Copyright Reflections
Brief to the Standing Committee on Industry, Science and Technology for the 2018 Statutory Review of the Copyright Act - dated December 10, 2018
My primary professional activities are invested in writing and documentary filmmaking, with related activities in media literacy plus, in later years, completing a doctorate at the Ontario Institute for Education at the University of Toronto. Through more than a decade I worked fulltime as a freelance journalist, until the subsistence income no longer could cover basic living expenses. Then I wrote, directed and co-produced a documentary film, for which it took four years to get funding to complete it. In those days I could defer payment as a producer, which is no longer allowed. The latter restriction is among a list of growing challenges to secure documentary film financing today.
A foremost obstacle, however, to the healthy, continuing creation of cultural productions - in all forms of artistic media, but most particularly in the storytelling media of writing and filmmaking - is the one-sided, self-serving abuses to fair dealing by the educational sector, since the 2012 Copyright Act was implemented. Copyright revisions must restore fairness.
Sales to, and royalties from, educational institutions have been the lifeblood for creative professionals to earn what often is a very modest income to devote their artistic and intellectual talents as much as possible to the production of stories. Noteworthy, yet sorely eroded in public consciousness today, is the awareness of long-form stories as the vessels of human knowledge.
Storytelling always has been the foundation of human culture, as the cognitive tool to help human beings understand ourselves and each other across cultures and, moreover, to acquire deeper insight and knowledge about all planetary life and our role and responsibility on Earth. Today, however, at a historic moment when our planet's life support system is in peril, we find ourselves, particularly in the developed world, in a growing crisis, because our citizenry is no longer well informed.
Foremost is the crisis in journalism which calls upon well-developed critical thinking skills, practiced by both the news makers and also the wider public citizenry. Secondly, narrative non-fiction and fiction essentially transforms human consciousness through raising awareness not just intellectually but touching us at a heart level. But, these various forms of storytelling are no longer valued by the educational sector, who disgracefully misinterpreted "fair dealing" by refusing to pay reasonably for independently-produced sources of knowledge included - as they ought to be - in curricula materials. The digital era instilled the assumption, now embedded in public consciousness, that knowledge is free, because copyright legislation has fallen so far behind the grasping tentacles, metaphorically speaking, of what computer technologies enable.
My own professional activities have primarily sought to build cross-cultural understanding through three decades, as a `settler' ally of Celtic ancestry, born and raised in Toronto. I have travelled from the Yukon to Nunavut and most provinces, visiting Indigenous communities. I earned the trust of many Indigenous people, to carry out interviews and write about the many social and environmental justice issues they confronted which, in turn, shaped the trajectory of my journalism and academic writing on cultural racism.
My body of work contributed to cultural history, yet is largely unknown today. Paradoxically, since receiving a doctorate in a later stage of life, the inability to find paying work - I believe largely because of ageism - I now barely survive on a poverty-level pension, from which constant mental and emotional stress about money is undermining my physical health.
I had always believed that some modest income would arrive each year based upon royalties once yearly (from Access Copyright) for my writings (which number in the hundreds of published news articles) and, twice yearly, from documentary film sales of Soop on Wheels, which still has powerful relevance in regard to issues experienced by Indigenous people and people with disabilities. But such royalties are steadily deteriorating year by year.
After reading more than 70 of the written submissions to your Standing Committee, I have witnessed a distorted pattern of what is being communicated by educators and educational librarians, who argue, for example, that most of the written works that are used in classrooms originate in scholarly journals. That assertion is incorrect, because it dismisses the wide and multi-disciplined inclusion of writings from news articles, essays and books written by independent journalists. The latter earn only the income (and subsequent) royalties earned for each piece of research and produced writing, and receive no vacation pay nor benefits for medical coverage - as freelance, independently-employed cultural workers.
As for scholarly journals, they rarely pay because the publishers assume - wrongly - that all contributors are on a salary at an educational institution. Consequently, `independent scholars' fall through the cracks, often unable as well to receive research money because they are not attached to an organization or institution officially, i.e. as part-time instructors.
