To Margaret Atwood: Copyright and Cars Cannot Conflate

(Vanwaffle)

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.


HK