interrupting Kirtsaeng

My planned third and final installment of Kirtsaeng must wait a little longer; Access Copyright is once again trying to roll back the interpretation of fair dealing fostered in Canada by both the Supreme Court of Canada and the Government of Canada. This progressive interpretation took shape slowly, with Court decisions spanning 2002-2012  and Government efforts at amendment benefiting from more than ten years of deliberation. Both bodies took measured steps that recognize the importance of maintaining copyright’s limits. Access Copyright is setting its sights on the educational community that took guidance from the government and the Court. Access Copyright states:

Canada’s writers and publishers take a stand against damaging interpretations of fair dealing by the education sector.  Access Copyright is taking legal action—on three fronts. The actions focus on York University, ministries of education, school boards and post‐secondary institutions that copy—and promote the copying—of copyright‐protected materials without a licence.

In the available statement of claim, Access Copyright identifies five members of York University as having:

…  reproduced, in whole or substantial part, and authorized the reproduction by students and third-party copyright-shops, in whole or substantial part, of more than one copyright-protected work within the Repertoire. … Each separate act of reproduction … has been undertaken without the consent or permission of the plaintiff…

(According to the statement of claim, details are available in Schedule B; this schedule is not posted online.)

Access Copyright places the blame for the individuals’ alleged infringement upon York University’s Fair Dealing Guidelines:

The arbitrary and purely mathematical extent and systematic, recurring nature of the reproduction and dealing with copyright-protected works authorized and encouraged by such guidelines is not encompassed within the fair dealing exemption under the Copyright Act.

The Copyright Act does not stipulate precise conditions of fair dealing for the reason that fair dealing must meet the flexibility inherent to the purposes it serves (research, private study, education, parody, satire, criticism/review, and news reporting). York University, like many educational institutions, has a conservative framework of what is an allowable amount and takes pains to explain the fullness of a decision of fair dealing. Drawing from CCH Canadian, York lays out questions to be asked and emphasizes: “The circumstances that qualify within the Fair Dealing Exception may vary from case to case.”

Michael Geist describes Access Copyright’s behaviour for what it is: a “desperate declaration of war against fair dealing”. He reminds us that Access Copyright’s last effort to challenge fair dealing in educational institutions resulted in failure (decided by the Supreme Court in July 2012, commentary available from here). Recycling failed arguments hardly seems like good strategy. But Access Copyright reveals an added objective, surveillance and control of all copying within post-secondary institutions:

In any event, such guidelines, are incapable of any effective, reliable or consistent enforcement by the defendant. All such purported “fair dealing” limits have been and will be regularly exceeded by the acts of reproduction and authorized reproduction by the Educators and the defendant’s students.

To suggest that students regularly exceed the limits of fair dealing is an odd tactic. The majority of fair dealing’s purposes are tasks implicitly and explicitly carried out every day in the course of educating oneself. And fair dealing is at its strongest in the hands of an individual — far from the modest 10% allowance of a work permitted in the guidelines, entire works are conceivably eligible for reproduction when a student or researcher chooses to delve into a subject. And when operating with supplemental material, the Supreme Court decision of last summer offers teachers strong support for standing in the shoes of their students. Until further details of this case come to light, nothing more can be said about the merits (or lack thereof) of Access Copyright’s claim.

All that is evident now is Access Copyright’s willingness to distort the operation of copyright to give their grievance a greater sense of pathos: “It’s harmful to arbitrarily take materials for free, without permission, without respect or regard for the sustainability of content essential for students and teachers alike.” Fair dealing is precisely the taking of materials for free, without permission. It ensures that copyright does not devolve into an instrument of absolute control, with the concomitant loss of creativity that would follow. And to suggest that fair dealing is responsible for the lack of “sustainability of content essential for students and teachers alike” ignores the behaviour of the publishing sector itself.

Which leads me back to Kirtsaeng. Next time.

