Meera Nair

Posts Tagged ‘Access Copyright’

rewriting history

In Posts on March 23, 2014 at 8:22 pm

On 11 March 2014, the Canadian Copyright Institute (CCI) released their policy paper titled A Fair and Better Way Forward, which details the Institute’s interpretation of the last two years’ of fair dealing activity. The Institute calls for dialogue with the educational community, expressly to return to the prior climate of collective licensing in Canada. Obligingly, the Institute has even scripted the dialogue; it begins with the statement “The CMEC/AUCC/ACCC guidelines are unacceptable to Canadian creators and publishers,” and ends with “The final step would be to implement [revised] guidelines through a collective licensing agreement.”

In his blog post of 14 March 2014, Michael Geist expertly discredits CCI’s interpretation of history and points out the emptiness of their not-so-veiled threats against the educational community. Readers who are tired of this subject (as I am) likely hoped that discussion of the paper would end. Regrettably, that did not happen; on 20 March 2014, Quill and Quire gave further support to the paper through an interview with Jaqueline Hushion (chair of CCI). Hushion voiced her disappointment that the paper has not received much attention from educational institutions, that efforts to “make positive, useful contact with any one or more of the three major education [organizations] in order to see if we could open a dialogue” were unsuccessful.

The premise of CCI’s paper, and Hushion’s interview, is that current challenges for the publishing sector of Canada began with the legislative expansion of fair dealing in 2010, and, Education v. Access Copyright (2012) – a Supreme Court decision that confirmed that some copying carried out in schools is fair dealing. (It must be emphasized that this decision was made without reliance upon the expanded ambit of fair dealing). According to CCI, these two factors: “… did not eliminate the need for collective licensing in educational institutions. Nor do they justify copying practices that will have a devastating impact on the market for published materials (p.2).” These two sentences invite exploration.

If I may begin with the second sentence, strictly speaking, it is irrelevant. It is not incumbent upon the education sector to prop up the publishing sector by making unnecessary payment for materials. As I have written before, this does not mean that educational institutions are not paying for copyrighted material, they are only ensuring that payments are not made in duplicate. Such a propping up would be a reprehensible waste of taxpayers’ money and the tuition dollars scraped together by students and their families. However, for a moment, let us assume that such waste is the correct course of action. CCI does not present credible evidence as to the “devastating impact.” Which is not surprising as this is not the first instance where rights holders have painted a picture of devastation without support. In Education v. Access Copyright (2012), the Supreme Court of Canada was unimpressed by this tactic:

Access Copyright pointed out that textbook sales had shrunk over 30 percent in 20 years. However, as noted by the Coalition, there was no evidence that this decline was linked to photocopying done by teachers. Moreover, it noted there were several other factors that were likely to have contributed to the decline in sales, such as the adoption of semester teaching, a decrease in registrations, the longer lifespan of textbooks, increased use of the Internet and other electronic tools, and more resource-based learning (para. 33).

Returning to the first sentence–regarding the cause of the elimination of collective licensing–I agree. Neither the expansion of fair dealing nor the Supreme Court decision is responsible. That claim to fame, goes primarily to Access Copyright.

It was not that long ago when educational institutions were quite complacent about their licensing agreements with Access Copyright. As I described two years ago, the educational market became reserved for Access Copyright, with no real protest from institutions. A relatively inexpensive and easy-to-administer deal, coupled with seeming assurances of safety, made collective licensing an attractive proposition. And Canadian universities were extremely timid in their approach with fair dealing (as I noted a few weeks ago, even the CCH Canadian decision of 2004 did not bring forward pronounced engagement with fair dealing.) The heightened focus upon fair dealing came only after a startling move by Access Copyright.

Readers may remember the summer of 2010, when Access Copyright proposed a 1300% increase in the royalty rate of the university license agreements. Along with expectation of heightened fees came demands for more rights (including for linking to material – a claim not supported by law and later rejected by the Supreme Court of Canada), no exclusion for fair dealing (despite the presence of such an exclusion in earlier licenses), and invasive surveillance of university activity. (Howard Knopf provided detailed coverage, see here.)

