international publishers v. Indian photocopying

InfoJustice.org posted a brief note about a lawsuit underway in India; one which pits international publishers against a photocopy service at Delhi University. The complaint, filed in 2012 and now being heard in the courts, concerns the compilation and distribution of course packs. “This lawsuit sent shock waves across the academic community, leading more than 300 authors and academics including famed Nobel laureate Professor Amartya Sen to protest this copyright aggression in an open letter to publishers.”

In “Why students need the right to copy,” published by The Hindu, Shamnad Basheer writes: “What makes the lawsuit particularly egregious is the fact that publishers are effectively seeking an outright ban on all course packs, even those that extract and use no more than 10 per cent of the copyrighted book.” Basheer, a prominent intellectual property scholar, is keenly aware that such use would be considered legitimate in the United States and that Indian law offers even wider latitude for unauthorized uses of copyrighted works for educational needs:

… unlike the U.S., [Indian law] embodies a separate exception, under which it is perfectly legal to reproduce any copyrighted work during the course of educational instruction. These exceptions reflect a clear Parliamentary intention to exempt core aspects of education from the private sphere of copyright infringement. Eviscerating these exceptions at the behest of publishers will strike at the very heart of our constitutional guarantee of a fundamental right to education for all.

Noting that the publishers have dangled the offer of collective licensing to Indian educational institutions, Basheer is emphatic that this is a bad idea. He points to Canadian misfortune in this area; he indicates that the costs and administrative burdens inherent to licensing are unnecessary when a suitable educational exemption is available under the law.

Basheer also comments upon the paucity of material available for the Indian market:

That a majority of educational textbooks are priced above the affordability range of an average Indian student is well known. A recent empirical study done by me along with my students reveals that a vast majority of popular legal and social science titles have no corresponding Indian editions and need to be purchased at rates equivalent to or higher than in the West… (emphasis mine)

The Indian court is aware of the public interest implicated by this case and has permitted a students’ association to be party to the suit. The Association of Students for Equitable Access to Knowledge (ASEAK) expressed their concerns to Oxford University Press, Cambridge University Press and Taylor & Francis, and conveyed the open letter. The displeasure of 309 members from the international academic community, including the 33 authors whose works were allegedly infringed, is plain:

As authors and educators, we would like to place on record our distress at this act of the publishers, as we recognise the fact that in a country like India marked by sharp economic inequalities, it is often not possible for every student to obtain a personal copy of a book. …  In that situation the next best thing would have been for multiple copies of the book to be available in the library so that students are able to access these books without any difculty. But given the constraints that libraries in India work with, they may only have a single copy of a book and in many instances, none at all. The reason we make course packs is to ensure that students have access to the most relevant portions of the book without which we would be seriously compromising their education.

The argument made by publishers for strong copyright enforcement is based on presumed losses caused to them. Given the pricing strategy followed by publishers, we do not believe that students are the primary market for these books and hence it would be disingenuous to presume that every photocopied article or book would be a lost sale.

Moreover, the academic members question the claim that academic publishing will cease without publishers’ investments:

This claim hides the fact that most academics are able to write books because they are supported by public infrastructure and money by virtue of being employed by universities or research centers. Academic writers are paid salaries and make their living from the university system, which in India is still largely government subsidized. … [In effect] the profits of academic publishing houses are under-written by tax-payers’ money.

The students also submitted other letters of concern. Amartya Sen appealed to publishers’ consideration of the importance of education and pragmatically suggested this suit is not in their own long-term interests:

…. In fact, the introduction the students get through these course packs must tend to be favorable to the sale of books in the future when the existence and the quality of arguments presented in particular books become more familiar to the next generation of earning adults…

Perhaps the best argument for throwing out the case is from another plaintiff-without-consent, Raju Ramachandran.  He modestly describes himself as a lawyer (he is a senior advocate with the Supreme Court of India):

 I am of the clear view that photocopying of [my] essay for educational use would be ‘fair use’ and would also fall under the educational exception in our copyright law. I would also like to make my position as an author very clear that nothing can be more fulfilling for me than the fact that the student community would be reading and discussing my views. I would be deeply disappointed if students are not able to access and debate my views only because they are unable to buy the book in which my essay is printed.

The case will continue on May 8, 2013.

More input invited for Bill C-32

The Legislative Committee on Bill C-32 is soliciting further input from Canadians. In a news release dated to December 6, 2010, Canadians are invited to submit up to 10 pages of thought (if your thinking runs in the 5-10 page range, please include a one page executive summary.) The committee requested that if change is proposed, draft language would be helpful.

I suspect many will offer up suitable language; instead, I take this opportunity to draw attention to the highly toxic atmosphere that emerged in the wake of Bill C-32. Far beyond the text of copyright law itself, what will cripple Canada’s creative prospects is the enmity that sits between copyright representative associations and educational institutions.