Update – April 11: Howard Knopf has all the initial documents, including Schedule B, available at Excess Copyright.  But Schedule B only lists the works copied, no detail is provided as to what role those works played in the learning activity between the teachers and students.  Without more information, it is not possible to judge whether copying the works was infringement or fail dealing.

the elephant in the room

I thought it time to catch up on Canadian copyright events and turned to Michael Geist. It was a pleasure to read that the Association of Canadian Community Colleges (ACCC) has developed and distributed a well-balanced fair dealing policy.

A trip to the ACCC website further illustrates their proactive effort – workshops on copyright and fair dealing are scheduled for this fall:

On August 30, a fair dealing policy and an opinion letter from legal counsel were distributed to members. ACCC will hold copyright workshops this fall covering implementation of the fair dealing policy, the application of the July Supreme Court of Canada ruling on fair dealing, and the Copyright Modernization Act.  Copyright Law for Education in 2012 workshops will be held in Toronto November 12; Halifax November 14; Ottawa November 26; Calgary November 29; and Vancouver December 6.

My only quibble with ACCC is their suggestion that, “The workshops will be of particular interest to directors of library services, copyright specialists and managers responsible for copyright compliance.” The principal audience should be “faculty.” Issues of copyright or fair dealing arise when materials are chosen and those decisions are made by individual teachers.

But before anyone rushes to evaluate fair dealing, Geist reminds us that universities and colleges have already licensed copious amounts of material for use by students. Add in the profusion of publicly available material via the Internet (which carry an implied license of use) and public domain materials (which are more easily accessible thanks again to the Internet) it could well be that decisions of fair dealing will not be as prevalent as we might believe now. That said, one aspect of instructional material needs a nuanced understanding of fair dealing and copyright.

Further reading of the comments to Geist’s post brings the elephant in the room into sharper focus: course packs. By their nature, course packs are an assemblage of individual copyrighted works where each individual work may well be a candidate for fair dealing. But to immediately decide that the pack as whole is fair dealing is too hasty an action. A reasonable point from where to begin discussion lies, as commentators observed, in consideration of the material – what purpose does it serve? Does it provide a core concept, or it is illustrative to that concept?  Illustrative could mean emphasis of the concept, or setting context, or a rebuttal to the concept itself or … Again, the teacher is the one who will best understand why the material was chosen.

If the material is a core contribution to the course then ask, what was the nature of that work? A divisional line is often textbook v. journal. The journal publication may already be licensed by the institution. Or perhaps is an open-access journal? With textbooks, different questions arise. Is the textbook still on the market? If students could not purchase the work itself, an educational use of some of the work has heightened legitimacy – denying students the material serves no benefit to anyone. If it is currently available on the market, depending on the amount taken, perhaps this is where licensing is necessary. In which case, since textbooks have very visible copyright holders – publishers – negotiations are direct. Whatever fees are paid, they are not diluted by middle-men operations.

It will take a little time to gain some ease with newer business models to manage the distribution of copyrighted works. But balancing fairness to students and legitimate compensation to copyright holders has never been, nor will it ever be, easy.

they’re back

Access Copyright (AC)  and the Association of Universities and Colleges of Canada (AUCC) announced today an agreement of a model license that will allow for reproduction of copyrighted materials in print and digital format. Details of the agreement are minimal but the price is explicit: “The model licence will see institutions pay Access Copyright a royalty of $26.00 per full-time equivalent student annually. This royalty includes what used to be a separate 10 cents per page royalty for coursepack copying, so there will no longer be a separate royalty for such copying.”

Left unsaid is that the previous arrangement was set upon a much smaller base rate, $3.38 per full-time equivalent student. Also, the prior arrangement included royalty charges only when actual copying occurred. A reasonable condition — a customer pays only when something is actually bought. Now AC is set to receive a yearly windfall, regardless of whether all students’ education requires use of any kind of coursepack, digital or otherwise. It is conceivable that humanities, social sciences, and arts teachers utilize course packs for some courses, but it is inconceivable to assume that all have shunned textbooks for coursepacks. I remain skeptical that mathematics, physics, biology and chemistry have much use for coursepacks at all, particularly for the early years of undergraduate studies.

