NOSTALGIA: The bittersweet history of a psychological concept

History of Psychology

Volumn 16, Issue 3, 2013, Pages 165-176

  Batcho, Krystine Irene ^a  

^a LE MOYNE COLLEGE   (United States)

Author keywords

Denotative and connotative meaning; Emotion; Evolution of a construct; History of nostalgia

Indexed keywords

EID: 84883174639     PISSN: 10934510     EISSN: None     Source Type: Journal    
DOI: 10.1037/a0032427     Document Type: Article

References (81)

1. The author has been supported in this work through funding received from the Social Sciences and Humanities Research Council of Canada. Law student Vanessa Bacher provided timely research assistance. The author would also like to thank the reviewer of an earlier draft of this paper for most thoughtful suggestions.
2. BMG Canada Inc. v. John Doe, [2005] 4 F.C.R. 81, (2005), 39 C.P.R. (4th) 97, Sexton J.A. [BMG FCA cited to F.C.R.], aff'g BMG Canada Inc. v. John Doe, [2004] 3 F.C.R. 241, (2004), 32 C.P.R. (4th) 64, von Finckenstein J. [BMG FC cited to F.C.R.].
3. See Pamela Samuelson, 'Digital Rights Management {and, or, vs.} the Law' (April 2003) 46:4 Communications of the ACM 41. Samuelson writes that the Hollywood industry has long influenced copyright policy in the United States, using such measures as the Audio Home Recording Act (AHRA) of 1992, which required the installation of copy management chips in digital audiotape technologies and videocassettes, and today through their ownership of key patents for DVD players, thus controlling the anti- copying technology built into them. They also have a mandate to increase the prevalence of Digital Rights Management technology in their products.
4. For further illustration of the recording industry's influence, see Amy Harmon 'Music Industry in Global Fight on Web Copies' The New York Times (7 October 2002), online: New York Times (on legal action taken over file- sharing programs in the US).
5. Dating back to 1925 when the Canadian Performing Rights Society, an offshoot of the British Performing Rights Society, was established. In 1940, BMI Canada emerged.
6. In 1988 the Canadian Copyright Act, R.S.C. 1985, c. C- 42 [Copyright Act] was amended to except rightholders' collectives from the rigours of the Competition Act, R.S.C. 1985, c. C- 34. This encouraged the formation of many rightsholders' collectives.
7. See Mario Bouchard, 'Collective Management in Commonwealth Jurisdictions: Comparing Canada and Australia' in Daniel Gervais, ed., Collective Management of Copyright and Related Rights (The Netherlands: Kluwer Law International, 2006) 283 at 285.
8. EMI Music Canada, a Division of EMI Group Canada Inc., Sony Music Entertainment (Canada) Inc., Universal Music Canada Inc., Warner Music Canada Ltd., BMG Music, Arista Records Inc., Zomba Recording Corporation, EMI Music Sweden AB, Capitol Records, Inc., Chrysalis Records Limited, Virgin RecordsLimited, Sony Music Entertainment Inc., Sony Music Entertainment (UK) Inc., UMG Recordings, Inc., Mercury Records Limited, and WEA International Inc.
9. In the 1988 reforms, copyright holder collectives were exempted from the rigours of the Competition Act.
10. Canadian Recording Industry Association, 'About CRIA', online: .
11. See #1 in CRIA's list of anti- piracy efforts: CRIA, 'What we do?', online: . Also see Jonathan Fowlie 'Music police trumpet piracy bust' The Globe & Mail (9 July 2004) A1, A10. On Thursday 8 July 2004, the RCMP announced that, tipped off by the CRIA, they had confiscated an enormous cache of over 1,100 DVDs and 1,500 VHS tapes, 'the most ever taken at one time,' bootlegged from music concerts and shows. An individual from Hamilton was charged with five counts of copyright infringement. On the following Monday, 12 July 2004, the members of CRIA filed their appeal from the decision of Justice von Finckenstein.
12. The Society of Composers, Authors and Music Publishers of Canada(SOCAN), for example, takes an assignment from its members of performing rights in music, including rights to communicate music by telecommunication, and therefore, in litigation proceedings, SOCAN is itself a party.
13. Federal Court Rules, S.O.R./98- 106, r. 233 (1). On motion, the Court may order the production of any document that is in the possession of a person who is not a party to the action, if the document is relevant and its production could be compelled at trial.
14. Shaw Communications Inc., Roger Cable Communications Inc., Bell Canada, Telus Inc., and Vidéotron Ltée.
15. Only CIPPIC intervened in the case at this level.
16. See the language of Von Finckenstein J. referring to 'a prima facie case.'
17. Society of Composers, Authors and Music Publishers of Canada v. Canadian Assn. of Internet Providers, [2004] 2 S.C.R. 427, Binnie J. [Tariff 22].
