RENEE HULAN
ON NOVEMBER 22, 1996, readers opening the pages of local or national newspapers would probably have recognized the prominent public figure entering the debate around Bill C-32, the bill to amend Canadian copyright law. Headlines announced the following: “Atwood wants to crack down on photocopying” in the Calgary Herald; “Authors can’t afford ‘theft’, Atwood says: Proposed exemptions in copyright legislation called unfair to writers” in the Ottawa Citizen; “Atwood wants compensation for authors of photocopied material” in the Vancouver Sun. An account written by Kevin Burns for the National Library News gave this summary:
The morning after her reading at the National Library of Canada, Margaret Atwood appears at the House of Commons before the federal Heritage Committee, representing the Writers Union of Canada and the League of Canadian Poets. Her subject is copyright, and Atwood is blunt. “Writers should not be asked to subsidize libraries and schools,” she warns. “Reproducing intellectual property without permission from its owner amounts to theft.” (20)
The debate surrounding Bill C-32, in which private and public interests were clearly in competition, presented an occasion for exploring the relationship between literature and society in Canada. Margaret Atwood’s role in the debate around Bill C-32 and her published statements concerning the writer’s role in society, considered within the context of published responses of her presentation to the committee, highlight her prominence as a public intellectual and raise crucial issues in contemporary Canadian social life.
Appearing before the Standing Committee on Canadian Heritage on November 21, 1996, and on behalf of the Writers Union of Canada (WUC) and the League of Canadian Poets, Atwood championed the rights of authors to control the dissemination of their work in the face of widespread photocopying by targeting exceptions for public institutions:
In conclusion, I want to emphasize that writers are small business people and our copyrights are often our only real assets. Exceptions to copyright are an expropriation of our property against our will. If copyrights were cars, this would be car theft. (4)
The executive director of the WUC, Penny Dickens, and the Union’s legal counsel, Marian Hebb, were also present and fielded many of the committee members’ questions afterward. The Standing Committee had heard from sixty-five groups and received 190 briefs during its deliberations, and the WUC was one of the last. For Atwood and other writers, the issues at stake in the debate around Bill C-32 were of great concern; the WUC made specific recommendations to enhance licensing—especially of electronic technology—to prevent book dumping, and to extend copyright protection to seventy years. These issues of author’s rights, as Atwood repeated to the committee, were about money, and money could be a matter of life and death, of survival. As Rosemary Sullivan tells it, Atwood had initially been persuaded of Canada’s need for a writers’ union by stories like that of Gwethalyn Graham, who, despite publishing success, died in poverty.2 It was on behalf of authors who, according to reports from Statistics Canada for 1994, made on average CA$ 15,000 that Atwood went to Ottawa. Appealing to nationalist sentiment, Atwood argued that in order for Canada to have a “flourishing literature,” the rights of authors needed to be protected. By limiting revenues from some copies and refusing to extend copyright protection, the government would be endangering the ability of writers to provide for themselves and their families, thus threatening the survival of Canadian writers and writing.
At first glance, the presentation seemed a typical response from the public figure and private writer, for it was not the first time Margaret Atwood had given her voice and name to a cause. As one of Canada’s most recognizable citizens and activists, and probably Canada’s most famous author, Atwood is known for supporting the causes she believes in. It is a role—regardless of her stated suspicion of roles and their models—that she has embraced, and this role conforms with her published views on the writer’s role as witness to society.3 Citing Yeats’ admonishment to poets to “cast a cold eye,” she views witnessing as the writer’s imperative: “The eye is cold because it is clear, and it is clear because its owner must look: he must look at everything. Then she must record” (ND 121).4 Atwood critics and biographers have argued that her success provokes jealousy and her politics, opposition; at the very least, her public persona inspires strong feeling. If she has been one of the few literary covergirls, she has also had to guard her privacy by creating “the mysterious multifaceted Margaret Atwood” (qtd. in Becker 31), the double and multiple selves who come out to play in Nathalie Cooke’s “Lions, Tigers, and Pussycats.” Atwood’s thoughts on the role of the writer in society are part of this public persona, or personae, crafted over five decades of writing.