My skepticism could be laid to rest if AUCC (or AC) would disclose what the actual use of resource material is at Canadian educational institutions. But neither entity seems to know: “Over the course of the next six months, a survey methodology will be designed jointly to gather reliable bibliographic data and volume of usage trending data to allow Access Copyright to make fair distribution of royalties to its affiliates and to assist in establishing appropriate future licence rates.”

I hope that current and future license rates appropriately exempt open source materials, publicly available websites, journals already licensed for by libraries, and, offer a discount for textbook chapters developed by the professoriate with a healthy contribution of funding courtesy of taxpayers. (And let’s not forget fair dealing.)

While AUCC is to be congratulated for striking a harder bargain than the Universities of Toronto and Western Ontario (their negotiators could only achieve a per full-time equivalent fee of $27.50) it is disappointing that the organization that claims to have “the voice of Canadian universities”  settled on an agreement that is not in the best interests of Canadian university students. AUCC negotiated a fee that does not reflect actual consumption of copyrighted materials for each student, yet the fees will likely be paid for by all students. Paul Davidson, president of AUCC, indicates that the agreement provides “long-term certainty on price.” No doubt AC was happy to accommodate.

Update — April 17, 2012 — Michael Geist’s comments on the agreement.

what happened to January?

January seems all but a blur  – two new courses to teach are keeping me busy. But I had a glimpse of the outside world, long enough to notice the SOPA/ACTA protests, the growing list of digital lock dissenters, and the implications for Bill C-11. (Thank you, Michael Geist.)

Two other interesting developments occurred in the last few days. On 30 January 2012, Access Copyright issued a statement, describing an agreement reached with the Universities of Toronto and Western Ontario in relation to copying of materials in paper or digital form. The statement does not give too much by way of detail, other than to say a fee was agreed upon ($27.50 per full-time student), the agreement is backdated (how far back we do not know) and that an “indemnity provision increases the university’s legal protection against copyright infringement.”

The last clause is a curious one. It is unclear how precarious either university’s position was in terms of a viable charge of copyright infringement. But it invites the question — how stringent are the terms of the agreement as to have each university feel further protected?

Moreover, applying a set fee to all students, regardless of whether they use course packs or not, suggests a marked increase in funds flowing to Access Copyright. According to the statement, neither the universities nor Access Copyright knows how much copying is happening: “Over the course of the next year, a method will be jointly developed to assess the actual volume of copying of copyright protected materials which will assist in determining the appropriateness of the royalty structure in subsequent years.”

Could not the copying have been assessed first, and then the contract drawn up? In the meantime, as other universities have opted to do, permission and payment for copying could be handled directly with the publishers.  A task that is part of a publisher’s duty.

Howard Knopf has a good post about this matter.

A far more agreeable announcement came from the Association of Research Libraries (ARL). The Code of Best Practices in Fair Use for Academic and Research Libraries is now available. Developed in partnership with the Center for Social Media and the Washington College of Law at American University, the code describes reasonable copying that can be taken under fair use, in the pursuit of academic inquiry and higher education:

This code of best practices identifies eight sets of common current practices in the use of copyrighted materials in and around academic and research libraries, to which the doctrine of fair use can be applied. It articulates principles describing generally how and why fair use applies to each such practice or situation.  Each principle is accompanied by a list of considerations that the library community believes should inform or qualify it, limitations that should be observed to assure that the case for fair use is strong, and enhancements that could further strengthen that case.

Of course, fair use is not fair dealing and the American context differs somewhat from Canadian circumstances. But reading this code is instructive towards recognizing how Canadian practices may already support a healthy practice of fair dealing.

This is not the first such effort by the Center for Social Media, similar codes organized by genre or media practice are available here. And, the Center’s founder, Patricia Aufderheide (American University, Professor of Communication) with Peter Jaszi  (American University, Professor of Law) are the co-authors of Reclaiming Fair Use (2011).  Details are available here.

hanging out with librarians

Collective licensing is as deserving of a place in modern markets as any other business model, but our current situation is troubling.

Access Copyright describes its purpose as “to protect the value of intellectual property” owned by authors and publishers, “by ensuring fair compensation when their works are copied.” Value is an interesting concept – value can increase by market-demand. Value can also be artificially elevated by restricting the supply. What concerns me is that Access Copyright is able to control both axes.

