Sunday, March 30, 2008

Public justice and private bludgeons

It's probably almost time to wrap up the discussion of Human Rights Commissions at this point: the issue has been well canvassed, here in the comments and elsewhere, and the major arguments,both pro and con, have been articulately made.

But there is a loose end--a very big end, and very loose. And that is the question of the (mis)use of civil courts to crush the little guy's freedom of expression. Whether we are talking libel, slander, copyright or trademark, an ordinary person of relatively modest means simply cannot afford to defend him- or herself against individuals and corporations with deep pockets and vindictive attitudes.

Before getting into the substance of this, I need to note that some of the self-same people absolutely shocked, appalled and otherwise outraged by the benign wording of Section 13(1) of the
Canadian Human Rights Act* are the first to defend the rights of the rich and powerful to hammer ordinary people into the ground for exercising their freedom of expression. Only Darcey Jerrom over at Dust My Broom has indicated any signs of alarm when St. Ezra of Free Expression uses the courts to persecute a small community newspaper and a former employee. (For information on the latter, Google "Dust My Broom" and "Merle Terlesky.) Other intrepid defenders of racists and neo-Nazis appear to be utterly disingenuous on this point: "It's not the same thing." "People who are sued can always get their costs back." Etc.

Of course we know that most people at the ass-end of such grossly unequal contests choose to settle and shut up from henceforward. A grovelling apology is extracted, money flows in its usual direction (from the poor to the rich), and natural order is restored. Conrad Black used to amuse himself in this manner quite a bit, major corporations like Daishowa have tried to shut down social activists, and now Canwest is going after a peacenik.

I have long suspected--and their untenable defence of the suppression of free expression when it's the wealthy who are doing it simply reinforces my suspicions--that the real agenda of the speech-warriors is to get rid of Human Rights Commissions altogether. The current controversies are just skirmishes in a wider war. In the great libertarian jungle, where the state is all but nonexistent and the strong are free to prey upon the weak, there is no place for a concept like "human rights," much less state institutions to mediate human rights complaints by citizens against other citizens. Why have that, when we have a crushingly expensive legal system that only the rich can afford? The real objection is that, with the establishment of Human Rights Commissions, those of modest resources can seek redress at comparatively little cost. They can fight back. For some, this is simply too much to bear.

The Human Rights Commission set-up, admittedly, is badly in need of tweaking. The respondent, who might end up considerably out of pocket, should be made whole if the complaint is dismissed. And, perhaps more important, the bar for accepting a complaint in the first place needs to be set relatively high, with a rigorous screening process to weed out trivial or unfounded complaints. (Oddly, though, when screening does take place--Shirleen McGovern's investigation into the validity of the complaint against Ezra Levant, for example, or Dean Steacy's initial investigation of complaints against Free Dominion--the worst possible construction is placed on it by the speech-warriors.) But this is a side-conversation. For the speechists, it's the baby and not the bathwater that needs to be tossed.

What, then, of defamation (libel and slander), copyright and trademarks? I am not arguing that any of these areas of law be abolished: but I am arguing for a much higher bar against prosecution, let alone conviction, and for a system that allows easier access to the average joe. Clearly we should not have an unfettered right to defame each other, or appropriate the intellectual work of others
to reap their rightful rewards. But by the same token, the wealthy and powerful should not have the right to misuse the law to squelch dissent. And when they do, one might reasonably expect the speech-warriors to be offended, if you take what they say at face value. But reason has nothing to do with it, and we shouldn't be surprised when they do a neat 180° turn, for all of the reasons given above.

Space does not permit a thorough discussion of current slander and libel laws. Suffice it to say that, in the province of Ontario, one doesn't even have to prove damages to succeed in a defamation action. Suing people is far too easy, and defending against it, far too difficult. But let's take a closer look at copyright and trademark legislation.

In the case of Canwest's vengeful pursuit of a Jewish anti-Zionist, the law is clearly being misused. A trademark is established to protect a company's commercial interests. The pirating of the trademark by other commercial enterprises threatens those interests. The law was never intended to be used against parody or fair non-commercial use. But the latter exceptions do not exist in current copyright legislation. They should.