In Negotiating with the Dead, Atwood continues to fashion personae by reclaiming her biography, retelling well-known stories, deflating gossip, anecdote, and supposition, and scrupulously revisiting the most often-cited details: the Bohemian Embassy, the aunts, the walk across the football field, the exiled parents, the northern campsites, and even The Red Shoes. In its form and content, Negotiating with the Dead distinguishes between the private person bewildered by the public persona, using images of domestic life to refer to the self that is not “the author.” The private person is a “dab hand at cookies” (35), or “turning out a nicely browned loaf of oatmeal-and-molasses bread” (36), and a cosy “knitter of sweaters” (35). These images, presented as glimpses of private life, are also allusive and literary. The “nicely browned loaf,” for instance, calls to mind Susanna Moodie’s “maiden loaf” in Roughing it in the Bush, a book whose importance for Atwood is well known. Moodie writes that she could have borne the harshest criticism of her writing better than the failure of that loaf. As Misao Dean shows, in this scene and elsewhere, subordinating authorship to domestic life grants the nineteenth-century woman writer legitimacy. For Atwood, the two roles indicate the author’s double identity. Atwood also uses literary allusions as examples, often at the point of concluding an argument, and while she offers her own anecdotes, most are well-known, well-crafted literary stories in themselves. Like the first-person in her essays and interviews, the public role of spokesperson appears to unify selves in one authentic self, a witness or observer of the society. The audience listens because the eyewitness, whether voyeur or truth teller, survivor or fake, makes us believe that the story is true. But asking the real Atwood—or any writer for that matter—to step up is an interpretive dead end. If the Author is always constructed, then, as Foucault asks, why does it matter who is speaking?
Foucault’s analysis of authorship traced the Romantic notion of the writer as solitary genius to the control and commodification of discourse in the eighteenth century. Indeed, at that time, the Statute of Anne (1709) responded to the newly lucrative publishing industry by giving authors the sole right to print books not already in print. The general principles underlying copyright have not changed, nor have the arguments to extend copyright protection to accommodate technological change: writers must be adequately compensated for their labour both in accordance with natural rights and for the benefit of society. Creativity is believed to be stimulated by protecting the livelihood of writers, and since creativity is seen to have social benefits, it is in the best interest of society to protect the rights of the author. The United States Copyright Act of 1790 and le décret des 13–19 janvier 1791 in France also defined the rights of the author as serving both public and private interests with the state legislating an appropriate balance.5 These principles remain influential in today’s global legislation on copyright, and the influence of the literary construction of the Author on legal interpretation of copyright is a study in itself.6 In this discussion of copyright, Foucault’s historical argument situating the Author as a function of codified property relations is often cited, yet the implications of his theoretical argument for the Romantic view of authorship has not displaced its position. By demonstrating the function of the Author, Foucault shifted the focus from the creative act of the solitary individual, which he presented as a construction, to the creation of meaning in the intellectual commons. Though copyright legislation acknowledges the existence of such a commons, it legitimates the Romantic view of what an author is by granting the Author rights that are conceived in individual terms.
As her famous response to William Wigle shows, Atwood has always been keenly aware of what’s in a name.7 In Negotiating with the Dead, she warns readers against thinking that they have a handle on the author “with a capital A,” the person who “does the writing and becomes a name, divorced from the body but attached to the body of work” (62) and who, as she says, is always “double,” always changed from the one who did the writing in the first place, though this, she adds, is both evasive and true (37). As Rosemary Sullivan observes, from early in her career, Atwood “was dismissive of the Romantic fantasy of the bohemian artist … She had a different model: the Victorian man or woman of letters (like Dickens or George Eliot) who was an active participant in society and lived by his or her work” (308). In the copyright debate, Atwood’s implied (double) author conformed to this model in terms of the writer’s social function while also retaining the Romantic view of the Author as the origin of creativity.