Furthermore, contrary to the misinformed submissions to your Standing Committee from the educational sector, writing and film grants are few and far between, and pay for temporary periods of longer, in depth projects, which sometimes require several years to complete. The extended time period exists partly because professional creators are forced to find other sources of income, sometimes working at jobs that fail to draw upon the special skills, knowledge and experience of independent storytellers. It is the tenacious digging to attain the deeper truth that takes time as well. This task is never-ending and too seldom recognized.
Those of us who wear the mantle of storytelling know too well that by the very acts of seeking deeper truths, various forces always will exist who try to marginalize, even silence, those citizens and cultural workers who think independently. Earlier in my life, I believed that creators and educators were allies, as collaborators to help develop the minds, and hearts, of young learners and raise consciousness for the larger good.
Who would have thought that educational associations and organizations in Canada would instead become one of the foremost forces - socialized today with a reductionist attitude that diminishes the value of creative works and the value of cultural workers - through trying to justify in such a profoundly misguided perspective that all knowledge ought to be free,or as cheaply acquired as possible?
How will younger generations of potential storytellers even desire to seek creative professions to produce intelligent, well-researched stories, when not just parents weaned on digital tools but, much worse, teachers, champion and mimic, the ethos of the World Wide Web - that information and knowledge ought to be freely distributed, without permission and compensation?
That sad reality is why I refuse to post my journalistic and academic work, and have even fought the misuse of my copyrighted blog - successfully, with Google's assistance - when one blog post was stolen and relocated on a particular aggregator's website, filled with pirated works, and that had advertisements to earn money - illegally, from other people's work.
Indeed, copyright has an imperative role today, to sustain cultural productions, more than ever.
In my final years of life, I believe that I have the right to generate income through the production of books based upon my life's work, which fills a time gap in Canadian cultural history about people now deceased. Significant, as well, my academic research exposed the Euro-western origins of the cultural and systemic racism that continues, and about which all Canadians need to learn, in order to rise above prejudice based on systemic misinformation.
A huge question, however, is how can I expect to earn a decent and reasonable income from publishing books, when the Canadian Teachers Federation (CTF) submission justifies what is nothing less than egregiously unfair exploitation of books. The CTF advocates the use of "short excerpts," in accordance with how the Canadian education community has (mis)interpreted a Supreme Court ruling that - in my view - permits cherry picking of individual chapters of a book, so that eventually an entire book's contents could be used while avoiding payment of the full book. The same treatment by teachers is advocated for using single articles from a newspaper, and also short excerpts from documentary films, the latter for which an increasing number of educational institutions no longer want to pay the full public performance fee. These exploitations of creative works used across various disciplines, through years, is outrageous.
Furthermore, I believe that students' learning is compromised, and becomes superficial and fragmented, when entire creative works are not examined and debated, so that the deeper context beyond short excerpts then can be more clearly understood to reflect upon. Students are being short-changed when learning does not focus on deepening and broadening the mind of a student as preparation fro the tougher, yet more rewarding, road toward human potential. The latter discovery, and manifestation, does not reside in a barren ground of disconnected sound bytes. Knowledge that leads towards wisdom requires a rich ecology of interconnected facts and holistic insights.
Focusing now on independently-produced documentary films, yet another threat has surfaced since the creation of "streamed" videos. The latest threat is the flawed, even defamatory, captioning - sometimes accompanied by an identically flawed online transcript - created by certain film distributors, without the permission or knowledge of the filmmaker/copyright owner. Such insertions are a serious `moral rights' infringement.
`Moral rights' are outlined in various sections of the current Canadian Copyright Act, such as: 14.1; 14.1(2); 27(1); 27(2.2))(b); 27(2.3); 28.1; 34(1); 34(2); 42(1)(a) and 42(1)(f). These are not all inclusive regarding other possible sections and subsections of the 2012 Copyright Act.
What I strongly advocate is the specific inclusion in the upcoming Copyright Act of captioning and transcripts vis à vis moral rights, and spelling out what actions characterize moral rights infringements. In addition I strongly advocate that no transcript and captioning, whether open or closed, can be inserted, first of all, without a defined period of time to find the copyright owner who can give permission, and who also is given the moral right of approval of the final alterations to a film or video. Secondly, human proofreading must be carried out on all such alterations. For example, on older videos and films, the copyright owner might be deceased; however, the integrity of the work remains imperative to protect, out of respect for the lives of real human beings presented in films, most particularly documentary, non-fiction. The problem is, automated systems increasingly are replacing human transcribers.
