Issue # 187 - Don Nichol

The Copyright Pentalogy: How the Supreme Court of Canada Shook the Foundations of Canadian Copyright Law, edited by Michael Geist (Ottawa: University of Ottawa Press, 2013, 478 pp., $55 paper/$41.99 ebook).

Copyright always has been, and always will be, beyond the understanding of mere mortals who lack law degrees. I’ve published several articles on the history of copyright, but ask me about its 21st-century manifestations, and I’m all thumbs. Articles and reviews I’ve written for journals (often for little or no recompense) have been advertised for sale online without permission by third parties. Case in point: an article I wrote a couple of years ago for The Times Literary Supplement on the 300th anniversary of Alexander Pope’s The Rape of the Lock is currently being offered for sale on AbeBooks for US$20 (plus $27 shipping!). I’ve contacted editors who are generally in as much darkness as your befuddled author. This article is freely available online, but all it takes is one drowsy or delusional consumer to make it worth the seller’s while. I find infuriating the notion that X can swoop in and profit from something Y wrote for Z — it gives one pause about spending time writing for great but non-paying journals. I can’t imagine much money changing hands over my stuff, so it’s not worth hiring a lawyer, but the principle rankles.

     Canadian copyright law stems from British statutory legislation that dates back more than three hundred years. You might be hard-pressed to track it down by its original name as Ariel Katz does in The Copyright Pentalogy. An Act for the Encouragement of Learning…, which came into effect on 10 April 1710. This was the dividing line between old books (whose copyright was protected until 1731) and new books (which were protected for a term of 14 years that could be renewed for another 14). The opening to the Act has a medieval feel to it, good Queen Anne listening to the pleas of her subjects, in this instance those involved in the book trade, staving off the unhappy prospect of women and children begging in the streets.

     The 1710 Copyright Act addressed issues of authorship (acknowledged in law for the first time), piracy (setting penalties for infringers), duration of protection, fair book pricing, and deposit copies. This last detail became a bone of contention with publishers who suddenly found themselves legally bound to deposit nine copies of each new book with the Stationers’ Register, an unanticipated result of the union of England and Scotland in 1707. This clause helped stock nine libraries throughout the realm, fortifying the mission, “Encouragement of Learning.” A vestige of this survives in one of the “pentalogies”: in schools and universities students and teachers are allowed to photocopy parts of works still in copyright to help the spread of knowledge. Technological advances have not always been kind to artists, authors, and songwriters. Often copyright notices dutifully posted by photocopiers address a custom more honoured in the breach than the observance. In the section of The Copyright Pentalogy that focuses on fair dealing, Katz traces historical developments in Britain from the acts of 1710, 1842, and 1911 to present distinctions between American and Canadian law.

     Michael Geist, Canada Research Chair in Internet and E-commerce Law at the University of Ottawa, is the closest thing we have to a copyright guru. He has been writing, broadcasting, and podcasting on copyright issues for many years. He has gathered an impressive array of legal scholars to respond to the five-part decision of 2012 handed down by the Supreme Court in The Copyright Pentalogy. We have Graham Reynolds, Paul Daly, Elizabeth F. Judge and Teresa Scassa (fellow law professors from Ottawa), Carys Craig (Osgoode Hall), Giuseppina D’Agostino (Université de Montréal), Gregory Hagen (Calgary), Jeremy de Beer, Meera Nair (Simon Fraser), and Daniel Gervais (Vanderbilt), among others. A notable transition in the list of contributors: Samuel E. Trosow hails from the University of Western Ontario whereas Margaret Ann Wilkinson teaches at the rebranded Western University (an institution that was never particularly west in Ontario and much closer to the Atlantic than the Pacific).


It took 64 years for Britain to iron out the wrinkles of the 1710 Act. Leading booksellers still maintained they still had a common-law right in literary property. It took the landmark case of Donaldson v. Beckett to settle the matter and end perpetual monopoly in 1774. Those were relatively simple times when copyright applied mainly to books and later, thanks to the efforts of William Hogarth, to engravings. Today, the complexities surrounding copyright in the digital age have expanded exponentially. Take just one three-part example:

     1. In 1914, “Father of the Blues” William C. Handy wrote “Saint Louis Blues,” which was quickly snapped up by Charlie Chaplin for the accompaniment to his new silent film, The Star Boarder. Handy’s song went on to be covered by a multitude of recording artists including Bessie Smith together with Louis Armstrong in 1925. Handy had business sense enough to set up his own publishing company. Everyone from Jean-Paul Sartre to William Faulkner knew Handy’s hit. At the time of his death in 1958, Handy was receiving royalties in the neighbourhood of $25,000 per annum for this one song alone. At least three films and a hockey team have adopted his song title.

     2. In December 1964, at the height of Beatlemania, The Zombies’ hit, “She’s Not There,” which was written by the band’s organist, Rod Argent, made it to no. 2 on the US Billboard and Canadian charts. Argent’s angst-ridden confession of feigned nonchalance about being dumped by a femme fatale was covered by bands as far afield as Czechoslovakia, Poland, and Quebec.  A French version hit the charts across the Channel and was heard on the British hit series Danger Man within a few months. “She’s Not There” made the transition from vinyl (as a 45 and LP) to cassette tape, CD, and now digital. You can buy the “original” as a “single” on iTunes for $0.99 as well as covers by Neko Case and Nick Cave (as heard on True Blood, vol. 3), Santana, Vanilla Fudge, to name but a few. Glee’s cover version goes for $1.29.

