From Copyright Children to Copyright Adults

The University of Toronto Library’s Scholarly Communication and Copyright Office and the University of Toronto Bora Laskin Law Library@ organized a terrific conference on copyright in Canada three years after the Copyright Pentalogy and the Copyright Modernization Act. I had the pleasure and honour to be one of the three featured speakers. Here is my talk:

From Copyright Children to Copyright Adults

Good afternoon.

It’s a great pleasure and honour for me to be here with you today and to speak in this conference, and I’d like to thank my friends at the UofT library and the Bora Laskin Law Library for organizing this terrific and timely conference and for inviting to speak before you today.

Before I’m going to tell you what I’ll be speaking about, let me present a few interesting fact about our university and its library:

• UofT’s library system, a national treasure, is the 3^rd largest library system in North America;
• UofT employs more than 13,000 faculty, who write and publish, which probably makes it the largest authors organization in Canada and one of the largest in the world;
• UofT ranks #2 in the world in terms of number of publications or citations (after Harvard) (in other words it’s the second largest producer of academic literature in the world);
• Tens of Thousands of people at UofT teach, write, study, do research, and publish each and every day;
• Copyright law is relevant to all of these aspects: our inputs, our outputs, and almost everything in between.

No matter which way you look at it, it’s hard to escape the conclusion that UofT is a copyright powerhouse. But here’s another little interesting fact: it wasn’t until 3 years ago that for the first time in its history (or at least recent history) UofT established a Copyright and Scholarly Communication Office, and then hired Bobby Glushko to run it.

This conference is the brainchild of Bobby, and it is one indicator of the great impact that Bobby and his team have already had on UofT. But this recent action on the copyright front also shows the growing understanding by UofT and many of its peer intuitions that they should take copyright seriously; that they can no longer behave like copyright children and it’s about time they treat copyright like copyright adults.

So this is what I’d like to talk to you about today: What it means to be a copyright adult. I would like to share with you some thoughts about the state of copyright law in Canada today, mainly from the perspective of libraries and educational institutions. I will reflect a bit on where we are and how we got here; I will discuss some of the immediate challenges that lie ahead; and I will also present some of the challenging issues that we will likely face in the near future.

I will describe four periods in the Canadian education community’s approach to copyright: (1) early childhood; (2) childhood; (3) adolescence; and (4) early adulthood. I think that many of us have reached the early adulthood stage, and I will urge us to move to full adulthood, and describe what being a copyright adult means.

Even though I will focus mainly on copyright adulthood from the perspective of users, I will also reflect on what being a copyright adult should mean from the perspective of authors, which many of us are. I know that there are many authors who might strongly disagree with me, and I’m not purporting to speak on behalf of all authors. I hope, however, that I will offer even to those who disagree with, some points to think about, and I strongly believe whether we agree or not that this is a conversation that is worth having. This is what adults do.

­Let me begin by describing the not-that-distant stage of early copyright childhood.

Early childhood

Young children often need very bright lines because they aren’t always capable of understanding complexities and nuance. Since we often can’t provide them a bright line of “Yes”, then the alternative is a bright line of “No”. Or at least, “No, unless you get permission”. The approach to copyright in the early childhood stage of Canadian educators used to be similarly simple and bright-lined.

I’ll give you an example. I have two children who go to public schools in Toronto. Every September I have to sign a packet of forms. One of those forms asks me to confirm that I read the Toronto School Board online code of conduct, and that I will support the TDSB in implementing it. This year I actually went online and read the Code of Conduct.

This Code of Conduct offers a world with very bright lines, with a very clear sense of right and wrong: “Under copyright laws, all information remains the property of the creator(s)/author(s) and therefore permission is required for its use.” “Unauthorized copying of material belonging to others is regarded as theft.”

This is utter nonsense: not every use requires permission, and unauthorized use, even when it constitutes infringement, is not theft. Theft is something else. I was troubled by this nonsense, so I checked and found out that the document was written in 2000. The message was, of course, false even then, but it reflects the childish state of mind that existed back then. We excuse children for many mistakes so we can excuse copyright children too. But it’s troubling, however, to see that Canada’s largest school board still propagates this falsehood in 2015; after all the TDSB was one of the named appellants in the Alberta (Education) v Access Copyright case. Seriously, TDSB, it’s time to grow up.

