November 30 is the “day of action” for Canadian writers and publishers. Writers across the country are writing the government and their MPs urging them to pass legislation to stop the great educational rip-off, being the uncompensated copying of 600,000,000 pages per year that has been taking place in the education sector since education was added as a fair dealing exception under the 2012 revisions to the Copyright Act. When that amendment was enacted, the educational sector outside Quebec, including Ministries of Education and post secondary institutions, started terminating their licensing agreements with the writers’ and publishers’ copyright collective, Access Copyright (AC), and unilaterally declared that the amount of copying they had previously paid for under licence, such as up to ten percent of a work, one chapter in a book, one article in a journal. etc, now constituted–from their perspective—fair dealing, and they would no longer pay writers for using their materials under an AC licence.
To assert the rights of its members, Access Copyright brought a lawsuit against York University, and won in the first instance at the Federal Court, which ruled that York’s self declared fair dealing guidelines for use of materials in the copyright collective’s repertoire were anything but fair. That ruling was appealed by the university, which then won on a technical point (whether they were required to compensate Access Copyright under so-called “mandatory tariffs” provisions) although the original ruling on whether York’s guidelines were fair under the Copyright Act was not overturned. The case went to the Supreme Court which upheld the appellate court’s decision regarding the enforceability of tariffs and given that, concluded they did not need to rule on the question of the fairness of the guidelines relied on by York. After years in the courts, the situation is still in limbo. What is needed is a legislative amendment clarifying that fair dealing for educational purposes can be invoked by institutions with respect to copyrighted works only when no commercially available alternative exists. That is what was recommended by the all-party Standing Committee on Heritage in its 2019 report “Shifting Paradigms“.
The universities, backed up by groups such as the Canadian Federation of Library Associations, claim there is no need to change anything as they pay hundred of thousands of dollars per year in direct licensing fees to publishers, allowing them to use digital materials freely. Their argument is that the shift to digital materials has made an Access Copyright reproduction licence unnecessary and obsolete. They argue that if they were to pay for an Access Copyright licence, they could be paying twice for the same material. This is plain wrong, a total fabrication.
The amendment proposed by the Standing Committee on Canadian Heritage would capture both direct licences issued by some publishers as well as the broad reprographic licence issued by AC so there would be no double counting. While it is true that some publishers offer direct licences for their material to universities and colleges, many do not, especially smaller Canadian publishers. Yet it is these works that the post secondary institutions are copying and distributing to students in both hard copy and, increasingly, in digital formats under their so-called fair dealing guidelines.
The education sector claims that their use of materials represented by AC has declined significantly. It may no longer represent the 6 million pages annually that was documented in 2015 for the Access v York case (the total includes copying by the K-12 sector as well as post-secondary institutions). It may be more, or it may be less. There used to be a proven way to find out the accurate number of annual pages copied, and that was to participate in the Copyright Board of Canada tariff setting process. The Board would adjudicate the amount of copying that needs to be compensated and set the “tariff” to be paid. But the Supreme Court has undermined the role of the Copyright Board by stating that tariffs are not enforceable. The government should also amend the Act and strengthen the role of the Copyright Board to ensure that universities cannot avoid their responsibilities to compensate authors for widespread copying of their works by hiding behind the ruse of education fair dealing.
Despite the undisputed large amounts spent by post secondary institutions on direct licensing, this does not cover the uncompensated copying of non-licensed content that is still occurring every day on Canadian campuses (outside Quebec where an agreement is in place). The “day of action” is designed to highlight this injustice which has resulted in a diversion of revenues that has seriously undermined the Canadian publishing sector and the incomes of writers.
The Trudeau government has a lot of issues on its plate but this reform is long overdue. The fix is simple: narrow the loose wording of the education exception so that it applies to students, not to large institutions that are taking a free ride on the backs of Canadian writers and publishers.
This blog post appeared first in Open Canada, the journal of the Canadian International Council, on November 20, 2023.
In the past few weeks there has been a flurry of activity with respect to international regulation of Artificial Intelligence (AI) such as the Bletchley Declaration spearheaded by UK Prime Minister Rishi Sunak, the Executive Order on the Safe, Secure, and Trustworthy Development and Use of Artificial Intelligence signed by US President Biden, as well as the G7 AI Code of Conduct. Canada has been involved in some of these initiatives but will be affected whether or not it participates, including aspects of the AI issue dealing with protection of intellectual property, specifically creator’s rights protected through copyright laws. Indeed, there is a huge emerging issue related to whether the indiscriminate scraping of copyrighted content by AI developers to train their algorithms is legal under existing copyright laws, plus whether the output of content generated by AI can be legally protected under accepted copyright norms.