18. The majority decision was written by Justice Binnie, for himself and Justices Iacobucci, Major, Bastarache, Arbour, Deschamps, Fish and Chief Justice McLachlin.
19. In the Tariff 22 context, the ISPs were the targets of the action itself: the litigation before the Supreme Court of Canada was an interim proceeding taken to determine whether the Copyright Board of Canada had jurisdiction to impose a tariff for the benefit of SOCAN on Canadian ISPs.
20. In the context of s. 2.4(1)(b) of the Copyright Act which was at issue in the case.
21. The majority was particularly leery of imposing obligations on ISPs (ibid.). The precedent created by the Federal Court of Appeal in BMG v. John Doe, if correct, can impose obligations on ISPs and does directly affect the ability of ISPs to guarantee confidentiality to their clients.
22. See, for example, W.A. Adams, 'Personal Property Law and Information Assets: Rehabilitation and Relevance,' (2002) 36 Canadian Business Law Journal 267. This perspective may be perceived to run counter to the argument made by Norman Siebrasse that, rather than attempting to balance dissemination and the incentive to create works through copyright law, copyright law should focus on ensuring that property rights are clearly defined: Norman Siebrasse, 'A Property Rights Theory of the Limits of Copyright' (2001) 51 University of Toronto Law Journal 1. On the otherhand, his need to make the argument itself demonstrates that copyright, as a branch of intellectual property, cannot be considered pure property.
23. See R.J. Roberts, 'Canadian Copyright: Natural Property or Mere Monopoly' (1979) 40 C.P.R. (2d) 33
24. Compo Co. v. Blue Crest Music Inc., [1980] 1 S.C.R. 357 at 373, Estey J.
25. Bishop v. Stevens, [1990] 2 S.C.R. 467 at 477.
26. It should be noted that there have been calls to create a property right in personal data.
27. For example, James Rule and Lawrence Hunter, 'Towards Property Rights in Personal Data' in Colin J. Bennett & Rebecca Grant, eds., Visions of Privacy: Policy Choices for the Digital Age (Toronto: University of Toronto Press, 1999) 168. It should also be noted that the authors do not discuss the relationship between this proposed property interest and existing interests in intellectual property.
28. Daniel Gervais, 'The Changing Role of Copyright Collectives' in Daniel Gervais, ed., Collective Management of Copyright and Related Rights (The Netherlands: Kluwer Law International, 2006) 3 at 6.
29. As Plowman J. writes in Universities of Oxford and Cambridge v. Eyre & Spottiswoode Ltd., [1964] 1 Ch 736 at 750, [1963] 3 All E.R. 289 at 293, 'until 1709 [the Statute of Anne] private copyright did not exist.' And, explicitly, in 1911, the Imperial Copyright Act abolished any common law copyright: s. 31. This provision is carried forward in s. 89 of the current Canadian Copyright Act.
30. Margaret Ann Wilkinson 'Filtering the flow from the fountains of knowledge: access and copyright in education and libraries' in Michael Geist, ed., In the public interest: the future of Canadian copyright law (Toronto: Irwin Law, 2005) 331. (The users' rights language of the Supreme Court of Canada is strong, rights- based language and offers a powerful alternative to the potential tyranny of rights holders' interests signalled by the mandatory language in the Berne Convention, NAFTA and TRIPS agreements. The Government may wish to bear in mind that a strong connection may be drawn between the rights- based language of the Supreme Court of Canada in this area and the right to freedom of expression, including rights to access information, under s. 2(b) of the Charter of Rights and Freedoms.)
31. To consider meeting the information needs in a society one must factor in many who are not, and may never become, 'authors' within the meaning of the Copyright Act - but who are nonetheless communicators of ideas and facts. Abraham Drassinower has promulgated an interesting analysis, in various publications, that essentially reduces copyright players to authors and non- authors: see Abraham Drassinower, 'A Rights- Based View of the Idea/Expression Dichotomy in Copyright Law' (2003) 16 Canadian Journal of Law and Jurisprudence 3. He has been unable to extend his analysis to the patent arena (see Margaret Ann Wilkinson, 'National Treatment, National Interest and the Public Domain' (2003- 2004) 1:1- 2 University of Ottawa Journal of Technology Law 23) because not all non- patent holders can realistically be considered potential patent holders. That Drassinower cannot articulate his theory for patents may in fact be because the patent situation more clearly points out an essential weakness in the whole theory, even for the copyright context: not all nonauthors are potential authors - there is a class of non- authors who, nevertheless, are important information users and disseminators.