Childhood

That was 2000, but in 2002, Justice Binnie signaled that it’s time to grow up. He wrote the majority opinion in the landmark case of Théberge, where he reminded us that

“The Copyright Act is usually presented as a balance between promoting the public interest in the encouragement and dissemination of works of the arts and intellect and obtaining a just reward for the creator” He emphasized that “The proper balance among these and other public policy objectives lies not only in recognizing the creator’s rights but in giving due weight to their limited nature.” Some of us, who already acquired some literacy skills, read the decision and felt old enough to leave day care, and go to school.

So as copyright children we learned that it was OK to talk about balance, and we discussed what this notion of balance could mean: how we should not only recognize creators’ rights but also give “due weight to their limited nature.” We learned from Justice Binnie that “it would be as inefficient to overcompensate artists and authors for the right of reproduction as it would be self-defeating to undercompensate them.” We recognized how fair dealing and other exceptions are meant to prevent “Excessive control by holders of copyrights and other forms of intellectual property” because such control “may unduly limit the ability of the public domain to incorporate and embellish creative innovation in the long-term interests of society as a whole, or create practical obstacles to proper utilization.”

These were important and exciting lessons, but they did not translate into action. We treated these ideas as suitable, perhaps, for classroom discussion, but too dangerous for trying at home. The world outside still looked too complicated and dangerous for copyright children such as the ones we were. Fair dealing was something to talk about, and hope for, or aspire to, but we didn’t consider it as a right meant to be exercised.

“Better safe than sorry”, conventional wisdom held. “You don’t want to do something that you’ll later regret. Play safe and buy a licence from Access Copyright whether you need one or not.”

Adolescence

Our childhood years moved quickly and when in 2004 the Supreme Court handed down CCH v LSUC we entered our copyright adolescence stage. Building on Justice Binnie’s judgement in Théberge the Court told us that users’ rights are not loopholes, and that they are just as important as the rights of copyright owners. There’s nothing wrong in exercising our users’ rights; in fact, those rights are part of the whole scheme. What the Court told us wasn’t truly revolutionary, but it surely sounded revolutionary for our copyright teenage ear, and it was refreshing, and many of us began adopting this new language. “Yes we have rights too. We don’t always need permission.”

So from 2004 we began acting like teenagers. We knew that we had rights; we frequently asserted that we have rights, but many of us were clueless about what those rights actually entailed and how to exercise them. We really wanted to celebrate our independence, but were too scared to do that. We told Access Copyright “We don’t really need your permission” but the vast majority of us didn’t really mean that. What we really hoped was that if we said that enough times Access Copyright would be impressed and loosen some of its onerous demands and give us a discount.

But our actual behaviour betrayed that we were scared as hell. Our representatives continued lobbying for a long list of completely unnecessary exceptions that only demonstrated how insecure and clueless we were. We haven’t planned any alternative for leaving Access Copyright, and our institutions continued relying on the advice of those who had always told them that we can’t walk away. Those of us who study copyright for a living and suggested otherwise were dismissed as naïve ivory-tower academics that might have very interesting theories about what the law should be in an ideal world, but don’t understand current law, and have no clue about how the world works in practice.

 

So Access Copyright called our bluff. It figured that we won’t walk away and that the whole rhetoric was just a negotiation game aimed at getting a discount. So it played hardball, increased its demands, began threatening, and soon enough we all caved in. The rebellious teenagers returned home for a few more years.

Early adulthood

But finally things began changing in 2012. The Supreme Court confirmed the views of those out-of-touch academics, Parliament added additional reassurances, the message that fair dealing is real and important, and that we should try it at home began to register. It was time to move out.

And so in 2012 Canada’s educational community finally entered its phase of early adulthood. UBC was the first university to untie its relationships with Access Copyright and the sky hasn’t fallen. Other educational institutions began following suit.

