In this week’s blog post I am going to address the central issue of what Black History Month is all about; celebrating the courage and determination of people who made enormous sacrifices to advance the cause of racial justice. I want to highlight the case of an intrepid black woman, who was at the same time an entrepreneur and a creator of intellectual property herself–perhaps some of it even protected by copyright– who stood up (actually, sat down) for racial equality in Canada. Viola Desmond’s name may not be that well known outside Canada (or within it for that matter), and it is high time that her story was told to a broader audience.
Even though Viola Desmond’s story does not involve copyright itself, I also want to touch on the role of copyright with regard to race and racial discrimination. Why? Well, because this is a copyright blog and also because I believe that copyright can be an important instrument in helping to achieve greater racial and economic justice.
Is Copyright Colour-Blind?
We need to ask this fundamental question. Does copyright discriminate on the basis of race (or gender)? Does it better protect some racial groups better than others? On its face, I would say no, because at the end of the day an artist is an artist, an author is an author, a musician is a musician. Whether the holder of the copyright is a man or woman, or is of black, Asian, Indigenous or white racial origin, the copyright in a work that they have created belongs to them. It empowers them. The only qualification is that the creator must be human. (Recall the ridiculous attempt by the animal rights group, People for the Ethical Protection of Animals—PETA—to claim copyright for “Naruto” the macaque in the Monkey Selfie Case). Animals don’t qualify, nor do machines.
Copyright prima facie is blind to factors of race or gender. Once a work is created, as long as it meets the established criteria (originality, fixation, and authorship) copyright is granted automatically, assuming the creator is a resident of a Berne Convention country. An artist in Zaire, an author in Cuba, a composer in Greenland—they all qualify. I would argue that copyright is the ultimate enabler of democratic economic and moral rights because the simple act of creation confers the right. Unlike other forms of intellectual property, important as they are, copyright requires no formal process of registration. For example, it can be argued (and no doubt proven) that racialized or marginalized groups are under-represented in the patent filing process because of the barriers to filing—process, cost, access to “the system” and so on. There are no such overt barriers with copyright.
But Are Practices that flow from Copyright Colour-Blind?
Now, while I would argue that the establishment of copyright itself is colour and gender blind, I will readily admit that the exercise of the rights within copyright through business practices and application is not always free of bias. It is not difficult to find examples where the application of copyright in various business situations can be argued to be discriminatory, such as in reaching contractual agreements where one side may have disproportionate power. I would note, however, that power imbalance in negotiations over payment for use of copyrighted material (e.g. an author with a publisher, or a musician with a label) can and does happen quite frequently, independently of any racial considerations. Nevertheless, I think there is a view that while copyright may be race or gender neutral, its application is not always so. This may explain the vigour with which I was criticized a couple of years ago when I wrote a couple of blogs (here and here) on gender and copyright.
Indigenous Cultural Expression
Another issue relating to copyright and societies not necessarily based on Western concepts of individualism and law is the problem of attributing copyright protection to group or collective works, particularly where those works were produced by Indigenous groups. This is a topic on which I have written in the past, arguing that a supplement to copyright laws is needed to protect forms of art loosely grouped under the rubric of “Indigenous Cultural Expression” (ICE). Both national governments and the World Intellectual Property Organization (WIPO) are looking at various means to do this.
Historical Application of Copyright
I also readily concede that historically copyright was not applied in the way that it is today. As with many things, it was reflective of the broader social values of the time and often embodied overt racial discrimination. Moreover, it was not until 1886 that the Berne Convention was established. This international convention established the principle of a creator’s “automatic right” to copyright, as well the virtual universality of reciprocal copyright recognition. Originally, it had just ten original signatories; today it has 179. (The US joined in 1988).
