In the ongoing review of the Copyright Act of Canada, the Parliamentary Committee tasked with receiving testimony and formulating recommendations has received hundreds of submissions, ranging from proposals that would totally gut the current copyright regime to ones that argue for much stronger copyright provisions, or perhaps a rollback of some of the changes introduced in the last review in 2012. The rollback could include, depending on one’s position, anti-copyright measures such as dismantling the protection afforded technological protection measures (provisions against hacking) or pro-copyright provisions such as a narrowing of fair dealing exceptions. A variety of arguments has been posited by the protagonists on both sides (and this being an unapologetic pro-copyright blog, you shouldn’t have too much difficulty in figuring out where I stand on the spectrum). Most arguments have some degree of merit, depending on your stance on the copyright issue, but the most fanciful that I have seen is the one that argues that a weakening of copyright protections is pro-feminist. Or, put another way, copyright is anti-feminist.
How does feminism come into the copyright debate, you may ask? After all, what is the gender composition of authors, or musicians or artists or photographers, or creators in any field of endeavour that enjoys copyright protection? I am not sure that anyone has done the math, or that it is even possible to do so, but the answer surely is that a goodly proportion if not a majority in some domains is female (just as in others it is male). One has only to think of the most prominent recent Canadian literary giants to get a sense of the role of female authors in Canadian literature (Alice Munro, Margaret Atwood, Margaret Laurence, Esi Edugyan, Miriam Toews etc.) I am not much of a CanLit maven so I went to an authoritative source, Scribendi, who proclaim that six of the top ten Canadian authors of all time are women, and eleven of the top twenty. Now I admit that this is not definitive proof of female achievement in the literary field. Perhaps there are some literatures that are more completely dominated by women, or by men. But the point is that creativity knows no gender, and since copyright supports creativity, how can it be anti-feminist?
Well it can be, according to Carys Craig, a professor at Osgoode Law School at York University in Toronto, whose commentary was reproduced on Meera Nair’s blog Fair Duty,
“ I would note that this government prides itself on its feminist agenda, and should consider what that means in the copyright context.[9] Good copyright policy is concerned not only with providing economic incentives but also with advancing equality; and equality requires access to affordable education, access to knowledge, and supports an ethics of sharing and collaboration.”
The footnote (9) refers to another of Craig’s publications, in which she trots out the usual tired and unproven arguments that copyright stifles education and learning. Riffing off the 2018 World IP Day theme of “Powering Change: Women in Innovation and Creativity”, Craig quotes Ann Bartow, currently head of the Franklin Pierce Center for Intellectual Property at the University of New Hampshire in the Journal of Gender, Social Policy & The Law (Volume 14, Issue 3, 2006), to the effect that “[c]opyright laws were written by men to embody a male vision of the ways in which creativity and commerce should intersect.”
It would be hard to argue that this statement is not correct, and I don’t intend to do so. I am sure that statistically it is true that most if not all copyright laws were written and enacted by men, in common with most other laws unless enacted very recently. In Canada today where half the Cabinet is composed of women–Prime Minister Justin Trudeau notoriously replied “Because it is 2015” when asked on taking office why it was important to have a Cabinet that was gender balanced–women’s views arguably play a larger role than in the past, as in the case of assisted death legislation led by former Justice Minister Judy Raybould-Wilson (now Minister of Veteran’s Affairs). This was a delicate area requiring balancing of many legal considerations but where in the end traditional female virtues of compassion and caring played a key role in shaping the legislation. There is clearly more to be done in the area of gender balance in politics and I would note that despite Cabinet parity, female representation in the Canadian House of Commons is only 88 out of 388 deputies, or 21% of the total. By way of comparison, the total in Westminster is 32%. In the US the figures are 23% for the House of Representatives and 19% for the Senate, respectively.
While there are incontrovertible areas of bias and discrimination against women, such as lower pay for essentially the same work done by men, lower pay in traditionally female-dominated occupations, and fewer opportunities to get into the upper echelons of many businesses and professions, copyright law is not one of them. It is totally gender blind, unlike property or voting laws in the nineteenth and early twentieth centuries or indeed some other laws still in existence today. I am sure that promotion of feminism was the last thing that drafters of the first copyright laws had in mind, but that doesn’t mean that the end result was not gender neutral. Ann Bartow concedes that women could exercise their copyright at a time when they were denied other property rights (although she goes on to argue that they were denied many of the benefits of copyright because of gender biased contract law).
