/06 - 08:23

Yesterday I appeared alongside Jim Balsillie, former co-CEO of Research in Motion, at the House of Commons Standing Committee on International Trade public consultation on the TPP. There were some interesting exchanges that I will highlight once the transcript is released. My opening remarks are posted below.

Appearance before the House of Commons Standing Committee on International Trade, May 5, 2016

Good morning. My name is Michael Geist.  I am a law professor at the University of Ottawa, where I hold the Canada Research Chair in Internet and E-commerce Law. I appear today in a personal capacity representing only my own views.

There is lots to say about the TPP – I have written dozens of articles and posts on the agreement and I am currently working on a book on point – but I have limited time so I’ll focus briefly on four issues.

First, Canada’s price of admission and weakness during the negotiations.

Canada was not an initial participant in the TPP negotiations. U.S. lobby groups urged the U.S. government to keep Canada out of the negotiations until a copyright bill was passed that satisfied its demands. Those demands had a significant impact on the contents of the 2012 Canadian copyright bill, particularly the retention of restrictive digital lock rules that were at the very top of the U.S. policy priority list.

Once the U.S. was convinced that Canada would meet its IP and anti-counterfeiting demands, it set further conditions for entry, including a commitment that Canada could not hold up any chapter if it was the lone opponent. This concession became important in the IP chapter, where there were several issues were Canada ultimately did stand alone and for which it was forced to cave.

As the negotiations neared a conclusion, senior Canadian officials were advised that Canada was at a disadvantage in the negotiations given the lack of coordination and transparency between government negotiators and interested stakeholders. We went ahead anyway and agreed to the deal.

Second, what did we agree to? The TPP leads to significant changes in Canadian IP law. 

For example, the term of copyright in Canada is presently life of the author plus an additional 50 years, a term consistent with the international standard set by the Berne Convention. This is also the standard in half of the TPP countries with Japan, Malaysia, New Zealand, Brunei, and Vietnam also providing protection for life plus 50 years. The TPP will require an extension by 20 more years. That is a major windfall for the U.S. and a net loss for Canada (and most other TPP countries). In fact, New Zealand, which faces a similar requirement, has estimated that the extension alone will cost its economy NZ$55 million per year. Last week, a draft report from the Australian government’s Productivity Commission pointed to estimates of AU$88 million per year for term extension. The Canadian cost may be higher without any real benefit.

The IP changes don’t stop there. The TPP includes changes to digital lock rules, longer patent protections, criminalization of trade secret law, changes to trademark law, new border measures, requirements for ratification by all TPP countries of as many as 9 international IP treaties.

Third, It is Not Just IP

The TPP goes far beyond IP. It touches on culture, restricting the ability to expand CanCon contributions policies. This means that despite Minister Joly’s recent promise to review Canadian cultural policies, contributions to support the creation of Canadian content are effectively locked into place with the TPP blocking new policies aimed at new services and technologies.

The TPP also leaves behind a complex array of regulations for services industries that is almost certain to result in unintended consequences. Hot button issues such as regulation of online gambling or regulating ride sharing services such as Uber may be decided by the TPP, not Canadian governments, whether at the municipal or provincial levels.

On the Internet, it reverses our longstanding hands-off approach on Internet governance and fails to meet our standards on issues like net neutrality.

The TPP even touches on privacy, restricting the ability for governments to implement restrictions on data transfers or data localization, while setting a very low threshold for privacy protection and anti-spam rules. This could place Canada between a proverbial rock and hard place on privacy sitting between European demands and TPP requirements.

Health is directly affected with increases to pharmaceutical pricing, locking in protections for biologics, and even sketching out the rules for a national pharmacare program if Canada were to adopt one.

Fourth, the risks and potential costs of getting implementation wrong are enormous.

The TPP was negotiated behind closed doors and presented to the public on a take-it-or-leave-it basis. I’ve read references from some MPs claiming Canada has already consulted on the deal. I know of few, if any, experts in these areas that were consulted. In fact, when I appeared before this committee in June 2013, I was told by government MPs that concerns about the TPP were premature and that we should wait until the negotiations were complete. Now that they are complete, I hear some saying there has been enough consultation.

Yet we must recognize that the risks of getting implementation wrong are enormous. The investor-state dispute settlement provisions in the TPP point to the possibility of massive liability from corporate claims. Minister Freeland has described the ISDS rules in the Canada-EU Trade Agreement as the “gold standard”, but the TPP rules do not meet that standard. Moreover, even crafting our own standards within the TPP may be a non-starter since the US maintains that it gets to decide for Canada how to ratify the agreement through a certification process.

