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.

the $16 textbook

The first textbook I bought for my university studies was Calculus with Analytic Geometry, by Howard Campbell and Paul Dierker, or C&D as students dubbed it. It was an 800+ page tome priced at $48. At the time I thought this was outrageous; an unbelievable demand of cash from first-year mathematics students. Later, as I confronted slimmer, yet more expensive books, I developed an affection for C&D. Serving as it did for three consecutive courses, it became the most economical purchase of my undergraduate studies.

But not everyone bought their books.

There were many for whom it was simply not viable. Years later a friend told me that during her first winter in Canada, a stark choice presented itself: buy boots or buy a textbook. She opted for the boots and managed her coursework by going to the library frequently and reading a copy available from the reserves. She was by no means the only one to do so, but the limiting of borrowing time mandated by the library effectively ensured access for everyone in need.

As Michael Geist reported this week, the University of Calgary, Queen’s University and the University of Waterloo all signaled their intent to move away from collective bundled licensing of copyrighted material. Allied to this movement, post-secondary institutions are becoming more aware of fair dealing. However, as I wrote before, the leading institutional policy on fair dealing, by the Association of Universities and Colleges of Canada (AUCC),  sets a very narrow interpretation of fair dealing. Their apologetic tone could have the undesirable effect of establishing practices that undermine the discriminating power of fair dealing. Only time can tell; much will depend on how faculty members respond.

But an even more deleterious policy is finding voice through these measures — students cannot rely on library reserves for their required course reading. The AUCC fair dealing policy explicitly addresses what material can be borrowed. In Section III University Library Reserves, instructions are given toward the creation of paper or electronic copies of course material. It is AUCC’s directive that only optional reading material should be included in reserves; “no more than 25% of the required reading.” Of any material (required or optional) up to three copies can be deposited in reserves, allocated on the ratio of one copy per 30 students.

However, that instruction is followed by this canonical statement:

(16c) The use of library reserve must not substitute for the purchase of books, coursepacks, or other published materials.

What is the purpose then of library reserves, or indeed libraries in general?

This same language has made its way to Queen’s University; see Schedule B, Fair Dealing Copying Guidelines – Interlibrary Loan, Library Reserve and Document Delivery of Copyright At Queen’s Policy.

In many respects Queen’s copyright policies are laudable,  but that the university supports limiting reserves in this way is disappointing. Moreover, following AUCC in situating the restriction as allied to fair dealing is disturbing. Fair dealing may arise from a use of material, borrowed or otherwise; fair dealing is not the filter by which to limit access to the material.

If post-secondary institutions insist that course materials cannot be borrowed, that is their prerogative. But to represent that policy as related to fair dealing only further undermines fair dealing in the eyes of the very constituent body that can most significantly benefit from it: the post-secondary community.

75 blissful minutes

With the end of the year in sight, various activities were happening all at once in D.’s classroom. For those who were done, the option of reading quietly in the resource room was offered. “75 blissful minutes” as D. pronounced.

Through her intermediate years of elementary school D. was fortunate with teachers who encouraged reading and writing. I am thankful that has continued into high-school. If one does not read, one cannot write. A point reiterated by Heather Mallick, columnist for the The Star, in Why Canadian kids can’t read. Mallick highlights pronounced disinterest in reading by teens and twenty-somethings; a disinterest that fuels, and is fuelled by, the denigration of libraries in Canada. She writes:

How does a smart but untutored child become an autodidact, a self-teacher? You need good teachers who introduced you to books. And you need a book source.

That same theme was picked up by Ian Brown, of The Globe and Mail, in Don’t discard the librarians. He writes:

In the late 1990s, 80 per cent of Ontario’s elementary schools had a teacher-librarian; today, only 56 per cent do, despite the statistical fact that active libraries and librarians improve student performance.

