Mar 132012
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Bar Association's statement used Michael Geist's sentences, without attribution.

by John Degen

The Canadian Bar Association has posted a response to the National Post's coverage of what could be a serious ethical pratfall by that association. A statement on copyright reform that was originally designed to be the work of an independent committee kept secret specifically to avoid the possibility of being lobbied during its work, has been revealed to be clearly influenced by the writings of one of the copyleft's strongest lobbies.

Lawyers examining the statement after it was released found at least 16 instances where the "independent" policy statement mimicked the exact language found on the blog of free culture activist Michael Geist.

Importantly, Professor Geist reported on the policy statement when it was released, and pointedly did not draw anyone's attention to the samples of his own work in the statement. To be clear, this was not the CBA quoting Michael Geist, or paraphrasing something he might say on copyright reform. These were unattributed exact sentences (complete, in one instance, with a telltale typo), copied and pasted from work that also appeared on Michael Geist's blog and perhaps even in his widely syndicated Toronto Star column.

Besides being a law professor and an activist for free culture theory, Michael Geist is a professional journalist. That's an important detail in all of this.

The CBA's response to this growing controversy is to focus on the suggestions of plagiarism. Geist's work was used without attribution, and so whether he allowed it or not, there looks to be a fairly textbook example of illicit copying within the statement.

Geist was not working on the committee and so could not have provided those sentences himself, and he was not credited with them. The defence offered is that Geist had worked on a previous committee examining a different government bill, and so presumably his words were lying around in a drawer somewhere at the CBA — spare parts, as it were. When a later committee found them while working on a response to completely different legislation, they figured what the heck, they're all CBA-approved spare parts — throw them in there.

I leave it to the lawyers who are members of the CBA to respond to their association's explanation of those events.

Geist reported on the policy statement, and pointedly did not draw anyone’s attention to the samples of his own work in the statement.

My continued concern is on the journalistic side of things. Plagiarism is not the only ethical sticking point in all of this. Journalists are expected to stay on one side of a very important line in our endeavours. We are not supposed to be active participants in the news we report. At the very least, if we are accidentally mixed up in the story, we need to openly and honestly disclose that fact.

Now, different media outlets have different rules for this area of concern. The New York Times, for instance (clearly stung by past bad behavior on the part of some employees) has a pretty hard line. Their code of conduct states that journalists should "steer clear of advice roles." This is made explicit when they rule that:

    Staff members may not serve as ghostwriters or co-authors for people or groups who figure in coverage they are likely to provide, prepare or supervise. They may not undertake such assignments for organizations that espouse a cause.

It was only after the National Post started investigating this issue that Geist confirmed he had provided specific language that made its way into the CBA's policy statement. Geist reported on the CBA statement over a year ago, somewhat gleefully writing that:

    As the leading legal organization in Canada, the CBA has produced an important document…

His report glosses over the fact that the important document in question was partly written by the reporter himself. In fact, Geist all but states he did not have anything to do with the words in the report:

    I was once a member of the CBA's Copyright Policy section but was not involved in the drafting of the Bill C-32 document.

The CBA may be satisfied to deny suggestions of plagiarism, but important questions of journalistic practice remain.

  Blog post 
  National Post Copyright Bill creates a legal rift 
  Canadian Bar Association's response

About John Degen

John Degen has professional freelance writer for more than twenty years, as a poet, novelist and critic. His 2006 novel, The Uninvited Guest, was shortlisted for's First Novel Award. He currently works for the Ontario government, administering grant support to the province's literary book publishers, cultural magazines, writers and literary festival producers. He speaks and writes regularly about copyright issues related to writing and publishing.

© Copyright 2012 John Degen, All rights Reserved. Written For:

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