An obvious example of the historical context of copyright was its application to slaves in a slave-owning society (like the southern US states prior to 1864). Individual creators could hardly expect to avail themselves of their copyrights when they themselves were treated as chattels to be bought and sold. The earliest example of African-American literature, the poems of Phillis Wheatley, a slave girl in Massachusetts, published in 1773, illustrate the struggle faced by people of colour in trying to establish authorship. Wheatley had to appear before a group of notables (all white males of course, no doubt of a “certain age”) who eventually “established” that the poetry was produced by her, an authorship hurdle not known to have been forced on any other writer. Yet copyright prevailed in the end. The publication of her work was entered in Stationers’ Hall, London, the repository for copyrighted works at the time (since the publication predated US copyright and the US Constitution) although it was undoubtedly the British publisher, Archibald Bell of Aldgate, who ensured it was deposited.
Another famous work of African-American literature, Frederick Douglass’ “Narrative of the Life of Frederick Douglass, An American Slave” (1845) and a later work, “My Bondage, My Freedom” (1855), both bear the inscription on the fly-leaf “Entered, according to Act of Congress, in the year 1845 (or 1855) by Frederick Douglass, in the Clerk’s office of the District Court of…”. It was Massachusetts for the first work and the Northern District of New York for the second. Prior to 1870, authors and publishers registered their claims to statutory copyright with the clerks of the U. S. District Court for the jurisdiction in which they resided. Douglass, a former slave who had gained his freedom by fleeing from the south to Pennsylvania, took pains to assert his copyright at a time when slavery was still thriving in parts of the United States. Despite the many hurdles and imperfections in application placed in the way of people of colour, copyright could still be harnessed as a means to assert individuality, dignity and creativity, albeit with difficulty.
I would argue that copyright, imperfect though it may be, is today more of an instrument of empowerment than exploitation, more part of the solution than part of the problem. Even though there have been historical injustices, today copyright can be a liberator and equalizer, putting a powerful tool into the hands of individual creators, rather than being part of a system of oppression and exploitation. To cite but one example, an important argument in favour of creating an Artists Resale Right (about which I will be writing in a couple of weeks) is that it provides the means for an ongoing transfer of wealth from well-heeled art dealers and collectors in Europe to disadvantaged artists in the developing world. Without copyright this would not be possible.
Not everyone will agree with this positive view of copyright, however, and I feel obliged to acknowledge here the learned treatise by Dr. Anjali Vats, Assistant Professor in Communication and African Diaspora Studies at Boston College. Her recent book, “The Color of Creatorship: Intellectual Property, Race and Making of Americans”, argues just the opposite. For her, intellectual property law (including copyright) is racialized and designed to perpetuate white privilege.
“I contend that intellectual property law is organized through a racial episteme that consistently protects the (intellectual) property interests of white people and devalues the (intellectual) property interests of people of color”.
At the risk of gross oversimplification, her argument is based on the premise that if a society is racist as defined by its concepts of “citizenship” (a social rather than legal term), then everything that flows from that is racist. She says, “racial scripts can be baked into the seemingly colorblind ideals of American citizenship that, in turn, inform intellectual property law”. In her view, “the notion that intellectual property law has become equitable…is a dangerous one…” It is a system that is “ideologically rigged in favor of whiteness”. More recently, in what she calls the post-racial IP era, dating from Barack Obama’s accession to the White House in 2008, racism was perpetuated (according to Prof. Vats) by the imposition of maximalist IP policies on an infringing Global South—pharmaceutical patents being one example. But it is unfair of me to selectively quote and try to summarize an important work in a few sentences. Best you read it for yourself and make your own judgement.
At the end of the day, perhaps we are not that far apart. We all know that laws are not applied equally, (look at incarceration rates for racially marginalized groups) even though in theory they apply equally. If perceptions and values are imbued with racist assumptions, a colour-blind law or principle can be distorted. The case of Viola Desmond is a prime example of this.
Viola Desmond’s contribution to the ongoing struggle for racial equality does not directly engage copyright questions, although she was a creator of her own products and asserted her intellectual property rights. Her story is about dignity, determination, and courage. Viola Desmond (nee Davis) was born in Nova Scotia in 1914 to a black father and white mother and raised in the black community in Halifax. With career options limited for women, she trained as a beautician although she had to attend school in Montreal and in the US as there were no opportunities for black students at such institutions in Nova Scotia at that time. She opened a beauty culture studio in Halifax catering to women in the black community. This branched out into the Desmond School of Beauty Culture, and a line of beauty products that bore her name. (e.g. Sepia Face Powder by Viola Desmond).