     3. A slowed-down version of “She’s Not There” was spliced together with “Saint Louis Blues” to produce a third “song” called “About Her” (“She’s Not There” begins, “Oh no-one told me about her…”). “About Her” was “co-written” by Malcolm McLaren, one-time manager of the Sex Pistols, and became one of several songs used in Kill Bill Volume 2, written and directed by Quentin Tarantino (2004). With a budget of $30 million, the film more than doubled its money, grossing $66,207,920 in the USA as of 20 August 2004. The film’s soundtrack, including “About Her,” proved popular. In a neat bit of postmodern irony, McLaren was charged with plagiarism by French composer Benjamin Beduneau whom McLaren had asked to lend assistance, but the case was thrown out by a French court, not before establishing the fact that the accused could not play a musical instrument. Of course, you don’t need to sing on key, know your scales, pen a treble clef, or even commit lyrics to paper to qualify as a songwriter; changing the speed of a recording and overdubbing two tracks is enough to make a new creation. McLaren’s new “song” interweaves a slowed-down version of the Zombie’s hit with Bessie Smith’s rendition of “Saint Louis Blues,” looping the phrase, “My man’s got a heart like a rock cast in the sea,” something Handy said he overheard a woman utter while wailing over her lover.

     What did Rod Argent, the newly co-opted co-writer, get? Even he would probably find it hard to estimate, but like William C. Handy he found that writing one hit in a brief fit of creativity could produce a nice annual income over a lifetime. According to Broadcast Music Inc., which keeps track of airplay in the USA, in 2013 “She’s Not There” clocked 4.5 million hits, the equivalent of 20.69 years’ worth of continuous music. Not bad for just one song. Argent’s bank account must be doing well from the many times “She’s Not There” has been heard in films and on television, especially in the recent commercial for Chanel perfume.

     If Mr. Argent were to write, record, and perform a “She’s Not There” today, he would find it difficult to survive on royalties from CD sales, would likely have to do a lot of touring and sell a lot of merchandise. Samplers of the song on iTunes still pay nothing, but if they decided to buy a physical copy or download the song, Mr. Argent and his publisher would generally split 8.3 cents per song, less than 10% of the total cost. Of course, self-publishing would help, but would also entail more effort. Streaming has in The Copyright Pentalogy been distinguished from downloading. If Mr. Argent were to license the song for use in a video game, he would be paid up front, but not receive any performance royalties. Similarly, Mr. Argent (or his assigned copyright holder) would be eligible for a licensing fee for film and television use, but would not expect a royalty statement from, for example, Mr. Tarantino.

     (In order to write the above paragraphs, I had to rephrase Wikipedia, trim an IMDb entry, and sample a few iTunes. An attempt was made to impose a charge on iTunes previews some of which have now been extended from 30 to 90 seconds, in some cases covering most of the cut, something Nair found curious in her contribution to The Copyright Pentalogy. As Trosow also pointed out, SOCAN, the Society of Composers, Authors, and Music Publishers of Canada, was thwarted in its attempt to seek some form of redress from iTunes over song samples. The Supreme Court of Canada elevated this free sampling, akin to tasting a small spoonful of ice cream before buying the whole tub, to “research”. Nous sommes tous les chercheurs, tous les plagiaires.)

     While repercussions from The Copyright Pentalogy are generally good for consumers and education, authors and songwriters have been less happy about the ways in which technology has made it more difficult for them to reap full benefit from the fruits of their labours. Nancy White wrote and recorded a giddy song called “And I Copied It” about a well-meaning but deranged fan who borrows her CD from the library, downloads copies for all her friends, then wonders why the artist doesn’t give her a commission for spreading the good, but profit-neutral word. That was back in 2002, and the situation of the struggling artist trying to put food on the table probably hasn’t improved much since. As long as there is money to be had from piracy, pirates will be ready to exploit the works of artists. Interestingly, in addition to education, as Geist mentioned in his own contribution on the shift from fair dealing to fair use, the Supreme Court made special allowances for satire and parody. As an educator who can share works more easily with students — in addition to the printed word, I resort to using film clips from YouTube, songs from iTunes, and images from the Web in class — I am buoyed up by the Supreme Court’s rulings; as a writer less so. University presses like the one that published this book are finding it increasingly difficult to stay afloat. One response to Geist’s blog about the release of The Copyright Pentalogy read: “have a copy of it now, will take time to scan it later.” Let’s hope Geist’s fan meant the older meaning of “scan” rather than the more piracy-enabling definition. Not particularly aimed at the general reader, The Copyright Pentalogy should be scrutinized by anyone with a special interest in intellectual property, the workings of our Supreme Court, and the attempt by top minds in Canadian copyright law to steer us through an ever-expanding legal maze.