And that leads to one plaguing question: How did we get into this mess? The situation now is almost surreal. How did a single organization manage to monopolize both their supply chain (the authors and publishers who produce the works) and an entire market (the educational community of English Canada)?* I decided to look for an answer to this question. Understanding how we arrived at this moment doesn’t make the situation better, but there’s comfort in knowledge.

These were my opening remarks from a panel discussion “Out of the Shadows” hosted by the BC Library Association on November 2, 2011. Fellow panelists were Paul Jones (CAUT) and Dan Burnett (Owen Bird Law Corporation). We addressed a variety of issues affecting the post-secondary community including Access Copyright licenses (or lack thereof), Bill C11 (previously Bill C32) and the political atmosphere.

The answer to my question lies in the pre-history of Access Copyright and the years that followed. Aiding my understanding were the works of Martin Friedland, Howard Knopf and Margaret Ann Wilkinson. Material was also drawn from the current annual reports of the Copyright Board of Canada and Access Copyright. My notes are available here.

It was a very enjoyable evening; my thanks to the BCLA for inviting me to participate.

* The province of Quebec operates with a different collective, Copibec, and relations there seem to be less contentious.

summer’s end

These last few months have been eventful with institutions lining up to drop their Access Copyright licenses. This does not imply that copyright-holders will not be paid for their works. It simply means that blanket-licensing has outlived its usefulness in light of the choices institutions now have regarding paid access to creative materials. Competition in the marketplace is only good for creators and consumers alike. Yet the arena of the non-market – that realm of access offered by fair dealing – may come off poorer for this experience.

As a consequence of the shift in business models, post-secondary institutions are paying more attention to copyright and fair dealing. This ought to be a positive step forward. Yet as events have come about, fair dealing has been compromised before it could root itself firmly in the post-secondary psyche. The dialogue has been predicated upon the very narrow interpretation presented by Access Copyright and supported by the Association of Universities and Colleges of Canada. Best practices are not to be confused with a set of rules – best practices are instruments of thought. They should encourage individuals to first understand the culture of fair dealing and then proceed to a multi-facetted examination of the facts surrounding any instance of copying. Instead of cultivating an atmosphere of best practices with fair dealing, current guidelines represent a ceiling on fair dealing.

Seven years ago, the Supreme Court of Canada offered an engraved invitation to the academic community to have a productive conversation on fair dealing. That was an opportunity to discuss the measure without the tensions provoked by impending copyright amendment or licensing negotiations. Unfortunately, by and large, Canadian academia sent in their regrets. That missed opportunity was costly; now post-secondary institutions are starting their fair dealing dialogue from a defensive posture, speaking more about what fair dealing is not, rather than what it is.

But, the good news is that individual members of the academic community – students, teachers and librarians – continue to educate themselves about the nuances associated to fair dealing. To that end, fair use needs more attention. CCH Canadian brought Canada very close to fair use. While we lack fair use’s flexibility in the type of use protected, we have acquired its form of inquiry.

Fair use entered American jurisprudence in 1841, in Folsom v. Marsh. The case concerned two competing biographies of George Washington. The first work was a twelve-volume compilation spanning nearly seven thousand pages. Volume One was a biography written by the editor, Jared Sparks; Washington’s letters and memoranda (augmented by the occasional editorial remark) made up the remaining eleven volumes. The offending work was written by Reverend Charles Upham. His biography was an autobiography; written in Washington’s voice with selected letters used to illustrate the life-story. Interestingly, the Upham biography is said to be largely taken from Sparks’ work – yet this did not provoke the charge of infringement. The complaint was the inclusion of Washington’s letters. Upham’s work is much smaller, less than nine hundred pages in two volumes. From the closing remarks of the presiding judge, Justice Story, the work appears to have been intended for the market of school libraries.