So early adulthood is where we are today. Many of us have realized that we have rights, and that we’re actually supposed to exercise them. But this early adulthood comes with the mood swings of teenagers who become adults, and with the confusion that accompanies the first steps young adults make in the real world. One day we proclaim “Fair dealing? Yay!”, another day we make a courageous move and bid farewell to Access Copyright. But then we get confused. What’s now? And what’s next? Everything looks so uncertain and unpredictable. One day you feel like a strong independent grown up; the next day you still feel weak and confused.

And so like many young adults we start seeking guidance. In our case we’ve turned to our lawyers and asked them to draft guidelines with bright lines that will show us the way, and protect from the outside world that we only begin to understand.

But guidelines are only helpful if you know where you’re headed and if you have a good sense of your mission and confidence in yourself. If you don’t understand who you are, and if you’re dumbfounded by the world surrounding you, your search for bright-line guidelines may lead you astray and do very silly things. The guidance that you ask others to give you might actually be dangerous for you.

I’m concerned that the guidelines that many of Canada’s educational institutions have adopted might be dangerous. They might be dangerous for three main reasons:

• Because some of the actual guidelines that have been adopted are simply false. If a student in my course wrote an exam question that tracks the guidelines of AUCC (recently rebranded “Universities Canada”) the student might pass the course, but with a very low grade. Not an F, maybe C-.
• With some exceptions (such as UofT’s guidelines) those guidelines aren’t really supposed to be guidelines serving the needs of educators, teachers, researchers, librarians, and students. Instead, most of them were adopted principally as a risk-mitigation tool. They were written hastily by lawyers at the request of scared administrators, and with no consultation and very little regard to the needs of those who are supposed to rely on them. They were designed to minimize the exposure of the institutions, not for empowering their members.
• But more importantly, those guidelines purport to offer bright lines and propagate the false notion that bright lines could be defined. But it’s impossible to provide bright line rules for fair dealing, because fair dealing is supposed to be a flexible standard. If bright lines could be defined, Parliament would have already provided them.
• Thus, those guidelines do not empower teachers, students, researchers, and librarians, to act like copyright adults. They do not promote the self-agency of adults who seek to pursue their objectives to their fullest extent within the law. Instead, those guidelines offer a set of dumbed-down arbitrary rules, which only entrench the childish instinct that copyright is scary and complicated.

So what does being a copyright adult entail?

So what’s the alternative, you might ask me? What should copyright adults do? How to practice fair dealing like adults?

Let me begin by sharing a little secret with you: it’s not and need not be that complicated. It’s actually quite simple. First off, our Supreme Court provided us a lot of guidance. You can read what our Supreme Court actually said. The decisions are available online for free. You can read thIf you don’t have time to read what the Court said, it also provided an “executive summary”. These are the famous 6 factors from CCH, where the Court provided a list of non-exhaustive factors as a useful analytical framework to govern determinations of fairness in future cases.

1. the purpose of the dealing;
2. the character of the dealing;
3. the amount of the dealing;
4. alternatives to the dealing;
5. the nature of the work; and
6. the effect of the dealing on the work.

These factors provide a good starting point, but here’s the key. There’s a wrong way to read those 6 factors, and there’s a correct way of reading them. Let’s start with the wrong way.

How not to think about these 6 factors?

Those factors are not a checklist; they do not provide arithmetic or any other type of formula; those 6 factors are supposed to assist in applying good judgment, not to replace it.

So how you should think about these 6 factors?

You should think about them exactly the way the Court described them: as a list of considerations that may not all arise in every case of fair dealing, but still provides a useful analytical framework to govern determinations of fairness in future cases.

However, an analytical framework can only work if we understand what we’re analyzing and for what purpose. In other words, you need to
understand what the exercise is all about—what’s the point of fair dealing.

It might seem like one of those big existential questions, like “what is justice?”, and this cartoon by Bion Smalley treats it this way, but in fact it isn’t; it’s actually quite simple.

Remember what Justice Binnie taught us in Théberge? If not, I’ll repeat that:

“The Copyright Act is usually presented as a balance between promoting the public interest in the encouragement and dissemination of works of the arts and intellect and obtaining a just reward for the creator .”

Fair dealing is one of the ways to achieve this balance.