When it comes to copyright challenges today, Canada has just launched a public consultation on this issue (”Copyright in the Age of Generative Artificial Intelligence”) as part of the process of updating Canada’s copyright framework in the digital age. The implications of the extent to which AI and copyright are compatible illustrate the interdependent nature of national copyright protection regimes, notwithstanding the fact that each nation interprets and applies copyright law in slightly different ways. The key point here is that countries that are too lax in protecting their creative sectors could see their copyright-protected cultural industries suffer negative economic impact; countries that are overly protective could see investment in AI innovation flow to countries with lower copyright standards. Whatever international consensus emerges and whatever framework to regulate AI is developed, whether it be OECD guidelines or a more formal arrangement, Canada will need to be a party. Such is the nature of international issues these days, with respect to digital issues, copyright and intellectual property generally.
Canada is already bound by a number of international commitments with respect to its application of copyright, and these will undoubtedly have an impact on future and long overdue revisions to Canada’s Copyright Act. For example, the current international framework for protection of copyrighted works (books, films, music, performances, television and streaming content, broadcasts and other forms of copyright protected works such as software, paintings, drawings, photographs, etc.) is embedded in the TRIPS Agreement (WTO Agreement on Trade-Related Aspects of Intellectual Property Rights) that was a part of the establishment of the World Trade Organization in 1995. Canada, was of course, a party to TRIPS. With respect to copyright, TRIPS incorporates the terms of the Berne Convention, with the added benefit of a dispute-settlement mechanism to resolve disputes, something lacking in Berne. However, the WTO’s dispute settlement process is currently suspended owing to the inability to appoint new members to the WTO’s Appellate Body because of US opposition. The Berne Convention of 1886 (along with its periodic updates over the years) remains the bedrock of international copyright cooperation.
When it comes to copyright legislation, it is generally accepted that the first modern copyright law is the Statute of Anne, passed by the British Parliament in 1710. The stated purpose of legislation was for “the encouragement of learning”. For the first time it gave authors (or those to whom they assigned their rights) rather than printers the exclusive right to print or reprint their books. The period of protection lasted for an initial period of fourteen years. This provision was included in the US Constitution “to promote the progress of science and useful arts…”, again with an initial period of protection of fourteen years.
During the 18th and most of the 19th century, copyright laws were applied to nationals only of the country concerned or to works first published in a that country. Thus, British copyright applied in Britain (and the British Empire) to British authors but works by nationals of other countries could be freely reprinted in Britain unless first published there. The same applied in the US and other countries. Attempts were made to negotiate bilateral treaties under which reciprocal protection would be afforded the nationals the two countries concerned, but this resulted in a confusing patchwork quilt of protection. Eventually, under the leadership of the French novelist Victor Hugo, in 1886 the first international copyright treaty, the Berne Convention, was signed. Only eight countries ratified it initially, (Belgium, France, Germany, Great Britain, Italy, Spain, Switzerland and Tunisia). Notably absent was the United States which did not join Berne until 1989. Today, over 180 countries are members and some economies (like Taiwan, Hong Kong and Macao) that are not accessory states to Berne but are members of the WTO) also apply its terms.
When Britain joined Berne in 1886, the Convention’s provisions applied to all parts of the British Empire, including Canada, as Canada was not at that time a fully sovereign state. Nonetheless, copyright was a power conferred on the new dominion established in 1867 and in 1868 Canada enacted its first Copyright Act. This ambiguity led to conflicts with the imperial government, and on several occasions Canada tried to exit Berne, before acceding in its own right in 1928. Canada also tried to pass legislation favouring Canadian works over those from Britain, only to have the legislation vetoed by the Governor-General.
One of the issues was Canada’s desire to promote the Canadian printing industry. British works were protected by copyright in Canada but Canadian printers could normally not get printing rights from British publishers, despite the high cost of the imported British books. However, in the US, British works were freely printed without permission (“pirated”) because US copyright law did not protect British works. Canadian booksellers, instead of importing the expensive British editions of Charles Dickens and other British writers, would import the much cheaper pirated US editions. This was technically illegal, but the border was long and leaky. British publishers tried to pressure the British government to lean on Canada to block importation of their works printed in the US, but with limited success.
Just as British works were not protected in the US, nor were US works protected in Britain or other countries such as Canada. Thus, Canadian printers freely reprinted Canadian editions of US works by writers such as Samuel Clemens (Mark Twain), without permission or payment of royalties. That was legal at the time but what was not legal was the resale of these Canadian editions back into the US, a frequent occurrence. Thus, Clemens famously complained about “Canadian pirates” and tried to publish some of his works first in Montreal so he could claim British and Canadian copyright. Finally in 1891, the US agreed to respect the copyrights of other nationalities but only on condition that their works be typeset in the US.
