Monday, March 14, 2011

To Margaret Atwood: Copyright and Cars Cannot Conflate


Margaret Atwood, C.C.,  is rightly renowned as a Canadian doyenne of the arts, crusader for CanLit, and fiction writer. However, her views on copyright law have been consistently controversial, often just wrong and, dare I say,  even fictional. She is back in the news again for her creative, eloquent, passionate but inaccurate and overwrought comments at the C-32 Committee hearing on March 8, 2011.

She reportedly said that her definition of fair dealing is:

"Number one, it is fair; and number two it means that some form of dealing is taking place between two sides who reach an agreement -- that's what fair dealing means to the ordinary person."
That may well be her definition, but there is no basis in any statute or any court case anywhere that would back it up. On the contrary, fair dealing is inherently a user’s right to engage in certain activity without reaching an agreement or even “dealing” at all with the author or a collective. “Dealing” is used in the law in with respect to the work itself in the sense of “using” it for an allowed purpose in a fair way - not in the sense of negotiating with an author or her representative for the right to do so. When the law allows for "fair dealing", there is no need for an “agreement”.

Also, according to news reports:

Atwood testified that she feared the fair dealing reforms proposed under Bill C-32 harmed authors by opening a loophole that would let educators copy works without paying to do so.

"They are being negatively affected by this because property is being taken away without consent and without compensation," she told MPs via video conference from Dubai.

"If someone took something from your house without compensation, you would call it theft."
Mr. Dean Del Mastro, a Conservative committee member, was on the mark when he referred to some of Ms. Atwood’s exaggerated accusations and assertions as “outrageous”.  The exchange took place here at about the 11:46 mark of the hearing.

Ms. Atwood still doesn’t "get" certain basic facts about law and economics. Stealing cars or diamond rings gives the thief additional tangible possessions and deprives the owner of these possessions. Indeed, society cannot function if such “theft” of tangible objects is tolerated.

On the other hand, copying some of Ms. Atwood’s work in the course of fair dealing deprives her of nothing and may even create additional sales if readers like what they read. This is the elementary distinction between “rivalrous” and “non-rivalrous” property rights and is at the heart of fair dealing. 

When a thief steals a car or a diamond ring or a bill of exchange, such an act is to the obvious detriment of the rightful owner and, indeed, to society itself. However, the whole world can possess an idea or a fairly copied exceprt and even in some cases the whole of a work without any loss to anyone and with a gain to society. The creator can be very much enriched as a result of such widespread access. Fair dealing is not stealing. It is not theft, or expropriation, or confiscation. It is a vital part of the “quid” for the “quo” of why copyright exists.

In fact, Thomas Jefferson, the Thomas Jefferson, hardly a pirate at heart, said this best in his celebrated letter to Isaac McPherson in 1813:

If nature has made any one thing less susceptible than all others of exclusive property, it is the action of the thinking power called an idea, which an individual may exclusively possess as long as he keeps it to himself; but the moment it is divulged, it forces itself into the possession of every one, and the receiver cannot dispossess himself of it. Its peculiar character, too, is that no one possesses the less, because every other possesses the whole of it. He who receives an idea from me, receives instruction himself without lessening mine; as he who lights his taper at mine, receives light without darkening me. That ideas should freely spread from one to another over the globe, for the moral and mutual instruction of man, and improvement of his condition, seems to have been peculiarly and benevolently designed by nature, when she made them, like fire, expansible over all space, without lessening their density in any point, and like the air in which we breathe, move, and have our physical being, incapable of confinement or exclusive appropriation. Inventions then cannot, in nature, be a subject of property. Society may give an exclusive right to the profits arising from them, as an encouragement to men to pursue ideas which may produce utility, but this may or may not be done, according to the will and convenience of the society, without claim or complaint from anybody.
Exactly why Ms. Atwood does not want scholars, teachers, and students to have large and liberal rights to engage in fair dealing with respect to her works is unclear. She and her colleagues  - and their current and potential readership - can only benefit if the purpose is reasonable and the dealing is fair. The very generous "fair use" doctrine in the USA, with its explicit inclusion of the fair use of multiple copies for class room teaching use, has hardly hurt the cause of American literature or publishing. Accordingly, Ms. Atwood's campaign against the explicit inclusion of "education" as a legitimate example of fair dealing - subject of course to hurdles of the the Supreme Court's six part fairness analysis - is incomprehensible.