In his opening paragraph, Justice Story wrote: “Patents and copyrights approach … what may be called the metaphysics of the law, where the distinctions are, or at least may be, very subtle and refined, and, sometimes, almost evanescent. “ As he worked through the details of the dispute, Justice Story opined what would later become the four factors of fair use as codified in American law in 1976:

In short, we must often, in deciding questions of this sort, look to the nature and objects of the selections made, the quantity and value of the materials used, and the degree in which the use may prejudice the sale, or diminish the profits, or supersede the objects, of the original work.

At this time, in the system of copyright as a whole, fair use sits as a vital component. It allows the law to address the unknown. No government can foresee what combination of input materials, what modes of access, and how much sheer determination will be needed to foster the arts and sciences. Copyright law must remain flexible. Fair use carries that flexibility. But fair use is – truth be told – itself an artificial constraint on what previously was a more permissive creative atmosphere.

In 1998 Lyman Ray Patterson, a highly respected scholar, described the outcome of Folsom v. Marsh as “The Worst Intellectual Property Opinion Ever Written.”  He sets the stage in his introduction:

If one of the characteristics of a bad legal decision is that it gives rise to a myth as to what the court in fact ruled, Folsom is at the top of the list. The myth is twofold. The first myth is that Folsom created fair use, when in fact it merely redefined infringement. The second myth is that Folsom diminished, and therefore fair use diminishes, the rights of the copyright owner. In fact, the case enlarged those rights beyond what arguably Congress could do in light of the limitations on its copyright power and, indeed, fair use today continues to be an engine for expanding the copyright monopoly.

[Keep in mind the date of this publication: 1998.]

Professor Patterson gives a detailed explanation for his displeasure; he explains how, by the hands of the U.S. Congress and judiciary, fair use has been accepted as a natural right that protects the monopoly offered through the statutory right of copyright.  Folsom v. Marsh addressed a dispute between competing author, in the arena of professional publication. Yet. by the late twentieth century, personal use had come to be governed by those same factors. He writes:

To use a copyrighted work a person must fulfill certain requirements to avoid infringing the work. Perhaps this makes sense when a competing author is making use of another’s work; but it makes a mockery of the constitutional purpose of copyright – the promotion of learning when an individual is using a copy of the work for study, research, or scholarship.

The timing of this paper was not accidental. Professor Patterson makes reference to some key copyright decisions of that decade, including American Geophysical Union v. Texaco Inc. (1996) and Princeton University Press v. Michigan Document Services Inc. (1994). In the former, a research department had copied articles for reference purposes; in the latter, the issue was coursepacks assembled at the request of professors. In both cases fair use was denied and both analyses rested strongly on the issue of the commercial impact to the copyright holder. The courts decided that the presence of a licensing system precluded fair use. Such reasoning rendered fair use quite useless as one can always argue that a use could have been paid for. The more critical issue is should it be paid for?

Fortunately, American courts have moved beyond such circular reasoning. We are in the happy position of escaping such illogical thought; in CCH Canadian, the Supreme Court took care to ensure that future Canadian courts will not over-emphasize the element of commerciality.

As I was writing this, Jesse Hirsh commented on the issue of copyright in the post-secondary world. (See CBC’s Early Edition, August 23, 2011, at approximately 5:55am). He spoke approvingly of Access Copyright as the means to ensure payment to authors and, in his view, indicated that universities are choosing to disobey copyright in favour of the ease of access provided by technology. Frustrating as it is to hear that, one cannot be surprised. And while Mr. Hirsch may be unaware that Access Copyright has mishandled relationships not just with universities but also with their own clients (authors), and also unaware that universities are still pursuing other payment options to copyright holders, he made a critical point: students take their cues from their teachers. The attitudes to copyright displayed in the classroom will shape behaviour outside of the academy.

AC, AUCC and CAUT – making sense out of acronyms

Two days ago Access Copyright (AC) posted some remarks titled “Fair Dealing in the Post-Secondary Environment.” These were directed at the Fair Dealing Policy of the Association of Universities and Colleges of Canada (AUCC). Which raises a question – what is the AUCC policy on fair dealing?  At this time, there is no specific information at their website. (In the copyright section the last document posted is dated to February 15, 2011 – it contains the remarks of AUCC President Paul Davidson to the legislative committee for Bill C-32.)