For many years before it finally joined Berne in 1989, US publishers sought to obtain the benefits of Berne’s widespread international protection (applicable only to acceding parties) by simultaneously publishing works in the US and in Canada, through their Canadian publishing subsidiaries. This became known as “the back door to Berne”. Berne establishes a number of basic principles and commitment to minimum levels of protection by acceding states. For example, under Berne no formal registration is required to establish copyright provided that the fundamental requirements of originality, nationality and fixation are met, although registration can be provided as an option as is the case in both Canada and the United States. In the US registration is required if a legal action is taken to enforce a copyright. Berne also requires a minimum term of protection of the life of the “author” (meaning the creator of the work, even a visual work) plus 50 years after the author’s demise, although countries are free to establish a longer period of protection. The US, EU, and a number of other states, now including Canada, have extended the duration of copyright protection to “life plus seventy”, with a twenty-year extension allowing an author’s estate, or those who have acquired the rights, to have a longer period during which to exploit the work.
It is not only international treaties that impose certain commitments on Canada, but also bilateral agreements such as the updated NAFTA, the CUSMA (called the USMCA in the US). One of the commitments that Canada made in CUSMA was to extend its term of copyright protection to align with that in the US. The implementing legislation for this commitment has now been enacted and the longer term of copyright protection came into effect in Canada on December 30 2022. However, the longer term applies only to works still under copyright protection. Any works that entered the public domain prior to that date do not benefit.
Given recent Canadian government initiatives, such as Bill C-11 (the Online Streaming Act) and C-18 (Online News Act), both of which will require US companies ranging from Netflix and Disney to Facebook and Google to contribute financially to production of Canadian content, in the case of streaming, or in the case of C-18 and news content, to Canadian journalism, one could well ask whether the US will try to intervene on behalf of these large US content and tech companies. After all, one of the basic principles of CUSMA is national treatment for US companies in Canada, and vice versa, with specified exceptions.
One of these exceptions is the so-called cultural exception, Article 32.6 of CUSMA, which relates to what could be called “copyright industries”. This article allows Canada to take actions to protect culture in ways that would be inconsistent with the Agreement but for the exception. Film and television production, as well as the publication of magazines, periodicals and newspapers, and radio, TV and cable broadcasting, are all included in the definition of a cultural industry. However, Article 32.6 has a sting in its tail. It allows the other parties (the US or Mexico) to take equivalent measures of retaliation in any sector of the economy if the cultural exception is invoked. In effect this means that if Canada uses the cultural exception to justify measures against US (or Mexican) companies, other sectors of the Canadian economy could suffer the consequences. As such, it is a poison pill, which explains why it is very improbable it will ever be used. Instead, if there is a US trade challenge to these pieces of legislation – which is unlikely given the range of US interests involved, (some of which support the legislation) – the Canadian government will not invoke the cultural exception but will argue the measures it is implementing are not aimed at US companies per se, but rather at specific commercial entities that have an excessive degree of competitive market power. Thus, there is no violation of the national treatment principle. At the present time, the only companies that fit the definition happen to be American, but in future the definition could extend to European companies or Chinese entities like TikTok or, potentially, Canadian companies.
All this just goes to show that no nation is an island, whether it concerns specialized areas like copyright or broader issues like AI harms. Copyright has adapted over the years to technological change, with AI being but the most recent example. Likewise, Canada has adjusted to the international framework regulating copyright, to its advantage and to the benefit of its creative industries, and it will need to continue to do so in future.
The declarations all addressed many of the concerns surrounding AI, ranging from safety and security, fraud and cybersecurity to privacy, equity and civil rights to protecting consumers, supporting workers and promoting innovation. A key issue only lightly touched on in these declarations, however, was that of AI’s intersection with copyright. This was a missed opportunity to come to grips with a major concern regarding how AI will be able to co-exist with copyright law. (The EU’s draft AI Act includes a transparency requirement to “document and make publicly available a sufficiently detailed summary of the use of training data protected under copyright law“, Article 28(b) 4(c).)
Second, with respect to outputs, the work generated by AI has two challenges in terms of obtaining the benefits of copyright protection. If its inputs are infringing, that clearly casts doubt on the legality of the derivative outputs. In addition, there is the problem posed by the current position of the US Copyright Office (and most other copyright authorities) that to be copyright-protected a work must be an original human creation. After the infamous Monkey Selfie case, the USCO issued an interpretive bulletin reiterating the need for human authorship and, to date, it has hewed to this line when examining applications for copyright registration from authors claiming works produced by AI.