Shortly thereafter, Michael Geist wrote:

  … education must self-assess to determine whether it actually needs these licences or whether individual licences with the authors (or copyright holder) where needed makes more sense.  … How many courses rely heavily on recently published research that is available under open access?  How many courses limit materials primarily to textbooks that are purchased by students and not copied?  How many rely on works found in databases that are licenced separately? …

Three and a half years later, many post-secondary institutions have carried out such self-assessment and are using their resources wisely. Students may receive instruction through licensed material (paid directly to the individual provider), open-access content, publicly available materials, and through use of all exceptions available to Canadians under the Copyright Act of Canada.

CCI’s stated disappointment at the lack of engagement from the educational community is not likely to bring about a thaw in relations. The community has simply run out of patience in the wake of threats, tariff applications, one lawsuit, and incessant attempts to rewrite history.

Just some of last year’s activity on this subject:

April 2013: Access Copyright announces legal action. Michael Geist responds with a detailed analysis of how ill-conceived the action is.

September 2013: Howard Knopf covers Access Copyright’s statement of claim to the Copyright Board for a post-secondary tariff. Through the work of Graham Reynolds, I indicate that the Copyright Board was no longer something Access Copyright should take for granted. (I also took the opportunity to remind the collective’s membership that their administration was gambling with the members’ money.)

Also in September 2013, my take on the object of tension; namely the AUCC guidelines. It spanned two entries; see here and here.

December 2013: Access Copyright announces its disappointment concerning the continued trend to abstain from collective licensing. Michael Geist reminds us that collective licensing is no longer good value. My reminder was that Canadian universities were long overdue in recognizing that copyright is a set of limited rights. (I also took umbrage at the campaign of fear conducted by Access Copyright.)

December 2013: The Association of Canadian Publishers releases a Statement of Principles on Fair Dealing in Education.

February 2014: Howard Knopf provides clarification regarding ACP’s [Mis]Statement of Principles.

February 2014: Michael Geist reports that the Copyright Board has posed challenging questions to Access Copyright with respect to the proposed tariff.  The Board also offered a much-needed reminder; as copyright does not apply to insubstantial amounts of copying, fair dealing addresses substantial copying.

about time

In Posts on December 12, 2013 at 3:12 pm

Yesterday, the universities of Toronto and Western Ontario formally announced their ending of relations with Access Copyright; Michael Geist cannily summed up the proceedings as “confirming the obvious.” Access Copyright’s licensing model is unsuited to the evolving needs of academic institutions. But it would be wrong to conclude that academic institutions want to evade payment for copyrighted works; quite the contrary. It only means institutions are unwilling to pay twice over for works licensed through other means, and are less than willing to pay for reproductions that are available without cost for a variety of reasons including: open access, public availability, and fair dealing. Across Canada, academic institutions are making the best use of resources to the betterment of students, teachers, researchers etc. We should expect nothing less given the predominance of taxpayer funds that support institutions, not to mention the over and above costs passed on to students and their families.

Reviewing the press releases of the three parties involved, while the institutions (Toronto and Western) each courteously state that negotiations were conducted in “good faith by both parties”, Access Copyright is unwilling to be so gracious. Instead, it continues to argue the seeming newness of fair dealing as interpreted by the universities; that it is “untested by law and closely replicates the scope of coverage in the Access Copyright license.”

I beg forgiveness for repeating, yet again, that current practices of fair dealing were shaped expressly by the edicts of the highest court of the land, over a period of ten years. The landmark decisions that speak directly to reproduction of works in educational institutions (CCH Canadian v. Law Society (2004), Access v. Education (2012), SOCAN v. Bell (2012), ESA v. SOCAN (2012)) predate the inclusion of “education” to fair dealing as amended through the Copyright Modernization Act (2012). See Notable Supreme Court Decisions for a summary of the decade.

The flexibility we enjoy today is not the result of an act of benevolence on the part of governments or courts—it is an acknowledgement that copyright holders were previously allowed to deny Canadians the full benefit of copyright’s system of limited rights and is a corrective to that unfortunate history. Access Copyright, perhaps unwittingly, confirms this with their view that fair dealing today replicates coverage within their previous licenses.