In most newspaper accounts of the copyright debate, the constructed Atwood was not a witness, secret agent, or double author but a celebrity engaged in a sharply pitched battle between individual or corporate copyright holders and public institutions. Coverage in the Toronto Star was typical, leading with the sentence that described Atwood as the “recent winner of the Giller Prize—Canada’s richest—for her latest novel Alias Grace,” and highlighting her statement that reproducing work without permission is theft. In general, the coverage displayed the “heat and lightening” Atwood is so used to taking (Atwood, MT 3). Perhaps the harshest article was one printed in the Edmonton Journal entitled “Photocopier Criminals Beware” which began, “Canadian novelist Margaret Atwood marched into the country’s battle over copyright law last week, both lips blazing” (Sass F1). From this familiar image of Atwood as femme fatale, the medusa or sorceress ready to pounce, the article goes on to portray her as just plain greedy:
Gung-ho all-or-nothing folks like Atwood defy common sense and muddy the already muddied waters by demanding every penny from every kid who had to write a report on The Handmaid’s Tale and copied the book jacket in the library. Goodness knows how much she’d want if the kid memorized one of her poems. (FI)
By treating Atwood as if she was speaking only on her own behalf and by failing to refer to the presence of Dickens and Hebb, this article, like so many others, unhelpfully personalized the public position.
Few newspapers failed to mention awards and other marks of Atwood’s success in the opening paragraph. Even the most balanced account of the hearing, published in the Globe and Mail and reprinted in the Halifax Chronicle-Herald paraphrased, “Award-winning fiction writer Margaret Atwood says copying an author’s work without permission or payment is theft” (C2). Although this article presented more information than most, the effect of the paraphrase was a much more strident position, one that seemed naive and simplistic, even petulant. None of the coverage attempted to understand Atwood’s position in historical context; none connected her presentation to her thoughts about what she has since called the “cog eat cog” world of publishing (Atwood, ND 66). In their stories, the privately owned corporate print media focused on the individual author—Atwood—construing her position as serving private and personal interests, and constructing the writer as both private entrepreneur and Romantic cliché: the solitary genius, the drowned poet, the madwoman.
Even though her appearance at the committee created a flurry of media activity on Parliament Hill, what the papers made of the story did not help the writers’ cause. By characterizing Atwood as an award-winning and bestselling author, they positioned her as an exception to the rule of her argument, and by printing the most pointed comments made during the presentation, they made her sound shrill. This despite the fact that, during the hearing, she had engaged in light banter with the committee members and had stated clearly that her concerns did not apply directly to her own work, or to novels generally, but to writers such as freelance journalists who stood to lose the most if the bill was not amended. Even so, the print journalists were not terribly sympathetic—or informed.
In contrast, discussions within professional associations, such as the one in the Canadian Libraries Association’s (CLA) newsletter, Feliciter, offered the in-depth and sustained critique of the proposed copyright amendments that was lacking in commercial media. The CLA supported the draft bill, and fought hard for the exceptions that the WUC opposed. Standing before the committee, Dr. Marianne Scott, the National Librarian, argued on behalf of public interest that authors’ rights should not be allowed to outweigh the rights of public-lending institutions. Penny Dickens had argued that Bill C-32 would cause “writers to subsidize the education and library sectors to a greater degree than that of other taxpayers” (Atwood, “Presentation” 11). Barbara Clubb, head librarian and CEO of the Ottawa Public Library, responded by pointing out that libraries support and subsidize writers. Clubb wrote that it was a “tragedy” that the two groups found themselves at odds when “public libraries are negotiating with CanCopy to allocate even more money for authors out of our beleaguered budgets” (B7). Despite Susan Riley’s observation that “one of the ironies of this debate is that it pits two groups that are usually allies against one another: writers and public libraries” (qtd. in Burns 20), the commercial media did little to pursue the story and relegated the arguments of users’ groups to “Letters to the Editor.” In one such letter to the Vancouver Sun, Paul Whitney, the chief librarian of the Burnaby Public Library, expressed “dismay that Atwood and [the WUC] have chosen to attack legislation that represents a reasonable balance between the interests of writers and the broader public good” (C2). Since taxpayers support both libraries and authors through direct grants and other indirect spending, Whitney concluded that the real target of the amendments would be the Canadian public. In a letter to Quill & Quire, Robert Kasher, a writer and “sales representative to the library market,” wrote that he was “utterly appalled and deeply embarrassed by Margaret Atwood’s presentation on libraries and copyright,” concluding that
she sounded more like a corporate lawyer from Disney in hot pursuit of Chinese software pirates than the socially aware author I’ve heard she is … I doubt Margaret Atwood minds all the free publicity and advertising her books get in libraries in the form of placement, posters, and readings. (4)
What was perhaps most shocking to these observers was that the WUC, whose primary interest was writers writing, did not seem equally concerned about readers reading.