The G7 Declaration was broad, covering a wide range of issues related to AI. It included a reference to the copyright issue under Point 11, “Implement appropriate data input measures and protections for personal data and intellectual property”, specifically stating that, “Organizations are encouraged to implement appropriate safeguards, to respect rights related to privacy and intellectual property, including copyright-protected content.” This is hardly prescriptive language, but it is a beginning. I understand that the creative community had to fight hard to get this wording included, but it is at least recognition of the issue.
With respect to the US Administration’s Executive Order, the issue of copyright was also acknowledged, but in a somewhat backhanded way. Section 5.2 (Promoting Innovation), addresses copyright as part of clarifying issues “related to AI and inventorship of patentable subject matter”. Paragraph (c)(iii) declares that the Under Secretary of Commerce for Intellectual Property and Director of the US Patent and Trademark Office shall;
“within 270 days of the date of this order or 180 days after the United States Copyright Office of the Library of Congress publishes its forthcoming AI study that will address copyright issues raised by AI, whichever comes later, consult with the Director of the United States Copyright Office and issue recommendations to the President on potential executive actions relating to copyright and AI. The recommendations shall address any copyright and related issues discussed in the United States Copyright Office’s study, including the scope of protection for works produced using AI and the treatment of copyrighted works in AI training.”
This is not exactly a ringing endorsement of the need for respecting the copyright of those who, willingly or not, provide the raw material for the voracious AI machines that are busy scooping up creator’s content, but it is nonetheless an acknowledgment that there’s an issue that needs addressing.
The US Copyright Office (USCO) launched its study on Artificial Intelligence and Copyright on August 30 of this year “to help assess whether legislative or regulatory steps in this area are warranted”. By the end of October, the USCO had already received more than 10,000 submissions. The comments range from statements by AI developers as to why they shouldn’t be required to pay for copyrighted content used as inputs in developing their models (while of course claiming they should enjoy the benefits of copyright protection for their AI generated outputs), to submissions by creator organizations that argue, among other things, that the ingestion of copyrighted material by AI systems is not categorically fair use and that AI companies should license works they ingest. Licensing their content to AI companies as an additional revenue stream is precisely what major media companies are currently engaged in.
If the US, currently and for the foreseeable future the leading country in development of AI, is thrashing around trying to address this question, one can imagine the process taking place elsewhere. Will the need to set standards inevitably lead to some form of international consensus for the regulation of AI, including the role of copyrighted content? I think it will be essential. Countries that are too lax in protecting their creative sectors will see their copyright-protected cultural industries suffer negative economic consequences; countries that are overly protective of content are worried that investment in AI innovation will flow to countries with lower copyright standards, becoming a race to the bottom for creators.
The UK government has already felt the pinch of this dilemma. In a misguided attempt to gain a head start in the AI development race, about a year and a half ago the British government unveiled a proposal sponsored by the UK Intellectual Property Office (of all entities!) to create an unlimited text and data mining (TDM) exception to copyright, at the same time stripping rights-holders of their ability to license their contact for TDM purposes, or to contract or opt out. In the words of the discussion paper accompanying the draft legislation, in order to reduce the time needed to obtain permission from rightsholders and to eliminate the need to pay license fees;
“The Government has decided to introduce a new copyright and database right exception which allows TDM for any purpose …Rights holders will no longer be able to charge for UK licences for TDM and will not be able to contract or opt-out of the exception.”
This outrageous attempted expropriation of intellectual property rights aroused a storm of protest from the UK’s vibrant cultural sector, a backlash that found resonance in Parliament. As a result, the British government backed off, and withdrew the proposed legislation. However, one wonders if the stake has truly been driven through the heart of this hi-tech gambit or whether, like Dracula, this misguided policy will rise again. “UK Parliamentary Committee Shoots Down Copyright Exemption for AI Developers–But is it Really Dead”? Certainly, British publishers are not convinced the content grab is over. According to the Guardian, they have just issued a statement urging the UK government, “to help end the unfettered, opaque development of artificial intelligence tools that use copyright-protected works with impunity.”
Canada has just launched a public consultation on AI and Copyright, (”Copyright in the Age of Generative Artificial Intelligence”), and others will be doing the same. In Australia, Google, responding to a review of copyright enforcement, urged the government to relax copyright laws to allow artificial intelligence to mine websites for information across the internet (even though this wasn’t the topic of the enquiry). Meanwhile, the Attorney-General’s Department has been conducting several roundtables to explore the issue, the most recent being at the end of August. In that roundtable, representatives of the Australian creative community called for greater transparency around how copyright material is being used by AI developers during the input training and output process.