In my brief I emphasize some of the points I’ve raised in this blog: the securing of writers’ income from educational uses by the Federal Court of Appeal in July 2010, the campaign of misinformation concerning the inclusion of “education” to fair dealing, the direction taken by Israel in terms of fair use and best practices, and the wisdom of Northrop Frye.

If you wish to contribute to the proceedings, submissions must be made by January 31, 2011 and sent to: CC32@parl.gc.ca

An ill-fitting solution

The furor over the inclusion of education to permissible categories of fair dealing continues. Several writers’ groups in Canada have issued a call to the Federal Government for legislative guidance in terms of fair dealing and its application in educational settings. Clarity is the desired outcome.

On the surface, clarity seems like a good idea. But this must be placed in terms of the situation at hand – fair dealing. If one considers the role that fair dealing plays in the system of copyright, it should become evident that clarity will only be achieved by reducing the viability of fair dealing.

Fair dealing operates in aid of creative effort and thus fair dealing is necessarily as indeterminate as creativity itself. Guidance is important, which was provided by the Supreme Court in 2004 through CCH Canadian. That guidance indicates that decisions of fair dealing must include consideration of commercial impact. This is not a theoretical exercise – our courts have already engaged in this kind of deliberation.

It may be helpful to remember that the United States grappled with similar concerns – Canada is not trying anything novel. William Patry’s work is invaluable; as I wrote before, the U.S. considered what degree of detail for fair use should be coded into the law. At that time, in response to criticism of fair use’s imprecision, came these remarks:

… the doctrine of fair use is reasonably definite. It is equally as definite as many legal criteria we employ … from day to day. There is no mathematical formula, for example, by which to determine what constitutes negligence, or by which to determine what a reasonably prudent man would do in a given circumstance, but courts and lawyers apply the principle of these legal doctrines all the time. … I think that our difficulties in this area do not stem from the absence of a statutory rule, but from an ignorance of the jurisprudence. A greater knowledge about the doctrine of fair use would allay many misconceptions… (John Schulmann quoted in Patry, p.262).

Unfortunately, greater knowledge is hampered by misinformation. An inaccurate editorial surfaced this week at the Toronto Star. It decries the inclusion of education as a permissible category of fair dealing and offers up the foreboding (and baseless) scenario that a Canadian schoolboard could make use of a single book for all its students. The intentions of the editorial seem noble, i.e. concern over the well-being of Canadian writers. However, that is a greater problem and not one well-served through the blanket regime of copyright.

Whatever proceeds are obtained through copyright licensing, they must be directed to all copyright holders – Canadian or otherwise. This is known as national treatment and is an international requirement. In terms of our current law, Section 5(1) of the Copyright Act describes the conditions for subsistence of copyright:

5(1) Subject to this Act, copyright shall subsist in Canada, for the term hereinafter mentioned, in every original literary, dramatic, musical and artistic work if any one of the following conditions is met:
(a) in the case of any work, whether published or unpublished, including a cinematographic work, the author was, at the date of the making of the work, a citizen or subject of, or a person ordinarily resident in, a treaty country;
…

Treaty countries include those who are party to the Berne Convention, a UCC country, or are a WTO member. While those countries will reciprocate and afford copyright protection to Canadians, it will only be to the level that is provided to their own nationals. And this invites comparison: do other programs offer comparable returns to what is collected in Canada? Which leads to further speculation: what does the trade imbalance look like? How much Canadian material is used outside of Canada, compared to the amount of foreign material used inside Canada?

However, for the sake of argument, let’s assume that all copyright proceeds are dedicated entirely to Canadian copyright holders. This still does not ensure that the funds will end up in the hands of the originating author. The contractual terms between authors and publishers will control the division of royalties. From the anecdotal evidence I have heard, contracts are not uniformly good contracts. (Although, I would appreciate hearing from writers themselves …)

If the objective is to serve Canadian writers, with a policy measure underwritten by Canadians en masse, copyright is not the appropriate instrument to use. Canadian writers would do far better with a program initiative that can be targeted to their needs.

Twice the fun

Two events to report on this week … one domestic and one international (sort of).

The U.S. Librarian of Congress relaxed some of the prohibitions upon circumventing technological protection measures (TPMs) as found in the United States Digital Millennium Copyright Act (DMCA). Included was a measure that directly benefits educational uses of copyrighted materials. When done in good faith, for the purposes of criticism and review, college and university professors are permitted to extract clips from movies encrypted on DVDs. This expands a previous allowance which was offered only to film and media studies’ professors. (I presume this measure can be enjoyed by all teaching professionals at post-secondary institutions, including those of sessional ilk.) Also mentioned by name as eligible for the provision are film and media studies students. And the provision applies to creation of documentary films and noncommercial videos, again when conducted in good faith and for the purposes of criticism and review.