So take the mystique out of fair dealing and think about it in light of this purpose. Fair dealing has a purpose: to allow the unauthorized use of works in a manner that promotes the public interest in the encouragement and dissemination of works of the arts and intellect, when the dealing does not seriously undermine the copyright owner’s opportunity to obtain a just reward.

So how does fair dealing achieve this purpose? The key, in my view, lies in the following statement of the Court in CCH:

“It will also be useful for courts to attempt to determine whether the dealing was reasonably necessary to achieve the ultimate purpose.”

The Court also used the “reasonably necessary” inquiry in its two fair dealing cases form 2012. The Court used it when discussing the 5^th factors (alternatives to the dealing), but these two words can easily encapsulate the entire concept. If you can present a compelling story why the unauthorized use is reasonably necessary to achieve the ultimate purpose, then you demonstrated that the dealing has been fair.

If using the work is reasonably necessary to promote the public interest in the encouragement and dissemination of works of the arts and intellect, and if you can do so without adversely undermining the copyright owner’s opportunity to obtain a just reward, then your dealing is fair.

The 6 factors help you make this assessment. On their own, the 6 factors don’t list any magic formula. Neither of them is conclusive, and the determination of whether the dealing was fair or not cannot be achieved by giving answering each of them and then tallying the total result.

Rather, the offer use windows that we can open and peer into the particular use. The 6 factor invite us to ask relevant questions and solicit relevant information so that we can determine whether the particular dealing was reasonably necessary. The factors invite the parties to explain and justify their actions and points of view and substantiate them with evidence:

As users, the 6 factors invite us to explain:

• Why would I copy, what purpose my copying seeks to achieve; why is it a legitimate one;
• Why would I copy to that extent;
• How is my copying related to the purpose I’m trying to achieve;
• Could I achieve the purpose without copying, or with copying less; maybe I should actually copy more? Maybe I should copy something else?
• Would it be reasonable for me to buy a copy under the circumstances? If not, why not?

The factors also invite us to consider the impact of what we’re doing. It’s a bit more complicated because we cannot know for sure, and we may not have the evidence but we can try, and we should try. They also invite us to think what will the owner think about what we’re doing. What kind of objections the owner might have? Do they make sense to us? Do we think they’re legitimate? What will my response to these objections be?

We can ask those questions. We can play devil’s advocate, or ask someone else to play this role for us, and if we can articulate a reasonable explanation for what we do, there are good chances are that we got it right.

In conclusion, to determine whether your dealing is fair or not, ask yourself whether what you want to copy is “reasonably necessary”. It may be very difficult to determine where the exact line is, but it’s often not that difficult to know whether you’re comfortably on one side, or dangerously on the other.

The word “reasonable” might still scare you. After all, you might ask, I might think that what I do is “reasonable”, but how can I be sure that the court will agree with me? The short answer is that you can’t be sure. But adults live with such uncertainly every day in a multitude of contexts.

For example, tort law requires any of us to take reasonable care to avoid acts or omissions which we can reasonably foresee would be likely to injure people to whom we owe duty of care. Do we always know to whom we owe duty of care? Not really. And even when we do, e.g., to our children, do we always reasonably know which acts or omissions would be likely to injure them? Not always. And can we be certain what reasonable care should we take to avoid those acts or omissions? Not at all. But we face these situations every day, and much more frequently that we face questions of fair dealing. And it’s not a big deal. We do it without even noticing, because we have a good sense of the principle and we are trained in applying it. Applying the principles of fair dealing feels complicated because we haven’t been trained to practice it, but we must start.

There is no guarantee that if we ask ourselves whether our acts are “reasonably necessary” we will always get it right. But most of the time we will.

So what do copyright adults do?

Copyright adults understand that

• The world is a complicated place and some questions are not amenable to bright line answers;
• And that’s not necessarily a bad thing, because it forces us to think, and experiment, and explain our behaviour, and consider other points of view, which in turn leads us, individually and collectively, to better understand what’s going to work best for all of us.
• And copyright adults understand that this at times may entail some risks, that at times you may get it wrong, and that might be some consequences, but this is part of the price that we pay for being free, self-agent adults. Their rights and interests need to be asserted, and defended;
• Victory is not guaranteed;
• Without action, defeat is;

Being copyright adults—the authors side

So far, I’ve talked about what being a copyright adult means from the perspective of users. But many of us are also authors. As I mentioned earlier, UofT is one of the largest authors organizations in the country. We write, we publish, we are voracious readers, we care about our own authorship, and we appreciate the authorship of others.