Fortunately, Google is there to help and I found the AUCC policy in the University of British Columbia Library Collections. Unfortunately, it reads like an amalgam of rote text from the Copyright Act coupled with previous Access Copyright licenses. This does not facilitate what presumably was the objective of the policy: to help people understand what fair dealing is and when it can be used.

Moreover, I am troubled by some of the AUCC stipulations which are then further stiffened in the hands of AC.  For instance, according to AUCC, fair dealing does not permit “making copies of required readings for library reserve.”  The AC interpretation leads to “required course readings cannot be put on library reserve.”  Neither position reflects the traditional use of reserves – to ensure that all students have a means of accessing and reading required course material. And fair dealing draws legitimacy, in part, from past custom. A point also emphasized by the Canadian Association of University Teachers (CAUT); their fair dealing guidelines are more accurate in terms of the law and more clearly written.

AC does its best to distance the AUCC guidelines from legitimate activity, stating that:

Institutions must also understand that the AUCC Fair Dealing Policy is not sanctioned by rights holders or Access Copyright. The policy will be the subject of heated debate at the Copyright Board. The Board or the courts may determine that some of the copying activity sanctioned by the AUCC policy is not fair dealing.

Given the extremely conservative nature of the AUCC policy it is hard to imagine that an institution following those instructions would incur the wrath of any court. The greater risk of the AUCC policy is that students, staff, teachers and librarians will come to see it as an upper bound on fair dealing. Furthermore, the merit of an unauthorized exception to copyright will be blunted with the excessive administrative processes called for by AUCC.

To understand fair dealing, one ought to review its history.  But in the absence of a comprehensive study, the minimal starting point is CCH Canadian (2004). As the Federal Court of Appeal noted in 2010, no discussion of fair dealing can occur without reference to this case.

To their credit, AC mentions CCH Canadian and gives a pertinent quotation:

The Supreme Court of Canada on Fair Dealing
“To conclude, the purpose of the dealing, the character of the dealing, the amount of the dealing, the nature of the work, available alternatives to the dealing and the effect of the dealing on the work are all factors that could help determine whether or not a dealing is fair. These factors may be more or less relevant to assessing the fairness of a dealing depending on the factual context of the allegedly infringing dealing. In some contexts, there may be factors other than those listed here that may help a court decide whether the dealing was fair.” (para. 60)

The CAUT guidelines give a little more information about these six factors, but readers would do well to also look at an earlier CAUT Intellectual Property Advisory (2008) which describes the fair dealing aspects of CCH Canadian in detail. (Or you can read my account here.) Navigating fair dealing is easier when policy rules are set upon context.

And as far as sorting out the instructions of AUCC and the interpretation of AC, that will take longer than a blog post.

Disgruntled … but with some good news

The start of the new term did not proceed as smoothly as I would have liked; personnel changes, a refurbished classroom that looked nice but did not have internet access, and the mysterious reduction of my courseware order (only 60% of the quantity was filled) made for some tension. Dealing with the first two challenges was manageable (largely because of the wonderful departmental and systems staff – thank you!) However, the courseware problem was not easily resolved.

While many of my course readings are from sources already available to students, I still rely on some material from print publications. Material which is needed at the start of the term. The delay in providing courseware to students compromises their learning experience. It will be no picnic to digest three weeks’ of readings in one week, and, it makes a mockery of my edict: Work consistently through the term.

The irritation provoked this thought – what if I could make the courseware myself? With the appropriate copyright payments. Of course, it is strictly forbidden for individuals to do this, only the sanctioned production units of higher education are permitted to distribute courseware. So (in the words of a former prime minister) let me be absolutely clear; I’m just engaging in a dream world speculation where a free market exists and any individual who will abide by the laws of copyright may participate in the distribution of works.

What does this entail?
1) Collect the content [already done].
2) Create the physical composition of the materials [photocopiers beckon].
3) Make the appropriate payment to the copyright holder contingent upon negotiations that include consideration of fair dealing.

The last part may require some effort, but is possible. I have contact information for each work, namely the author and publisher. But, out of curiosity, I tried Access Copyright’s “Get Permission to Copy” license wizard.