Bob Tarantino was kind enough to direct my attention to two articles by legal scholar Carys J. Craig on the copyright issue. (As I indicate below, there is some blurring of the boundaries between copyright per se and trademark rights, which are really a subset of the former.**
) The first, "Putting the Community in Communication: Dissolving the Conflict between Freedom of Expression and Copyright" (University of Toronto Law Journal, v.56 [2006]) makes a strong case that copyright and freedom of expression stem from the same interests and the same mutual goals--the maximizing of social communication, interaction and participation.

She argues that court decisions against parody and fair use have been marred by a moralistic view of property as trumping all other concerns, including the right to freedom of expression as set out in Sn.2 of the Charter of Rights and Freedoms. The die was cast, she notes, with the 1996 decision of the Federal Court Trial Division in Michelin & Cie. v. CAW-Canada, since followed or cited in numerous other cases, even before the Supreme Court.

The defendants were attempting to organize the workers at Michelin plants in Nova Scotia, an uphill battle as usual, one that had already been the subject of government-Michelin complicity in the past. They produced some campaign literature showing the Michelin Man stomping a worker. Michelin countered with an action alleging infringement of copyrights and trademarks.

Almost needless to say, the court found in favour of Michelin, even ruling that the unauthorized use of the Michelin Man did not fall within the ambit of S.2 of the Charter. The author analyzes this decision in detail. The Court erased the differences between physical property and intellectual property. Yet, as she points out, these differences are profound. She makes the obvious point that subordinating freedom of expression to copyright law, a regulatory regime that according to the Supreme Court is neither tort law or property law, is tantamount to permitting state regulation to restrict freedom of expression in general. Any such restriction, she argues, should be subject to evaluation under Sn.1 of the Charter, not excluded from Charter scrutiny altogether.

But her key point, treated at greater length in an earlier paper, "Locke, Labour and Limiting Author's Right: A Warning against a Lockean Approach to Copyright Law" (Queen's Law Journal, v.28 [2002]), is that the concept of intellectual property itself is deeply flawed. The purpose of copyright, as noted, is to maximize public communication. Without allowing an author some protection, fewer intellectual works would be produced and circulated.
The author argues, as mentioned earlier, that there is a common interest in copyright law and in constitutional guarantees of freedom of expression: both aim to enhance the public flow of ideas. When copyright is used simply to stifle new production, therefore, its own basis is undermined.

Copyright, she maintains, should not be confused with private property. It serves a social, not individual function. A vital aspect of communication is an audience--the right to freedom of expression doesn't mean much if that expression is not public. Copyright, then, intended to provide incentives for the circulation of ideas, cannot be reduced simply to an individual property right. Copyright is in the public interest; hence it resides in the public sphere.

There is no authorship ab initio; every author uses ideas, forms, language, etc. that are already in the public sphere. What is authorship? The more closely one tries to grasp the concept, the slipperier it becomes. But without delving further into that question, surely we can agree that the reinscription of a trademark or a copyrighted work within a new context, one that in no way jeopardizes the rewards accruing to the original copyright holder, should not be subject to legal suppression.

Yet at this point it is. "What is the complacency with which courts today regard the silencing of critical speech through the tool of copyright and accept the chilling effects that naturally accompany it," Craig writes. It is hard to disagree. This area of the law should be a target for comprehensive reform for those with an interest in freedom of expression. But don't expect the speech-warriors to lead the charge--they're over there on the other side of the barricades, vigorously defending privilege and power against the ordinary citizen, and a spurious, exclusively private "ownership" of expression over the public interest.

It is a discriminatory practice for a person or a group of persons acting in concert to communicate telephonically or to cause to be so communicated, repeatedly, in whole or in part by means of the facilities of a telecommunication undertaking within the legislative authority of Parliament, any matter that is likely to expose a person or persons to hatred or contempt by reason of the fact that that person or those persons are identifiable on the basis of a prohibited ground of discrimination.

Actions with respect to alleged trademark infringement alone do not tend to succeed if the purpose is non-commercial (h/t here to truewest); copyright law, however, makes no such distinctions.

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