And so, the search for the right formula goes on. It will not be easy to find the elusive international consensus, especially since at the moment (with the exception of China) this is an issue on the agenda only of the so-called Global North.
How the heavy-hitters will deal with the issue of AI, including its intellectual property dimensions, remains to be seen. There could be something as relatively powerless as OECD Guidelines that emerge or regulation could go a lot further, including the establishment of some kind of international agency with the “authority” to regulate in the area of AI, as suggested by Elon Musk and others. However, as we have seen with every international organization created to date, whether it be the UN, World Trade Organization, International Atomic Energy Agency, or any of the myriad other supra-national structures created in recent years, the authority granted them is only as good as the commitment of its signatory states. It makes sense to harmonize and set broad international standards for the way in which AI is created and used, but it will be a long road to get there.
The challenge of how copyright can intersect with AI–to the mutual benefit of both–has still be worked out. The courts are playing a role, as is technology, evolving business models, and legislation. Society needs to find the sweet spot where both human creation and technological advancement in the form of AI can co-exist for the benefit of society at large. Despite recent pronouncements, the search continues.
This post has been updated to include reference to the ongoing roundtable process underway in Australia under the aegis of the Attorney-General’s Department to explore, inter alia, questions of AI and copyright.
All my life I have tried to behave well around librarians lest I be given a steely stare and be chided by the person on duty. I have tiptoed, suppressed coughs, and whispered in hushed tones. And generally, I have succeeded in avoiding reprimand. Until now.
Lorisia McLeod, Chair of the Canadian Federation of Library Associations (CFLA) is not happy with me, nor is Victoria Owen, Chair of the Copyright Committee of the CFLA. The source of their displeasure is an op-ed I wrote in July for the Globe and Mail (“Why We Need Copyright Reform Now”). In it, among other things, I stated that there was a need to narrow the overly wide “education” fair dealing exception introduced in 2012 that has led to Canadian authors and publishers indirectly subsidizing the post-secondary sector for more than a decade. As a result, writers have suffered a precipitous decline in income and fewer Canadian educational texts have been published. According to Ms. McLeod, my suggestion that the drastic decline in income for creators is related to the education sector’s refusal to negotiate reprographic licenses for copying hard copy and digital course material (under the pretext that the broader education fair dealing exception introduced in 2012 removes the need for it to do so), constitutes an attack on libraries that “needs to stop”.
When it comes to the payment of royalties by publishers to authors whose works have been licensed by libraries, she says “Copyright is not part of that transaction”. This makes no sense. I surmise she means it is a contractual issue, but contractual payments by publishers to authors are based on copyright, which confers the rights on the creator. While all contracts may not be identical, publishers who have licensed rights to a work share the licence fees with the author. For example, in the case of my recently-published book, “In Defence of Copyright”, I get a share of the revenue on each copy sold whether for hard-copy or digital works, with the payment for a digital copy amounting to fifty percent of the revenue that the publisher receives. But payment by publishers to authors is not the issue when it comes to the education exception.
The issue is an abuse of fair dealing, the user’s rights that are built into copyright law to provide limited permissionless access to copyrighted works for specified purposes and under specific conditions. McLeod refers to these as a “sliver of balance” offering limited rights to users. At the present time, some $200 million in uncompensated copying in the educational sector is in dispute. Some sliver! The “limited rights” she refers to have been turned into paper and digital course packs comprising significant portions of works that authors and publishers have produced, predominantly for the educational market, all without a nickel of payment for copying these materials, under the guise of educational fair dealing. And guess what? In many cases, the educational institutions charge students for these course packs through the university bookstore.
McLeod states that “Libraries purchase access to content including books, periodicals, and data and pay publishers hundreds of millions of dollars each year to provide students with digital access to these works.” Yes, they do. That is not in question. But as the Writers’ Union of Canada, supported by ten other copyright, authors and publishers groups, stated in a response to the CFLA statement, (“CFLA Statement Contains Damaging Inaccuracies”);
“In no way do current subscription, transactional, and access fees paid by libraries offset or excuse the massive amounts of unlicensed copying that happen every year elsewhere in Canadian education because of the misinterpretation that fair dealing permits such copying. Such use requires a license, and that license is currently not being paid.”