Mallick and Brown set their remarks upon an Ontario schoolboard’s decision to shut down its school libraries. The move is designed to make up for shortages in funding and to abandon the nostalgia associated to libraries in favour of teaching 21st century learning skills.

As to what those learning skills are is unclear. People for Education (an Ontario-based group that advocates restoring funding to libraries) states:

Some suggest adding the 4C’s of communication, collaboration, critical thinking and creativity to the 3Rs; others focus more on technological skills. But the common core element of this new movement is a focus on developing students’ capacity to find, evaluate, organize and transform all the information now available in the staggeringly large, unfiltered and collaborative digital universe.

Students need guidance to navigate through that “staggeringly large universe.” If we believe the rhetoric of the information society and the knowledge economy, libraries are not a retreat of nostalgia but a critical element in preparing students for a future where they will be judged upon the quality of their knowledge and their skill in conveying information.

And what does this have to do with copyright? Nothing for now but everything for later. The knowledge economy is predicated upon a currently insidious realm of intellectual property, with copyright at the forefront of intrusion in daily individual life. People – whether they aspire to business, the fine arts, sciences or the humanities – will not be able to capitalize upon their talents. They will neither be able to legitimately utilize existing resources, nor be able to protect themselves from illegitimate claims. Yet as professional legal assistance is beyond the means of most (nor should it be necessary), individuals who wish to succeed will need education in these matters.

Libraries have traditionally served as sites of knowledge advancement. They are also implicated by copyright and now have to grapple with the subject in order to do what they do best — offer the public a haven for exploration, quiet contemplation and self-improvement. Libraries could play a key role in educating the public in terms of legitimate uses of copyrighted material. But first we must hang on to, and expand, our libraries.

Standing in the shoes of library patrons

Yesterday marked the seventh anniversary of the CCH Canadian decision. In this blog I have tended to focus on the fairness test that took form from the ruling and its implication for the importance of a multi-facetted inquiry into every act of copying. The anniversary date is a good time to remember that the case covered much more.

Tucked into my books is an old newspaper clipping titled “Photocopying not an automatic infringement of copyright laws.” In a space of 12 cm x 15 cm, reporter Janice Tibbetts succinctly captured and conveyed the main issues: (1) that copying in itself can be permissible within the mandate of copyright; (2) a library can provide copying services (subject to careful consideration) for its patrons; (3) the mere provision of equipment that could be used for copyright infringement is not authorization of infringement (emphasis added); and (4) a higher standard on the meaning of “originality” in terms of what qualifies for copyright protection.

The case offered much to Canadians. Fair dealing emerged as a robust principle instead of merely a defense against infringement. Institutions were provided instruction in how to shape their practices to be in accordance with the law. Yet a curious byproduct of the ruling seems to be more confusion over when and how to apply fair dealing. And forgotten is a tangential remark: Canadian libraries already had the right to stand in the shoes of their patrons for acts of fair dealing.

As some readers may recall the principle complaint in the case was the practice of the library of the Law Society of Upper Canada making copies of copyrighted material at the request of patrons. Key to the favourable outcome was the library’s clearly defined policy governing the requests for copies. Writing for the court, Chief Justice Beverly Mclaughlin noted:

Here, the Law Society’s dealings with the publishers’ works through its custom photocopy service were research-based and fair. The access policy places appropriate limits on the type of copying that the Law Society will do. If a request does not appear to be for the purpose of research, criticism, review or private study, the copy will not be made. If a question arises as to whether the stated purpose is legitimate, the reference librarian will review the matter. The access policy limits the amount of work that will be copied, and the reference librarian reviews requests that exceed what might typically be considered reasonable and has the right to refuse to fulfill a request.

(The complete access policy is quoted in the ruling; see paragraph 61.)