The blanket model licenses used in the past insinuated that fair dealing only existed in the presence of a general license. Educational institutions agreed to Access Copyright’s general prescription of fair dealing as a series of quantified measures, thereby removing any hint that fair dealing is a matter of individual context. Our educational institutions are now reclaiming the individuality of fair dealing on behalf of their communities. To which I must say: it is about time.

Almost two years ago to the day, Ariel Katz posted a compelling essay titled Fair Dealing’s 100 Years of Solitude. He chronicled in detail the treatment of the exception after its 1911 codification into statutory law in the United Kingdom. “Tragically, what was supposed to be an exercise in the codification of a dynamic and evolving common-law principle ended up—with a few notable exceptions—in a hundred years of solitude and stagnation.”

Posted shortly after the Supreme Court of Canada heard the “pentalogy” cases, Katz wrote: “The cases that the Court heard last week will determine whether CCH will be seen as an outlier in copyright jurisprudence or whether it created a necessary correction that brings fair dealing back to play the role it was always supposed to play.” As 2012 would bear out, the Court rose to the occasion and continued the task of bringing fair dealing back to its time-honoured role as a flexible limit upon the rights conferred through copyright.

Returning to the current news, to better understand the 20th century Access Copyright model of blanket licensing of educational materials, it is important to understand the history of Access Copyright itself. Two years ago I gave a brief talk on this matter for the British Columbia Library Association; my notes and references can be found through this post.

Access Copyright will not go quietly into the night. They continue a campaign of fear, targeting the teachers who are learning to navigate the terrain of copyright and fair dealing: “For faculty who are accustomed to operating under Access Copyright licenses, the termination will be accompanied by disruption and uncertainty.  Faculty may be asked to change the way they share materials or assume greater personal responsibility for copyright … .”

While institutions have become much better at providing copyright information, all too often the rationale for a “10%” rule is missing or limited to a citation of CCH Canadian. In yesterday’s announcements, both institutions spoke of educating their communities about copyright; the stories that make up fair dealing’s history, past and present, ought to be the starting point. Regulations and best practices take root more quickly if they are placed in context.

heads I win …

In Posts on September 22, 2013 at 4:14 pm

Last week Howard Knopf alerted us to the latest movement by Access Copyright to impose blanket copyright fees across universities and colleges in Canada, regardless of ongoing work by educational institutions to ensure that legitimate copyright fees are paid and that legitimate fair dealing is not denied. In his post of 17 September 2012 Knopf provides Access Copyright’s statement of case to the Copyright Board of Canada, and draws attention to a number of details including the collective’s position that:

…  the fair dealing policy…  promoted by the Association of Universities and Colleges of Canada and the Association of Canadian Community Colleges and adopted by many Educational Institutions, which purports to characterize as fair dealing amounts of copying essentially identical to that licensed by Access Copyright, is unfair and results in copying that is not fair

The statement of case explains in detail what Access Copyright will do (arguments to be presented, witnesses to be called, evidence to be produced, etc.) when the Copyright Board hears this case on 11 February 2014. The Board will then either signal a shift in thinking on their part, or offer Canadian education yet another opportunity for further strengthening of fair dealing by the Supreme Court of Canada. Unpacking that sentence will take several paragraphs; I ask for patience from readers.

The starting point is the work of law professor Graham Reynolds (previously at Dalhousie University, now at the University of British Columbia). In his chapter “Of Reasonableness, Fairness, and the Public Interest, Judicial Review of the Copyright Board’s Decisions in Canada’s Copyright Pentalogy,” Reynolds illustrates that, when certifying the Access Copyright tariff for educational institutions with respect to photocopies of excerpts in K-12 schools spanning 2005-2009, the Copyright Board applied a very narrow interpretation of the principles enunciated by the Supreme Court of Canada in CCH Canadian v. Law Society of Upper Canada. The Copyright Board’s decision was appealed and finally settled by the Supreme Court (favorable towards fair dealing) in one of the famed pentalogy decisions, Alberta (Education) v. Canadian Copyright Licensing Agency (Access Copyright). The difference of opinion between the Board and the Court leads, as Reynolds suggests, to the conclusion:

[T]hat fairness (in the context of fair dealing) is not as discretionary a concept as it appears to be. [Alberta(Education) … clarifies] that the purpose of the Copyright Act requires a broad, liberal approach to fairness. By implication then, fairness is not broad and open-ended; rather it is infused with certain expectations with respect to the way in which it is to be applied (namely, in a large and liberal manner).