The basis of McLeod’s argument, amplified in a recent podcast hosted by well-known copyright critic Michael Geist of the University of Ottawa, featuring CFLA’s Victoria Owen (mentioned above), is that there is no need to acquire a blanket reprographic licence from the copyright collective, Access Copyright, because most works today are in digital format and libraries gain access to these works through digital licences. But do licences that provide access to a digital work and, in the case of libraries, lending rights as well, also allow for reproduction? Victoria Owen is categorical that they do. “Reprographic[i] permissions are bundled into the licences” (Podcast at 23:40). That is no doubt true in the case of some publishers, particularly the larger ones, but by no means do all publishers, especially smaller Canadian publishers, offer reprographic rights when they license digital content to a library. In situations where reprographic rights are included, students have full online access to those materials, so they seldom show up in paper course packs or uploaded on learning management systems. What does show up in course packs and on learning management systems are individual works, older materials, and other content that is not licensed in the manner alleged. Moreover, a licence to service a specified number of users at any one time is not a blank cheque for unlimited unlicensed digital copying of works or excerpts of works as is currently the case on most university campuses.
If “the market has changed”, to again quote Owen from the Geist podcast, and there is no unlicensed reproduction of materials in Access Copyright’s repertoire, why are the universities so opposed to submitting their case to fair examination and adjudication through the Copyright Board of Canada? Instead, they prefer to hide behind an expansive definition of education fair dealing to justify opting out of collective licensing for the considerable unlicensed copying they still resort to.
Owen goes on at length about user rights, clearly taking delight at the progressive dismantling of copyright protection for creators that has occurred in recent years. We all know that creator rights are not absolute and there is a balance in the form of user rights. Where that balance lies, or should lie, is a legitimate topic for debate, but in the eyes of many creators the scales have been unduly tilted in favour of, not users (i.e. students), but rather institutions who because of tight budgets are happy to cut costs by taking a free ride through a unilateral interpretation of fair dealing. They cannot escape direct licensing fees for digital works that in many cases have replaced book purchases, so they don’t, but if they can invoke an expansive definition of fair dealing to avoid payment of fees for reproducing all the other works in their holdings, current and historical, hard copy and digital, they will.
The CFLA statement further muddies the waters by confounding the situation of public libraries with those in the post-secondary sector, where licence terms differ. Public libraries continue to have large physical holdings and continue to acquire physical books along with e-books. That is understandable as there continues to be a strong public demand for books—books you can hold and take home. Just look at the still vibrant business model for independent bookstores alongside online platforms like Amazon and Indigo. And users often want to photocopy information from these books which explains why public libraries continue to have “paper only” comprehensive reprographic licences with Access Copyright. The copyright collective also offers reprographic licences for digital content.
Victoria Owen is right about one thing; rights-holders are trying to reclaim ground lost–to an unnecessary and excessive widening of educational fair dealing–and are seeking to restore some balance. She argues that it was really several court decisions, such as CCH v Law Society in 2004, not the 2012 legislation, that undermined the collective licensing model. While court rulings can indeed change the legal landscape, it is legislation that ultimately determines the law. Courts interpret the law, but if they get it wrong, Parliament can clarify its intent through legislative change. That is what authors and publishers are now seeking. The 2012 amendments that included education as a fair dealing exception went too far. Research and private study were already accepted fair dealing exceptions. The addition of education allowed institutions to substitute themselves for their students in proclaiming a user right. The solution, proposed by the Heritage Standing Committee report, Shifting Paradigms (Recommendation 18), is eminently reasonable.
“That Government of Canada amend the Act to clarify that fair dealing should not apply to educational institutions when the work is commercially available.”
This tweak would not eliminate education as a fair dealing exception but would limit it to the unlicensed reproduction of copyrighted works by educational institutions when, and only when, no commercially available alternative (that is, content available through licence) is available. This would include the digital reprographic licenses that the CFLA claims libraries are obtaining directly from some publishers as well as a blanket hard copy and/or digital licence from the copyright collective for use of works included in the repertoire.
Fixing the education fair dealing exception by narrowing it in this way is needed to restore fairness and balance in the market. It would also be an important step in helping stem the decline in incomes of our creative sector. While other means to increase incomes to writers mentioned by the CFLA, such as expanding the Public Lending Right or the Canada Book Fund are not mutually exclusive to fixing the fair dealing free riding problem, it is far better to have a market-based solution to guarantee a vibrant creative sector than to rely on various forms of government hand-outs, welcome as they may be.
The CFLA is crying foul, but they need to look at themselves in the mirror and ask what is really going on. The sector of the library world represented by post-secondary institutions in English Canada (noting that Quebec institutions have agreed to continue their licences with Access Copyright’s Quebec counterpart, Copibec) is exploiting the ambiguity of the education exception to throw Canadian authors under the bus. How is that in the “public interest” that Victoria Owen talks so much about?
