Margaret Atwood appeared before the Parliamentary Committee reviewing Bill C-32 on March 10. Participating by teleconference she told the Committee why she was against expanding fair dealing to include education and why she thought doing so was unfair.
Howard Knopf, in a recent blog, To Margaret Atwood: Copyright and Cars Cannot Conflate, accuses Ms Atwood of not understanding what fair dealing is. He further accuses her of getting basic facts about law and economics wrong when said that depriving creators of their rights to authorize the uses of their works is akin to theft. Mr. Knopf’s accusations are both unfair and unfounded.
Mr Knopf first asserts, based on a news report, that Margaret Atwood provided an inaccurate legal definition of fair dealing. Mr Knopf stated the following about what she was reported to have said:
Shereportedlysaid 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”.
Ms. Atwood was asked by MP Dean Del Mastro to define fair dealing as she understood it. She responded by answering what an ordinary person would understand by a fair dealing with a work. She said:
Well, let’s just say what it would mean to an ordinary person, such as myself who is not a lawyer, is number one, it’s fair. Number two, it would mean that some sort of dealing has taken place between two sides to reach an agreement. That’s what fair dealing means to the ordinary person.
MS. Atwood was not purporting to provide a legal definiton of fair dealing. In that statement and in other statements she made at the Committee she was explaining why, in her view as a non-lawyer, the new proposed exception for fair dealing for education was not fair. Her reasons were: first, it deprives copyright holders of their exclsive rights “without compensation or choice”; second, it unfairly singles out copyright holders to subsidize education – “But, if cheaper education is a public good, all should contribute, not just authors”; third, it misappropriates copyright holders’ rights to buy, sell, and license their property. “It takes two to deal”.
Mr. Knopf then goes on to accuse Ms Atwood of getting basic facts wrong when she 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”. Is Ms. Atwood right? Of course she is. The Government’s own Fact Sheet says extending fair dealing to education “will reduce administrative and financial costs for users of copyrighted materials that enrich the educational environment.” Further, even Prof. Geist a strong proponent of the fair dealing exception and someone who has contributed to the confusion over the effect of the exception admitted in testimony before the Parliamentary Committee examining C32 that the new proposed exception would reduce compensation to authors and publishers. In fact, he asserted that it would “be disingenuous to argue that there is going to be no copying that’s currently compensated for that might now fall within fair dealing”. See, A Response to Professor Michael Geist’s Clearing Up the Copyright Confusion.
Mr. Knopf then takes issue with Ms. Atwood’s analogy to authorized taking of tangible property which “you would call…theft” to unlicensed copying of works. Mr. Knopf agrees that “Stealing cars or diamond rings gives the thief additional tangible possessions and deprives the owner of these possessions”. But he claims Ms Atwood gets “basic facts about law and economics” wrong when she claims unlicensed copying of her works is not theft because it “deprives her of nothing”.
Mr. Knopf unfairly accuses Ms Atwood of getting these basic facts wrong. Ms Atwood -who was speaking as a non-lawyer- was quite right that unauthorized copying can deprive copyright holders of somethng valuable which, of course, includes the right to license or to collectively license their works for compensation. As Terry Hart has pointed out, “Theft’ in its colloquial sense – the definition commonly used over time – involves some deprivation of a recognized right. ‘Theft’ of a physical object typically means the deprivation of the exclusive right of possession. Copyright, by statute, secures the exclusive right to copy, among other rights. Copying without permission thus deprives the author of that exclusive right.” See, Is Copyright Infringement Theft?; Is Copyright Infringement Theft? Part 2.
Moreover, Ms. Atwood is in esteemed judicial company by viewing unauthorized copying of works as “theft” and by claiming that copyrights should be protected to ensure that authors can be compensated for their creative efforts. Here are examples of courts which show that MS Atwood has venerable support for her views:
Privcy Council: MacMillan & Co. Ltd. v. Cooper (1923), 40 T.L.R. 186
“The moral basis of copyright rests on the 8th commandment ‘Thou shalt not steal’”.
House of Lords: Ladbroke (Football) Ltd. v. William Hill (Football) Ltd.,  1 All E.R. 465
Copyright “protects property. It is no more interference with trade than is the law against larceny. Free trade does not require that one man should be allowed to appropriate without payment the fruits of another’s labour”.
Supreme Court of Canada: Théberge v. Galerie d’Art du Petit Champlain inc. (2002), 17 C.P.R. (4th) 161
“The Copyright Act is usually presented as a balance between promoting the public interest in the encouragement and dissemination of works of the arts and intellect and obtaining a just reward for the creator (or, more accurately, to prevent someone other than the creator from appropriating whatever benefits may be generated).”
Supreme Court of Canada: Vigneux v. Canadian Performing Rights Society,  S.C.R. 348
The purpose of copyright is to prevent persons from “unfairly availing themselves of the work of others” and that the “protection of authors … is the object to be attained by all patent and copyright laws.”
Federal Court of Appeal: BMG Canada Inc.v John Doe 2005 FCA 193
“Intellectual property laws originated in order to protect the promulgation of ideas. Copyright law provides incentives for innovators -artists, musicians, inventors, writers, performers and marketers – to create. It is designed to ensure that ideas are expressed and developed instead of remaining dormant. Individuals need to be encouraged to develop their own talents and personal expression of artistic ideas, including music. If they are robbed of the fruits of their efforts, their incentive to express their ideas in tangible form is diminished.”
Federal Court of Appeal: CAB v SOCAN (1994) 58 C.P.R. (3d) 190 (Fed.C.A.)
“Copyright, like patent right, is a monopoly restraining the public from doing that which, apart from the monopoly, it would be perfectly lawful for them to do. The monopoly is itself right and just, and is granted for the purpose of preventing persons from unfairly availing themselves of the work of others, whether that work be scientific, literary, or artistic. The protection of authors, whether of inventions, works of art, or of literary compositions, is the object to be attained by all patent and copyright laws. The Acts are to be construed with reference to this purpose.”
House of Lords: L.B. (Plastics) Ltd. v. Swish Products Ltd.,  R.P.C. 551
“The protection given by copyright is against copying, the basis of the protection being that one man must not be permitted to appropriate the result of another’s labour”.
*Note: a reader correctly pointed out that in the R v Stewart  1 SCR 963 case the Supreme Court held that infringement of copyright was not theft as that term is defined in the Criminal Code. This decision in no way undermines my claim that Ms Atwood was in good company when, speaking as a non-lawyer and in colloquial terms, she asserted that depriving creators of their rights to authorize the uses of their works is “theft” or “akin to theft”. The articles referred to above from Terry Hart provide a detailed and reasoned explanation of this perspective. The decisions I quoted from the Privy Council, the Supreme Court, the House of Lords, and the Federal Court of Appeal also all use the same or similar terminology to make the same claim that Ms Atwood was making. Of course, certain forms of copyright infringement are criminal offenses under Section 42 of the Copyright Act. Other Criminal Code offenses also refer to theft in the non-technical sense such as Theft of telecommunication service, s.326(1) and Identity Theft, s.402.2(1). See also Section 4.7.1 of Schedule 1 of the Personal Information Protection and Electronic Documents Act (PIPEDA), “The security safeguards shall protect personal information against loss or theft, as well as unauthorized access, disclosure, copying, use, or modification…” (emphasis added)
For more information about the Copyright Modernization Act or Bill C-11 or copyright reform, see Change and the Copyright Modernization Act.