Marginalia: Dracula, copyright, and two-hour loans

Marginalia: Dispatches from the Diana M Priestly Circulation Desk
Photo © David Everard 2018

Judging by the bright leaves and the bare trees that once held them Halloween must be here.

Welcome to Marginalia. The intention behind the new blog category is to keep everyone up to date with the services we provide at the circulation desk. Along the way we’ll also introduce you to the staff members who work here and as well as sharing some stories about the library in general. Our intention is to keep it light, but relevant. With that in mind, let’s start things off with a tale about gimmick infringement called Dracula v Nosferatu.

However, before we begin our epic monster bash, here’s a timely treat for you straight from the circulation desk. Did you know that if you borrow a two-hour item from the reserve room during the last two hours before closing it’s not due back until early the following morning?

So, if you’re ready for our main event, let’s open our favorite monster magazine to page thirteen.

Sadly, Uncle Bela isn’t here to narrate it himself because he’s off having his front teeth trimmed and polished at Dr. Acula’s School of Creative Dentistry, but he did ask me to relate this rather duplicitous tale of copycat vampires in his absence.

Albin Grau was a German film producer who had the idea of doing a movie based on Bram Stoker’s novel Dracula (1897). Max Reinhardt protégé F.W. Murnau was brought on board to direct and the film was called Nosferatu (1922). There was just one small hitch: Grau didn’t have the rights to either the story or the character.

Other attempts at deception included changing Dracula’s name to Count Orlock, moving the story line back to 1838, and altering Stoker’s ending (death by knives) by having their vampire die from direct exposure to the first light of a new day.

Florence Balcombe (Bram’s wife and literary executor of the estate) was not amused and sued over the intellectual property rights, but what she didn’t know at the time was that Prana Film (Grau’s production company) had gone bankrupt due to an overly expensive promotional campaign. Curiously, that particular strategy came back to haunt Grau a second time when some early publicity posters, which included the phrase “freely adapted from Bram Stoker’s Dracula”, were discovered. In lieu of a cash settlement the court ordered that all European copies of Nosferatu be destroyed. But as any respectable cryptozoologist will attest, vampires are notoriously resilient creatures. Some years later, Florence gave Universal Pictures her blessing and they released an authorised version in 1931. Producer Carl Laemmle Jr. recruited Tod Browning to direct the film and hired Bela Lugosi, a little known, thickly accented, stage actor from Hungary to play Dracula.

Nevertheless, a few copies of Nosferatu managed to survive the European purge. That, combined with the fact that Stoker never registered a copyright for Dracula in America, allowed the film to eventually surface in the United States where it soon became a critically acclaimed addition to the Horror genre.

As we turn the page on this cautionary tale of vampiric plagiarism, I’d like to take a moment and share a quick secret with you (but only if you promise not to tell Uncle Bela). As much as I respect his long standing association with Dracula, I still prefer Max Schreck’s portrayal of the character. Simply put, his plasma chilling performance in Nosferatu sends a sharp shiver of delight through me that runs right from the bottom of my dirt covered Transylvanian coffin all the way to the thick, shiny tips of my blood stained fangs every single time I see the film.

Just in case you’re wondering, my name is Eva Prim and I’m a vampire just like my Uncle Bela!

Happy Halloween!

Photo & Prose: david eugene everard © 2018

 

Law Library Computer Lab Update

As you may have noticed, the Computer Lab has gone through some recent changes.  This has been done provide room for more students in the lab, while also improving visibility for both students and instructors.  The reconfiguration also provides students access to higher-functioning desk top computers when the lab is not available.

Computer Lab before reconfiguration
Computer Lab after reconfiguration

 

  • The desktop computers from the first row of the computer lab have now been relocated to the long computer table by the study rooms and printer.   These computers replaced the older computers, and should provide students with higher functioning computers.
  • The computers from the second row have been relocated to the back row, to provide for more workstations while opening up the first two rows of tables to students using their own laptops.
  • The flatbed scanner will be reinstalled to a location beside the long computer table.
  • The new configuration will allow for seating for all the students enrolled in LRW.   LRW students are reminded to bring their own laptops to class when possible, as the two rows of open tables allow for students to use their laptops, a necessity given the number of students in the LRW classes.

We welcome any feedback you may have on the new computer lab setup.   You may provide feedback by contacting any of the Law Library staff.

Mikisew Cree First Nation v. Canada (Governor General in Council), 2018 SCC 40

The decision in Mikisew Cree First Nation v Canada (Governor General in Council), 2018 SCC 40, was handed down last Thursday (October 11, 2018).

The Mikisew case started in 2012, when omnibus legislation that would affect the Mikisew Cree First Nation was passed, without consultation with the First Nation.  In 2014, the Federal Court ruled that there was a duty to consult First Nations before enacting legislation.  This decision was overturned in 2016 by the Federal Court of Appeal on the basis that the Federal Court lacked jurisdiction.  The Mikisew First Nation appealed to the Supreme Court.

The Supreme Court unanimously agreed that the appeal should be dismissed, as the development of legislation is not subject to judicial review.  The subject of if the Crown had a duty to consult during the legislative process resulted in a more complex response. The court handed down a judgment of 7-2 that the duty to consult was not obligatory during the legislative process.   The reasoning of three justices, represented by Justice Karatansanis, agreed that the Crown did not have a duty to consult during the legislative process but stated that the Honour of the Crown still stands, and that other protections could be created in future cases.  Four justices held that there was not a duty to consult and that the issue was closed. The two dissenting justices reasoned that the duty to consult extends to the legislative process.