In sum, Canada was at distinct disadvantage in the TPP negotiations and it shows with major losses on intellectual property, digital and cultural policies, as well as the prospect of significant liability through ISDS and US certification into how we implement . The issue isn’t about being pro or anti-free trade.  It is about a bad deal that should be renegotiated or rejected and trade alternatives pursued.  I welcome your questions.

The post The Trouble with the TPP: My Appearance Before the International Trade Committee appeared first on Michael Geist.

wrapping copyright in the maple leaf

Fair Duty by Meera Nair - Sun, 2016/04/24 - 10:21

On Friday, The Globe and Mail published “Kids will suffer if Canada’s copyright legislation doesn’t change” by Kate Taylor. I usually enjoy reading Taylor’s work; her capacity to grasp the heart of an issue by delving into underlying facts is often impressive. Unfortunately, on this occasion, her exploration is incomplete and emotion is presented as analysis.

While amendment of the Copyright Act is a year away, there should be no doubt that lobbying has begun. As per the time-honoured script, the essential step is to wrap copyright in the maple leaf. The very fabric of Canada is under assault, and only strengthening copyright can save us all. The script makes for good drama, but is short on evidence.

Taylor, like John Degen last month and Heather Menzies earlier this year, places the challenges of Canada’s educational publishing industry at the feet of the 2012 statutory expansion of fair dealing. (Such a selective invocation of Canadian copyright-related history conveniently omits any mention of the role played by Access Copyright in bringing about the decline of collective licensing.) The claim that reduced revenue from textbook sales is due to unauthorized copying is not new. But when put to the Supreme Court, after consideration of all the facts, a majority of the judges felt that the conclusion did not logically follow:

Access Copyright pointed out that textbook sales had shrunk over 30 percent in 20 years.  … [but] there was no evidence that this decline was linked to photocopying done by teachers … several other factors [are] likely to have contributed to the decline in sales, such as the adoption of semester teaching, a decrease in registrations, the longer lifespan of textbooks, increased use of the Internet and other electronic tools, and more resource-based learning (para. 33).

But the rising use of Internet-based materials does not placate those who have taken it upon themselves to protect our children. Taylor writes: “ … teachers increasingly turn to free online materials, using fewer Canadian sources in the classroom and fewer materials directly tied to the provincial curriculum. [Advocates] are concerned there is no quality control of free material.” It is entirely plausible that the causality runs the other way: teachers are finding quality materials online, materials which also happen to be free. (The Khan Academy comes to mind.) But in the hands of those opposing any dilution of the traditional publishing industry, “free” and “online” are invoked with a dismissive air at best, or a pejorative connotation at worst.

Setting aside the prospects for alternative publishing models (for now), let us assume that Taylor’s, Degen’s and Menzies’ analyses are correct.  Let us assume that all the ills of the educational publishing sector are solely the fault of fair dealing. What then? Have any of them considered that years of expanding the scope of copyright has only meant that even more Canadian dollars flow out of the country than stay in? Since before Confederation, the market north of the 49th parallel has been dominated by foreign copyright holders. First British, then American. Copyright is a blunt instrument; any discussion of remedy via copyright should not ignore the trade imbalance. Applying copyright with broad brushstrokes through blanket licensing means fewer Canadian dollars are left to focus exclusively on Canadian creators.

Copyright governs much more than educational publishing, but even if it was confined to educational publishing, an important question has been left unanswered: Do Canadian sources make up the majority of all materials in all subjects taught in primary, secondary and tertiary education in Canada? If the answer is Yes, please provide evidence. If the answer is No, it is astounding that in the name of Canada, taxpayers, students and families are being chivied to provide more of our hard-earned dollars to predominantly benefit non-Canadian entities.

The effort spent railing about fair dealing could be better spent seeking measures that will target support directly to Canadian creators. Given the renewed spirit of federal-municipal relations, why not lobby for dedicated funding for school boards to support creation of open-education resources (OER) specifically to fill the need for Canadian content? Canadian history, geography, and politics could be addressed by local writers and illustrators, in collaboration with teachers, librarians, and archivists. How about seeking some manner of matched funds, to encourage every municipality to sponsor a writer-in-residence? What about expanding the existing Public Lending Right program to address nonfiction educational materials? A little imagination could bring about surprising dividends.

A Made-In-Canada approach to education is not a new concept. Law professor Myra Tawfik describes early 19th century efforts in Lower Canada to secure appropriate learning materials for children:

Lower Canadian teachers began to write or compile their own teaching manuals and schoolbooks. Preferring these to British or American imports and wanting to print multiple copies for use in their schools, they quickly discovered that the cost of printing their manuscripts was well beyond their means. Consequently, they began to petition the House of Assembly asking that it either assume the cost of printing or grant a sum of money to defray the costs (p.81).