Several spokespeople for public institutions argued that the attempt to extend property rights beyond production and exchange to reception and circulation would encroach on the public domain by limiting public access.8 Although the librarians and other representatives did not argue against the compensation of creators, they did object to paying twice—first by buying books and acquiring other sorts of material, paying fees for library use of books, and paying for licensing agreements; second by preserving or making books available to users. They feared the impact this would have on access. As a series of presentations to the committee illustrated, the writers’ proposed amendments would make research more difficult and the preservation of documents more time-consuming and costly. While librarians searched for copyright holders, original documents were crumbling, incurring even greater financial costs to shrinking budgets. Writers argued that safeguarding their individual property rights would protect Canadian culture, but the pressure on library budgets caused by removing exceptions would actually limit the funds generated for licensing agreements and acquisitions. As academic organizations such as the Canadian Association of University Teachers (CAUT) joined the CLA in its opposition, several groups stressed the bill’s implications for the preservation and advancement of knowledge, especially involving archival materials. Increased costs for scholars and professional researchers would put pressure on research funds, and could be prohibitive for unfunded students and amateurs, like genealogists. J.R. Miller, then president of the Canadian Historical Association, specifically mentioned genealogists in a letter to the editor of the Globe and Mail, and concluded with the following:
Under the new legislation it will be illegal to make a single photocopy of a complete unpublished document for a researcher for research purposes … Together these provisions will impede and render far more expensive archival research into Canadian historical topics. (A16)
Librarians and academics alike emphasized how extending copyright protection and removing exceptions for library research could determine how readers would access documents as well as who would read them.
Upon closer examination of the presentation transcript, it becomes clear that the WUC was not prepared to consider the implications its proposals would have for research. At the hearing of the WUC, Beth Phinney (MP for Hamilton Mountain) had access for researchers in mind when she asked if the Union would be in favour of making an exception for those making a single copy of an unpublished work. Hebb replied that such instances are “covered” by existing procedures in the archives, and Dickens added that
access used to be a problem. That’s been dealt with through the collectives. Now it’s money. If the writers don’t receive money from the use of their work, they will not be able to write. That’s the bottom line. Copyright legislation is supposed to assist the copyright holders. (Atwood, “Presentation” 11)
Although seeming to acknowledge a social benefit of copyright, Dickens did not emphasize how that benefit serves the public good. Phinney also wondered why the WUC had queried the definition of perceptual disability and was told that the Union was concerned the exception might be broadened to persons with mental disabilities. Throughout this rather low point in the writers’ argument, the issue of payment was obscured by an attempt to assess the merits of exceptions for certain types of individuals, and the effect of the new legislation on research was set aside. The WUC did not seek to balance the rights of the public with those of the individual but instead reiterated the position that there should be no exceptions whatsoever.
When asked by Jim Abbott (MP for Kootenay East) to comment on the issue of access in the public interest, Atwood replied:
You can get a book out of the library or buy a book in the bookstore with no problem. We have these copying collectives. It’s not limiting access any more than it’s limiting access to toothpaste. You go into the drugstore, get your tube of toothpaste and pay your $1.50. (7)
Asked about the specific instance of access for genealogists engaged in research, Atwood responded:
I don’t quite see the problem. What we’re talking about is the right to reproduce. If a genealogist goes to a library or goes to the archives, they can usually forage and rummage away to their heart’s content, unless the material has been put aside by the person who has died so it cannot be opened for eighty years or fifty years … What we’re talking about is the right to publish, not the right to research. There is a difference. (8)
When MP Phinney took up the issue, asking about researchers specifically, Atwood added:
This happens to me all the time. I have unpublished material in the archives. If people want to do research on it, they go to the archives. The library phones me to ask whether they can make a copy. I say sure. And if I were dead, my executor would say sure. Or maybe I would; I can come back. (10)
This rather casual reply belies the complexity of permission granting, as any researcher knows. Indeed, Atwood’s responses referred specifically to permission, not the cost of doing the research or circulating and preserving documents. The concern did not regard the theft of intellectual property by means of plagiarism, only the mechanical reproduction of that property for any purpose.