32. Act Respecting the Protection of Personal Information in the Private Sector, R.S.Q. c. P- 39.1.
33. See, in this connection: Wil Peekhaus, 'Personal Medical Information: Privacy or Personal Data Protection?' (July 2006) 5:2 Canadian Journal of Law and Technology 87.
34. Canadian Human Rights Act, R.S.C. 1985, c. H- 6.
35. Privacy Act, R.S.C. 1985, c. P- 21.
36. Access to Information Act, R.S.C. 1985, c. A- 1.
37. An act respecting access to documents held by public bodies and the Protection of personal information, R.S.Q. c. A- 2.1.
38. Colin Bennet, Regulating Privacy: Data Protection and Public Policy in Europe and the United States (Ithaca: Cornell University Press, 1992) 136- 140.
39. Samuel Warren & Louis Brandeis, 'The Right to Privacy' (1893) 4 Harv.L.Rev. 193 at 213.
40. Universal Declaration of Human Rights, GA Res. 217(III), UN GAOR. 3d Sess., Supp. No. 13, UN Doc. A/810 (1948) 71.
41. International Covenant on Civil and Political Rights, 999 U.N.T.S. 171 (entered into force 1976), online: .
42. Which concurs with the early usage of privacy recorded in the Oxford English Dictionary as dating from 1450: 'The state or condition of being withdrawn from the society of others, or from the public interest.
43. Margaret Steig, 'The Nineteenth- Century Information Revolution' (1980) 15 Journal of Library History 22 (Illustrates the attitude of early industrial British employers who considered information about their employees to be the private affair of the employer and therefore not to be made available to the government or anyone else).
44. That is, information contained in records.
45. The Canadian Charter of Rights and Freedoms, for example, does not contain a direct reference to privacy, but both s. 7 ('Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice') and s. 8 ('Everyone has the right to be secure against unreasonable search or seizure') have been interpreted to protect Canadians against government incursion of privacy interests beyond informational privacy.
46. David Flaherty, Privacy in Colonial New England (Charlottesville, VA: University Press of Virginia, 1972) at 243- 5. (Described the situation in the original New England colonies of America where the social consensus was that the individuals harbouring interest in being let alone were suspect.)
47. Alan F. Westin, Privacy and Freedom (New York: Atheneum, 1967) at 7.
48. There was a recent controversy in Canada about the full release of post- 1911 census records: see Beatty v. Canada (A.G.) (2004), [2005] 1 F.C.R. 327, [2004] F.C.J. No. 1162. Beginning in 1911 the enumerators were required by Order- in- Council (31 March 1911 at 11) as follows 'The facts and statistics of the Census may not be used except for statistical compilations, and positive assurances should be given on this point if a fear is entertained by any person that they may be used for taxation or any other object.' There was no time limit placed upon this undertaking and so it clashed with the legislated time limits for personal data protection in the public sector (the Privacy Act and the Access to Information Act, infra) legislated by Parliament much later in the twentieth century. The result was An Act to Amend the Statistics Act, S.C. 2005, c. 31 (introduced first through Senate) - whereby the censuses taken between 1910 and 2005 become public 92 years after the census - but beginning with the 2006 census, the individuals to whom the information relates in the census must consent to the release of their information after 92 years. In 2006, only 56% consented, which raises concerns, especially amongst genealogists and historians (see Gregory Bonnell 'Canadians lose "crucial" pieces of historical information in 2006 census: expert' Canadian Press NewsWire (15 March 2007)).
49. Bingo Enterprises Ltd. v. Plaxton (1986), 26 D.L.R. (4th) 604 (Man. C.A.).
50. Gould Estate v. Stoddard Publishing Co. (1996), 31 C.C.L.T. (2d) 224 (Ont.Gen. Div.), rev'd (1998), 39 O.R. (3d) 545 (Ont. C.A.). (The facts in the case were challenging in terms of the claim to invasion of privacy: the person whose privacy was alleged to have been violated was the famous pianist Glenn Gould, who was dead before the litigation arose the author of the published piece which was alleged to have violated the privacy interest, Jock Carroll, was also dead before the legislation arose;the litigation was being maintained by the estate of the musician and the publishers.)
51. Somwar v. McDonald's Restaurant of Canada Ltd. (2006), 79 O.R. (3d) 172 (Ont. S.C.J.).