Notably, when the House of Assembly delivered the requested support, it came with conditions regarding price and distribution.

As Canada approaches its 150th birthday, with a nod to the spirit that prompted the Massey Commission, the creation of the Canada Arts Council, and the emphasis upon Canadian Studies’ programs, it is time to focus on Canadian creators in a meaningful way.

 


celebrating a parody, 49 years later

Fair Duty by Meera Nair - Tue, 2016/04/05 - 23:00

The inclusion in 2012, of education, in the categories qualifying for fair dealing, has received disproportionate attention, made up of as much umbrage as applause. Far more important additions made at the same time, parody and satire, have almost gone unnoticed. Their protection was long overdue.

The first case in Canada to address parody against a charge of copyright infringement was Ludlow Music Inc. v. Canint Music Corp (1967). The dispute centred on the song This Land Is Your Land, written by Woody Guthrie (1912-1967). Canadian songwriter Alec Somerville, of The Brothers In Law, crafted new lyrics to Guthrie’s tune and retitled the song as This Land Is Whose Land.

But distribution was short lived. In a case which began on 6 April 1967 and ended on 10 April 1967, Somerville’s creation was declared as infringing upon the copyright of Woody Guthrie’s work. Jackett P. of the Exchequer Court of Canada granted an injunction restraining further sales of the album.

It must be noted that royalties were offered for use of the tune of Guthrie’s creation, under the premise that there were two copyrights at issue: (1) the copyright of the tune and (2) the copyright of the lyrics. While Somerville relied on Guthrie’s tune, Somerville’s lyrics were entirely his own creation. However, that offer was rejected and Jackett P. decided that both tune and lyrics are encircled by a song’s copyright.

Ironically, the tune was hardly Guthrie’s alone. Nick Spitzer of NPR writes:

Guthrie had a keen ear for the recordings of Virginia’s Carter Family, and he was not afraid to borrow. A 1930 gospel recording, “When the World’s on Fire,” sung by the Carters, must have provided the tune for what would become “This Land Is Your Land.”

In Ramblin Man: The Life and Times of Woody Guthrie (2004), biographer Ed Cray further traces the tune to the southern gospel hymn Oh my loving brother. But this too is hardly surprising. Creative effort necessarily relies, consciously or not, on borrowed aspects of earlier works–creativity is always a collaborative undertaking. Skillful borrowing is the very essence of parody as it must capture the distinctiveness of the original creation and the creator.

An essay published in The Spectator on 20 May 1853, makes this point forcefully:

Every line ought to make us say, that is pure Tennyson or pure Browning, as the case may be; though the notion of the poem as a whole being connected with Tennyson’s or Browning’s name, should be an instant cause of laughter. … The parodist, then, to be successful, must have the most delicate sense of literary form and the fullest sympathy of comprehension for the work of those he parodies, as well as a true sense of humour and a special dexterity in the use of words and phrases.

That capacity, to invoke an original, to have a fullest sympathy of comprehension of the parodied work, as well as to couple humour with dexterity when crafting a new work, might have been written with Somerville in mind. Just as Guthrie’s work was in reaction to the  syrupy nature of Irving Berlin’s creation God Bless America, Somerville provided a more accurate and irreverent view of Canadian history. His variation on Guthrie’s song was expressly intended for release in 1967, the year of Canada’s centenary. (The album carrying the song was titled Exposé 67.)

Yet that fact likely added to the problem; the dispute was not settled on musicology alone. In 1959, Ludlow Music Inc. had licensed Guthrie’s work for adaptation and distribution in Canada, via revisions prepared and performed by The Travellers. The rights for this authorized Canadian version were held by Ludlow Music Inc. and the song was to play a prominent part in the centennial celebrations of 1967:

This song is a patriotic song and has been widely distributed in schools throughout Canada. The song will again be published in 1967 by the Centennial Commission in the songbook “Young Canada Sings — “Le Jeune Canada Chante”, 10,000 copies of the songbook will be distributed throughout Canada. Attached … is a copy of a letter from The Centennial Commission to Ludlow Music, Incorporated requesting permission to use the song “This Land is Your Land”. Ludlow Music, Inc., has consented to such use in both 1966 and 1967 (para. 11).

Ludlow Music Inc., unimpressed with Somerville’s work, sought to protect the innocence of the Canadian public:

… the use of words which are in bad taste and insulting to the Canadian public with the music of the composition “This Land is Your Land” will cause incalculable damage to the Plaintiff and destroy the meaning and acceptance of the song in the minds of the Canadian public (para. 12).

It is difficult to assess Canadian sensibilities of 49 years ago, but likely we are more resilient today. Canadians may judge for themselves, the merits of This Land Is Whose Land.

 

 

 


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