"soaked in nature's fecund blessing"

(title quote lovingly extracted from Cold Comfort Farm, by Stella Gibbons, published in 1932 by Longmans -- thanks to Penguin for the cover image)

It seems appropriate, sitting as I am in the tail end of a whomping good blizzard to be reflecting on the sometimes cold comforts offered in the copyright reform discussion. Specifically, I am trying to wrap my head around the idea insisted upon by Professor Michael Geist (most recently in the blog posting Clearing Up the Copyright Confusion, just before the holiday break) that authors and publishers should really not be worrying our little heads about the inclusion of education as a category of fair dealing.

Dr. Geist's long and oft-repeated argument insists that a six-part fairness test will protect us from unfair uses of our materials. It all sounds very legal and proper, and even vaguely professorial; unfortunately, it generates very little heat, and I think the Canadian writing and publishing sector can be excused for shivering in the chill wind Geist creates.

Which is why I suggest all Canadian writers and publishers put on a sweater and curl up with a copy of Dan Glover's detailed and authoritative response to Professor Geist. "Sowing New Confusion?"

Glover, an associate in the Intellectual Property Group at McCarthy Tétrault LLP, has spent a great deal of his private time over the holidays researching and documenting the sometimes astonishing wrongness of so many of Professor Geist's comforting words.

In his paper, Glover takes the famed consumer advocate to task for intentional vagueness, willful omission, inconsistency of message, disingenuousness, bait-and-switch tactics and just plain old incorrectness. Along the way, he provides a fascinating survey of case law and the history of debates about copyright and intellectual property, at one point even using a quotation from Lawrence Lessig himself (Geist, Beta Version) to show how far off-base MG has wandered.

There really is no summarizing -- you simply have to go and experience the document for yourself. As Michael Geist might tweet, "It's a must-read!"

Here's a taste:

"I am convinced that Professor Geist significantly understates the potential impact of the proposed new educational fair dealing exception, in part because he places too much faith in the second “fairness” stage of the fair dealing test to govern behaviour in the marketplace. Further, Professor Geist’s survey of other laws omits a principled analysis of whether the proposed exception risks putting Canada offside its international treaty commitments, in particular the three-step test enshrined by TRIPS and the Berne Convention for the Protection of Literary and Artistic Works...

As a final introductory point, I should note that it is not always easy to respond to Professor Geist, primarily due to his a tendency to make bold pronouncements without explanation or support. A representative example is Professor Geist’s statement that “Educational institutions and students spend over a billion dollars each year on books and hundreds of millions of dollars on licencing [sic] for access to databases. That will not change with the inclusion of education within fair dealing.” Professor Geist does not provide a source or a rationale for this critically important prediction. Furthermore, he tells a different story elsewhere in testimony before a Parliamentary Committee, where he admitted that the fair dealing for education reform would result in lost revenues for authors and publishers"

Thanks to Barry Sookman for pointing me to Glover's paper.