Fair Dealing at a Crossroads

• Author: Meera Nair
• Pages: 90-120

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 

Fair Dealing at a Crossroads

Meera Nair*

a. intRoduCtion

Shortly before his death Harold Inni s wrote: “Law is apt to become any-

thing ‘boldly asser ted and plausibly maintained.’” Apply ing these words

to the present environment suggests that copyright is mere moments away

from becoming a means of absolute control. While those famil iar with the

law are cogniz ant of copyright’s structure of l imited rights, lay people see

copyright as all-encompassing and act accordingly. Mu sic down loading

notwithsta nding, perception is that copyrighted materi al cannot lawfully

be used without permission. Judging by the proposed changes to the Copy-

right Act, perception is becom ing nine-tenths of the law.

e fut ure cost of treating copyrighted mater ial as absolute property

is dif‌f‌icult to assess. Cost must ref‌lect the sum total of dif‌ferent mani-

festations; what will be the ef‌fect upon creativity in the arts, innovation in

media, deve lopment in research, success in education, and the use of our

bedrock democratic princ iple of freedom of expression? Intellectual ef‌for t

* I thank Mic hael Geist for hi s guidance, an d librarian s Mark Bodnar, Ca rla Graebner,

and Sylvia R oberts, for their i nvaluable assi stance. e comments o f an anonymous

reviewer we re also very much ap preciated. is w ork was funded, i n part, by a gra nt from

the Socia l Sciences and Huma nities Researc h Council of Can ada, provided t hrough the

Departm ent of Economics at Simon Fra ser University.

 Harold Innis, Chan ging Concepts of Time ( Lanham: Row man & Little f‌ield Publishers, I nc.,

) at .

Chapter Four: Fair Dealing a t a Crossroads

is collaborat ive; implicitly, or explicit ly, each new work draws in art ifacts

from other works.  e means by which this time-honoured process of

creativity achieves legitimacy i n the system of copyright is through the

limits upon control as prescribed by l aw. Copyrig ht is not, nor has it eve r

been, a grant of absolute control.

Historical exploration is often used to probe the uncertainty of the

relationship between control and creativity. Re searchers in humanities,

law, economics, and communication have drawn correl ations between the

f‌lourishing of the arts and letters to periods of litt le, or no, protection

of intellectu al work. Common to the ancient civilizations , with attention

upon the Greek , Chinese, Islam ic, Jewish and C hristian trad itions, there

was “a striking absence of any notion of human ownership of ideas or their

expressions.” Eighteenth century France, in its day the epitome of culture,

did not place authors at the centre of domestic copyright law. In a r are em -

pirical study, the creative output of  European music composers born

between  a nd  was studied to the conclusion that it remai ns un-

proven as to whether st ronger copyright laws made an ap preciable dif‌fer-

ence in income levels, and thus the creative output, of composer s. Closer

to our own t ime, popular music as it developed in mid-twentieth century

America owes its genesis to unauthoriz ed samplings from the blues trad-

ition which itself had freely taken from West Afr ican antecedents. A nd,

throughout the twentieth century, the means by wh ich c reative ef‌for t

reached ma instream audiences was inversely linked to copyright protec-

tion — from t he player piano on, new media technology thrived in the

spaces uncontrolled by copyr ight law.

ose who a re incl ined to the position that stronger copy right pro -

tection is necessar y to further creative ef‌fort, may be i nterested in the

thoughts of a respected and inf‌luenti al f‌igure within the Amer ican justice

system. Judge Richard Posner of the United States Court of Appeals for

the Seventh Circu it turns to one of our native sons on this matte r:

 Carla Hesse, “e r ise of intellect ual propert y, ..–..: an idea in balance.”

() () Daedalus: Proceeding s of the American Aca demy of Arts and Scie nces,  at .

 Jane Ginsburg, “A Tale of Two Copyr ights: Literar y Property in R evolutionary F rance

and Americ a” in Brad Sherman & A lain Strowe l, eds., Of Authors and O rigins: Essa ys on

Copyright La w (Oxford: Cla rendon Press, ) at  .

 F.M. Scherer, Quar ter Notes and Bank Notes:  e Economics of Music Compo sition in the

Eighteenth and Nineteenth Centuries (Pr inceton: Princ eton University P ress, ) at – .

 Siva Vaidhyanatha n, Copyrights and Co pywrongs: e Rise o f Intellectual Proper ty and How

It reatens Creativ ity (New York: New York Univers ity Press, ) at  – and –.

 Lawrence Lessig, e Fut ure of Ideas (New York: Vint age Books, ) at  –; see also

Jessica Litm an, Digital Copy right (Amher st: Promethus Book s, ) at –.