After Atwood’s opening remarks, Dickens and Hebb narrowed the focus from the public interest to private interests, presenting a singular view of the public good, one achieved by allowing writers to participate freely in the market economy. In this economy, writers would earn their living, own their own property—whether intellectual or material—pass that property on to their heirs, and control the wealth generated from it, meagre though it may be. The only role of government in this economy is to ensure that everyone is free to do all these things; yet, ironically, without the state’s legislation to protect creators, writers would be left to survive in a free market.
Working with limited definitions of “creators” as journalists and published creative writers, and “users” as anyone looking for a “free lunch,” the WUC reasoned that individual acts of copying, taken together, added up to a form of publishing. Educational institutions were identified as prime culprits, and the existence of collectives was cited as a reason to remove all exceptions. Anticipating the problems this would create, Mauril Bélanger (MP for Ottawa-Vanier) asked if removing exceptions would require making membership in collectives mandatory. Atwood replied, “We still believe in free will. We’re old-fashioned” (12). Although Bélanger balked a little, he did not press the issue further, unfortunately. How libraries would deal with those who did not join collectives, what sort of liability this would entail without some exceptions, was never addressed at the hearing. Would a library be able to make a single copy for preservation or for research purposes in such a case? If not, and if failure to join a collective could potentially limit access, the policy would be coercive. The public interest, including the effect on costs incurred by public libraries and archives, was eventually subordinated to the copyright holders’ interest.
The Standing Committee on Canadian Heritage pushed through amendments in mid-December, and, as Vic Parsons predicted in his report for Canadian Press, the hastily drafted amendments led to aggressive lobbying on both sides through the spring of 1997. In “An Open Letter to Jean Chrétien” published in the Montreal Gazette on March 6, 1997, and in the April edition of Quill & Quire, thirty-one signatories, including Atwood, Timothy Findley, Michel Tremblay, and Alice Munro, called on the government to reconsider by appealing to nationalist sentiment: “A country’s creators are the lifeblood of its culture. Do not rob us and future generations of writers of our ability to survive doing what we do—reflecting Canadian realities to Canadians and to the world” (3). Bernard Katz, chairman of the Copyright Task Group for the Ontario Library Association, warned that the “sudden shift to the side of copyright owners at the eleventh hour represent[ed] a betrayal of the previous policy” (A20). Bill C-32 received a final reading on March 25 and royal assent on April 25, 1997. In the same month, Quill & Quire reported that Atwood had donated a letter obtained while researching Alias Grace to the Richmond Hill Public Library. The letter was so fragile that a copy of it would have to be displayed (Land 13).
Most of these amendments took the form of additional language that shifted the balance in favour of copyright owners. For example, in Clause 30, which allowed the copying of short passages from literary collections for use in educational institutions, if only a maximum of two passages from a single author was reproduced and the source acknowledged, there was an additional requirement that “the name of the author, if given in the source, is mentioned” (House of Commons of Canada 34). Since acknowledgement is standard ethical practice in academic work, this addition was not a true limitation, yet it exemplifies the shifting balance. Other clauses favouring the user, such as those allowing multiple copying by persons with perceptual disabilities, were removed. A new section on archival materials (30.2) was added, giving copyright owners the right to prohibit any and all copying of papers deposited. Works already deposited in archives and whose copyright owner remained unknown were grandfathered by this clause, applying it to future acquisitions only. In each case, limitations were placed on access. But what those representing users objected to most was the inclusion of collectives in the definition of “commercially available,” an amendment that, they argued, effectively eliminated all other exceptions (Morton 14).