My transcript/captioning advocacy is based on my discovery early this year of the insertion - previously unknown to me - by an American distributor of an online transcript that accompanied open video captioning which was not just flawed but, worse, defamatory, on a streamed version of my film. I now have begun searching for an American lawyer to begin legal action against this distributor. (Furthermore, after extensive research in which I saw the same pattern of careless treatment on other films, excerpts of which I looked up online, I am even more convinced that `automated systems' must be mandated, for example, requiring the inclusion of a human proofreader to correct the inevitable machine errors.)
My research also raised questions about what is the content of distribution agreements that education institutions are making with corporate distributors, who are pushing collections of films rather than individual film sales. I advocate that federal legislators investigate. Regarding Canada specifically, I discovered that a few individual educational institution librarians also are inserting captions - but have they notified the copyright owners? - in order to meet current and upcoming jurisdictional legislation on full accessibility in classrooms. As well, I have been stonewalled consistently by American educational librarians from being allowed to have access to my own film - which my research indicated was in one of their film collections - to verify that a wide range of colleges and universities have received a defamatory streamed version of my film.
Therefore, I request that upcoming copyright legislation enable a filmmaker/copyright owner access wherever his or her film is available at an educational institution, to check whether any moral rights violation has occurred on their own creative work.
My above revelations point to what I perceive as an increasingly serious issue of copyright violation, most specifically in the lesser understood aspect of "moral rights," within a digital climate which has the appearance of the `wild west' when almost anyone assumes he or she can alter, and potentially undermine the integrity of, someone else's cultural production.
The limit of 2,000 words cannot sufficiently accommodate the fuller complexity of the issue about captioning. My research points to a spreading phenomenon that calls for clearly defined regulation on transcripts and captioning.
The following submission,"How to Strengthen Canadian Democracy and Our Cultural Identity," was delivered November 25, 2016 when the federal government invited public comments on "Canadian Content in a Digital World":
Canada's cultural well-being, and co-creating a stronger democracy, require all of the following: government actions in funding and updating legislation to address the flaws regarding imbedded inequities in digital technologies; the transformation of our institutions, particularly in education, as per restoring respect for copyright; and the willingness of fellow citizens to support proactively cultural production - that means, financially pay the original creators of cultural productions across artistic forms. Forth, journalism, most recently seems to have fallen between the cracks as per the types of literary works that Canada Council will fund in future, at the same time that journalism is in crisis in Canada. The latter is a reality that requires serious, and overdue, attention by government, if we authentically wish to uphold freedom of expression which I witness as under threat for several reasons.
I offer this contribution as a writer, documentary filmmaker, and educator, who worked fulltime through many years as a freelance journalist until, in the mid-1990s, I no longer could pay subsistance level living expenses. That strike upon independent journalists was just the first among a series of attacks upon Canadian journalism as media corporations swallowed up most independent newspapers across Canada - the most aggressive being PostMedia Inc., - after which several waves of staff journalists as well have lost their jobs. Journalism today in Canada is a shadow of its former existence, and that is one of the more insidious causes undermining the health of our democracy. A public who is not well informed - because intelligent awareness requires accessible exposure to a range of points of view - feeds into the demise of democracy and, subsequently, feeds prejudice, the latter, moreover, a global concern.
Digital technology, sadly, feeds into - and, worse, caters to - human nature's lowest common denominator, which is to take the path of least resistance. In other words, in a North American society that systemically reifies individualism - hence undermining communal values that hold humanity together - people will seek out information, based on convenience and whatever will bring comfort, as individuals. Most unfortunate of all, too many people tend to seek out views that fit their own rather than expand their consciousness by reaching out to learn from a range of perspectives.
A further problem, embedded in the increasing use of social media, is the expectation from users that information - the preliminary stage of imparting actual knowledge and deeper insight - must be communicated as briefly as possible to be digested, in turn, as quickly as possible. I suggest that that regressive expectation is a tendency that sorely decreases not just our intelligence yet, moreover, disconnects us from a fuller human awareness about the fundamental ways we are interconnected as a human family and, furthermore, how we are energetically interrelated with all forms of planetary life.