The relationship between libraries (and librarians) and writers and publishers should be mutually supportive. They have a complex but mutually dependent relationship. No authors means no books, digital or otherwise. No books means no libraries, or librarians. A few years ago, a Canadian publisher, Kenneth Whyte, accused libraries of “pimping free entertainment to people who can afford it”. As I noted in a blog post that I wrote at the time (“Are Libraries the Enemy of Authors and Publishers?), the Association of Canadian Publishers (ACP) was quick to distance itself from Whyte and his accusations. The Executive Director of the ACP stated that “Canadian publishers recognize that libraries are an important part of the reading ecosystem and a primary channel for book discovery….Library sales are also an important part of the publishing business model” . As for the CFLA, it will claim that it supports writers but then go to great lengths to undercut a fair market model for content.
I started this blog by talking about being chided by librarians. I accept that some in the library sector have a different view of the value of copyright than I do. They seem to rejoice when copyright is weakened, and exceptions widened. I don’t. I want to see a fair balance restored. All writers, myself included now that I have published my book “In Defence of Copyright” (which I hope will become a useful reading for students of creative writing, film-making, music performance and composition and, yes, library science), recognize the necessity for prescribed exceptions to copyright. We build on the work of others, using citations, references and so on. But we don’t appropriate the work of others to teach the next generation of creators by copying without fair compensation.
So, while I have always been respectful toward librarians and the library setting, creeping around quietly and following the rules, this time I am going to stand up and loudly shout, “Enough. You know damned well what is going on. The obfuscation needs to stop!”. The specious argument that authors are not getting paid by publishers, or that the growing use of digital content eliminates the need to pay for the massive amount of unlicensed copying that takes place on Canadian campuses—promoted by the CFLA and amplified by copyright minimalists like Michael Geist—are smoke-screens that need to be called out. The legislative fix that is needed to restore balance to the system is clear and has been recommended by an all-party Parliamentary committee. Now, Parliament and the government need to move.
I was at a store a couple of days ago and as is common at this time of year, there was the tray of Remembrance Day poppies on offer, with the proceeds going to the Royal Canadian Legion. I slipped in my $5 donation (is that enough in these days of inflation?) and took my GST-free decoration. It will no doubt be the first of several that I purchase this year as the poppies, at least in Canada, seem cunningly designed to fall off your jacket or sweater at the first possible opportunity. The parking lots of shopping centres are littered with them this time of year. One solution to the enormous poppy attrition rate is to pierce the black centre of the poppy with one of those small Canadian flag lapel pins—you know, the ones with a small spike secured by a tiny plate on the reverse side of whatever garment you are wearing—thus ensuring a degree of permanence at least through November 11. But then the Legion would get to sell you only one poppy per season instead of the multiple poppies required to keep up with the poppy-wearing Joneses.
Maybe the Legion, which holds the Canadian trademark on the red poppy when used for commemorative purposes, could design a better mouse trap–but then that would cost more to produce and would result in fewer sales, further reducing the flow of funds dedicated to veteran’s welfare. British poppies, which are larger than the Canadian version and usually adorned with a bit of fake greenery, perhaps don’t fall off as easily. I don’t actually know, as I have never worn one and am not sure how they are attached. Perhaps one of my British readers could enlighten me as to the relative lapel longevity of British poppies. These are also trademarked, and are marketed exclusively by the Royal British Legion, manufactured by an enterprise staffed by veterans and originally started by the Legion, the Poppy Factory. Despite the trademark protection for commemorative poppies in Canada and Britain, not to mention copyright protection of the designs of various products displayed on their websites, unauthorized versions proliferate at this time of year, marketed through various online platforms. Last year, the CBC reported that the Royal Canadian Legion took note of at least 1600 violations of its trademark, “Did you buy a poppy online? It may be one of hundreds of unauthorized products”.
The controversy over misappropriation of the symbolic poppy are as ubiquitous at this time of year as the poppies are themselves in the fields of Flanders in summer. While there are lots of unauthorized versions of the poppy motif out there, as a consumer you have a choice. Yes, you can buy your poppy memorabilia through Etsy, Amazon, or whatever, or you could go directly to the Legion websites; the Poppy Store of the Royal Canadian Legion or the Royal British Legion’s Poppy Shop to get your poppy-fix. The prices are competitive, and you will have the satisfaction of knowing where your funds are going.
Over the past few years, I have written an annual blog post around November 11. If you are not aware of the history of the poppy campaign and the challenges it has faced from unauthorized competition, here are some updated excerpts from my original Remembrance Day blog post in 2019.
