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By Nancy Simmons

One of the worst analogies used in the attack upon fair dealing rights for educational use of copyright is the tired old battle cry, “Would you steal my car as fast?”

Copyright is intellectual property but it cannot be equated with personal property.

Margaret Atwood reportedly said, “If someone took something from your house without compensation, you would call it theft.”

I am extremely disappointed that a Canadian literary icon does not take greater care taking her metaphors out for a spin.

Once you create a copyright work for sale, it’s more like you manufactured a fleet of cars. Whoever buys a car (or book) can park it in their own driveway (bookshelf), loan it out (library) or just leave the keys in the mailbox with a sign saying anyone can borrow it, just bring it back later or leave another car (roadside lending library) — actually, don’t try that last bit with a car.

Once you sell the car you made, you don’t get a say in what the purchaser legally does with it (they can burn it, or worse, misinterpret it). You don’t get a piece of the resale price.

Intellectual property

My own metaphor skids off the road here: by law, you are not allowed to take a piece of a car you don’t own to show a bunch of other people what a truly amazing bumper sticker looks like.

When you are dealing with a work of copyright, the law says you can.

The reason why the law is so generous with other people’s intellectual property is because it’s not 100 per cent theirs.

“Ideas are not copyright.”

Sure they molded the bumpers with care, lovingly stitched the seat covers and polished the headlights, but they didn’t forge the steel, cut down the rubber trees or invent the wheel.

Ideas are not copyright.

In order to build the cars those designers (authors) think I’m stealing, they read an awful lot — Shakespeare, Virginia Woolf, and maybe a trashy novel (just guessing, I’m not stalking anyone). Then they probably looked at a lot of paintings, photographs, and sculptures, saw lots of plays and movies, and listened to free music on the radio.

They then stole the ideas they found which had in turn been stolen from somewhere else.

Then, they had new ideas and created The Handmaid’s Tale, Look Back in Anger or Psychology: A Complete Introduction.

My point applies to more than just literature. Information isn’t copyright either.

Current climate

The human desire to imitate and build anew is as old as dirt.

After the first Neanderthal drew on the wall, the second used her knife to copy the picture onto her bearskin, put a funny caption underneath, and the first meme was born.

In the current copyright climate, Herodotus and Plutarch’s lawyers would have Shakespeare locked up for grand theft plot, character and dialogue.

In vain would Portia plead that the quality of mercy is not strained by the re-imagination of genius; the case would be tied up in court for years.

I like to think there would be a summary judgment in favour of the defendants in Austen v. Clueless, a delightful movie which re-envisions the plot and characters of Emma into a 20th-century high school setting, thereby becoming (almost) completely original and subject to copyright protection.

“In the current copyright climate, Herodotus and Plutarch’s lawyers would have Shakespeare locked up for grand theft plot, character and dialogue.”

In education, we are in the business of turning out thoughtful citizens (not cars) who are copyright owners and copyright consumers (not thieves and pirates).

Those thoughtful citizens were so important to the drafters of the Statute of Anne (1710) that education gets top billing over authors in the first line of the act.

No one can teach or learn without resources; no one can create without having benefitted from teaching and learning, either.

Users and creators

As a copyright officer for Memorial University, I try to achieve balance between the rights of both copyright users and creators.

When an instructor wants to teach My Heart is Broken by Mavis Gallant, I get permission to photocopy and sell it at cost because it is out of print.

But if someone prefers to teach Michael Ondaatje’s In the Skin of a Lion, should students be denied a small but fair taste of Gallant’s work because they have already spent their limited resources on the assigned textbook?

Maybe that free sample will turn out to be a gateway “drug,” to Mavis Gallant or to The Penguin Book of Canadian Short Stories.

We may be in a Brave New World, but my institution limits our sharing to the students taking a particular course. We pay for copying that goes beyond fair dealing or our students purchase textbooks; we don’t pay for fair dealing.

Someone paid for the legal source we use (usually the library). The author can’t expect that everyone at the university or even all the students in a course will buy a copy.

The author whose work ends up splattered on the Internet wasn’t going to get money from all seven billion of us either. But somewhere between nothing and $7 billion is the price point where the author gets fair compensation and the user gets a legal copy.

Not straightforward transaction

Fair compensation is never going to be the straightforward transaction many authors think it should be.

I may have read a photocopy of A Modest Proposal, but I eagerly purchased Gulliver’s Travels. I paid a publisher for footnotes, not the public domain work. Sometimes I read a snippet of a book online but then buy some other author. Sometimes I borrow my favourite author from the library because I’m not made of money.

But I am filled with an insatiable need to consume copyright within the legal parameters set down by law. I hope it all balances out in the end.

I have not paid for every last copyrighted word I have ever read. If I had been restricted to only what I have paid for, I’m not sure I could have written this cleverly worded defense against those who think I owe them money.

Or, at least it wouldn’t have been quite so full of hyperlinks.


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