Reynolds makes plain that the purpose of the Copyright Act is evolving, moving away from an author-centric approach to an instrumental-public interest approach. Reynolds is equally specific that such a move is not an abandonment of owners’ rights; instead, the shift only ensures that limitations upon those rights are upheld as necessary to invigorate and maintain the public domain. In their examination of the K-12 situation of excerpts, the Copyright Board aspired to the earlier approach, even though the Supreme Court had consigned that approach to history.

The evolution of purpose of copyright in Canada illustrates a well-functioning system of laws and courts. Those authorities have made it abundantly clear that legal precepts are not immutable; they evolve in concert with developments in society. Evolution may take time, but is infinitely preferable to revolution.

The delay on the part of the Copyright Board can be explained with recourse to its very function; the Board’s mandate begins with:

The Board is an economic regulatory body empowered to establish, either mandatorily or at the request of an interested party, the royalties to be paid for the use of copyrighted works …”

This is not to imply that the Board is solely concerned with setting market prices. Yet it is hardly an accessible venue for discussion of exceptions; the lengthy and expensive process tends to discourage representations of public interest. As Knopf pointed out, even the Association of Universities and Colleges of Canada, in their wisdom, “abruptly withdrew its objections and withdrew from the Copyright Board hearing of April 2012, leaving its member universities unrepresented after having spent about $1.7 million.”

The Board’s past discomfort with endorsing a large and liberal interpretation of fair dealing (in both purpose and fairness) was quite evident; when reviewing the K-12 situation of excerpts, the Board wrote: “CCH now is the unavoidable starting point (para 75).” The connotation of “unavoidable” does not suggest the Board relished the task at hand. However, as Reynolds writes:

The end result is that post-Alberta (Education), the Copyright Board is significantly constrained in its ability to shape Canadian copyright law. Abella J’s reasons for judgment clarify that the Copyright Board does not have unlimited discretion under fairness (and fair dealing more broadly) to implement policy goals or promote values that are inconsistent with the purpose of the Copyright Act, as interpreted by the Supreme Court of Canada.

The difficulty for Canadian educational institutions, and Canadians in general, is that Access Copyright seems happy to play the game of “heads-I-win, tails-we-play-again”. In repeated and continued efforts to roll back the decade-plus evolution of copyright’s purpose — through lobbying, litigation and tariff applications — they display a lack of logic, as well as a questionable use of their members’ resources.

According to Access Copyright’s website, the following portions of the funds collected are withheld before distribution:

An administrative holdback of 20% to cover Access Copyright’s administrative and operational costs.

An allocation of 5% of copyright licensing royalties has been made toward costs for current and future tariff proceedings before the Copyright Board of Canada. These tariff proceedings help us ensure fair compensation for creators and publishers when their works are copied.

An allocation of 1.5% of copyright licensing royalties collected has been made for a cultural fund approved by Access Copyright’s board of directors.

The administrative holdback (20%) is high enough, leading to the question of why a further 5% must be withheld for future days in court. But that is not all; the information for title specific distribution  indicates that an additional 25% of royalties collected through the fee increase covering 2005-2009 has been reserved to “support current and future tariff proceedings held before the Copyright Board of Canada.”

Access Copyright is gambling (with its members’ money) that the Board’s decision will be favourable to copyright holders. But, if the Supreme Court of Canada should be called upon to revisit the issue, Access Copyright would do well to remember that each adjudication of fair dealing at the Court within the last ten years has only raised the profile of fair dealing and strengthened its application.

interrupting Kirtsaeng

In Posts on April 10, 2013 at 4:32 pm

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 fair dealing.

the elephant in the room

In Posts on October 8, 2012 at 3:56 pm

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

In Posts on April 16, 2012 at 7:56 pm

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?

In Posts on January 31, 2012 at 9:20 pm

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

In Posts on November 4, 2011 at 1:44 pm

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

In Posts on August 23, 2011 at 9:01 am

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 authors, 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

In Posts on June 18, 2011 at 10:13 pm

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.

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