Other measures will assist consumers; you can read about them here. What I find interesting is the timing and the process. The United States continues to move away from the position of absolute deference to TPMs while Canada stands ready to embrace it. Bill C-32 does not permit the circumvention of TPMs for legitimate fair dealing uses. As far as the process goes, it was refreshing to discover that the Librarian is required to periodically review the activities constrained by TPMs with a very specific purpose:

As I have noted at the conclusion of past proceedings, it is important to understand the purposes of this rulemaking, as stated in the law, and the role I have in it. This is not a broad evaluation of the successes or failures of the DMCA. The purpose of the proceeding is to determine whether current technologies that control access to copyrighted works are diminishing the ability of individuals to use works in lawful, noninfringing ways.

The review process is open; all interested parties can submit written comments on the topic. This was the fourth such review.

Now to the home front.
The Federal Court of Appeal (FCA) released its decision concerning the charges on photocopied material used in schools from Kindergarten through to Grade 12. (Cited as 2010 FCA 198, and dated to 23 July 2010, the online text is not yet available.) My thanks to FC for providing me with a copy.

The FCA reminds Canadians that in decisions of fair dealing, the category of applicable use is merely the beginning. To make a complete assessment of fair dealing, the multi-facetted inquiry set by the Supreme Court in CCH Canadian must be followed. The FCA did exactly that, via existing fair dealing categories of private study, research, criticism and review, and ruled that the majority of photocopying taking place in schools will remain as subject to compensation. This decision is significant; it recognizes that educational activity is already represented through fair dealing and simultaneously reinforces the fact that a category by itself is insufficient to claim fair dealing. Hopefully this will quell the misconception that Bill C-32′s inclusion of education within fair dealing is “expropriation”.

Update: Here’s the CanLII link for 2010 FCA 198

Bizarre

Industry Canada indicated some good news in terms of education and Bill C-32:

For educational and training purposes, teachers and students will be allowed to use material that they find on the Internet as long as it is has been legitimately posted there by copyright owners without expectation of compensation.

For years, teachers in Canada have worried as to whether they can use publicly available material from the Internet in the day-to-day operations of educating Canadian students. I truly question why this is an issue at all – publicly available material should be self-evident as to its useability. But, Bill C-32 makes it less transparent. It all comes down to “expectation of compensation.”

In a section identified as “Work Available Through Internet,” we find:

30.04 (1) Subject to subsections (2) to (5), it is not an infringement of copyright for an
educational institution, or a person acting under the authority of one, to do any of the following acts for educational or training purposes in respect of a work or other subject-matter that is available through the Internet:
(a) reproduce it;
(b) communicate it to the public by telecommunication, if that public primarily consists of students of the educational institution or other persons acting under its authority;
(c) perform it in public, if that public primarily consists of students of the educational institution or other persons acting under its authority;

There are, of course, conditions. If one doesn’t give the source, and (if present in the source) omits to name the author, performer, maker or broadcaster, the exception does not apply. And this is good. Citation is a moral right and the backbone of academic practice. Teachers should model that behaviour.

Then comes the obedience to technological protection measures – the exception does not apply if the work, or the site from where it comes, is protected. This is not so good (teachers should still be able to apply fair dealing) but not surprising either.

And then:

(4) Subsection (1) does not permit a person to do any act described in that subsection in
respect of a work or other subject-matter if
… (b) a clearly visible notice — and not merely the copyright symbol — prohibiting that act is posted at the Internet site where the work or other subject-matter is posted or on the work or other subject-matter itself.

This seems to say that those who enjoy the open-ness of the Internet, can still choose to deny Canadian students from benefiting from that same open-ness. All that is needed is a notice indicating expectation of compensation. In which case, either Canadian teachers must leave the material alone or ensure compensation. Said another way, our choice is a hobbled Internet for Canadian students, or, the price of education rises.

A point that could be made is, this is the Internet – it has boundless opportunities. If some people do not wish to share, a multitude of others may fill their place. Those who choose to share should then be congratulated for their ethical stance, while Canadian school boards make payments to lesser individuals.

The more I think about this, the worse it gets. What will happen if the world realizes that there is money to be made from Canadian taxpayers, simply by labeling sites “do not use for educational purposes”? No technological protection measure is even needed. By virtue of national treatment, Canada would be obligated to render fees to foreign copyright holders, if their publicly available, non-locked, work was accessed against their wishes in a Canadian classroom.

As far as I am aware, no other nation has such a program in place, which means Canada will not enjoy any reciprocal fees when Canadian copyright holders’ works are accessed in foreign classrooms. And, even if such programs are in place, given Canada’s comparatively modest presence on the Internet, I foresee yet another deficit in cultural trade.

Was this clause deliberately included so that it could be jettisoned later as a display of compromise?