But like users, authors can also approach copyright in a childish way or as mature adults.

Toddlers believe that not only their belongings are theirs but that everything is “mine”. As they grow a bit, they begin understanding that only certain things belong to them. They also begin developing a stronger sense of self they and tend to see their favorite items as extensions of themselves, and they become overly protective and possessive. That’s when their parents, caregivers, and teachers begin to teach them the value of sharing. They learn that there are many times when being less possessive is better for each of them individually and for all us collectively.

Some copyright children are stuck in the early childhood phase. They fail to understand the value of sharing. They remain overprotective in their attitude, and perceive any demand for sharing as an affront on their own personality.

Copyright children also fail to realize how their own work builds and depends on the works of others, and they are inclined to treat almost all uses of their work as “it’s mine”. They frequently use terms such as “theft”, “robbery”, or “misappropriation.”

Adult authors, in contrast, understand the value of sharing. They appreciate that sometimes free-riding may be a problem, but otherwise free-riding is what economists call “positive externality”. They understand that less is sometimes more. Adult authors appreciate that they could not have become authors without the massive public investment in their own educations, and that their authorship depends on the ability to freely draw upon the works of others. They understand that a large and vibrant and educated public is crucial to their own success. Without it, they have no market. Without readers, their work may have little value. Adult authors understand what Justice Binnie meant when he said that overcompensating authors can be self-defeating as undercompensating them. They understand that the limited nature of their copyrights is a feature, and not a bug.

Like young children copyright children believe in fairy tales. Childish author’s favourite fairy tale is the one about the world where copyright ensures their financial success. In this tale the reason why they earn very little from their writing is that copyright is not strong enough, not long enough, and not broad enough. In this fairy tale not just a handful of authors can live off their writing, because Captain Copyright comes, teaches everyone to respect their copyright and they all live happily ever after.

But copyright adults know that this fairy tale, which has been told to authors and by authors for more than 300 years, is just a fairy tale. It’s not that copyright cannot generate money—it surely does, and a lot, and it makes a lot of people rich, but those people aren’t the authors.

Copyright adults understand that there are many reasons why authors see only a trickle of this money. One reason is that most creative people create because they want to, and there are many people who want to write and would write if they only had the opportunity. The result is there an inherent and constant oversupply of authors or people who want to be authors, many of which are happy to write even without, or with very low pay. The market for authorial labour is highly competitive.

The second reason is that copyright notwithstanding, economies of scale and scope imply that to exploit their copyright commercially, authors need to rely on publishers and other intermediaries. The result of those two features is the tragedy of the authors: authors in a super-competitive market, who depend on relatively few publishers in a very concentrated market. Stronger copyright merely strengthens the market power of publishers, not of authors. It can generate more money, but it doesn’t go to publishers.

Like young children, authors who are copyright children are sometimes naïve, vulnerable, and can be manipulated easily. Sadly, the very same people who are supposed to protect them and claim to be their guardians often exploit them.

So authors who become copyright adults understand that copyright can do some good for them, but they also recognize that, financially, they shouldn’t have very high expectations. Copyright adult authors recognize that the people who read, teach, and bother reading their works or listening to their music are often their best friends and allies, not their enemies.

Moving forward

I’d like to take our discussion a notch higher because, after all, we are intelligent adults, and think more deeply about the interaction between copyright and “being free, self-agent adults.” I would like to talk about the complex relationship between copyright and many of our fundamental rights. This is a conversation that all of us copyright adults should have: whether we are adult authors or adult users.

Copyright has always had very interesting and complex relationships with freedom of expression: what Neil Netanel calls the Copyright’s Paradox. The history of copyright can be described as an ongoing struggle between copyright’s enlightened side and its dark side. Copyright can serve as an engine of free expression, but it also provide a very potent tool for censorship, extortion and oppression. In order for copyright to serve its enlightened function, we, as copyright adults, must also confront its dark potential.