Ms. Atwood’s copyright canards, such as likening exceptions to car theft, go back to the first Bill C-32 in 1996.  At those committee hearings, she opined that:
Exceptions to copyright are an expropriation of our property against our will. If copyrights were cars, this would be car theft..
Here’s a blog I did in 2006. For better or worse, some things never change. Fortunately, the Supreme Court of Canada and countless others recognize that copyright and cars cannot conflate.



  1. Mr. Knopf,

    Your quote from Jefferson seems to suggest you think copyright claims property rights for ideas, which of course it does not. Copyright protects expression, not the ideas within that expression.

    I understand then why you are so confounded by Ms. Atwood's analogies and positions. She's discussing actual copyright law, while you seem to be lost in some theoretical and highly political pseudo-copyright.

  2. Not being familiar with royalty percentages and such, this is just a wild guess: I often hear that Canadian "talent" is not well-rewarded financially, especially compared to our "cousins" to the south. Could it simply be that Ms Atwood is in dire need of the extra income?

  3. Canada's Humpty Dumpty of copyright concepts is at it again. When will she ever learn? Don't authors like her do research when they write novels? Is she (or her research assistant or her lawyer) unable to look up (e.g., in wikipedia for goodness sake) a basic term that is central to her lucrative career as a Canadian writer? If her novels and literary non-fiction pretend to touch base with actual facts, one has to distrust their imaginative content all the more.

  4. To “John”:

    You are correct that the above quote from Jefferson refers specifically to patent law and not copyright law. However, it is quoted by many scholars in the context of copyright law and Article 1 §8 of the US construction which gives Congress the exclusive power:

    To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;

    Commentators, such as Patry, refer to Jefferson’s letter in the context of excessive “property” expectations with respect to IP arising from both patent and copyright law. Indeed, excessively strong copyright law without adequate users’ rights in the form of fair dealing or fair use or other exceptions can be even more potent in some cases than patent law in monopolizing commerce and stopping access to the marketplace of ideas. This is especially so with respect to “functional” works. And unlike patent law, it is automatic and not subject to examination by government officials.

    “Intellectual property” is indeed property. But in many very fundamental respects, it is different than property rights in cars, for example.


  5. John,
    Since you consider Howard as "lost in some theoretical and highly political pseudo-copyright", here's another quote, this time from the guys who discuss real copyright law, over there at the Supreme Court of Canada:

    "Copyright is defined as the exclusive right to produce or reproduce a work in its material form (s. 3). A mere copier of documents ... does not acquire the copyright nor deprive its owner of any part thereof. No matter how many copies are made of a work, the copyright owner still possesses the sole right to reproduce or authorize the reproduction of his work. Such copying constitutes an infringement of the copyright under s. 17 of the Act, but it cannot in any way be theft under the criminal law. While one can, in certain circumstances, steal a chose in action, the rights provided in the Copyright Act cannot be taken or converted as their owner would never suffer deprivation. Therefore, whether or not copyright is property, it cannot, in my opinion, be the object of theft ... ."


  6. Thank you Ariel for reminding me. Your quote from the Canadian Supreme Court is from R. v. Stewart, (1988] 1 S.C.R. 963 para. 40. More recent than Jefferson and much closer to home in all respects, to be sure. This is another decision that over zealous Canadian copyright maximalists either don't know about or don't want to acknowledge. It's inconvenient for their simplistic copyright = cars construct.

  7. Someone better remind Jesse Brown of that bit from the Supremes, as he's recently admitted (proudly, in fact) that what he does when he infringes copyright is "stealing."

    Of course, as those dealing with actual law recognize, R. V. Stewart dealt with the unlawful acquisition (how's that, law-talkers?) of confidential information... in other words, specifically NOT expression, but rather pure information. My Jeffersonian point stands -- and I'm no big city lawyer, just a simple country writer.

    The larger point being... quibble about the legal terminology all you want (that's your job, after all). When a person knowingly and willfully infringes copyright, that person is no better than a thief - no matter the convoluted rationalizations.

    Ms. Atwood made a clear distinction between lawyered verbiage and how everyday folk would understand things.

    Really, you're hanging your hats on a 23 year-old Supremes decision dealing with a completely different issue? Who's the buggy whip manufacturer now?

    Finally, Mr. Katz, I'm sure someone in the profession must know that by 1988 the Supreme Court of Canada was not composed only of "guys."