In an earlier blog (written to mark the very World IP Day theme of “Powering Change: Women in Innovation and Creativity” criticized by Carys Craig for missing the point), I highlighted Geraldine Moodie, the first professional female photographer in the Canadian West, in the 188os and 1890s. She was not only a pioneer of the genre in Canada but went to great lengths to ensure copyright registration of her arresting portraits, which explains why so many are still available for successive generations to enjoy. This is but one small example of how copyright law has been rightly harnessed by women to advance their interests and careers. But it is not my intention to venture too far into the world of feminism, where I have no expertise. I prefer to stick to copyright, and address Dr. Craig’s contention that weakening copyright will be consistent with the Trudeau government’s feminist agenda. But first let’s establish her position on the substance of the issues. Carys Craig is clearly anti-copyright, describing it as “a source of exclusion and inequality”, serving to preserve “monopolistic interests” and failing “to actually attend to the real needs of the artists it is said to serve”.
Others have also tried to make these arguments, but they were not so imaginative as to attempt to simultaneously check the feminist box by claiming that stronger copyright protection is anti-feminist—supposedly adding weight to an already contentious position. It is well known that Justin Trudeau prides himself on being a feminist and that his government has a self-proclaimed feminist agenda. To me, that is rational and unobjectionable. But to try and hide an anti-copyright bias by pretending that weak copyright settings are more feminist than stronger ones is simply twisting logic to suit a desired outcome. I could just as easily argue that because of its gender neutrality copyright has been an instrument for the advancement of females in the artistic and business world—and therefore strong copyright settings are consistent with and favourable to a feminist agenda–but I think the most defensible position is that gender in copyright is not material. Stronger copyright settings and better protection against piracy will provide better protection of the rights of all creators, (and the business models that depend on creative works), whether the creator is writing books or software codes, creating knitting patterns or composing and performing music. The percentage of women versus men will vary in each of the areas of copyright according to the form of art. The argument that weaker copyright enhances gender equality does not stand up to scrutiny, and in fact weakens other arguments by stretching the truth. If you truly believe that copyright is a barrier to education, technological change and creativity, you are entitled hold that (mistaken) belief but don’t try to pretend that there is a feminist or gender element to this (mis)interpretation. You may as well claim that copyright is bad for the environment and hinders the fight against climate change, or that it is responsible for third world poverty.
This reminds me of the ludicrous arguments put forward by the Girl Guides of Canada opposing the extension of the term of copyright protection in Canada at the time of the negotiation of the Trans-Pacific Partnership (TPP). According to a submission presented by the CEO of the Guides to Parliament, extension of the term of copyright protection in Canada as proposed under the TPP would handicap the organization and might not allow them to use early photographs of girls selling Girl Guide cookies. Mind you, both the UK and the US already had a longer copyright term than Canada and the last time I checked the Girl Guide/Girl Scout movements in those countries had not suffered any hardship or setbacks because of it. In any event, Canada has now agreed, as part of the new NAFTA agreement, to extend its copyright term. If we follow the logic of the Guides argument, as represented by their CEO, I guess we are about to see a plunge in sales of Girl Guide cookies in Canada.
And with respect to artists (male or female) if you believe, as Dr. Craig apparently does, that copyright does not attend to their real needs, why not listen to some of them? Their submissions to the Parliamentary Committee are all on file.
The Committee reviewing the Copyright Act, having now finished receiving testimony and submissions, will now consider the evidence and come forward with recommendations. Hopefully they will examine the issues on their merits, dismissing Dr. Craig’s allegedly pro-feminist anti-copyright argument for what it is–a fanciful attempt to climb aboard the Trudeau government’s feminist policy bandwagon. That feminist agenda has legitimate objectives. Undermining copyright law in Canada is not one of them.
© Hugh Stephens, 2019. All Rights Reserved.
A very interesting discussion. It was a pleasure to read and follow such a cogent argument.