52. Canada is a federated state and, under its constitution, legislative power was divided in 1867 between the provinces and the federal government according to enumerated headings (Constitution Act, 1867 (UK), 30 & 31 Vict., c. 3, reprinted in R.S.C. 1985, App. II, No. 5). Naturally, given its nineteenth century origins, very few information topics are reflected in this list of powers - really only copyrights and patents (see Constitution Act, 1867, ibid., ss. 91(22) (23)). However, the provinces retained exclusive power to legislate in areas of 'purely local and private interest' (see Constitution Act, 1867, and also Re: Anti- Inflation Act, [1976] 2 S.C.R. 373 and R. v. Crown Zellerbach Canada Ltd., [1988] 1 S.C.R. 401). Matters that do not fall within provincial heads are legislated federally under the residual power stated in s. 91 (see Constitution Act, s. 91, where the opening words empower the federal Parliament 'to make laws for the peace, order, and good government of Canada, in relation to all matters not coming within the classes of subjects by this Act assigned exclusively to the Legislatures of the provinces...'). Constitutionally, there is little argument for federal legislative control over privacy since property and civil rights and matters of local concern were specifically allocated to the provinces and have typically been interpreted very broadly: Peter W. Hogg, Constitutional Law of Canada (Scarborough, Ont.: Carswell, 2006) 453. Privacy is generally considered as related to human rights as well as being a matter of local concern. On the other hand, personal data protection has been legislated by both the federal and provincial governments of Canada, as described elsewhere, as an adjunct to the named subject areas of power each level of government already has under the Constitution Act.
53. Privacy Act, R.S.S. 1978, c. P- 24, s. 2.
54. Privacy Act, R.S.M. 1987, c. P125, s. 2(1).
55. Privacy Act, R.S.N.L. 1990, c. P- 22, s. 3.
56. Privacy Act, R.S.B.C. 1996, c. 373, s. 1. The original Privacy Act in British Columbia was the first in Canada, enacted in 1968 (S.B.C. 1968, c. 39). In J.M.F. v. Chappell, [1998] B.C.J. No.276, it was determined that in criminal proceedings (governed under the federal Criminal Code, R.S.C. 1985, c. C- 46), civil rules such as those represented by the Privacy Act could not be in conflict and did not apply.
57. The Quebec Charter of human rights and freedoms, R.S.Q. c. C- 12.
58. There is no exception in it for newspapers.
59. Lac Minerals Ltd. v. International Corona Resources Ltd., [1989] 2 S.C.R. 574, [1989] S.C.J. No. 83
60. Cadbury Schweppes Inc. v. FBI Foods Ltd., [1999] 1 S.C.R. 142.
61. Lac Minerals Ltd. v. International Corona Resources Ltd., ibid.
62. Patent Act, R.S.C. 1985, c. P- 4, s.10.
63. Discussed more fully below.
64. And because this is not an area of legislative law, there is no possibility of testing this legal development against the Canadian Charter of Rights and Freedoms (specifically, s. 2(b) the right to freedom of expression, which includes access).
65. Member countries, including Canada, are limited in the exceptions they can create to those permitted under Article 13: 'Members shall confine limitations or exceptions to exclusive rights to certain special cases which do not conflict with a normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the right holder.
66. Trade- Related Aspects of Intellectual Property Rights Agreement (1994), 33 I.L.M. 1197, section 7, art. 39 [TRIPS]. The North American Free Trade Agreement Between the Government of Canada, the Government of Mexico and the Government of the United States, 17 December 1992, Can. T.S. 1994 No. 2, 32 I.L.M. 289 (entered into force 1 January 1994) [NAFTA] also contains obligations for Canada, the United States and Mexico in this area, providing that trade secrets shall be protected if they are secret, are of actual or potential commercial value and the confider has taken reasonable steps to keep them secret - see Articles 1711 (1), (2) & (3).
67. Kim Lane Scheppele, Legal Secrets: Equality and Efficiency in the Common Law (Chicago: University of Chicago Press, 1988).
68. Elizabeth Neill, Rites of Privacy and the Privacy Trade: On the Limits of Protection for the Self (Montreal & Kingston: McGill- Queens University Press, 2001).
69. From the point of view of creating consistent information policy across Canada, Scheppele's conception, which distinguishes privacy and confidentiality, may be more useful - and, indeed, her approach may actually strengthen Neill's argument that personal data protection does not form a part of privacy policy. However, in the context of this discussion, since the ISPs had confidentiality agreements with their subscribers, Neill's conception would focus even greater attention on the implications of those arrangements.