The High Court took pains to stipulate that fair dealing embodies not only individual behaviour but a system:

This comports with the purpose of the fair dealing exception, which is to ensure that users are not unduly restricted in their ability to use and disseminate copyrighted works. Persons or institutions relying on the s. 29 fair dealing exception need only prove that their own dealings with copyrighted works were for the purpose of research or private study and were fair. They may do this either by showing that their own practices and policies were research-based and fair, or by showing that all individual dealings with the materials were in fact research-based and fair (emphasis added, para. 63).

Notably, while the library’s clientele included commercial law firms this was not a bar to the finding of fair dealing.

But the hidden gem in the ruling was the reminder that, with regard to fair dealing, libraries could act on behalf of their patrons:

In 1999, amendments to the Copyright Act came into force allowing libraries, archives and museums to qualify for exemptions against copyright infringement: S.C. 1997, c. 24. Under s. 30.2(1), a library or persons acting under its authority may do anything on behalf of any person that the person may do personally under the fair dealing exceptions to copyright infringement (para.83).

Section 30.2.(1) reads as: “It is not an infringement of copyright for a library, archive or museum or a person acting under its authority to do anything on behalf of any person that the person may do personally under section 29 or 29.1.”

Section 29 and 29.1 of the Copyright Act apply to research or private study, and, criticism and review, with the attendant conditions. Libraries et al. should take note of section 30.2(2); it is very specific to the purpose of research and private study; it allows reproduction of complete, single copies of articles taken from scholarly, scientific or technical periodicals. To qualify for Section 30.2 the library must be a nonprofit entity.

This exception was not relied upon in CCH Canadian: “The Law Society’s dealings with the publishers’ works were fair. Thus, the Law Society need not rely on the library exemption. However, were it necessary, it would be entitled to do so (para. 84).” But Section 30.2 should not be forgotten.

Librarians and Mothers

I had the pleasure of chatting with librarians on Friday, yet I always leave such events with the same guilty feeling I have after spending time with my mother. Librarians and mothers look after us, even when we don’t know that they are doing it. And on those days (many in my case) when I explicitly ask for help from either party – I get far more than I had imagined possible.

So this Mother’s Day weekend began with added guilt…

But guilt is a less-than-practical emotion. Theoretically, one should use that same mental energy in a productive fashion. So the solution seems easy enough – give back a little of the wealth of help that keeps coming my way. Well, I tried that with my own mother yesterday. My daughter and I took her out for a shopping session and dinner in an Indian section of town. By the end of it, my groceries had been bought (by Mother), our dinner paid for (by Mother), and I was wearing a pretty new necklace (also courtesy of Mother.) Seriously, I didn’t plan it this way.

Which leaves the library community as my only source of guilt-alleviation. All I can really give are recitations of copyright lore. So here’s one that might be of interest. For fair dealing, librarians can stand in the shoes of their patrons.

Section 30.2 (1) of the Copyright Act / le droit d’auteur states:

30.2 (1) It is not an infringement of copyright for a library, archive or museum or a person acting under its authority to do anything on behalf of any person that the person may do personally under section 29 or 29.1.
30.2 (1) Ne constituent pas des violations du droit d’auteur les actes accomplis par une bibliothèque, un musée ou un service d’archives ou une personne agissant sous l’autorité de ceux-ci pour une personne qui peut elle-même les accomplir dans le cadre des articles 29 et 29.1.

Canadians were reminded of this in 2002 through the Court of Appeals’ iteration of CCH Canadian. In the final round of CCH Canadian, in 2004, the Supreme Court Justices also brought attention to Section 30.2 (1). Paragraph 83 of that decision states:

In 1999, amendments to the Copyright Act came into force allowing libraries, archives and museums to qualify for exemptions against copyright infringement: S.C. 1997, c. 24. Under s. 30.2(1), a library or persons acting under its authority may do anything on behalf of any person that the person may do personally under the fair dealing exceptions to copyright infringement.

Today I don’t have to cook. The leftovers from yesterday’s feast are in my fridge (along with the added treats M. bought us from the sweet shop). Must make a phone call now…