Copyright course review: Bill C-11, fair dealing, and the meaning of research

Bill Burris. "Rutherford South." 2007. CC2.0 licensed.

The weekend before last, I attended an intensive, one-weekend, one-credit course at the U of Alberta’s School of Library and Information Studies. U of A sessional (and retired City Librarian at Vancouver Public Library) Paul Whitney taught the class, and did a fantastic job (he also swore us to the confidentiality of a safe classroom space, which I’ll try to respect in my remarks here). The course was, among other things, a great motivator for reading a number of pivotal texts, especially:

  • Canada’s Copyright Act;
  • its proposed amendment, Bill C-11;
  • the Supreme Court decision in “the CCH case” (which established Canada’s educational fair dealing precedent);
  • and “the Hargreaves report” — an independent report commissioned by the British government, which had no sooner rammed through its Digital Economy Act than Google’s CEOs publicly embarrassed Cameron, by stating Google couldn’t have been launched in the UK under an Act like it.

I won’t lie, reading thirty-page laws in the original legalese was not fun. However, with it completed, reading the Supreme Court decision was totally engrossing: a thoroughly reasoned argument that ended up clarifying a lot about not just the CCH case but the law itself. The Hargreaves report is absorbing, too — in large part as an excellent example of how to talk to a neoliberal government about the public interest (hint: mention “economic growth” a lot).

A good bit of our class time was devoted to a collective close reading of the Copyright Act and Bill C-11. It probably doesn’t sound more fun than reading the laws alone in private, but it was. We got into involved discussions of legal points big and small, and discovered bits of the Act and Bill C-11 I hadn’t been hearing about in the blogosphere or news media. Bits like the Act’s provision to review the legislation in five years. Or like Section 41.21, which (as we discussed at some length) empowers the government to draft supplementary regulations (i.e. ones that don’t require House approval) on how to apply specific sections of the Act — in this case, the controversial section on TPMs. Sec. 41.21 reflects what’s happened in the USA, where fair-use exemptions to the DMCA’s TPM protections have been introduced (e.g. for class screenings in film studies programs). What a section like this does is empower the specific governing body to introduce such an exemption without needing to get amendment-level approval by the legislature. However, while the section leaves some specific exemption options open to the government, it was suggested in the class that any such potential exemptions would likely be very tightly controlled, and applied to very specifically defined types of fair dealing.

Still, reading the bill closely, in the context of related issues — from global IP treaties to local issues like Access Copyright — I found myself coming to a most unexpected breakthrough, of sorts: a greater appreciation for Bill C-11. I won’t go so far as to give C-11 a glowing endorsement or anything, but the course helped to put the bill’s TPM protections into perspective, offering some “little glimmers of hope,” as the instructor put it, to offset the gloom of the TPM provisions. The course offered this and other reminders that C-11, in fact, represents one of the most progressive pieces of copyright legislation introduced in the modern developed world; as the instructor put it, C-11 is

the only western legislation making provisions for the everyday, non-infringing copying practices of users.

These provisions may not go quite as far as the extensive and flexible protections afforded Americans under their fair use law, but neither is C-11 all that far behind — fair use being one specific point of US law that I wouldn’t mind seeing Canada try to emulate. (That doesn’t go for the rest of US law, naturally. I still don’t want Canada to become a prison- and petrothug-based economy. And new IP legislation emerging in the USA — the Stop Online Piracy Act (SOPA), the Commercial Felony Streaming Act — doesn’t look anything but draconian either — SOPA stands to interfere with the very structure of the Internet.)

As Paul mentioned more than once, like a mantra: “copyright legislation is usually best on the day it’s introduced.” By which he meant that by the time a bill like this becomes law, the lobbyists and special interests have got their MP representatives to gut it of its progressive, public-interest provisions. So there is cause to receive the Heritage Minister’s vow to pass the bill unchanged by Christmas 2011 as a promise as well as a threat; if he’s not fielding any further public consultations, the same better go for private ones too.

The “glimmers of hope” mentioned here don’t change the basic and urgent criticism that the TPM or “digital lock” provisions go further than necessary to observe Canada’s WIPO obligations, and too far in compromising the otherwise excellent fair dealing provisions (as many more influential voices than mine have pointed out). But these glimmers of hope do augment my perspective on how the digital locks provisions may or may not be enforced, and whether or not these provisions will in practice trump educational fair dealing — given how robustly fair dealing has already been enshrined by the CCH decision. What concerns me, amid the dim light of such glimmers, is the possibility that supplementary regulations would be restricted more to educators than made available to the general public. If so, such regulations could widen rather than close the gap of access, license, and therefore of power between educators and everyday users. The uncertain and uneven implications of the TPM protections in C-11 thus demand (in my admittedly limited understanding) not a closing of the proverbial ivory tower’s gates to enjoy in private any supplementarily permitted liberties, but rather a renewed commitment to pursue and expand the public interest mandate of public education in Canada. Perhaps fostering more critical cultural legal studies, of the kind advanced by Humanities and legal scholars like Rosemary Coombe and Paul Saint-Amour, would be a start:

Coombe, in her powerful study The Cultural Life of Intellectual Properties: Authorship, Appropriation, and the Law (1998), calls for a new interdisciplinary approach she calls a “Critical Cultural Legal Studies”: a synthesis that brings the socially, politically, and ethically contextualizing energies of cultural studies to bear on legal discourse, while at the same time insisting on both the inescapably political and contingent nature of the law […] and legal theory’s responsibility to the actual social relations and lifeworlds of those whom the law governs. (Saint-Amour 19)

As Saint-Amour notes, “intellectual property law has a low tolerance for practices that criticize or parody its basic tenets,” but it is perhaps in such practices that the most effective methods for Critical Cultural Legal Studies might obtain: “practices it [copyright law] recodes, belittles, and criminalizes as piracy and infringement” (19). Whether in a more traditionally scholarly guise, or in more radical and populist interventions (think of Negativland, the KLF), the pursuit and promotion of Critical Cultural Legal Studies might represent a productive start towards increasing the awareness of students and the public about how profoundly copyright (a formerly very specialized law) stands to affect the everyday life of ubiquitous computing (which means ubiquitous copying) in the twenty-first century. If the Supreme Court’s CCH decision clearly gives research a “large and liberal” interpretation, this interpretation should be understood as not just a protection afforded educational institutions, but one available to any and all Canadian citizens involved in “private study or research.”

What, then, does a liberal — and what might a radical — interpretation of research mean?

Works Cited

Saint-Amour, Paul K. The Copywrights: Intellectual Property and the Literary Imagination. Ithaca: Cornell UP, 2003.

Whitney, Paul. Copyright Workshop for Information Professionals [one-credit course]. School of Library and Information Studies, U of Alberta, 22-24 Oct. 2011.

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