The Dominion - Norma Jean MacPhee

Figuring Out Fair Use

Tim McSorley — Wed, 26 Jan 2011 05:06:52 +0000

As Canada updates its copyright laws, a new clause is stirring debate among creators

SYDNEY, NS—A House of Commons committee will resume hearings this month to consider Canada's copyright fate as laid out in Bill C-32, the Copyright Modernization Act. While public discussion of this bill—and of copyright in general—often centres around on-line and digital rights, many are concerned about the bill's impact on written material.

“If Bill C-32 passes, I stand to lose 85 per cent of my income,” says Douglas Arthur Brown. Brown has published five books, and is one of the 140,000 creators in Canada’s $46 billion arts and cultural industry.

Bill C-32 is a sweeping attempt to bring Canada’s copyright act up-to-date, touching on everything from performance art to digital music to photography.

If passed, Bill C-32 will legitimize that little red "record" button on VCRs tucked away in people’s attics and in electronic recycle heaps across the nation. As it stands, it's still illegal for Canadians to record TV shows. C-32 will also give legal permission to those folks already on the other end of the technological spectrum who use DVR televisions to digitally record television content.

Overall, it would bring Canada’s copyright regulations up-to-date on many aspects of day-to-day life. But the bill includes elements that some feel aren't favourable to all Canadians.

Brown says that a new phrase included in the update to the copyright act will lead many authors to lose part of their income, some significantly. Bill C-32 includes "education" as a clause for “fair dealing” purposes.

Fair dealing means it's not an infringement of copyright to use work for fair purposes. Until now this has included using materials for work related to research, private study, criticism, review or news reporting; the changes would add educational uses to this list.

Brown argues that he and many others in the creative community (the changes would apply just as much to filmmakers, musicians and visual artists as it would to writers) fear the implications of such an exemption, mainly because "education" is undefined in the bill.

“Our issue is simply just putting the word "education" there—what does that mean?” says Executive Director of Access Copyright, Maureen Caven.

Access Copyright is a collective agency representing individual writers, playwrights and composers whose works have been copyrighted. Educational institutions purchase licenses from Access Copyright authorizing the copying of a specified amount of printed copyrighted material.

Likened to the way musicians receive a cheque each time their music is played on the radio from the Society of Composers, Authors and Music Publishers of Canada (better known as SOCAN), Access Copyright collects license fees from educational institutions and then pays this revenue back to writers—and this can amount to substantial income. In the case of Brown, these payments total the 85 per cent in revenue he fears he will lose.

With these licenses, educational institutions are allowed to copy a section of a novel—say, a chapter—so long as the chapter is less than 20 per cent of the completed work.

Caven says including education as fair dealing will mean there are no parametres around what and where the term "education" applies.

“Is it restricted to classrooms?" he says. "What about training in other areas, training within corporations, educating clients?”

The inclusion of education in the fair dealing clause would not eliminate the fee payments educational institutions make to Access Copyright. However, Caven says the fear is the specified amount covered by the license will be ignored because the term "education" is ambiguous.

Some industry watchers say Caven's fears are unfounded. David Fewer, a lawyer who has written and taught about copyright law for many years, says there is no way educational institutions would have carte blanche to photocopy however much they want merely because of the clause “fair dealing for education” is included.

“If you tell a story and it sounds unfair, then it probably is unfair,” says Fewer, who is also the director of the Canadian Internet Policy and Public Interest Clinic. “Copying entire copies of books? How is that fair? It’s not fair, so it wouldn’t be allowed.”

Fewer says this new provision will allow students to make legal use of others' content. He says he’s in favor of students using pre-existing work to create new videos or stories—commonly known as mash-ups. Fewer says encouraging students to create mash-ups might work in authors’ favor, as students will then be able to bring writers into the curriculum who might not have been there otherwise.

The Canadian School Boards Association (CSBA) has long lobbied for education to be considered fair dealing. Their website states, “These proposed amendments would provide a legal framework for students and for teachers regarding the use of freely-available Internet materials for educational purposes without fear of infringing copyright.”

The CSBA further adds that it would balance the rights of educational users of copyrighted material with that of the creators.