Remembrance Day Poppies and Intellectual Property Controversies
At the 11th hour of the 11th day of the 11th month in 1918, the guns on the western front in Europe fell silent. An armistice was declared. Germany didn’t formally surrender although it soon collapsed, and the 1919 Treaty of Versailles treated it as a defeated country (with the results twenty years later that we all know about). Thus Armistice Day, now known as Remembrance Day in many countries including Canada, the UK and Australia, and Veteran’s Day in the US, was born.
Today, in particular in Canada and the UK, Remembrance Day is marked by the wearing of poppies. They spring up on the lapels of TV news broadcasters, politicians, and members of the public like mushrooms in autumn. In the US, although they are not so ubiquitous as north of the border or in Britain, they are more typically worn on Memorial Day, which is in May, and in Australia and New Zealand I am told that poppies generally blossom around Anzac Day, April 25. It is probably fairly well known (although with today’s young people it is perhaps wrong to make assumptions) that the wearing of the poppy is a memorial to the sacrifices made by those who fought and died, initially in WW1 for the Allied cause, today more generally extended as a memorial to all those who perished in wars. Poppies grew prolifically in the killing fields of Flanders in Belgium, and still cover the countryside today. The poppies were made famous by the poem “In Flanders Fields” written by Canadian military doctor John McCrae in 1915 after seeing poppies on the battlefield after the loss of his friend in the second battle of Ypres.
It was an American teacher, Moina Michael, who campaigned to make the poppy the international symbol for remembrance of Allied war veterans, and to use their sale for veteran’s welfare. (Another prominent campaigner was Anna Guérin, who took inspiration from Ms. Michael and actively promoted adoption of the poppy). Between 1920 and 1922 the poppy was adopted by veterans’ organizations in the US, Britain, Canada, Australia and New Zealand. In Britain an organization known as the “Poppy Factory”, which still exists today, was set up to manufacture the paper poppies for sale for the support of veterans causes. That leads us to the main point of this blog, the intellectual property (IP) controversies that have arisen around the sale of poppies and poppy-related memorabilia.
There is an important intellectual property angle as to who gets to produce and sell poppies, although it is more of a trademark than a copyright issue. There have been controversies in both Britain and Canada involving production and sale of the little red flower. In both countries (and possibly elsewhere) the poppy is trademarked, by the Royal Canadian Legion (RCL) and the Royal British Legion (RBL), respectively, both respected veterans organizations. The Royal Canadian Legion’s website notes that the trademark was conferred by Act of Parliament in 1948, and is limited to the use of the poppy in remembrance;
“The Canadian trademark for the Poppy includes both the Legion’s Poppy logo, as well as the Poppy symbol, as it relates to Remembrance. The trademark does not apply to the use of the actual Poppy flower, unless that usage is misrepresented as the Legion’s Poppy by associating it with remembrance or the raising of monies for a purpose other than the Poppy Campaign.”
However, the trademark extends to any colour or configuration of the poppy when used as a symbol of remembrance. This is increasingly relevant as various groups make their own versions available, from a white poppy symbolizing peace (some would say pacifism) to a rainbow-hued LBGTQ poppy that has caused some controversy.
Whether either of the Legions would take legal action against someone for producing and selling poppies of a colour other than red is an interesting question, but last year in Britain a seller at an outdoor market pleaded guilty to selling red poppies that had no association with the RBL. In Canada a group of knitters who were knitting poppies for the price of a donation, which they say they intended to give to the RCL, were reminded that they were violating the Legion’s IP. In addition to its statement of trademark, the RCL has a very clear copyright warning on its website;
“The material on this site is covered by the provisions of the Copyright Act, by Canadian laws, policies, regulations and international agreements. Reproduction of materials on this site, in whole or in part, for the purposes of commercial redistribution is prohibited except with written permission from The Royal Canadian Legion…”
And what are the materials marketed on the site? Just about anything that you can stick a poppy symbol on—playing cards, bags, baseball caps, pins, brooches, watches, T-shirts, magnets, umbrellas, scarves, toques, mittens, stuffed animals, even cellphone cases. You get the idea. And then there are digital versions of the poppy that you can purchase and use to embellish your Facebook page. All the proceeds go to the Legion and then on to its veterans’ welfare programs (although the Legion is not a registered charity).
Well, who knew that the innocuous looking poppy on people’s lapels on Remembrance Day carried such weighty IP concerns on its shoulders? When you drop your donation into the collection box, and pin your poppy on your jacket or shirt, remember…even the humble poppy can be controversial when it comes to trademark and copyright issues.