In other words, I consider the progression to date of digital technologies - in regard to how they tend to be used - as an indication of the reductionism of a North American society that has succumbed to a flatland of gross materialism. As true throughout history, the problem resides not within the latest technology embraced enthusiastically but, instead, in how some people will exploit it in self-serving ways that undermine the higher purposes that are preferable, such as forging the inclusiveness of the human family rather than cause divisiveness. More specifically to the well-being of Canadian culture here, updated digital regulations as well as public education, are needed to help achieve more equity in the benefits of the internet for both creators and consumers. As the situation stands, creators are financially exploited mercilessly from digital aggregators to a growing number of consumers/citizens who are being socialized through digital media that everything that exists on the internet is free.
That assumption, as well, regrettably now appears to be embraced by educators who, in recent years have become much more aggressive in refusing to acknowledge copyright and, equally destructive, actively contribute to the misguided thinking among younger generations that they have the right to be given, and have access to, all curriculum resource materials, at no cost. That practice is outrageous! Speaking as a creative professional who may be a senior citizen - yet still is an intellectually active writer on upcoming books based on her life's work - my royalties both as a writer and also as a documentary filmmaker in recent years have been reduced to less than a $100 a year. Meanwhile, I dedicated my entire professional life to social and environmental justice, and continue to do so, through upcoming works that will deserve payment, as well as grassroots efforts as citizen activist concerned about the children yet unborn, fighting against industrial projects that will contaminate our water, if allowed to proceed. Meanwhile, I subsist on a poverty-level pension.
The educational sector - previous to the onset of the digital era through the earlier decades of my lifetime - once was understood as essential to the ability of small and independent investigative writers and documentary filmmakers to be able to have even a partial livelihood.. For even in the earlier decades, such committed "truth tellers" also had to seek out part-time teaching and/or do intermittent hired work for industry or government, to survive. That reality was understood. Nevertheless, our investigative professional work was respected, and more cultural grants existed too, to help us unveil the causes of human and planetary suffering and raise awareness to address injustices. As a student up to, and including, the completion of a doctorate, I understood payment for educational resource materials as a given, and had respect for the knowledge and skills of, for example, writers who produced various forms of written cultural production. Who will produce meaningful, insightful knowledge in the spirit of transforming human consciousness, if the professional creators are no longer paid???
Indeed, for even educators to fight today so egregiously against the copyright of existing creators is incredulous. I implore the federal government (and also provincial ministries of education, and all sectors) to regain an appreciation, and take actions, to turn around this deplorable dilemma. The fact is, not just the creators but also the students and, indeed, our entire society, will pay the price of ignorance, unless the professional creators who produce our stories again can be compensated fairly for their respective cultural productions. My concern is not limited to my generation who have a lot of experience, and at least a wee bit of wisdom, still to offer and much-needed in a troubled world. My concern also embraces the younger generations of struggling, and emerging, creators.
The life of an artist does not have a historic record of ever being easily accomplished, with the exception of a chosen few "celebrities" (using the contemporary vernacular), although even the most famous among history's great artists, in fact, acquired fame through not altogether happy circumstances within their lifetime, and sometimes not until after their earthly life span ended. Every era, and every generation, it appears has to fight for freedom of expression and the right to an artistic livelihood. Only the circumstances, and specifics, change.
I recall my beginning years as a journalist, in the early 1980s, in which freelance writers were fighting Revenue Canada to be recognized as professionals rather than be viewed as hobbyists. Today, once again, after more than 30 years in a national writers' organization, this year I witnessed newer less experienced writers now being reduced to bidding on internet writing gigs - a circumstance which is disgraceful yet which sadly mirrors how the profession of writing, yet again, has been diminished as having value.
Another worrisome trend impacts documentary filmmakers, because increasingly TV broadcasters want to support film stories that will be more guaranteed to get audience ratings and to attract advertisers, in a media world that has its priorities focused first and foremost on profits. This circumstance similarly mirrors what I refer to as a flatland of materialism that has displaced our moral radar to focus on the larger good. The ethos of documentary storytelling, similar to the ethos of any authentic, investigative storytelling in any artistic medium, has a calling higher than to be reduced to mere entertainment and to ensure profits, the latter usually for everyone except the original creators of the stories.
