Tag Archives: law

#FairDealingWorks: Fair Dealing Week 2019

This week (Feb. 25 – Mar. 1) is #FairDealingWeek, a time to celebrate this vital statutory right’s affordances for expressive freedoms and the public good, and to dispel the misinformation that copyright maximalists spread about its supposed harms. Despite repeated, clear, and consistent Supreme Court rulings, big publishers and their intermediaries continue to treat the lawful exercise of fair dealing — by users, educators, and, yes, creators too — as if it’s debatable, dubious, or diabolical.

Among the many online resources and testimonials being shared this week — see https://fair-dealing.ca/ for an aggregated collection — Meera Nair, NAIT’s copyright officer and a vocal advocate for fairer copyright, has shared a blog post that brings home the importance of fair dealing.

“Fair Dealing matters. Individual writers, musicians and artists should not need to be well-versed in the intricacies of copyright law, to benefit by exceptions to copyright defined in the law.”

And if you wish to add your voices to those telling the federal government’s copyright review committee to preserve and extend fair dealing in copyright law, you might consider signing the Fair Copyright petition organized by the Canadian Association of University Teachers.

Lastly: I’ve linked to its abstract above, but let me reiterate here that essential reading for understanding how fair dealing benefits creators is Eli MacLaren’s 2017 article on poets’ incomes and fair dealing.


Six things the public & the government need to know about fair dealing

Amidst ongoing efforts by copyright-maximizing lobbyists to mislead both the public and the government (which is now undertaking its 5-year review of the amended 2012 copyright act) about what fair dealing is, and what it means for Canadian culture, innovation, and education, here are six evidence-based points worth understanding about fair dealing.

  1. Over a decade’s worth of Supreme Court rulings have firmly and consistently enshrined fair dealing as a users’ right in copyright law.
  2. If Canadian publishers are hurting, it’s not because of fair dealing.
  3. In the name of authors, lobbyists against fair dealing antagonize and vilify educators — but many educators are authors themselves.
  4. Far from “pirating” protected works, educators actively promote authors’ interests, e.g. by ordering Canadian authors’ works in large quantities for schools and students to buy. (See p. 2, item 4 of CARL-ABRC’s Fair Dealing fact sheet.)
  5. Authors need fair dealing too, no less than educators do.
  6. Fair dealing augments and reinforces our Charter-guaranteed freedom of expression: any change to fair dealing (or to copyright more generally) must be understood as a change to free speech rights.

All these points are supported by case law and rigorous, evidence-based studies (by nationally recognized experts like Bita Amani, Carys Craig, Michael Geist, Ariel Katz, and Meera Nair, among others).

So next time you read that teachers are killing Canadian publishing, or stealing Canadian content, don’t believe the hype.

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.

The stakes of literary criticism

The stakes of literary criticism sometimes turn out to be higher than prevailing preconceptions about it would suggest (you know, the preconceptions involving elbow patches, overpaid obscurantism, and social irrelevance). For instance, earlier this year a New York law professor faced criminal libel charges in France for publishing a critical book review. Around the same time, a Kuwaiti blogger got sued for posting a bad restaurant review.

The counter-discourse about literary criticism as a matter of life or death has roots in the pamphlet and periodical hostilities that marked (and marred) print culture in the Romantic period. The most famous example is the poet Keats, famously sensitive to critical reviews. “Who killed John Keats?” asked Byron in 1821, promptly answering on behalf of one particularly persecuting periodical: “‘I,’ says the Quarterly…”

But Keats’ case is still figurative, not literal, after all: it wasn’t bad reviews that actually killed Keats — it was tuberculosis, whose close reading skills apply only to deconstructing the ambiguities and aporias of the body’s immune system. Rather, the real life-or-death stakes of literary criticism surface in the fact that most negative reviews themselves were published anonymously — as were numerous now-famous novels, from Mary Shelley’s Frankenstein, to Walter Scott’s Waverley series, to Austen’s oeuvre. As William St Clair argues in his endlessly absorbing study The Reading Nation in the Romantic Period, “anonymity protected publishers and printers from the law of libel” (174).

Perhaps that’s a protection that some of the aforementioned present-day critics wish they had, just as, perhaps, it’s a protection that explains the death of netiquette and the ubiquity of commentating trolls. But anonymity warded against more than just libel in the romantic period:

Anonymity also reduced the risk of being called out to fight in a duel, a form of literary criticism which killed more than one writer of the romantic period. (175)

Such wryly observed literary history puts in perspective “the death of the author,” reminding us of a time when an act of reading represented a kind of re-writing that was radically and literally tantamount to murder (not even murder most foul, but murder socially sanctioned, at that). Let’s hope that, amidst increasingly extremist, neoliberal forms of deregulation, IP law enforcement, and extreme sports (like ultimate fighting or chessboxing), the current spate of libel actions against critics doesn’t augur a return to the good old bad old days when running an unfavourable critique could risk catching a bullet.

Cross-blogged from the AU Landing