The following resources look at different aspects of the judgment in more detail.

General Overview: Lawson Lundell’s Project Law blog and First Peoples Law blog provide general overviews of the judgement, including explanation of separation of powers and parliamentary sovereignty.

Political/Moral Duty: An opinion piece in the Globe and Mail by Allan Hutchinson, a research professor at Osgoode Hall Law School discussed how the duty to consult was a political and moral obligation, even if not constitutionally obligatory.

Critical of judgment : An opinion piece in Maclean’s by Pam Palmater, a Mi’kmaw citizen, lawyer and chair of Indigenous Governance at Ryerson, blog post from Olthuis Kleer Townshend LLP on lack of reconciliation, discuss how the judgement will affect section 35 of the Constitution, and how it is out of sync with previous Supreme Court precedence on the subject.

Uncertainty created and future implications: Two opinion pieces by Dwight Newman, one discusses the uncertainty created by the judgement and the other discusses what the judgement could mean in the future.

This judgment is an interesting contrast to the Uluru Statement from the Heart, an Australian document created as a result of a constitutional convention of Aboriginal and Torres Strait Islander peoples, that Dr. Gabrielle Appleby spoke of in her talk at UVic on October 12, 2018.  See the previous blog post for further information on the Uluru statement and Dr. Appleby’s talk.

 

Dr. Gabrielle Appleby Talk – Uluru Statement from the Heart

On October 12 2018, Dr. Gabrielle Appleby, an associate professor of Law at the University of New South Wales in Sydney, Australia, visited UVic and gave on talk on Indigenous law in Australia.  Her talk focused on the 2017 release of the Uluru Statement from the Heart, a consensus document created as a result of a constitutional convention of Aboriginal and Torres Strait Islander peoples.  This document calls for a First Nations voice when drafting policy and legislation affecting Aboriginal and Torres Strait Islander peoples.

The Australian government has a history of discrimination against Aboriginal and Torres Strait Islander people.  Australia was settled using the doctrine of terra nullius, and as a result no treaties were signed with Aboriginal People and Torres Strait Islanders. When the Constitution was written in 1903, Aboriginal people and Torres Strait islanders were actively excluded by the ‘races power clause’, which allowed the government to create legislation that applied to everyone but Aboriginal peoples, and census clause, to ensure that Aboriginal peoples were not counted as part of the communities they were living in.  The reasoning behind this exclusion was that the Aboriginal and Torres Islander peoples were considered a ‘dying race’. These exclusions were removed in 1967 following a referendum for Indigenous rights.  This referendum repealed the census clause, and ensured that federal legislation included Aboriginal and Torres Strait Islanders.  While the exclusionary parts of the constitution were removed, no inclusionary parts were added.

The races clause allowed for positive legislation to be passed such as Aboriginal and Torres Strait Islander Heritage Protection Act and the Native Title Act, but also opened the door for it to be used against them.  The discriminatory use of the races clause highlighted the fact that there is no constitutional protection against discrimination in Australia.  There was a push in the 1990s for constitutional reform, which followed into the 2000s.  In 2007, both presidential candidates promised constitutional reform.  In 2008, an apology for the Stolen Generations (the result of practices similar to Canada’s residential schools and sixties scoop) was issued.  The momentum for constitutional reform continued. In 2012, an Expert Panel on Constitutional Recognition of Aboriginal and Torres Strait Islander peoples presented its recommendation for a non-discrimination clause to the government.  This report, along with another report of a Joint Summit Committee in 2015, both recommended the addition of a non-discrimination clause to the constitution.  They were rejected or ignored by the Australian government.

For the Uluru Statement, a different approach was used.  An Indigenous Steering Committee was created to find the best way to consult with Aboriginal people.  Thirteen communities were consulted, with each consultation consisting of 100 people from each community as chosen by the community leaders.  Ten representatives were then elected to go to Uluru.  Uluru is a place of great spiritual significance to the Aboriginal and Torres Strait Islander peoples, and was seen as a fitting place to convene to discuss what Indigenous constitutional reform would entail.   Only Aboriginal and Torres Strait Islander people were allowed into the convention.  A live stream was shown and non-Indigenous people were consulted virtually for their expertise.  The convention resulted in the Uluru Statement from the Heart – which calls for one constitutional reform – a First Nations voice in policy and law making for legislation relating to Indigenous peoples.  The Statement also called for the creation of the Makarrata Commission, which would oversee a modern treaty process and national truth-telling.  The Statement was clear in wanting a political voice and not just legal redress for discriminatory legislation.

The Uluru Statement was rejected by the government.  That being said, six months after the rejection, the joint parliamentary committee on the constitutional recognition of Aboriginal and Torres Strait Islander peoples was created, and was asked to consider the Uluru Statement.  The joint parliamentary committee

Implementation of Uluru Statement has yet to be decided.  The best way forward would include developing additional dialogues with the communities to discuss how the voice would be implemented.

Below are resources on the Uluru Statement, as well as on the Australian Constitution and Indigenous rights.