Earlier, when I identified my interwoven professions as writer, documentary filmmaker and educator - aside from occasional part-time teaching - my foremost contribution in previous years was doing conference workshops around North America as a `media educator,' to awaken people why, how, and for whom all forms of media construct reality from contemporary news and popular culture to written histories and, ultimately, all forms of cultural production through time. Always, first and foremost a storyteller - refusing and rejecting the reductionist term `content provider' - who continues to tell stories in the hope and aspiration to transform consciousness.
In closing, one concern about future Canada Council funding is to raise the question, how do you define "risk-taking from creators" as stated in your Principle #3? I sincerely hope that you intend that it means more than technological experimentation but, more importantly, it is directed to supporting artistic truth tellers who take risks to challenge the status quo in the spirit of supporting the larger good of who we can be, together.
The following letter of intervention on Bill C-11, Copyright Modernization Act, was prepared Nov. 21, 2011 and e-mailed to the 12 parliamentary members on the Bill C-11 committee:
Dear Members of Canadian Parliamentary Bill C-11 Legislative Committee,
As a professional creator for 30 years, both freelance writer and documentary filmmaker, I urge you to make changes to the current wording of Bill C-11, specifically related to the extension of fair dealing to include education. In Section 29, please remove the addition of "education" in its opening sentence that reads: "Fair dealing for the purpose of research, private study, education, parody or satire does not infringe copyright." Also adapt all subsequent passages under Section 29 that relate to the added exemption for educational institutions, as well as adapting further sections that privilege the exemption addition.
Otherwise, the inclusion of fair dealing exemptions to educational institutions will do serious damage to Canada's cultural industries and their contributions to our nation's digital economy. The damage, more specifically, will be unfair and unjust, definitely undermine, and even terminate for some, the livelihoods of experienced, knowledgeable professional creators as well as younger, emerging creators. The demands of educators add insult to injury for the reason that cultural industries were impacted negatively by the severe arts cuts in 2008, causing many professional creators to redirect their skills into other types of work, if they could find work at all since the economic downturn. The news media failed to inform the wider public of the actual damage done to the cultural sector, and the human toll on creators whose small businesses have disappeared.
The lack of respect towards professional creators by educational organizations and ministries who lobbied for this exemption is outrageous and unconscionable. But, sadly, I suggest that such gross disrespect mirrors the wider lack of awareness and appreciation about the significant, multi-faceted roles of the arts in our society, as the arts have demonstrated in all societies throughout history. That significance is too lengthy to outline in this document.
Our society's lack of appreciation, regardless, tragically overlooks the sacrifices made by those creators who seek to use their mastery to bring beauty into our lives, while others choose to seek and impart truth - their works, ultimately, speaking to the essence of how we can grow more fully into our human potential, why we are here on Earth, and who we can be as a nation among nations to model what democracy and freedom of expression authentically signify in our daily lives.
For such creators apply creative intelligence to communicate stories and craft images that provoke awareness and inspire us all to be engaged in creating a better quality of life, a quality of life that is inclusive of the whole human family and that is directed to healing an imperilled planetary environment. These creator voices speak from the breadth and diversity of our Canadian mosaic, to illuminate who we are to each other and to the larger world, from Canadian perspectives where the tar hits the road, in regard to stories about our history and in pursuit of examining contemporary life incisively - stories to facilitate our choices in how we walk into the future, equipped with more knowledge and wisdom to be proactive participants in contributing to a more just and peaceful world on a healthier planet.
The mainstream news media, meanwhile, too often misrepresents the arts to the wider public in news that foregrounds dramatic conflict, such as bringing attention to the more extreme controversial examples of art forms created by taxpayer dollars or, conversely, distorting the fuller reality of art production, and justifying piracy, by focusing on the greed of large movie studios and record labels. Occasionally, our celebrity creators receive attention, and thank goodness our famous, and highly successful, creators in all artistic fields do get recognition. But, what the popular, celebrity-driven media overlooks is the body of creative work by the larger numbers of our lesser known yet talented and dedicated creators, whose works are enjoyed by the Canadian public, and also desired and used by educators. These lesser known creators are the large majority, however, who live mostly on a subsistence income sustained through educational revenues.
