Hell hath no fury

Last Sunday Howard Knopf blogged of the (now passed) deadline to voice objections to Access Copyright’s proposed increase of copyright fees for post-secondary students. I debated sharing my letter of objection and decided against it. But reading through the flurry, and the fury, of comments on the topic, I can’t resist a little commentary.

I’ll take as my starting point a recent remark made by John Degen. Within the issue of music downloading he expressed his concern over the “enmity and anger with which artists are greeted when they speak out about their rights.”

We could easily substitute teacher, librarian, and the ubiquitous “academic” for “artists”. As was documented earlier this summer, those who spoke out in favour of some unauthorized use of copyrighted material earned a stinging rebuke, replete with hyperbole, from a Minister of the Federal Government.

There is a difference between infringing use and unauthorized use. Granted, copyright is a complex area within law, but the principles upon which the law is founded are accessible to everyone. Although Canada has no proclaimed purpose for copyright, it has achieved a working definition through years of practice. Copyright provides some control to authors, artists, musicians etc. over some uses of their work, and simultaneously allows for some unauthorized uses of those same works. Allied to that is the requirement of treating creative works with courtesy. (Moral Rights if you want to be technical about it…)

Acrimony begins in gray areas of “unauthorized uses.” Where it becomes downright ugly is the ease with which advocacy for flexible copyright can be painted as disloyalty to Canadian creators. Access Copyright and the others who protested over the potential inclusion of “education” to fair dealing, have yet to fully explain, from a legal standpoint, why “education” could not be fair dealing? The FCA ruling I described two weeks ago clearly states that through the categories of private study, research, criticism and review, educational activity is potentially fair dealing. Adding “education” would bring clarity and, dare I say this, some confidence to educational practitioners to assert a legitimate right.

But instead of tackling the legal issue, the preferred misdirection was to proclaim loudly the unfairness of it all. A move which serves only to further inflame hostility. An Op/Ed penned by David Lewis Stein in July was disappointing:

A change to the “fair dealing” section of the act could greatly enlarge the amount of written material that can be copied free for education. Some will argue that eliminating these charges will help education. Education is one of those good causes just about everyone supports . . . especially educators. The system provides them with a good living. High-school teachers across Canada can earn more than $60,000 a year. Tenured professors at 14 universities earn more than $130,000 a year. By way of contrast, most writers earn less than $15,000 a year in book royalties and payment for freelance articles.

This is an apples-to-oranges comparison – the elite of Canadian faculty and teachers to the majority of the population of Canadian writers. However, let’s assume that it is a valid comparison. In which case, is the inference then that copyright should be designed to function towards the goal of income-redistribution? If so, then Access Copyright’s proposed rate increase should not be paid for by the students, but drawn from the teaching staff. Degen illustrates this possibility (see his August 9 post). Presumably then, those writers who receive this transfer of wealth will be sure to transfer it on to other deserving segments of society who are even more cash-strapped.

Aside: Degen may be on to something with his July 14 posting “reader and writer go to school” – it’s a really good idea towards crossing the empathy divide. After all, PhD graduates already have a view into the writers’ world; we have to be able to write before the institution will let us out and most of us need a day job to support our writing habit. (Although, I will not claim that we are universally good writers…)

Coming back to the topic at hand, Degen describes the tariff in terms of “fair payment for copyright-protected content.” The fact that the material is copyrighted is not what entitles it to payment. Fair dealing should be given consideration before the cheques are written. Add in the fact that a great deal of free material is available for teachers’ consideration. Michael Geist notes that it’s not uncommon in law to use material that is publicly available (court cases, statutes etc.). I can’t speak for my discipline as a whole, but approximately half the readings I assign are materials that students have already paid for access to (via journals in the library), or are freely available for the purpose at hand (Creative Commons’ works), or are publicly available websites. A flat fee for all students does not reflect what is happening in Canadian universities. If anything, the fee could be reduced to accommodate the different patterns of consumption of copyrighted work.

A blanket allocation of “education = payment” is quite simply a demarcation of a market, or more precisely, a coercive market made in the name of copyright but one that does not actually reflect copyright.