Things were going well for Desmond until her run in with the unofficial but entrenched practice of racial segregation in Nova Scotia. In November, 1946, on her way to sell beauty products in the north of the province her car broke down in the town of New Glasgow. While it was being repaired, she decided to take in a movie at the Roseland Theatre. When she purchased her ticket, for thirty cents, it was for the balcony. Realizing that she could see better from the main floor she seated herself there, and was challenged by the ticket taker, who indicated her ticket was for the balcony. Main floor tickets cost forty cents. She offered to pay the difference and was told the main floor was for whites only. She refused to leave. This account from the Canadian Encyclopedia continues the story;
“Desmond was then confronted by the manager, Henry MacNeil, who argued that the theatre had the right to “refuse admission to any objectionable person.” Desmond pointed out that she had not been refused admission and had in fact been sold the ticket, which she still held in her hand. She added that she had attempted to exchange it for a main floor ticket and was willing to pay the difference in cost but had been refused. When she declined to leave her seat, a police officer was called. Desmond was dragged out of the theatre, injuring her hip and knee in the process, and taken to jail. There she was met by Elmo Langille, chief of police, and MacNeil — the pair left together, returning an hour later with a warrant for Desmond’s arrest. She was then held in a cell overnight.
In the morning, Viola Desmond was brought to court and charged with attempting to defraud the provincial government based on her alleged refusal to pay a one cent amusement tax (i.e., the difference in tax between upstairs and downstairs ticket prices). Even though she had indicated when she was confronted at the theatre that she was willing to pay the difference between the two ticket prices and that her offer had been refused, the judge chose to fine her $26.”
That of course is not the end of the story. Desmond could have just bitten her lip and suffered, as her husband advised her to do, but she did not. The NAACP in Nova Scotia took up her case which eventually went to the Supreme Court of Nova Scotia. It would be nice to tell you that she prevailed. She did not, on technical grounds, (the appeal of her fine had not been lodged within the statutory time limitations) but the Justice hearing the case noted acerbically;
“One wonders if the Manager of the theatre who laid the complaint was so zealous because of a bona fide belief that there had been an attempt to defraud the Province of the sum of one cent or was it a surreptitious endeavour to enforce “Jim Crow” by misuse of a public statute”.
Her case did not end racial discrimination in Nova Scotia or Canada but it was a courageous and singular act that led eventually to greater justice, and to long overdue apologies and attempts to rectify the injustice. The fact that this woman entrepreneur, who built a successful business that not only generated employment in the community and provided career opportunities for young people, but also demonstrated considerable ingenuity and vision through the creation and marketing of her own products, could be denied basic dignity by being ejected from a seat in a theatre is incomprehensible today. And then to be convicted of “tax fraud” for not paying the one cent difference in tax, even though she offered to do so. Although Desmond died in 1965, her sister is still living, and kept her story alive. In 2010 Desmond received a posthumous apology, in 2012 a Canadian stamp was issued in her honour and in 2016 it was announced that she would be the first woman, other than the sovereign, to appear on a Canadian bank note, the $10 bill. Recently Nova Scotia repaid the fine, with interest, to Desmond’s sister. The fine itself was 2,600 times the value of the one cent “fraud”, which was itself a ludicrous charge of the sort that brings the law into disrepute.
The recognition of Viola Desmond’s stand for equality was long overdue. Her act of courage did not change that much that quickly in her lifetime, but she was a pioneer. Many people know of Rosa Parks, who initiated the bus segregation protests in the US in 1955, and who is noted for that and for her many other contributions in fighting racial discrimination over many years, but she had kindred spirits in Canada; people like Viola Desmond who challenged segregation practices a decade earlier.
Racial discrimination today is perhaps less obvious, but no less pervasive. One of the ways to fight it is to provide equal opportunity. Not all creators get equal opportunity, but the rights conferred on them by copyright at least enable them to stand up for their rights. Discrimination can no doubt be argued to exist even today in the application of copyright law, but copyright itself is an important tool in prying open the box of equality.