Critical for you to understand - and hopefully someday more educators to appreciate - is this fact, that the educational market is what sustains this larger number of creators, to continue at all in the production of knowledge that is sorely needed for students to enter the larger world of business and vocation and human interactions globally. I know this fact, both as a creator, a media literacy educator, a filmmaker and also as a (former fulltime) freelance journalist. Indeed, I worked diligently for many years as an independent journalist, until the merging of media corporations followed by digital technologies severely diminished that livelihood, similar to the fate of hundreds of freelancers, when we no longer could syndicate our work, to generate reasonable revenues and thereby justify the long periods of intensive research to produce informed writing. How many more voices of professional storytellers further will be silenced because educators want access to our creative work without payment and without permission? This disregard for the professions of creators, moreover, signals to the younger generations that such professions have no worth, and encourages piracy in the digital world.
I speak for the creators, both writers and filmmakers, of well-researched and well-crafted stories, produced with high standards, aesthetically and morally, with the intention to enlighten and educate rather than merely to entertain. The extension of fair dealing for educational institutions, simply stated, threatens freedom of expression for such professionals and, in turn, renders more vulnerable the democratic wellbeing of our society.
Do you not witness in recent years the dumbing down of society? Just look at programme choices on television broadcast channels, which have sorely reduced windows for documentary films and, instead, have increased time slots for reality TV programming and similar entertainments. Are you aware of the disappearance of most funding even to develop documentary films in Canada? Worse, broadcasters now demand that the chosen and desirable independent documentaries must be entertaining foremost, and also be film stories that can generate profits - primarily to benefit the broadcaster.
But Canada, once upon a time, gained international renown for its documentaries, whose creation never was about earning profits, but instead telling stories to challenge injustices (and sometimes influence the making of justice), to inform us of the marvellous strength of the human spirit in the face of adversity and, ultimately, to illuminate what we hold in common as a human family on this planet. What will be the impact on a democratic society if freedom of expression is undermined by making it virtually impossible to earn revenue for those storytellers whose intention is truth telling rather than appealing to commercial interests?
What the passing of Bill C-11 signifies in its current misguided form, as per the proposed extended rights of use for educators, is: (1) reducing the ability to earn a living for many creators, both established and younger generations; (2) undermining the digital economy of Canada by silencing many experienced creators, many of whom have degrees in higher education, who could be mentors to emerging creators; (3) threatening the future production of diverse cultural forms of the latest knowledge used as educational materials to expand and deepen the minds of learners; and (4) destroying the royalties and reprint fees, and educational sales of books, other forms of writing and independent films that creators rely upon in order to sustain cultural production and, as well, count upon as necessary compensation in later life. For, sadly, many veteran creators systemically have been underpaid throughout their careers or vocations. As a result, their pensions cannot cover even the most basic living expenses, so that they depend upon the modest continuing revenues through uses of their work in education - revenues that they totally deserve.
The fact that a different scenario could happen at all among those creators who dedicated their lives to helping humanity is shameful for a nation state such as Canada that likes to present itself to the world as a culturally sophisticated, democratic society that projects a high standard of civilization. That brings me to: (5), namely the diminishment of freedom of expression, if and when creators, obstructed from receiving income from educational uses, are silenced, no longer able to operate a viable business - yes, the arts are businesses whose earnings and expenses are totally accountable to government, hence, to taxpayers. We are absolutely not free-loaders, as a misinformed public sometimes labels us. Rather, we are hard-working professionals, many of whom have been reduced to sustaining a bare-bones business, while we persevere to apply our creativity in developing new business models suitable for the digital economy. Educational revenues, nevertheless, are essential for us to be able to continue contributing to the larger good through cultural productions.
Thank you for your valuable time in reading, and reflecting upon, my letter. May each of you find the resolve to make the wisest decision that can benefit and include all Canadians, today and tomorrow.
Warm regards, Sandy Greer, Ph.D