Brown holds firm, however, that, since the phrase itself is undefined, writers cannot be assured that excessive and uncompensated copying won’t happen. Only the Supreme Court of Canada can decide if something is fair dealing, and each incident is decided on a case-by-case basis. Brown says writers don’t have the resources if they needed to take a case to court.

This is the third time the Conservative government has attempted to pass a bill to update Canada’s copyright rules. The first attempt died on the table when an election was called in 2005; the second when Harper’s proroguing of parliament dissolved all bills under consideration in 2008.

Bill C-32 has already passed Second Reading. It now sits at the legislative committee level. Comprised of 12 members of parliament, these individuals will hear from more than 400 witnesses over the next few months. No new elements can be added to the bill; amendments alone are permitted.

Brown was among the first individuals to present to the committee in mid-December. “They asked me if there was anything in the bill that I as a creator could support, and I told them no.”

Brown told the committee that, if passed, the bill would mean far more copying by teachers, while publishers and writers produce less work for schools. “You will be making my life’s work much more difficult to sustain.”

Fewer doesn't agree creators will lose any compensation with this provision. “It streamlines the process of getting content into the classroom,” he says. “It doesn’t let you get away with content without paying for it. However, it lets you get the best use of content you have paid for.”

He says writers should be more concerned about other aspects of Bill C-32, including digital locks being placed on their on-line work and ensuring they receive fair rates from publishers for on-line rights.

Fewer will be among at least 400 witnesses set to testify before the legislative committee considering Bill C-32. Amendments will be suggested and drafted during that time.

Maureen Caven of Access Copyright maintains that the bill cannot be passed without a clearer explanation of how the term fair dealing relates to education.

“A definition would be nice,” says Caven. “That’s the amendment that would be nice.”

Back home in Cape Breton after presenting in Ottawa, Brown says he doesn’t plan to stay quiet. “I’ll continue to get the word out there, because not being compensated for my copyrighted work is anything but fair.”

Norma Jean MacPhee lives in Sydney, Cape Breton where she continues her journey as a freelance writer and broadcaster.

Fair use in flight

The Swoosh Swoops into Mountain Equipment Co-op

Sat, 27 Sep 2003 20:07:17 +0000

Young women on the Island of Cebu sew Nike shorts for North American Export in a free trade zone. photo: Daron Letts

Nike AGC cross trainers arrived on the shelves of Mountain Equipment Co-op's only Atlantic Canadian outlet this August.

Canada's largest cooperative is confident in Nike's commitment to greener products, sustainable practices and international labour codes.

"They're not perfect, but are certainly putting lots of effort and resources into changing their ways," says MEC's CEO Peter Robinson.

In the early 90's, considerable public backlash erupted against unfair labour conditions in foreign factories contracted by American shoe companies. Nike, the leading manufacturer of sneakers, became the target of fair labour and environmental campaigns after reports revealed physical and sexual abuse, low wages and forced overtime work in many of Nike's Asian factories.

Although MEC insists Nike has changed its ways and assures the transnational corporation meets MEC's vendor policy standards, not all who shop at the cooperative are convinced of Nike's "green" rehabilitation.

"It really disturbs me that MEC would do that [choose Nike products] because as a MEC member you associate them with making ethical choices," says Halifax student Sarah Ryan.

In response to consumer pressure, many corporations, including Nike, adopted sustainability strategies in the late 1990s.

"These companies hide behind the anonymity of vast production chains that make it very difficult to work out where, and under what conditions, their products are made."

Nike's website says the company now follows a "triple bottom line" philosophy, that is, combining financial/economic goals with environmental and social responsibilities. These include the creation of 99% polyvinyl chloride-free sneakers. Greenpeace launched a campaign against PVC in 1998, as its production creates and releases the toxic chemical dioxin. The website also says new Nike stores and offices incorporate "green" methods in their building practices. And, in Nike's Code of Conduct, it sets a minimum age of 18 for footwear, whereas the International Labour Organization's standard age is 15.

Of Nike's sustainable promises, Ryan says, "I don't believe them because I think they're doing it to look good. They can still make their own rules, despite what's on their website."