The WUC had won the battle over exceptions, but groups like the CLA and CAUT pointed out that “less than half of what is copied in Canadian libraries is written by Canadians,” leaving libraries to pay creators in other countries, mostly the United States, for uses that would be exempt in their countries (15). It was even more deeply ironic that this appeal for protection for Canadian writers and individual free speech served to promote values of liberal individualism, private ownership, and a free market economy, the same ideology that informs cuts to public funding. By referring to writers as small businesses, emphasizing the exchange value of intellectual property to individuals, and downplaying the social value of copyright protection, the WUC advocated a strong view of intellectual property that stood to serve the privatization of knowledge. If the serious issues at stake in the debate over Bill C-32 were left to a competition of private interests, it has also been left to the courts to restore balance as copyright law continues to be interpreted and challenged. In March 2004, defenders of public access scored a victory when the Supreme Court upheld an appeal by the Law Society of Upper Canada ruling that the exception for a single copy made for purposes of research and study held as a form of fair dealing.9 In this case, the issues were given a cold, clear eye while in the public hearings and media coverage, the debate had been waged blindly.
—St. Mary’s University
Funding from the SSHRC supported the research for this article. Many thanks to my two research assistants, Megan Clare and Stefanie Winters, who located documents cited in this paper.
1. This paper was presented on World Book and Copyright Day, a day created by the United Nations Educational, Scientific and Cultural Organization to celebrate books and to encourage people to read them.
2. Graham’s bestselling novel Earth and High Heaven earned CA$ 450,000. However, “because an author’s income was then regarded as ‘unearned,’ and 1945 was the highest taxation year ever, [Graham] was left with $10,500 by the government. The government made a settlement in Equity, as they put it, for about $30,000. She died in poverty” (Sullivan 302).
3. Ironically, as Frank Davey notes in Post-National Arguments, women engaged in social or political action are “parodically portrayed” in Atwood’s fiction (223), and Susanne Becker points out that Atwood usually takes “an ironic view of her own celebrity in her essays and fiction”(29).
4. Atwood’s record of service includes being a founding member of the WUC as well as a past vice-president (1979) and past president (1981–1982), founder and past president of PEN Canada (1984–1986), member of Amnesty International, supporter of the Civil Liberties Association of Canada, and an outspoken critic of public policy on issues ranging from conservation to free speech, NAFTA to copyright. Both Rosemary Sullivan and Nathalie Cooke in their respective biographies describe the enormous energy and effort she and Graeme Gibson contribute as citizens and as a family on behalf of a variety of causes.
5. As Gillian Davies explains in Copyright and the Public Interest, from these three traditions, copyright evolved as a means of satisfying justice and fairness according to natural law, protecting rights to remuneration for labour, stimulating creativity, and safeguarding social usefulness (10–13). To underline its public function, for example, she reveals that Article 6 of the French statute enjoined authors to deposit two copies of a work in the Bibliothèque Nationale or forfeit the right to pursue damages for copyright infringement (186).
6. For a discussion of the continued influence of the Romantic idea of authorship on the legal interpretation of copyright, see Peter Jaszi. Looking at cases in United States legislation, Jaszi cites this idea as the most serious impediment to fair use analysis in which “originality” and “style” have been cited as reasons for limiting use (see 50–51; see note 71).
7. For accounts of the action taken against Wigle and Northern Journey, see Cooke (216–218) and Rosenberg (157).
8. Other professional groups who submitted briefs arguing on behalf of the public included the following: the Association of Universities and Colleges of Canada, the CAUT, the Association of Canadian Community Colleges, the Canadian Teachers’ Federation, the CHA; the Canadian Association of Research Libraries, the Association of Canadian Archivists, l’Association des archivistes de Québec, among others.
9. Four publishing companies, CCH Canadian Ltd., Thomson Canada Ltd., Thomson Professional Publishing, and Canada Law Book Inc., had complained that the Law Society of Upper Canada’s (LSUC) custom copyright service under its “Access to the Law Policy” constituted an infringement of copyright. At issue was the applicability of copyright to the contents of the publications which included legal material in the public domain but also the case summaries, headnotes, indices, and compilations of legal decisions provided by the publisher. In CCH Canadian Ltd v Law Society of Upper Canada, the chief justice agreed that these contents were original works protected by copyright but concluded that the LSUC had not infringed upon copyright because it had provided photocopies exclusively for the purpose of research. The Court also denied the cross-appeal of the plaintiffs by concluding that, because fax transmissions are not a form of communication with the public, the LSUC had not sold the publishers’ works by providing faxed copies.
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