When copyright grants me exclusive right in my expression, it necessarily creates a legal limit on the ability of others to convey the meaning in my expression, or to use it to convey their own meaning. Copyright also restricts the ability to receive information embodied in works because others are prevented from distributing or communicating them. This is not some unforeseen consequence. This is what copyright is designed to do.

Freedom of expression is, as we know, a fundamental freedom protected by our Charter of Rights and Freedoms. There can be little question that copyright law imposes limitations on freedom of expression. Therefore, to be constitutional, the government must demonstrate that copyright law’s restrictions on expression can be demonstrably justified in a free and democratic society. Such limitations need to be tailored to serving a legitimate purpose, they need to be proportional and minimally impairing. Are all our provisions consistent with these tests? I’m not that sure.

But copyright affects not only my freedom of expression and it limits additional rights as well. Our courts recognized those tension much earlier and frequently reminded us the that “Copyright, like patent right, is a monopoly restraining the public from doing that which, apart from the monopoly, it would be perfectly lawful for them to do. The monopoly is itself right and just, … [but] care must always be taken not to allow [those rights] to be made instruments of oppression and extortion.”¹

For example, copyright affects what we can do with the things that we own. What we can do with books that we buy, what books we might have in the library, what we can watch on our TV sets, how we can use our computers, what music can be played in various events, and so on.

Moreover, the greater is the scope of copyright, the acts that might constitute infringement become, and consequently the more intrusive the entire scheme becomes.

Copyright, then, affects not only people’s freedom of expression, and not only their property rights, but it may also implicate important privacy interests. Justice Binnie recognized all of these concerns in its judgment in Théberge. Constitutionally, copyright may implicate not only freedom of expression, but also be in tension with issues that are subject to provincial jurisdictions, such as property and civil rights, or education.

Copyright adults, whether they are authors or users, understand these tensions between copyright and various rights and freedoms of themselves and others. They recognize benefit of copyright, but see that it is also prone to abuse and overreach. They understand that ensuring copyright’s enlightened side requires them to be vigilant against its dark side. They realize that their rights and liberties are the baseline. We have users’ rights not because the Supreme Court told us so in CCH, but because it would be unconstitutional to deny them. The Charter is our Constitution, not the Berne Convention.

A few days ago, an impressive list of Canadian authors and artists wrote an open letter expressing their concerns about how Bill C-51 threatens their right to free expression. They wrote that “Bill C-51 directly attacks the creative arts and free expression in this country. … Through its “chill” effect, C-51 undermines one of the chief freedoms of a democratic society: the right of every Canadian to free speech and free expression, including free artistic expression.”

The authors of this letter include Margaret Atwood and Cory Doctorow, two Canadian authors who frequently stand on the opposite sides on copyright issues. I agree with the concerns that they raise, though I’m not sure that Bill C-51 “directly” attacks freedom of expression. The danger is serious, but it’s still indirect.

But Bill C-51 is not the only threat on freedom of expression and other fundamental freedoms. We may soon hear whether Canada and 11 other nations have reached a deal on the Trans Pacific Partnership Agreement. The vast majority of us only know the details of what this deal might entail from leaks, but if the leaks are accurate, the TPP will include copyright term extensions, and additional ratcheting up of copyright and other IP rights, more draconian penalties, erosion of privacy protections, increased power of surveillance, and “investor” protections that make a mockery of the principle of government of the people, by the people, and for the people. What may be in store might be much more serious than what Bill C-51 has already brought us.

I hope that as copyright adults we will have serious and candid conversation about those impeding reforms: which of them are consistent with are most fundamental rights and values and which aren’t. Which of them truly benefit authors, and the public and which only serve other interests. I hope that all of us, as authors, researchers, and educators, will be able to see that and there’s much more at stake there than the concerns of dairy farmers, auto parts manufacturers, or for that matter, whether fair dealing allows us to can copy 10% from a book or maybe 20%.

It’s time for all of us to grow up.