This post is cross posted on Prof. Katz's blog.
The Supreme Court of Canada heard five copyright cases over dense two-day hearings on Dec. 6-7. One of the cases involved the application of the concept of fair dealing with copyrighted works in education. At the heart of this appeal was a key distinction made by Copyright Board between copies of works made by students or at their initiative, which could be fair dealing, and copies made by a teacher for students with instructions to read them, which could not. The distinction is summarized in para. 118 of the Board’s decision:
a copy made by a teacher with instructions to read the material, whether or not it was made at a student’s request, and a copy made for a group of students are simply not fair dealing. Their main purpose is instruction or non-private study.
In the submission filed by the Centre for Innovation Law and Policy, we argued that not only the categorical exclusion of the teacher-initiated copies lacks any basis in the language of the Act, its purpose and its legislative history, it leads to absurd results that Parliament could not have intended to create. For example, the categorical exclusion of any copying prescribed by a teacher would mean that a motivated and assertive student who knows what to request would receive better education than one who is not so informed and fortunate, because the teacher could help the former but not the latter.
The point was raised during the hearing, and that reminded me of the Four Sons from the Passover Haggadah—the text that is read in Jewish homes at the Passover seder, and that tells the story of the Exodus from Egypt and the Israelites' redemption from slavery.
The Haggada tells that the Torah speaks of four sons: one wise, one wicked, one simple, and one who does not know how to ask. There are different explanation of who the four sons are and what each one of them represents, and in effect, like many Jewish texts, the point is not the “P'shat”, namely the literal meaning of the text, but the “Drash”, the deeper meaning that is always open for interpretation and debate.
Nevertheless, a common starting point is that each of the sons represents people, or children, with different intellectual capabilities or attitudes towards learning. The sons see that the adults are busy and fussed about Passover, and each of them reacts differently, and therefore, each of the sons merits different pedagogical approach by his parents, or his educators. So here’s my take on the Four Sons, and on the relevance of the story to copyright law in Canada and to fair dealing in education.
Let’s begin with the wise son. He asks a very detailed question "What are the statutes, the testimonies, and the laws that God has commanded you to do?" Therefore, he ought to be answered by telling him the laws of Passover, including that 'one is not to eat any dessert after the Passover-lamb.'
The wicked son is rebellious and asks, "What is this drudgery to you?" The Hagaddah emphasizes that he says “to you”, and thereby excludes himself from the community. Because of his attitude he is rebuked by the explanation that "It is because God acted for my sake when I left Egypt" meaning that if he was there (in Egypt, with this attitude) he would not have been redeemed.
The simple son asks, "What is this?" and is answered with a simple answer "With a strong hand the Almighty led us out from Egypt, from the house of bondage."
And the one who does not know to ask, does not ask anything. But that does not mean that he has no questions or that there is no duty to teach him. Quite the contrary, the Hagaddah orders: “You open for him” as the Torah says: "And you should tell your son on that day, saying 'It is for the sake of this that the Almighty did for me when I left Egypt.'"
Returning to the school context, the wise son is the inquisitive and motivated student who wants to learn more and requests to learn more. Since he asks specifically about the relevant statutes, testimonies, and laws, it would be permitted, according to the Copyright Board’s decision, for his parents or teachers to make a copy of these texts without getting permission from the copyright owner because that would constitute “private study”. The copies would be made at the request of the son and without instructions to read them.
But that is not the case with the other three sons. While the simple one does ask a question, he does not request the teacher to make any copy of any specific work for him. If the teacher thinks that copying some relevant material and giving him to read is a good idea, that would not constitute fair dealing, according to the Board, because the copying was made at the teacher’s initiative. Likewise, any copy made for the one who does not know how to ask would not be fair dealing, because the son did not ask for the copy. And the wicked one, even if given a copy may not read it, unless required to do so, by emphasizing the consequences of his rebellious behavior, but because he is required to read, it is not fair dealing.
CILP’s submission alluded to the wise son and the simple one and highlighted the absurdity of having a legal rule that permits helping the former but not the latter. Yet the mentioning of the wicked son and the one who does not know how to ask reveals a deeper lesson, extending beyond the pedagogical wisdom of interacting with different students according to their capabilities or personalities. The deeper lesson is about society’s commitment to educating its members. The Haggadah commands that one who does not know how to ask should not be left alone. His educators have a duty to “open for him”. But the treatment of the wicked one is even more instructive. Even though he has excluded himself from the community with his dismissive question, this exclusion is only superficial. True, he is defiant, provocative, and dismissive, but had he truly excluded himself he would bother asking any question. But even if he did exclude himself from the community, the community cannot abdicate its duty to care for him or his education. He still deserves an answer, even if this answers means that he would learn the hard way by reminding him of the consequences of approach.
Another deeper lesson is the connection between education and freedom. A common motif in the Hagadda, not limited to the story of the four sons, it the need to tell and retell the story of liberation, by every person in every generation and by parents to their children. The message of the Haggadah is that education is not a luxury, and should not be the privilege of the gifted or the affluent. Rather, even those who are less inclined to learn should be taught because education and freedom are intertwined. The Hagggdah, of course, is not the only text making this connection. Indeed, the Ontario Education Act declares that "A strong public education system is the foundation of a prosperous, caring and civil society." Therefore, the wicked son may not only represent a rebellious child, but in fact, may represent a society that does has overlooked the importance of education. Such a society may be a wicked one who "would not have been redeemed".
Unfortunately, the Copyright Board and the Court of Appeal failed to recognize that. Hopefully, the Supreme Court will.