A No Sweat campaign run out of the U.K. lobbies for living wages and better conditions for factory workers. On its website, No Sweat argues: "When the companies are accused of labour abuses they hide behind fine documents. They like to quote their Codes of Conduct which prohibit the threatening of union organisers, the use child labour etc. But they still do it. These companies hide behind the anonymity of vast production chains that make it very difficult to work out where, and under what conditions, their products are made."

MEC CEO defends allegations that Nike is greenwashing consumers with their promises and says if Nike wants to do business in Canada, they will have to follow MEC policies. "We're not without our own weight. When the co-op makes suggestions, we're not ignored, we're listened to." Furthermore, Robinson doesn't think a company should be avoided based on past grievances. "Don't abandon them, rather work with them to effect change," he adds.

But Halifax activist Dave Ron feels the partnership is incongruent to the co-op's mandate.

"It's a simple question of stakeholder versus stockholder. Nike is structured as a sole proprietorship'profit is it's driving force, as it's accountable to its stockholders," says Ron. Nike's annual sales exceed $10 billion.

"MEC is non-profit and publicizes that's it's a large family, that it acts in the interest of its stakeholders. Philip Knight [Nike founder] has never been to Indonesia, as they don't care about the people they employ," says Ron. "In that sense, it begs the question of why MEC would decide to link itself with that entity."

The partnership between Nike and MEC is not a new one, as Nike was a regular on the co-op's rooster until seven years ago. Robinson says the decision to bring Nike sneakers back fulfills MEC's primary purpose.

"The co-op, first and foremost, is about getting gear to people so they can enjoy themselves outside," Robinson says. And he says increased demand from MEC's 1.9 million membership for improved trail shoes led them to Nike.

Robinson explains MEC's three-screen method of examining potential new vendors: "First, is the specific functionality, quality and durability of the product. The second is whether the company meets MEC's stringent sourcing practices. And the third is the potential risk to MEC's reputation and brand by bringing on another brand."

The Nike addition was first proposed last fall, but employees at the managerial level objected because of concerns about the third screen, MEC's reputation. In the spring, however, Nike was accepted, on the condition consultations sessions would be held with stakeholders.

Dave Ron, attended these consultations as a spokesperson for Dalhousie Students Against Sweatshops, but saw them as an exercise in futility, as the decision to accept Nike had already been made.

"I asked why they were having it, and they said, 'so that when public concerns are raised we can address them and say we talked to human rights groups,'" quotes Ron. "MEC was doing a lot of the leg-work and lip service to Nike," adds Ron.

He says he thinks the addition is an economic one on MEC's side. "Nike moves off shelves, the swoosh is fashionable," Ron says. "It's a guaranteed way to push sales."

MEC does not plan to sell other Nike merchandise, as Robinson says the sneakers were specifically selected to meet consumer demands.

The Nike ACG cross trainers will arrive in other stores across the country next spring, if the response in Halifax is favourable.

And so far it has been. Glen Whitehead, general manager of the Halifax store says there's been no reaction at all to Nike's arrival, apart from people buying the shoes. "It's almost been a non-event releasing Nike into our store," says Whitehead.

Further consultations are not planned for other locations across the country, as Robinson says the consultation sessions in Halifax were sufficient.

But Ron does not agree and suggests MEC do a nation-wide vote to see what all members really think about the Nike addition. He also wants MEC members to demand more information about the origin of the sneakers. "We need disclosure on all steps in the production process'to know where and how the shoes were made and to have it clearly marked on the products," Ron says.

"There's so many powers already working against sustainable initiatives - market power, judicial, legislative ' it just doesn't fit with MEC's vision. Nike is the epitome of brand culture."

Kenny Bruno, co-author of, "A Corporate Planet" and now campaign coordinator for Earth Rights International says he wouldn't do it if he were MEC. "Not only is Nike a symbol of sweatshop labor, they're a clear example of globalization's race to the bottom."

Nike AGC cross trainers arrived on the shelves of Mountain Equipment Co-op's only Atlantic Canadian outlet this August. Canada's largest cooperative is confident in Nike's commitment to greener products, sustainable practices and international labour codes. "They're not perfect, but are certainly putting lots of effort and resources into changing their ways," says MEC's CEO Peter Robinson.- by Norma Jean MacPhee -