70. Viewing personal data protection as statutorily created relationships of confidence, rather than fundamental privacy protection, may help to explain certain decisions of governments to make public information which would otherwise fall under personal data protection. One might point to the Ontario government's recent decisions to protect participants in adoptions before September 2008 from disclosure of their identities while requiring that adoptions from now on are subject to disclosure, albeit limited (see , note 112).The Ontario legislature took this action over the objections of the Ontario Privacy Commissioner (Office of the Privacy Commissioner of Ontario, News Release, 'Controversial adoption disclosure bill faces final vote but much needed protection missing (21 October 2005), online: ). Neither she nor any other can appeal to the Canadian Charter of Rights and Freedoms to insist upon privacyprotection for the parents
71. in Nova Scotia, see Ministerial Education Act Regulation 80/97, as amended up to N.S. Reg. 120/2006, concerning annual reporting of school board salaries, made under s. 145 of the Education Act, S.N.S. 1995- 96, c.1).
72. This confusion has only been exacerbated by the decision of the Supreme Court in H.J. Heinz Co. of Canada Ltd. v. Canada (Attorney General), [2006] 1 S.C.R. 441, [Heinz cited to S.C.R], where the majority of the Court held that the 'privacy' right under personal data protection legislation can be exercised on behalf of individuals by corporations. Personal data protection legislation carefully distinguishes between the rights under these statutes given to 'individuals', rather than legal 'persons' (in order to exclude corporate 'persons' from the direct ambit of personal data protection), and those rights given to 'third parties' - corporations, companies, and businesses (which have their own exemptions and protections). The minority in Heinz believed that corporate parties should be limited to claiming the exemptions specifically targeted for them. The majority permitted Heinz to invoke personal data protection exemptions to the federal access legislation in order to block release of information to a requestor. The individuals identified in the disputed information were not party to the litigation. Not only does the decision greatly enhance the ability of corporations to censor the public discourse, it distorts the purpose of the personal data protection regimes by wresting some control of personal information away from individuals and putting it back into the hands of corporations. The Court used the vocabulary of privacy throughout the judgment. If the Court had conceptualized the problem in terms of a legislated confidence between an identified individual and the public sector organization holding the data, it is submitted that it is less likely that the majority would have acceded to the request of a third party corporation to represent the interests of the confider individual, without notice to the individual concerned, and step into the shoes of the confider to insist that the confidante government organization not divulge the information to a requestor. sections governing communication to third persons).
73. (3 June 2002), (Ont. S.C.J.).
74. (17 June 2002), (Ont. S.C.J.).
75. (3 October 2003), (Ont. S.C.J.).
76. [1991] F.C.J. No. 634 (F.C.) (QL).
77. It would seem that this might raise concerns in the context of Canada's international obligations under TRIPS and NAFTA because, in addition to the information concerning customers' personal data raising issues in the realm of personal data protection, it could lead to breaches of confidence 'contrary to honest commercial practices'.
78. See Margaret Ann Wilkinson, 'The Copyright Regime and Data Protection Legislation' in Ysolde Gendreau, ed., Copyright Administrative Institutions (Cowansville, Que: Yvon Blais, 2002) 77.
79. Lavigne v. Canada (Office of the Commissioner of Official Languages), [2002] 2 S.C.R. 773 at 790. (It must be noted that the Privacy Act referred to is actually a federal personal data protection statute and not a privacy statute, as discussed above.)
80. Harvard College v. Canada (Commissioner of Patents), [2002] 4 S.C.R. 45, 2002 SCC 76 [Harvard Mouse].
81. This scrutiny would be available for intellectual property devices legislated by Parliament - as is patent, the subject matter at hand in the Harvard Mouse case. This would also apply to copyright, trademark, or industrial design and so on. There would not be the possibility of Charter scrutiny over breach of confidential information at this time because this is a purely common law action and the Charter does not reach private parties.