The license wizard asks for work to be identified by “Publication Title, ISBN/ISSN number, or Publisher Name.” (I had expected to see an option for “Author.”) I looked for two suitable works under the titles of “Cultural Industries” and “Moral Rights.” I did not find any works by the authors I currently use, but the material offered by up Access Copyright was interesting. Both lists contained references to works that were published by the Canadian Journal of Communication. CJC committed itself to the use of online publishing and open access in 1994, and the archives are online. As best as I can tell, the AC wizard does not mention that information.

So, the good news is that I found another open journal work that could substitute for one of my print-licensed works. Haven’t quite decided on the second … but there’s time before I need to submit the next courseware order.

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.

the free market…

Last week’s dual topics both deserve closer attention; deciding where to focus this week was a challenge. Then a few lines from one of my daughter’s favourite books came to me:

The free market must always be completely free.
The free market must be controlled in certain cases.
The free market must be free enough to control its freedom in certain cases.
The free market must have enough control to free itself in certain cases.

[p.170 of The Mysterious Benedict Society by Trenton Lee Stewart (New York: Little Brown & Company, 2007).]

Within last week’s decision concerning the K-12 tariff on photocopies of copyrighted material at Canadian schools, the Federal Court of Appeal (FCA) addressed the question: “was the dealing fair?” From paragraph 25:

The Board also examined the effect of the dealing on the work. It cited uncontradicted evidence that textbook sales have shrunk over 30 percent in 20 years. Though it admitted it could not define the exact reason for the decline in sales, it nevertheless concluded that photocopying had had an unfair effect (Decision at paragraph 112).

So, turning now to the earlier Copyright Board decision, paragraphs 110-111 give the fuller story:

The uncontradicted evidence from textbook publishers shows that textbook sales have shrunk by more than 30 per cent in 20 years. Several factors contributed to this decline, including the adoption of semester teaching, decrease in registrations, longer lifespan of textbooks, use of the Internet and other electronic tools, resource based learning and use of class sets. We are not able to determine precisely to what extent each factor contributed to this decline.

Despite being unable to determine precisely how these other factors contributed, the Copyright Board decided that there was sufficient impact to make the dealing unfair. (Keep in mind that this was one factor of analysis of the entire decision.)

While I understand that no precise determination can be made, I would like to know to what extent the factors were investigated at all? At the very least, school boards will track enrollment figures; lower enrollment could go a long way to explaining fewer text book purchases. One can only hope that teachers are using the Internet as they see appropriate to support a lesson. I’m not sure what “resource based learning” is but it still warrants explanation. And, judging by the dog-eared, broken-spined textbooks that D. lugs home periodically, I can attest to the “longer lifespan of textbooks”. Mercifully, good teachers can be effective without the glamour of new textbooks. It will be ironic if school boards choose to operate with thrift, only to be held financially accountable for affecting a market. Whatever happened to the market catering to its customers? (I forgot: the market must be controlled in certain cases…)

It’s probably heretical to say this, but could publishers allow that their books may not be useful? That school boards may no longer choose to waste taxpayer dollars on textbooks that claim to support a year’s worth of learning but don’t deliver? The Copyright Board considered the issue of substitution – and decided that in lieu of photocopying, school boards could have purchased the books instead (para.118). This assumes that the books actually meet schools’ needs. I have enough friends who are teachers that I can comfortably question this assumption

Here’s a counterfactual experiment set on the premise that photocopier technology does not exist. Consider this: the books are no longer useful to their intended market at the prices set by the publishers. School districts realize that their labour force include capable teachers whose time in the classroom makes them the best judge of what is helpful to students. Schools stop buying books and encourage teachers to use their own knowledge. And, handily enough, while the photocopier was never invented, digital technology and world-wide networks arrived on cue.

Okay, this is not entirely speculation. Ashlee Vance, of the New York Times, writes about the rise of open-source textbooks. A slow growing trend, but even “the traditional textbook publishers agree that the days of tweaking a few pages in a book just to sell a new edition are coming to an end.”